Don’t Surrender Your Property Rights

Cell tower operators will soon have the regulatory right to deploy generators and other communications equipment up to 30 feet outside of their current site under rule changes adopted by the FCC in its Nov. 3 Report and Order. The Order will take effect 30 days after publication in the Federal Register, which has not yet happened. In addition to this FCC Order, California adopted a law, which goes into effect Jan. 1, giving cell tower operators the regulatory right to deploy generators at macro cell sites, and other states may be considering similar legislation. It is imperative that both public and private property owners understand that this regulatory relief does not affect their rights as property owners.

In communications with property owners, cell tower operators, and their consultants, may confuse regulatory relief with property rights. Here are some suggestions to protect your rights as landlord:

• Know your rights under the law. The FCC update to the U.S. Code of Federal Regulations, Title 47, section 1.6100 Wireless Facility Modifications, and the California legislation, only limit regulatory permitting authority. If you are a public entity, you have rights as a property owner under your lease or license agreement that are separate from your regulatory capacity. Similarly, private entity owners should not be misled that a regulatory approval overrules the landowner’s authority under the lease or license agreement. If you are uncertain about whether you are acting in a regulatory or proprietary capacity, seek legal advice. Do not rely on what the cell tower operator tells you.
• Preserve your rights in writing. Reserve the right to approve cell site deployments and any changes either on the tower or on the site. Most operators will readily agree to the property owner’s prior approval of plans and/or changes. But the boilerplate lease or license agreement that providers will share with you rarely includes such a clause. The operator will be represented by counsel, so too should you.
• Require that use of additional space pays you additional rent. Like the approval of plans, operators will typically agree to pay additional rent for additional space, but they will rarely lead with such an offer.
• Require that your time and expenses are covered. We are in a period where the wireless industry is upgrading to 5G and adding capacity to meet increased demand. Multiple transfers and upgrades, additions and equipment change outs require more of a hands-on management by landlords, including a need for counsel. You should require that such time and costs be recoverable.
• Don’t Routinely Sign Off on Property Owner Authorization Requests. Even if you failed to include approval of plans in your lease or license, you may have a second chance to protect yourself. Most jurisdictions require that a permit application include a signed property owner authorization if the applicant is not the owner of record. Unless your agreement requires that you take on such obligations, don’t do so unless you agree with the plans and that your expenses are covered.

For additional information, see our Cell Tower Landlord’s Checklist.

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