My Client Was Approached About Placing a Cell Tower (or Rooftop Antenna) on its Property — What Should I Do?, 0115 SCBJ, SC Lawyer, January 2015, #24
| Author | Christine Olle Sloan and Brett Reall, J. |
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\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Take this crash course about the communications industry to enhance your ability to effectively represent your client
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0At one time or another, you might find yourself assisting a client who has been asked by a communications provider to place a cell tower or a rooftop antenna on the client's property. In the industry, this arrangement is referred to as a communications site lease (CSL). Whether you are asked to negotiate the terms of a CSL or you are asked to sue under one, a general understanding of the communications industry will enable you to offer effective counsel.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0This article is meant to provide you with that general understanding. It will not provide legal tenets or a summary of case law concerning CSLs, because a CSL, in its most basic form, is simply another commercial lease. Therefore, standard contract law will apply in the interpretation and enforcement of any CSL. Nor will this article discuss federal and regulatory communications law. Knowledge of the law governing communications signals will not help you when negotiating j the terms of or suing for breach under a CSL. Instead, this article i will provide general facts about the i communications industry so that ; you can effectively spot issues and I then speak intelligently when you a re facing a CSL matter.1
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Overview of a communications site lease
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In its most simplistic form, a CSL shares the same basic components as other commercial leases: (i) a landlord who owns the land/building; (ii) a tenant who rents the land/building; (iii) a set lease term; (iv) a rent schedule; (v) a description of the leased premises; and (vi) a defined use. Like all other lease structures, the landlord wants a lease arrangement that enables it to earn an income from the leased premises, while the tenant wants a lease arrangement that enables it to generate a profit. In certain situations, and if negotiated effectively, a CSL can be written similar to big box leases pursuant to which the landlord collects both base rent and percentage rent.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Entry into a CSL presents several issues for your client, both legal and non-legal. How much ground space should be leased for the tower or each antenna? How to document a rooftop installation? Should your client grant a future option to lease additional space? How will physical access be granted to the tower or rooftop location? What type of damage can occur to your client's property as a result of the equipment installation? What type of maintenance obligations should the tenant have for both the access area and for the leased premises? Should access to the leased premises by the tenant and its subtenants be limited? What type of removal requirements should be included upon the lease's expiration or early termination? When should a request to amend the lease be granted? When is a threat to take down the tower a real threat? How can you identify when an assignment has taken place outside of the lease terms? The answer to these questions will require a balancing act between the individual needs of your landlord client and those of the communications industry tenant. And in all cases, the answers will be driven by the unique facts of the transaction at hand.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Who are the players and how do they interact?
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