Tou Xiong Joins Bradley Law

Posted on by

Bradley Law, LLC is pleased to announce that Tou Xiong has joined our law office. Prior to joining Bradley Law, LLC, Mr. Xiong was a non-profit executive director in Minneapolis. He brings vast experience in local and state government as a former city elected official and a current member of the Minnesota state legislature. He will be working with Michael Bradley, Michael Athay, and Nicola Bradley providing a wide range of legal services that Bradley Law, LLC offers, such as Telecommunications law, Cable Law, Estates and Probate, and much more.

Tou Xiong

Mr. Xiong graduated from St. Cloud State University in 2012 obtaining a Bachelor of Arts Degree in Economics. He continued on to obtain his Juris Doctor degree from William Mitchell College of Law (Mitchell Hamline School of Law) graduating in 2015. After graduating from law school, Mr. Xiong was elected to the Maplewood City Council in 2015. In 2018, Mr. Xiong was elected to the Minnesota House of Representatives, and re-elected in 2020. He is currently in his second term at the state legislature.

Mr. Xiong is a resident of Maplewood and is an active member with youth basketball at the Maplewood Community Center. He is the second child among eight siblings and in his free time he enjoys a game of backyard football and basketball with his brothers after a long day of campaign door-knocking.

Bradley Law Attorney Named to the 2021 Minnesota Super Lawyers List

Posted on by

We are pleased to announce that Mike Bradley at Bradley Law, LLC, has been selected to the 2021 Minnesota Super Lawyers list. This is an exclusive list, recognizing no more than five percent of attorneys in the state.

Super Lawyers, part of Thomson Reuters, is a research-driven, peer influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Attorneys are selected from more than 70 practice areas and all firm sizes, assuring a credible and relevant annual list.

The annual selections are made using a patented multiphase process that includes:

  • Peer nominations
  • Independent research by Super Lawyers
  • Evaluations from a highly credentialed panel of attorneys

The objective of Super Lawyers is to create a credible, comprehensive and diverse listing of exceptional attorneys to be used as a resource for both referring attorneys and consumers seeking legal counsel.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country, as well as the Minnesota Super Lawyers Digital Magazine.

Please join us in congratulating Mike on his For more information about Super Lawyers, go to SuperLawyers.com or BradleyLawMN.com.

FCC Clarifies Burden on State and Local Governments Under Section 253

Posted on by

As the FCC, wireless providers, and state and local governments continue to try to find an appropriate regulatory balance that ensures the safe and rapid deployment of 5G wireless services, many state and local governments have expressed concerns about their ability to manage their public rights-of-way.[1] Although 47 U.S.C. § 253 (“Section 253”) prohibits state and local governments from “prohibit[ing] or hav[ing] the effect of prohibits the ability of any entity to provide any interstate or intrastate telecommunications service,” it does not preempt state and local governments from “manag[ing] the public rights-of-way or [requiring] fair and reasonable compensation from telecommunications providers.”[2]

In a 2018 declaratory ruling (the “2018 Small Cell Declaratory Ruling”), the FCC interpreted Section 253 to mean that state and local governments could not charge fees to wireless providers above certain safe harbors without showing that: “(1) the fees are a reasonable approximation of the state or local government’s costs, (2) only objectively reasonable costs are factored into those fees, and (3) the fees are no higher than the fees charged to similarly situated competitors in similar situations.”[3] The FCC’s safe harbor fees are: “(a) $500 for non-recurring fees, including a single up-front application that includes up to five Small Wireless Facilities, with an additional $100 for each Small Wireless Facility beyond five, or $1,000 for non-recurring fees for a new pole (i.e., not a collocation) intended to support one or more Small Wireless Facilities; and (b) $270 per Small Wireless Facility per year for all recurring fees, including any possible [right-of-way] access fee or fee for attachment to municipally-owned structures in the [rights-of-way].”[4]

In 2019, Clark County, Nevada adopted an ordinance that required a service provider to pay:

  • a recurring Master Wireless Use License Fee of 5% of gross revenues collected each calendar quarter;
  • a Wireless Site License Fee (ranging from $700/year/facility to $3960/year/facility) for each Small Wireless Facility installed in the public rights-of-way, with an automatic annual fee increase of 2% per year; and
  • an Annual Inspection Fee of $500 per Small Wireless Facility installed in a county rights-of-way.[5]

Verizon shortly thereafter filed a petition with the FCC asking the FCC to issue a ruling preempting Clark County’s ordinance under Section 253.[6]

Before the FCC could issue a ruling, Clark County amended its ordinance to remove the fees in question and asked the FCC to dismiss Verizon’s petition.[7] In dismissing the petition, the FCC did not comment on whether Clark County’s original ordinance complied with Section 253 but did provide several key clarifications of the 2018 Small Cell Declaratory Ruling:

  • The burden is on state and local governments to show that fees above the FCC’s safe harbors comply with Section 253.
  • Whether a wireless provider has already deployed facilities or is already providing telecommunications services is irrelevant to the issue of whether a new fee structure prohibits or has the effect of prohibiting the provision of telecommunications services in violation of Section 253.
  • The FCC expressed a strong presumption against gross revenue fees being cost-based, reasonable, and therefore compliant with Section 253.

If your municipality has not yet adopted a small cell ordinance or has questions about an ordinance that has already been adopted, please reach out to a Bradley Law, LLC attorney.

 

[1] See What Are Small Cell Facilities, and Why Are They in the Public Rights-of-Way (Aug. 21, 2018), https://www.bradleylawmn.com/broadband/what-are-small-cell-facilities-and-why-are-they-in-the-public-rights-of-way/.

[2] 47 U.S.C. § 253.

[3] Petition for Declaratory Ruling that Clark County, Nevada Ordinance No. 4659 is Unlawful Under Section 253 of the Communications Act as Interpreted by the Federal Communications Commission and is Preempted, Order at ¶ 2, WT Docket No. 19-230 (Jan. 14, 2021) (“Clark County Order”). See also Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment et al., WT Docket No. 17-79, WC Docket No. 17-84, Declaratory Ruling and Third Report and Order, 33 FCC Rcd 9088, 9103, 9138 paras. 36, 97 (2018) (“2018 Small Cell Declaratory Ruling”), affirmed in part, City of Portland v. United States, 969 F.3d 1020, 1038 (9th Cir. Aug 12, 2020), en banc review denied City of Portland v. FCC, Case No. 18-72689 (9th Cir. Oct. 22, 2020).

[4] 2018 Small Cell Declaratory Ruling at 9129.

[5] Clark County Order at ¶ 3.

[6] Petition for Declaratory Ruling that Clark County, Nevada Ordinance No. 4659 Is Unlawful under Section 253 of the Communications Act as Interpreted by the Federal Communications Commission and Is Preempted (filed Aug. 8, 2019), https://ecfsapi.fcc.gov/file/1080871091743/Verizon%20-%20Petition%20for%20Declaratory%20Ruling%2008082019.pdf. See also 47 U.S.C. § 253(d).

[7] Letter from Gerard Lavery Lederer, Counsel to Clark County, to Ajit Pai, Chairman, FCC, et al., WT Docket No. 19-230 (filed Dec. 16, 2020).

New Customer Service Requirements for Cable Television Bills

Posted on by

In 2019, Congress passed the Television Viewer Protection Act of 2019 (the “Act”). This Act was originally set to become effective on June 20, 2020, but the FCC delayed the Act’s effective date to December 20, 2020, citing COVID-19 as the cause.[1]

The Act requires providers of covered services (i.e., cable operators) to provide transparent pricing information to consumers, including:

  • the total monthly service charge;
  • related administrative fees, equipment fees, or other charges;
  • a good faith estimate of any tax, fee, or charge imposed by a governmental entity; and
  • a good faith estimate of any fee or charge that is used to recover an assessment imposed on the provider by a governmental entity.[2]

Under the Act, consumers are also allowed to cancel service contracts within 24-hours of entering into a contract without paying early cancellation fees or other disconnection fees or penalties, and consumers cannot be charged for using their own equipment to access a provider’s services, including broadband Internet service.[3]

Finally, when providing a consumer an electronic bill, a provider must include in the bill:

  • an itemized statement that breaks down the total amount charged for or relating to the provision of the covered service by the amount charged for the provision of the service itself and the amount of all related taxes, administrative fees, equipment fees, or other charges;
  • the termination date of the contract for the provision of the covered service entered into between the consumer and the provider; and
  • the termination date of any applicable promotional discount.[4]

[1] In the Matter of Implementation of Section 1004 of the Television Viewer Protection Act of 2019, MB Docket No. 20-16 (Rel. Apr. 3, 2020).

[2] 47 U.S.C. § 562(a)(1).

[3] 47 U.S.C. §§ 562(a)(3) & 562(c).

[4] 47 U.S.C. § 562(b).

New Medical Exception to Minnesota Open Meeting Law

Posted on by

Under the Minnesota Open Meeting Law (the “OML”), a municipality’s elected officials and commission, committee, board, etc. members are only able to remotely participate in public meetings under certain circumstances. When elected officials and members of a governing body participate in a meeting through interactive television means (e.g., videoconferencing), the OML requires that the person’s physical location be open to the public. The OML was recently amended to allow military servicemembers at a military location to remotely participate in public meetings without making their physical location open to the public.[1]

The OML was recently amended again to allow a remotely participating individual’s physical location to be closed to the public if “the member has been advised by a health care professional against being in a public place for personal or family medical reasons.”[2] This exception to in-person participation can only be used during a state of emergency declared under Minn. Stat. § 12.31 (National Security or Peacetime Emergency; Declaration) and for a period of 60 days thereafter.

It’s important to note that this new exception doesn’t modify the circumstances under which remote participation is allowed.[3] This new exception only affects the statutory requirement that an individual’s physical location be open to the public when the individual is remotely participating in a public meeting through interactive television means. Elected officials and members of a governing body must still be able to see and hear all discussion and testimony occurring at a public meeting and be seen and heard by all other elected officials or members of the governing body, and, members of public. Notice of the body’s regular meeting location and the remote location of any remote elected official or member must still be provided in compliance with Minn. Stat. § 13D.04.

It’s also important to note that this new exception doesn’t modify any other sections of the OML. Specifically, Minn. Stat. § 13D.021, which allows for remote public meetings to be conducted under emergency conditions, is not affected in any way. If a municipality has already followed the process set forth in § 13D.021, there is no need for an individual to have “been advised by a health care professional against being in a public place for personal or family medical reasons” to remotely participate in a public meeting.[4]

If you have any questions about the Minnesota Open Meeting Law, please speak with your attorney or a Bradley Law, LLC attorney to understand how the OML applies to you.

[1] Laws of Minnesota 2019, chapter 33, section 1.
[2] Laws of Minnesota 2020, chapter 74, article 1, section 1.
[3] Minn. Stat. § 13D.02.
[4] Laws of Minnesota 2020, chapter 74, article 1, section 1.

 

Closing a Public Meeting Under Minnesota’s Open Meeting Law

Posted on by

Under the Minnesota Open Meeting Law (the “OML”), a public body’s meetings must be open to the public unless the OML or another Minnesota law provides an exemption that allows or requires a meeting to be closed. A list of exemptions stated in the OML can be found at the end of this post. Closing a public meeting means that any materials, like a privileged legal report or a document containing confidential information, and discussions related to the closed meeting aren’t open to the public.[1]

Closed meetings are conducted similar to open meetings. Like open meetings, adequate notice must be provided for closed meetings and, except for meetings closed by attorney-client privilege, closed meetings must be recorded, and the recording must be preserved for at least three years.[2] In addition, the OML sets forth specific procedural requirements for discussion of certain issues or topics in a closed meeting.

Failure to properly conduct a closed meeting may result in a penalty of up to $300, and multiple violations may result in a person being forced to resign from a public body.[3] In addition, a court may award reasonable costs, disbursements, and reasonable attorney fees to a prevailing party (i.e., losing party pay’s the winner’s costs).

Exemptions Allowing or Requiring the Closing of a Public Meeting:

  • Discussion of “data that would identify alleged victims or reporters of criminal sexual conduct, domestic abuse, or maltreatment of minors of vulnerable adults.” Minn. Stat. § 13D.05, subd. 2(a)(1).
  • Discussion of “active investigation data as defined in section 13.82, subdivision 7, or internal affairs data relating to allegations of law enforcement personnel misconduct collected or created by a state agency, statewide system, or political subdivision.” Minn. Stat. § 13D.05, subd. 2(a)(2).
  • Discussion of “educational data, health data, medical data, welfare data, or mental health data that are not public data under section 13.32, subdivision 1, 13.384, or 13.46, subdivision 2 or 7.” Minn. Stat. § 13D.05, subd. 2(a)(3).
  • Discussion of “an individual’s medical records governed by sections 144.291 to 144.298.” Minn. Stat. § 13D.05, subd. 2(a)(4).
  • “Preliminary consideration of allegations or charges against an individual subject to its authority” unless the individual who is the subject of the meeting requests the meeting be open in which case the meeting must be open. “If the members conclude that discipline of any nature may be warranted as a result of those specific charges or allegations, further meetings or hearings relating to those specific charges or allegations held after that conclusion is reached must be open.” Minn. Stat. § 13D.05, subd. 2(b).
  • Consideration of “strategy for labor negotiations, including negotiation strategies or developments or discussion and review of labor negotiation proposals, conducted pursuant to sections 179A.01 to 179A.25.” Minn. Stat. § 13D.03, subd. 1(b).
  • Disclosure of not public data “if the disclosure relates to a matter within the scope of the public body’s authority and is reasonably necessary to conduct the business or agenda item before the public body.” Minn. Stat. § 13D.05, subd. 1(b).
  • Discussion of “the performance of an individual who is subject to its authority” unless the individual who is the subject of the meeting requests the meeting be open in which case the meeting must be open. Minn. Stat. § 13D.05, subd. 3(a).
  • If expressly permitted by statute. Minn. Stat. § 13D.05, subd. 3(b).
  • If permitted by attorney-client privilege. Minn. Stat. § 13D.05, subd. 3(b).
  • “To determine the asking price for real or personal property to be sold by the government entity.” Minn. Stat. § 13D.05, subd. 3(c)(1).
  • “To develop or consider offers or counteroffers for the purchase or sale of real or personal property.” Minn. Stat. § 13D.05, subd. 3(c)(3).
  • “To receive security briefings and reports, to discuss issues related to security systems, to discuss emergency response procedures, and to discuss security deficiencies in or recommendations regarding public services, infrastructure, and facilities, if disclosure of the information discussed would pose a danger to public safety or compromise security procedures or responses.” Minn. Stat. § 13D.05, subd. 3(d).

[1] See Minn. Stat. § 13D.01, subd. 6(b). See also Minn. Stat. Ch. 13 (Government Data Practices).
[2] Minn. Stat. §§ 13D.03, subd. 5 & .05, subd. 1(d).
[3] See Minn. Stat. § 13D.06 (2008).

Rooftop Leasing for Wireless Antennas

Posted on by

What is rooftop leasing?

Rooftop leasing for wireless antennas is a business model that involves building owners leasing space on their roofs to wireless service providers (e.g., Verizon, AT&T, etc.) and wireless infrastructure providers (e.g., Crown Castle, American Tower, etc.) (collectively “Service Providers”). As 5G services continue to be tested and deployed, Service Providers will increasingly need access to sites for both antennas and backhaul facilities, which you can read more about here. Generally speaking, antennas provide service to people, and backhaul facilities provide service to antennas.

Although a rooftop lease can be a great source of passive income for a landlord, there are key issues that must be considered.

Key Issues in Rooftop Leasing

1.      What else could a rooftop be used for?

Before entering into an agreement that would allow a Service Provider to install and operate a wireless antenna on a building’s roof, the building’s owner should first determine whether the Service Provider’s presence conflicts with any current or planned future use of the building’s roof. For example, would a wireless antenna’s presence conflict with a rooftop garden, solar farm, or pool? A building owner should carefully study the potential uses of their building before entering into an agreement with a Service Provider.

2.      What type of agreement should I use?

Although a lease (i.e., a landlord-tenant relationship) is the most common type of agreement used to allow a Service Provider to construct and operate wireless antennas on top of a building, it is also possible to simply license rooftop access to a Service Provider. Whereas a lease creates a landlord-tenant relationship, a license creates only a contractual relationship that may be easier to terminate or modify. However, it should be noted that a Service Provider may desire the protections of a landlord-tenant relationship and refuse to enter into a license agreement.

3.      How many years should my agreement be for?

The answer to this question will vary from building owner to building owner, but the answer should never be forever (or effectively forever). Often, Service Providers will ask for 99-year agreements or shorter agreements (e.g., 5 years) that automatically renew solely at the Service Provider’s discretion. Clearly, neither of these options are in a building owner’s best interest. A better starting point might be to ask for a term similar to the limit imposed on Service Providers when attaching antennas to municipally-owned assets (e.g., a utility pole in the public rights-of-way). These types of attachments are typically limited to 10-years but will vary from state to state.

4.      How should payments be structured?

Service Providers are often willing to negotiate option payments, lump sum payments, periodic payments, or any combination thereof. Although the answer to this question will vary from building owner to building owner, building owners should be aware that a Service Provider may ask for competitive equity language in an agreement. Competitive equity refers to the equitable treatment of multiple Service Providers by a single building owner. This doesn’t mean that each Service Provider must be treated the same, but it does mean that each Service Provider must be treated fairly in light of how other Service Providers are being treated. As it relates to payments and payment structures, building owners should pay careful attention to how they are being compensated.

5.      Who is responsible for maintenance and repairs?

In almost all cases, a Service Provider should be responsible for repairing and maintaining their equipment. However, it will be important to discuss how and when a Service Provider will have access to their facilities (i.e., a building’s roof). For instance, a Service Provider might want unfettered 24/7 access to a building’s roof whereas the building may only be open during normal business hours. If such access is granted, who will give this access to the Service Provider? Will the Service Provider have their own access to the building? These are questions that should be answered in a rooftop leasing agreement.

6.      What type of insurance does a Service Provider need to have?

A building owner should ensure that a Service Provider is adequately insured against any damage that might be caused by the Service Provider’s equipment and facilities. For instance, what happens if a Service Provider’s transformer falls through a roof and causes damage to another tenant’s equipment? These damages should be covered by the Service Provider, but it is important to address these issues in an agreement.

Conclusion

It is important to understand that effects and implications of a rooftop leasing agreement, and the above issues may not address all of your issues. Each building presents its own unique set of issues that should be carefully studied. Before entering into any negotiations with a Service Provider, a building owner should contact their legal counsel or the experienced telecommunications attorneys at Bradley Law, LLC to identify any legal issues unique to their building and to develop strategies that maximize the value of their assets.

Closed Captioning Requirements for Local Governments and PEG Operators

Posted on by

Local governments and PEG operators may be required to provide closed captioning by the Americans with Disabilities Act, the Communications Act, or the Rehabilitation Act. Bradley Law, LLC’s Vince Rotty recently spoke about these legal requirements at Tightrope Media’s PEG Experts Forum. Please watch the video below to learn more and contact your legal counsel or one of Bradley Law, LLC’s telecommunications attorneys if you have any questions.

FIRST QUARTER 2019 FEDERAL UNIVERSAL SERVICE CONTRIBUTION FACTOR OF 20% IN EFFECT

Posted on by

On December 12, 2018, the Federal Communications Commission (“FCC”) Office of Managing Director (“OMD”) released Public Notice DA 18-1249 announcing a proposed federal Universal Service contribution factor of 20% for the first quarter (January-March) of 2019.

Because the Commission took no action in the 14-day period following the release of the Public Notice, the proposed contribution factor is now in effect for the first quarter of 2019.

The Public Notice can be viewed at Public Notice DA 18-1249.

Ratings and Reviews

Mike Bradley
Rated by Super Lawyers


loading ...