cell phone tower issues: placement, leases, and municipal...

Cell Phone Tower Issues:

Placement, Leases, and Municipal Regulation Navigating HR 3630 and Other Siting Challenges, and Evaluating Revenue-Sharing Opportunities

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THURSDAY, NOVEMBER 8, 2012

Presenting a live 90-minute webinar with interactive Q&A

Joseph Van Eaton, Partner, Best Best & Krieger, Washington, D.C.

Gerard Lederer, Of Counsel, Best Best & Krieger, Washington, D.C.

Lee Afflerbach, Director of Engineering, Columbia Telecommunications Corp, Kensington, MD

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CELL PHONE TOWER

ISSUES Webinar – November 8, 2012

Lee Afflerbach

www.ctcnet.us

Engineering Issues

• Coverage

• Backhaul interconnection

• Facility issues

• Access

• Power

• Security

• RF emission

6

Typical New Structures

• Typically 70 to 150 ft.

• Support multiple service providers

• Room for expansion

• Shared equipment areas

• Location issues

• Height above terrain

• Vehicle traffic

• Cost

7

Types of Structures

• Dedicated towers

• New monopoles

• Shared towers

• Utility, broadcast, local government

• Stealth installations

• Disguised as flagpole, tree, chimney

• Distributed antenna systems (DAS)

• Low-profile

• Targeted service area

• Handle high-traffic corridors

8

Towers and Monopoles Self-Supporting Lattice Tower Monopole with Equipment

9

Stealth Installations/Disguised Monopoles

Tree Flagpole

10

Stealth Installations/Disguised Monopoles

“Unipole” or “Slick Stick” Light Pole Religious Structures

11

Shared Towers

Active AM radio tower with 800 MHz public safety, cellular, and FM antennas

Former AM radio tower with cellular and commercial radio antennas

12

Existing Structures Antennas Mounted on Silos Church Bell Tower

13

Stealth Installations Church Steeple Faux Chimneys

14

Distributed Antenna Systems (DAS)

REPLACES

Building Mount Monopole Lattice Tower

Carrier #1

Private ( 800 MHz , etc .)

DAS

Antennas Atop Existing Utility Poles

FIBER OPTIC CABLE BASE STATIONS

COMMUNICATIONS SHELTER

Carrier #2

Carrier #3

Base Station

Interface Rack

Fiber Interface

Rack

Carriers: Up to 8 Range: Up to 12 miles

15

Distributed Antenna Systems (DAS) More Obtrusive Design Less Obtrusive Design

16

Coverage Issues

• Antenna height above terrain

• RF Frequency band (700 to 2,500 MHz)

• Type of service (voice, text, video)

• Technology (3G/4G)

• User location (open coverage, in vehicle, in building)

• Providers use their own in-house RF propagation

software modeling and standards. They often validate

coverage with in-field testing.

17

RF Guideline Standards

• National Environmental Policy Act of 1969 (NEPA)

requires the Federal Government to evaluate and set

standards

• FCC has been assigned the responsibility to set

standards for human exposure to RF energy emitted by

FCC-regulated equipment

• FCC adopted first set of guidelines in 1985

• Current FCC guidelines: OET Bulletin 65 Edition 97-01

• GAO requested in July 2012 (GAO-12-771) that FCC re-

examine radiation impact of closely held cell phones

18

How Were the Standards Derived?

• Expert Professional:

• National Council on Radiation Protection and Measurement

• Institute of Electrical and Electronic Engineers (IEEE)

• American National Standards Institute (ANSI)

• Comments to the FCC public rule-making proceeding

• Environmental Protection Agency (EPA)

• Food ands Drug Administration (FDA)

• Federal Safety and Heath Agencies

• Others

19

Typical RF Power Levels

20

Getting Ahead of the Issue

• Develop a database of existing wireless facilities

• Inventory municipal assets

• Communications towers

• Buildings

• Water towers

• Land

• Proactive planning

• Baseline existing coverage

• Define potential fill-in area

21

Wireless Allocation Planning

22

Lee Afflerbach

Columbia Telecommunications Corp

10613 Concord St

Kensington, MD 20895

410-745-5958

[email protected]

www.ctcnet.us

23

MAXIMIZING THE RETURN ON YOUR CELL LEASES/LICENSES

24

Telecommunications Law 25

Wireless Siting: Understanding How To Protect Local Rights While Advancing

Broadband Deployment

Joseph Van Eaton, Partner Best Best & Krieger

Washington, DC


•This presentation will track:

Significant federal statutes impacting local zoning authority

Major FCC rules and initiatives affecting local authority

Distributed antenna systems


Wireless Siting: What is Scope of FCC Authority?

• The FCC rules discussed in presentation challenged by localities, claiming FCC lacked jurisdiction to set nat’l zoning standards

• Rules upheld by 5th Circuit, which decided it had to defer to the FCC’s view of its jurisdiction to adopt zoning rules.

• U.S. Supreme Court granted cert to decide whether courts should defer to an agencies on jurisdiction, Arlington v. FCC, No. 10-1545.

• Case will be heard January 18, 2013, and could significantly affect FCC zoning rules

Telecommunications Law 28 28

Federal Statutes

• 47 U.S.C. § 332(c)(7)– Preservation of Local Zoning Authority

• 47 U.S.C. § 253 – Removal of Barriers to Entry (not clear provision applies to wireless, Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571 (9th Cir. 2008)

• Middle Class Tax Relief and Job Creation Act of 2012, Sec. 6409 (HR 3630) – Collocation by Right


The Statute: 47 U.S.C. § 332(c)(7) • Generally preserves local zoning authority

• 47 U.S.C. § 332(c)(7)(B)(i) imposes 5 limits – localities, states

May not “unreasonably discriminate” among providers of functionally equivalent services

May not prohibit/effectively prohibit provision of service

Must act on request within “reasonable period of time”

Must deny “in writing,” supported by “substantial evidence”

May not regulate RF – may compliance w/FCC rules

• Applies to “personal wireless service facilities”


Effect of Prohibiting

Burden of showing prohibition on provider

Most courts require a provider to show “significant gap” in coverage. Second Generation Properties, L.P. v. Town of Pelham, 313 F.3d 620, 631–33 (1st Cir. 2002); Sprint Spectrum L.P. v. Willoth, 176 F.3d 630, 642–643 (2d Cir. 1999); Omnipoint Communications Enterprises, L.P. v. Zoning Hearing Bd. of Easttown Tp., 331 F.3d 386, 398 (3d Cir. 2003); MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715, 732 (9th Cir. 2005).

4th Circuit may require more. 360 Degrees Communs. v. Bd. of Supervisors of Albermarle Cnty., 211 F.3d 79, 86-87 (4th Cir. 2000)


Effect of Prohibiting (cont’d)

Provider must demonstrate at least that a “good faith effort has been made to identify and evaluate less intrusive alternatives Omnipoint Communications Enterprises, L.P. v. Zoning Hearing Bd. Of Easttown Tp., 331 F.3d 386, 398 (3d Cir. 2003); MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715, 735 (9th Cir. 2005); T-Mobile Central v. Charter Twp. of West Bloomfield, slip op., No. 11-1568 (6th Cir. 2012)


Effect of Prohibiting (cont’d) • 1st, 7th Cir. require provider to show “no alternative

sites which would solve the problem.” Second Generation Properties, L.P. v. Town of Pelham, 313 F.3d 620, 635 (1st Cir. 2002); VoiceStream Minneapolis, Inc. v. St. Croix County, 342 F.3d 818, 834–835 (7th Cir. 2003).

• A provider cannot reject sites without giving them serious consideration. USCOC of Greater Iowa, Inc. v. Zoning Board of Adjustment of the City of Des Moines, 465 F.3d 817, 825 (8th Cir. 2006).


Unreasonable Discrimination

Courts have found unreasonable discrimination where local governments:

• Previously allowed identical (or larger) facilities in similar locations. See, e.g., Ogden Fire Co. No. 1. v. Upper Chichester Twp., 504 F.3d 370, 394 (7th Cir. 2007).

• Refused to co-locate similar equipment on already-existing poles. Nextel West v. Town of Edgewood, 479 F. Supp. 2d 1219, 1232 (D.N.M. 2006).


Substantial Evidence

• Highly deferential test; same as applies to review of admin. agency decisions, VoiceStream Minneapolis, Inc. v. St. Croix County, 342 F.3d 818, 830 (7th Cir. 2003); PrimeCo Personal Commc'ns, L.P. v. City of Mequon, 352 F.3d 1147, 1148 (7th Cir. 2003)

• Denial must be based on standards embodied in local requirements

• Denial for aesthetic reasons permitted if rooted in specific facts, not generalized objections. Helcher v. Dearborn County, 595 F.3d 710, 724-725 (7th Cir. 2010)


The FCC’s Additional Standards

• The FCC asserted it could “implement” Section 332(c)(7).

• Adopted a nationwide standard for a “reasonable period of time” to act on wireless applications.

90 days for collocation request

150 days for new siting applications


FCC’s Shot Clock Order (cont’d)

• Time runs from a “complete application” (30 days to notify applicant that application is incomplete).

• Application cannot be denied solely because “one or more carriers [already] serve a given geographic market.”

• Rules upheld by 5th Circuit, 668 F.3d 229 (2012)(see slide on Sup. Ct review)


The FCC May Not Stop With Existing Shot Clock Rules

• Notice of Inquiry, Acceleration of Broadband Deployment, WC Docket No. 11-59 (Apr. 7, 2011).

• FCC asked to Set new shot clocks Limit review of collocation applications Limit rights to restrict DAS Require same access to RoW for DAS and wireline Read Section 332 and 253 to limit local zoning authority Limit fees that can be charged for use of government

property (light poles, water towers, etc.)

• Localities can and should continue to protect interests in this proceeding


Recent Comments: FCC Commissioner Ajit Pai

•Remarks to CTIA, October 10, 2012

http://www.fcc.gov/document/commissioner-pai-remarks-ctias-mobilecon-and-summary

•Criticizes local governments

•Calls for more extensive FCC rules, including a “deemed granted” approach if locality fails to act

http://www.fcc.gov/document/commissioner-pai-remarks-ctias-mobilecon-and-summaryhttp://www.fcc.gov/document/commissioner-pai-remarks-ctias-mobilecon-and-summaryhttp://www.fcc.gov/document/commissioner-pai-remarks-ctias-mobilecon-and-summaryhttp://www.fcc.gov/document/commissioner-pai-remarks-ctias-mobilecon-and-summaryhttp://www.fcc.gov/document/commissioner-pai-remarks-ctias-mobilecon-and-summaryhttp://www.fcc.gov/document/commissioner-pai-remarks-ctias-mobilecon-and-summaryhttp://www.fcc.gov/document/commissioner-pai-remarks-ctias-mobilecon-and-summaryhttp://www.fcc.gov/document/commissioner-pai-remarks-ctias-mobilecon-and-summaryhttp://www.fcc.gov/document/commissioner-pai-remarks-ctias-mobilecon-and-summaryhttp://www.fcc.gov/document/commissioner-pai-remarks-ctias-mobilecon-and-summaryhttp://www.fcc.gov/document/commissioner-pai-remarks-ctias-mobilecon-and-summaryhttp://www.fcc.gov/document/commissioner-pai-remarks-ctias-mobilecon-and-summaryhttp://www.fcc.gov/document/commissioner-pai-remarks-ctias-mobilecon-and-summary

Telecommunications Law 39 39 39

• Key Provisions “(1) IN GENERAL ….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 physical dimensions of such tower or base station.

(2) ELIGIBLE FACILITIES REQUEST… any request for modification of an existing wireless tower or base station that involves—

(A) collocation of new transmission equipment;

(B) removal of transmission equipment; or

(C) replacement of transmission equipment.”

• FCC Has Authority To Implement, But Has Not Acted - Yet

The New Federal Collocation

Law (H.R. 3630)


What Does this Mean?

Key terms undefined Questions:

“Wireless tower” Limited to towers solely designed to support wireless antennae?

“Base station” What facilities constitute a base station?

“Collocation”

What activities/facilities does it include?


What Does this Mean?

Undefined terms

“substantially change the physical dimensions”

•Measured in terms of a percentage increase in height, width, and volume only? OR

• impact? (safety hazards, intrusion on sensitive areas changes that expose structures on a stealth facility)?

AND WHAT ABOUT:

•Weight or wind-loading changes?

• Noise characteristics?

•Changes to grandfathered, non-conforming use towers?


Special Issues: Distributed Antenna Systems (DAS)

• DAS = a collection of smaller wireless antennas (nodes)

• Originally used to provide service in limited areas hard to serve with traditional antennas (public arenas, shopping malls etc.)

• DAS is representative of the wireless industry’s move to smaller, but more numerous facilities.

• FCC: DAS “nodes” could double by the end of 2012 to 20,000 and could reach 150,000 by 2017.


Who Are DAS Providers?

• DAS providers may provide cellular services directly.

• But many “DAS providers” build antennas, lease space to cell service providers (landlord functions)

• These providers obtain telecom licenses from state, and carry traffic from antennas via fiber to carrier control facilities

• Ability to be “first in” market and to gain control

over critical locations is central to market plan.


Q1: What Law Applies?

• Some providers claim that zoning laws cannot apply to prevent them from building antennae, because state law license entitles them to use RoW.

• Providers claim federal law prevents localities from applying same rule to them as apply to wireline providers (such as undergrounding requirements).


Q.2 Zoning/RoW Ordinance Issues

• Many localities have antenna rules that apply to facilities outside of RoW, but are unclear as to facilities in RoW

• Localities must review ordinances to determine whether placement of antennae in RoW is addressed (note possible issue if there is a complete prohibition)

• Some localities apply zoning codes; some apply RoW ordinances; others apply both

• May also need to consider whether (under state law) DAS provider requires/does not require local franchise


Q.3: Prohibition Issues

• Can DAS providers claim “prohibitions?”

If so, is the test whether the DAS provider needs its application granted so it can lease facilities?

Or is test whether lessees have a gap?

What sort of alternatives would a DAS provider be required to consider? Alternatives to the facilities it wishes to lease?


Q.4 Discrimination Issues

• Can local governments treat DAS providers differently than other telecommunications service providers based on technology used?

N.Y. SMSA Ltd. P'ship v. Town of Clarkstown, 612 F.3d 97, 100 (2d Cir. 2010) (no preference for technology permitted, but local governments may be able to adopt preferences based on objective impact standards).


Q.5 Service-ready? • Is the company ready to provide service?

Some companies (Crown Castle, NewPath) build on spec, hoping to lease the facilities to providers like AT&T, T-Mobile, Sprint.

These facilities could occupy the right-of-way for no useful purpose

Under what circumstances should facilities be treated as abandoned?

For what period should permits be issued?


Q.6 Collocation Issues

• If the local government allows any single user in RoW, will it be required to allow others to install similar facilities?

• If an antenna is permitted on one pole, must a government allow collocation on that facility

• What standards should apply to a collocation review?


Q.8 Other Municipal Property

• If one DAS allowed on municipal property, such as street lights, must locality allow others to collocate? To use other street lights?

• Who will own the facilities? And what is the effect of various ownership options on other local rights?


Joseph Van Eaton

[email protected]

Best Best & Krieger

2000 Pennsylvania Avenue N.W.

Suite 4300

Washington, DC 20006

Phone: (202) 785-0600

Fax: (202) 785-1234

Cell: (202) 486-0770

Website: www.bbklaw.com

Contact Information

mailto:[email protected]://www.bbklaw.com/


MAXIMIZING THE RETURN ON

YOUR CELL LEASES/LICENSES

Gerard Lavery Lederer

November 8, 2012

52


TELECOMMUNICATIONS

LAWS • NO obligation to rent your facilities for wireless uses

– acting as landlord, not regulator

FCC “shot clock” does not apply to requests to lease land

• Wireless sites will be subject to city/county land use

regulatory authority

47 U.S.C. 337(c)(2) preserves local land use authority

subject to limitations

Cannot prohibit “or have the effect of prohibiting” wireless

services

53


CONTROL THE DRAFTING

PROCESS

• Try to avoid using anyone else’s standard form

• Wireless carriers’ standard forms are

unbelievably lopsided

• Wireless carriers can and will take advantage of

you if you aren’t careful

• Developing and using a standard form saves

time and helps avoid overlooking issues

54


PREMISES & GRANT OF

AUTHORITY

• Include an exhibit with legal descriptions,

drawings and/or photos.

• More detail you have, the easier it is to police

the agreement, especially regarding illegal

collocations and subleases.

• Use of common areas and access points

• Control signage

55


LICENSE/LEASE NOT

EASEMENT

• Granting an easement may be granting others

access to same property.

• License is all the legal authority a wireless

carrier needs.

• Lease structure is also an acceptable alternative

(but grants exclusive use, not shared use).

56


TERM

• For general leases, define term and renewal

options

• For wireless sites, typically series of 5 year

terms --- 20 to 30 years total

• Strategic decision re auto renewals or

affirmative notice required

If notice is required, keep a database of renewal

dates

57


TERM

• Beware of “options to lease” tying up sites with

no guarantee of rent

• Avoid long delivery or construction periods for

permitting with no rent – begin term

immediately and add construction period to

overall term

• 30-60 days or commencement of construction,

whichever comes first

58


DUE DILIGENCE PERIOD

• Limited time in which wireless carrier has to

obtain legal clearances and ensure that site

works for them.

• DON’T give this time away for free.

• Be sure to get indemnity for any activities on

site by licensee/consultants and require prior

consent for any borings; require copies of any

consultant reports be provided to you.

59


RENT/LICENSE FEE

• Basic fee

• Collocation fees (or address this later)

• Late Fees, Interest and Hold Over fees

Late fees are what you can get

Interest limited by law (be sure to include savings

clause to avoid usury claim)

Hold-over rent should be in the range of 150 to

200% of then-current rent.

60


WIRELESS SITE BASE RENT

• $1.8k per month to $5K per month, paid in

advance

• Offer a direct deposit option.

• Carriers typically offer low escalators – e.g.

15% every 5 years

• Try for at least 4%, maybe ask for 5% or

greater of 5% or CPI

61


ASSIGNMENT

• Require landlord approval

Wireless carriers usually want to be able to shift

sites to related corporate entities without landlord

approval

Beware of assignments to “affiliates”, tower

operating companies

• No release of original entity

62


ASSIGNMENT OR

SUBLETTING • No sublicensing without permission.

Have licensee waive rights under Civil Code §§ 1995.260, 1995.270

§6409/47 U.S.C. § 1455 regarding collocations does not affect contractual restrictions

• Licensor may refuse to consent to any proposed sublicense that involves the collocation of another carrier’s facilities.

Additional rent for sublicensees.

63


INTERFERENCE

• Ensure that you do not cause any challenges for your existing public safety uses, or any existing tenants.

• Ensure that subsequent tenants/collocators do not cause interference.

• Burden is on newcomers to cure interference caused by their arrival (not existing users).

• Be sure licensor is not responsible for interference or cure.

64


IMPROVEMENTS

• Detailed plans with prior approval

Do not agree to “approval not be unreasonably withheld,

delayed or conditioned”

Control appearance of improvements

• All work by licensee shall be performed in compliance

with applicable laws and ordinances

• Licensee is not authorized to contract for or on behalf

of licensor or impose any additional expense

65


IMPROVEMENTS & UTILITIES

• Be sure improvements will be maintained and

upgraded to comply with laws, but any new

installations must not be heavier, greater in

capacity or more space than originally granted

• Licensee pays for utilities; licensor not

responsible for any interruptions

• Do not agree to allowing licensee to use your

electric connection with a submeter

66


REMOVAL OF

IMPROVEMENTS

• Think about how to handle this – may depend

on facility type

• Immediate ownership (e.g. of light pole)

• Automatic conveyance of ownership to licensor

• Option for licensor to retain improvements or

require removal

• Require removal of footings and foundations

67


TECHNICAL STANDARDS

• Licensee agrees to comply with all applicable

governmental laws and regulations and with such

technical standards as may from time to time be

established by licensor for the premises, including,

without limitation, technical standards relating to

frequency compatibility, radio interference

protection, antenna type and location and physical

installation

68


LIMIT ACCESS

[Think post 9/11]

• 24 hour notice

• Escort

• Emergency conditions for access

69


ACCESS RIGHTS/SECURITY

• If installation on roof, limit access to certain specific

areas; require your roof contractor to approve; avoid

roof penetrations which may invalidate roof

warranties; limit cabling access to common shafts

• Limit size, weight and frequency of access to roof

• If installation across private or limited access land,

limit access and protect fencing, private or municipal

property or animals

• Put burden to maintain secure fencing on licensee

70


EVENTS OF DEFAULT /

TERMINATION BY LICENSOR

• Non-payment

• Habitual late payments

• Violation of any term, including non-permitted

collocations

• Bankruptcy

71


TERMINATION BY LICENSEE

• Carefully define when licensee can terminate

• Wireless carriers want ability to terminate for

“technological, economic, or environmental”

reasons

• Either prohibit volitional terminations or

require payment (e.g. rent for remainder of

term or 12-24 months of rent)

72


CASUALTY/INSURANCE/

INDEMNITY

• Make sure to run by your risk assessment folks

• Typical insurance is general liability, auto

liability, employer’s liability, all-risk property,

and workers’ comp

• Make sure insurance requirements apply to

contractors and subs

• Don’t accept reciprocal indemnity

73


TAXES

• Make sure it is clear that taxes due are in

addition to rent.

• Address possessory interest tax (Revenue and

Taxation Code 107.6) liability for licensee.

74


NOTICES

• All notices, requests, demands and other

communications to be in writing and delivered

to specified addresses

• Make sure to have your counsel copied.

75


QUIET ENJOYMENT, TITLE

AND AUTHORITY

• Traditional obligation of the landlord.

• Make sure you have authority – ie make sure

such use is permitted under your governing

documents.

76


HAZARDOUS SUBSTANCES

• Strict language to prohibit any such uses.

• Batteries for back up and generators can trigger

these terms.

• Check with your environmental folks for most

recent terms – pay special attention that these

substances do not prejudice your ability to use

the site.

77


MISCELLANEOUS

• Attorney fees

• Entire agreement

• No liability for broker/agent fees

• Governing law and venue

• Severability

78


MISCELLANEOUS

• Mortgage subordination

• Limitation on liability

• RF signage and notices

• Amendments

• No relocation assistance

• Time IS OF THE ESSENCE

79


SELLING YOUR WIRELESS

LEASES

• Numerous tower operators seeking to buy

landlord lease rights

• Typically offer fraction of NPV of lease

payments

• Will emphasize threat of nonrenewal, certainty

of being paid

• May ask for amendments allowing unlimited

collocations

80


Gerard Lavery Lederer

[email protected]

Best Best & Krieger

1155 Connecticut Ave. NW

Suite 1000

Washington DC 20036

Phone: (202) 785-0600

Fax: (202) 785-1234

Cell: (202) 664-4621

Website: www.bbklaw.com

Contact Information

PHOTO

81
mailto:[email protected]://www.bbklaw.com/

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