Cellular Antennas on Special District Property: The Opportunity and the Risk

Cellular Antennas on
Special District Property:
The Opportunity and the Risk
Gail A. Karish
Matthew K. Schettenhelm
Best Best & Krieger LLP
September 17, 2013

Telecommunications Law

Do you have any obligation to license
your property to cell-phone companies?


(Or, you shouldn’t.*)
*FCC rulemaking?


Do you “regulate” cell tower
placements?


You are a property owner.


It is the company’s obligation to ensure
that it has all regulatory approvals.


This talk will have two parts.


(1) regulatory framework


(2) how you protect yourself as a
property owner


What regulations apply here?


Typically, local zoning approval


(May be easier to get zoning approval
on special-district property than
elsewhere)


47 U.S.C. § 332(c)(7)


Generally preserves local zoning
authority, subject to five limitations


1. A State or local government may not
“prohibit” the provision of service.


2. It may not unreasonably discriminate
among providers.


3. Any decision to deny must be in
writing and supported by “substantial
evidence.”


4. A local government must act within a
“reasonable period of time” in light of
the nature of the application.


The FCC reasonably imposed
90 and 150-day “shot-clocks”


The Supreme Court upheld the FCC


City of Arlington v. FCC,
No. 11-1545


5. The local government must not
regulate based on the effects of
radiofrequency emissions


47 U.S.C. § 1455


A State or local government “may not
deny, and shall approve, any eligible
facilities request” for a modification of
an existing wireless tower or base
station that does not substantially
change the physically dimensions of
such tower or base station.


“Eligible facilities request” is any
request to modify an existing tower or
base station that involves:
“(A) collocation of new transmission
equipment; (B) removal of transmission
equipment; or (C) replacement of
transmission equipment.”


Congress left all the other key terms
undefined


Didn’t clarify if it intended to reach
proprietary, or only regulatory, action


In January, FCC issued non-binding
“guidance”


• Defines “substantially change” through
criteria developed in a different context
(historic preservation).
• no “substantial change” if an addition
extends a facility less than 20 feet in any
direction.


 Defines “substantially change” through criteria
developed in a different context (historic
preservation).
• For example, no “substantial change” if an addition
extends a facility less than 20 feet in any direction.

 Offers broad definition of “base station” that
could make statute apply to many facilities.


Historic Site – Post Guidance?
Illustration showing potential impact of co-location of an additional approximately 20’-high pole mounted antenna array.


Stealth Site –
Now
100’ monopole disguised as a flagpole constructed to
conceal six panel antennas within its exterior. Located
on Brightseat Road alongside I-95 in Prince George’s
County, Maryland.


Stealth
Site – Post
Guidance?
Illustration shows the potential impact of an
approximately 20’- high extension to support a colocation of antennas in a typical triangular platform
array (partially shown at top of frame) and smaller colocation in a flush-mount attachment
configuration atop the existing monopole.


Rooftop Stealth Site – Now
Two-story office building located on Layhill Road at Bonifant Road in Montgomery County with antennas from
three carriers permitted by Special Exception and either concealed within the faux screening atop the penthouse
on the roof, or painted to match the exterior of the screening or brick walls.


Rooftop Stealth Site – Post Guidance?
Illustration of a tower-like structure constructed to support co-location antennas approximately 20’ above existing
antennas.


We expect the FCC to launch a
rulemaking, perhaps within the month


Educating the FCC could be important


Part II:
How should you structure the deal?


10 points
1. Control the drafting process
2. Establish the structure (lease/license)
3. Define what you are granting
4. Establish the term
5. Set the rent
6. Address subletting and assignment
7. Forbid interference
8. Clarify removal responsibilities
9. Address termination
10.Include standard terms

(1) Control the drafting process


Company’s form agreements likely will
be highly slanted in their favor


Consider developing your own


(2) What are you granting the company?


Usually ok to structure
as a license or a lease


(3) What access are you granting?


Define specifically what facilities may
be placed, and where


Do not freely allow “improvements”:
require specific plans, subject to your
approval.


Avoid: “approval will not be
unreasonably withheld, delayed, or
conditioned”


If you allow replacement of existing
facilities, clarify that new equipment
cannot differ in size, impact, aesthetics,
etc.


Address how the company may access
its facilities – and when it will do so . . .


May the provider use common areas?
Must it obtain supervised access?
Must it provide advanced notice?
May it use your access roads or obtain
its own?
Are there other security risks that need
to be addressed?

Address how the provider will obtain
and use electricity at the site


If you have aesthetic concerns,
address them directly


(4) What is the term?


Typically structured as consecutive
series of 5-year terms,
spanning 20 or 30 years total


Avoid “options to lease” particular sites,
which may prevent you from recovering
full fees for a particular location


Avoid long delivery or construction
periods pre-payment; begin payments
immediately


If provider requests a “due diligence”
period, don’t give this time away for
free – and ensure that provider
indemnifies you.


(5) What should you charge in rent?


Two elements:


(1) Base rent


(2) Collocation fees


Base rent for tower typically between
$2,000 - $5,000/month


Companies often offer low annual
escalators


Can collect collocation fees from initial
licensee or directly from later
subtenants


Address late fees (interest)
and hold-over fees
(100%-200% of then-current rent)


(6) Subletting and Assignment


Do not permit subletting/collocation
without your permission


• Have licensee waive rights under Civil
Code §§ 1995.260, 1995.270
• 47 U.S.C. § 1455 should not affect
contractual restrictions*


(7) Interference


Ensure that tenant cannot interfere with
your operations – or those of any
existing tenants.


Burden should be on newcomers


Be sure that it is not on you


(8) Removal


May depend on type of facility


In some cases, you might assume
ownership.


In others, licensee should
bear the duty to remove, at its cost.


(9) Termination


Establish events of default justifying
termination:


Non-payment


Habitual late payment


Violation of any term, if not cured


Bankruptcy


Carefully define when the provider can
terminate


Either prohibit volitional terminations or
requirement payment
(e.g. rent for remainder of term or 1224 months of rent)


(10) Standard terms


Insurance: check with risk-assessment
Typical: general liability, auto liability,
employer’s liability, all-risk property,
and workers’ compensation


Hazardous substances:
strictly prohibit


Require indemnification


No relocation assistance


What to do after you contract?


Monitor compliance, and . . .


. . . after you have a great deal . . .


don’t change it.


Be wary of offers:
• To purchase lease/license rights
• To extend agreements
• To alter terms


Thank you
Gail A. Karish
gail.karish@bbklaw.com
Ontario, CA
Phone: (202) 785-0600


Matthew K. Schettenhelm
matthew.schettenhelm@bbklaw.com
Washington, DC
Phone: (202) 785-0600

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