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Kristin Berkland Joins Bradley Hagen & Gullikson, LLC as Telecommunications Attorney

Posted on July 12, 2016 by Vince Rotty

Kristin Berkland

Bradley Hagen & Gullikson, LLC, is pleased to announce that former Universal Service Administrative Company (USAC) Assistant General Counsel, Kristin Berkland, has joined the firm as a telecommunications partner.

While with USAC, Ms. Berkland provided legal counsel to the USAC division responsible for billing, collecting, and disbursing over $7 billion in federal universal service revenues annually. Ms. Berkland also worked with the Federal Communications Commission (FCC) Wireline Competition and Enforcement Bureaus in the application of federal universal service reporting and contribution regulations and assisted with federal universal service E-Rate waste, fraud, and abuse matters. Ms. Berkland regularly participated in and provided legal oversight for USAC contributor and beneficiary audits, giving her a unique and unparalleled insight into the USAC audit process.

Prior to joining Bradley Hagen & Gullikson, LLC, Ms. Berkland worked for the law firm of Dorsey & Whitney, LLP where she helped telecommunications providers comprehend and comply with their federal universal service reporting and contribution requirements and counseled federal universal service beneficiaries and service providers regarding participation in the High Cost, E-Rate, and Lifeline programs. She has represented major school districts in federal E-Rate matters, including USAC E-Rate audits. Ms. Berkland has also handled complex Telephone Consumer Protection Act (TCPA) regulatory compliance matters and sheparded clients through the complex domestic and international Section 214 authorization process, including providing counsel regarding how to navigate the complicated “Team Telecom” review process. Ms. Berkland also has experience in energy regulatory, antitrust, and complex litigation matters. Ms. Berkland will continue to offer her unique blend of federal universal service and Section 214 licensing services at Bradley Hagen & Gullikson, LLC.

Ms. Berkland received her B.A. in International Studies, with honors, from the University of North Carolina at Chapel Hill and her J.D., magna cum laude, from the Catholic University of America, Columbus School of Law in Washington D.C.

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Visit Bradley Hagen & Gullikson’s website for more information.
Contact Kristin directly at [email protected].

Pension Benefit Available for Wartime Veterans

Posted on April 19, 2016 by Vince Rotty

If you or your loved one is a wartime veteran, there is a little known pension benefit that may be available. This benefit was earned by wartime veterans under the following circumstances:

You served for 90 days or more in active duty service;
You were discharged for service under other than dishonorable conditions;
You meet certain income and net worth guidelines; and
You are 65 years or older or have a permanent and total non-service-connected disability, or in a nursing home, or receiving Social Security Disability Benefits.

The pension benefit is not only a monetary benefit, it also provides an additional Aid and Attendance benefit, if necessary. This could include coverage for in-home nursing care and care facilities. For additional information you can watch this video from the VA.

Adrian Herbst and Leslie Herbst-Saporito Join Bradley Law Firm

Posted on March 31, 2016 by Vince Rotty

We are pleased to announce that Adrian Herbst and Leslie Herbst-Saporito have joined Bradley Hagen & Gullikson as partners. They will join Mike Bradley in his telecommunications practice at the firm. Both are coming from the well-respected municipal telecommunications law firm of Baller Herbst Stokes & Lide.

“I am so pleased to have Adrian and Leslie join our team,” said Mike Bradley. “No one in Minnesota has more municipal telecommunications legal experience than Adrian Herbst. It is a real honor to have him join us.” Adrian brings over 30 years of municipal telecommunications legal experience to the firm. He served as the City Attorney for the City of Bloomington for many years before going into private practice. He has been a leading attorney in municipal cable franchising, rights-of-way management, and municipal broadband planning. Indeed, Adrian negotiated many of the initial cable television franchises in the Twin Cities.

Adrian has also been a leader in many municipal organizations. Adrian has served as President of the Minnesota Trial Lawyers Association and Vice President of the League of Minnesota Cities. He is a charter member of the National Association of Telecommunications Officers and Advisors (NATOA), as well as various other legal organizations including the International Municipal Lawyers Association (IMLA), the Federal Communications Bar Association, and the Telecommunications Committee of the Minnesota State Bar Association. Adrian is a member of the State Bar of Minnesota. Like Mike Bradley, Adrian holds the highest AV rating with Martindale‑Hubbell.

Leslie, Adrian’s daughter, is an emerging municipal telecommunications attorney in her own right. She has assisted local governments throughout the country on all aspects of cable service franchising and telecommunications rights-of-way management issues. She is experienced in drafting, negotiating and enforcing cable and telecommunications franchises and revising right-of-way ordinances.

“I feel very fortunate to have the opportunity to work with Leslie,” said Adrian Herbst proudly. “I have known and consulted with Mike for many years on municipal telecommunications issues. I’m excited about the synergies of our practices.”

Most recently Leslie has been working on competitive cable franchises for municipal clients in Minnesota. “Our firm has been a leader in helping cities negotiate competitive cable franchises resulting in wire-line cable television competition for the first time ever in the Twin Cities,” said Bradley, “Leslie’s experience will build on that success.”

In the coming months and years, local governments will be challenged to ensure their residents have access to adequate broadband services. This issue particularly affects rural areas. Many cities are also facing a rise in cell tower applications as mobile phone companies look to increase their coverage and bandwidth for consumers. This increase in demand coupled with recent changes to the law require local governments to reassess its current approach to cell towers. According to Leslie, “it’s an exciting time to be representing local governments on telecommunications issues with recent developments, such as competition in cable, cell tower and broadband planning. I think the firm is in a great position to help local governments navigate successfully through these issues.”

Bradley Hagen & Gullikson is a Twin Cities based law firm located in Woodbury, Minnesota.

Leslie Herbst-Saporito

Adrian Herbst

Mike Bradley

New Broadband Recommendations for Minnesota

Posted on February 4, 2016 by Vince Rotty

The Minnesota Governor’s Task Force on Broadband has made a new set of policy recommendations to Governor Mark Dayton and the Minnesota legislature. They include:

• Update Minnesota’s statutory broadband speed goal – It is a state goal that no later than 2022 all Minnesota businesses and homes have access to high-speed broadband that provides minimum download speeds of at least 25 megabits per second and minimum upload speeds of at least 3 megabits per second. Also by 2026, it is a state goal that all Minnesota businesses and homes have access to at least one provider of broadband with download speeds of at least 100 megabits per second and upload speeds of at least 20 megabits per second.

• Infrastructure grant program – The Task Force recommends appropriating $200 million to the Border-to-Border Broadband Development Grant Programing FY 2016-17. While this figure is a fraction of the total capital investment required to meet the state’s border-to-border broadband objective, it is an important contribution.

• Create an Office of Broadband operating fund to promote broadband adoption and use – The Task Force recommends that the fund be managed by the Office of Broadband Development, at a specific amount to be determined between the Office of Broadband Development and the 47 National Broadband Map, available at https://www.broadbandmap.gov/rank/all/county/minnesota/percentpopulation/demographics-income-median-income/ascending/speed-download-greater-than-25mbps. 48 Provided by Marc Johnson of East Central MN Educational Cable Cooperative (ECMECC). 49 https://mn.gov/deed/images/education-superhighway.pdf, slide 23. 36 legislature, that will allow the Office to advance and support programs and projects aimed at promoting broadband adoption and use.

• Increase telecommunications aid for schools and libraries – The Task Force recommends funding library telecommunications aid at $6.6 million in FY 2016-17, and increasing the telecommunications aid equity for schools to $9.75 million in FY 2016-17. This funding will expand the impact of the program in underserved areas of the state and help ensure every person has access to reliable broadband service.

• Expand existing sales tax exemption for telecommunications equipment –The Task Force recommends the existing sales tax exemption for telecommunications equipment be made permanent to provide certainty to providers and enable thoughtful, future-oriented investment planning. Further, the Task Force believes policy makers should examine the possibility of expanding the exemption to include additional equipment, including fiber, conduit, poles, wires, and cable, that would assist in network development efforts.

• Reform regulations of Minnesota’s telecommunications industry – The Task Force recommends reforming the regulatory framework underlying Minnesota’s telecommunications industry to reflect the modern communications era, bringing regulatory certainty, competitive equity, and relevance to an industry in the midst of dramatic change, while also addressing consumer protections.

• Review existing permitting criteria to see where there might be opportunities for efficiencies – The Task Force recommends an administrative review of existing permitting requirements impacting broadband network deployment to determine where there may be opportunities to ensure the most efficient processes are in place. Uncertainty over permitting timelines and requirements can delay or prevent network deployments from moving forward.

Here is a link to the 2016 Governor’s Task Force on Broadband Annual Report.

Health Care Directive and POLSTS

Posted on October 1, 2015 by Vince Rotty

Joe is 45 years old and in good health. He is about to go into the hospital for a minor procedure and his clinic asks him if he has a health care directive. What is it and why would Joe need one?

A health care directive is a document that tells your health care workers who should make medical decisions for you if you cannot. In Joe’s case, he chooses his wife, Jane, to be his health care “agent.” If there is a mishap with Joe’s surgery , and he is unconscious, Jane will decide, with the doctor’s advice, between various options for Joe’s care.

Because any of us could become unable to make decisions, either temporarily, or permanently, every adult should have a health care directive. There is no doubt that this document is the single most important estate planning document you can have.

Health Care Directives provide instructions to the person who will make medical decisions on your behalf. They are not just for deciding who will “pull the plug.” In today’s world of medicine, there are many choices of treatment—some aggressive, others less so. If Joe is unable to make his own decisions because he is too sick, his health care directive says who will make those decisions, including the decision of where to live. The instructions contained in a Health Care Directive help Jane to make the kind of medical decisions that Joe would make if he were able.

Fast forward to the future—Joe is now 89 years old and suffering from Stage IV Lymphoma. What happens when Joe collapses in his apartment? Jane calls 911 because she is scared, but she knows that Joe would not want to be resuscitated. What now? If Joe had worked with his doctor and obtained a POLST (Provider Orders for Life Sustaining Treatment) and that POLST were easily available to the paramedics, those decisions would already be made and the paramedics would know whether to try CPR, or whether to intubate Joe.

POLSTs are provided only by physicians and nurse practitioners and are medical orders to other health care workers. POLSTs are generally only for people who are approaching life’s end. They do not replace Health Care Directives, but supplement them. Like a Health Care Directive, photocopies and faxes of the POLST are valid. Unlike a Health Care Directive, there is little flexibility in the POLST. One must be even more careful and deliberate when completing a POLST than completing a Health Care Directive.

There are five sections to the POLST and 3 relate to care:

CPR vs. DNR
Goals for Treatment—comfort care to limited intervention to full intervention
Treatments—choices about use of antibiotics and nutrition/hydration

If there is a 911 situation, and the POLST is readily available for the paramedics, the first responders will follow the instructions of the POLST—at least in Richfield and in Minneapolis, MN. Any care section not filled out will receive the presumption of aggressive treatment. First responders will not take the word of a family member or other person that such a document exists—it must be provided.

What is a Trust?

Posted on August 3, 2015 by Vince Rotty

According to Black’s Law Dictionary, a Trust is “A legal entity created by a grantor for the benefit of designated beneficiaries under the laws of the state and the valid trust instrument.” What that means is: think of a trust as a basket that you own. You are the ‘grantor’. The basket holds assets. The basket is the ‘legal entity.’ You use the assets for your own benefit. You are the ‘beneficiary’, and when you die, your assets go to your children; they become the beneficiaries.
So, a Trust has 3 players:

the Grantor—the person who owns the assets put into the trust
the Trustee—the person who manages the assets for the benefit of the beneficiaries
the Beneficiaries—the person(s) who benefit from the assets—either by receiving the income of the trust, or by receiving the assets from the trust.

If I create a trust today, I may put my house, my bank accounts and my investments into my trust. The trust actually owns my assets now, not me directly. I can still do anything I want with my assets—reinvest, sell, or even give them away, but when I do that, I am acting as the ‘trustee’—the person who manages the trust. I am also the beneficiary of my trust—I benefit from the assets of the trust.
Say that tomorrow I suffer a massive stroke, and am unable to manage my finances. I still have my trust, but I cannot be the trustee. That job will fall to my ‘successor trustee.’ That trustee has a job to manage the assets and look after my needs, because while I am no longer the trustee, I am still the beneficiary.
If I succumb to the effects of my stroke and die, I am no longer the beneficiary of my trust—the new beneficiaries will be the people I have named when I created my trust—much like a Will says who will receive probate assets. At this point, the trust will probably terminate.
Trusts may be useful for some people because they allow (if properly created and managed) the owner to avoid probate on death. This is especially useful if real property is owned in more than one state. Trusts also maintain privacy for the family of the deceased person. Before you set up a trust, be sure to talk to an attorney who is working for your best interests. Trusts do great things, but they are not always the best answer.

Do I Need a Will?

Posted on March 13, 2015 by Vince Rotty

A client (single) has beneficiaries on her retirement account, a transfer on death deed on her house, and pay on death notices on her bank accounts, her two kids get along and can amicably split up her belongings—does she also need a Will? If this client died where all her assets were as just stated, then no, she would not need a Will. However, like life insurance, a Will can help cover unexpected events, and the difficulties a Will can prevent may well outweigh the cost of preparing a Will.

If you own (or receive) assets that are not assigned through beneficiary then the assets are considered Probate assets. If the value of all Probate assets is greater than $50,000, then a file with the Probate Court is required. The Will tells the Probate Court how you wish your assets distributed.

I jokingly tell my clients that a Will is for winning the lottery the day before you die. While this is quite correct, there are other, more likely events that could trigger a probate. Any funds that are assigned to you but not delivered until after your death, are in your estate. An example of this is an inheritance. If you are a beneficiary of a person’s estate, but you die before the distribution of that money takes place, a Will would help the Probate Court know how to distribute the funds. Another scenario in which your assets may end up in Probate involves beneficiaries on your retirement or other investment accounts. Sometimes mistakes happen –a beneficiary is not recorded correctly, accounts change and the beneficiary designation does not follow the change. Fortunately, these are rare events, but they do happen.

Wills can also be the grounding document for your estate plan. By listing how you want your assets distributed, you can be checking against your Will when assigning beneficiaries. For example, say you have 5 children, and you want them to each receive 20% of your total estate when you die. If you have investments that for some reason get distributed to only 3 of your children, you can be sure to create other investments that will be distributed to the remaining 2 children on your death. The need for a grounding document (Will) increases with the complexity of your estate plan.

But, what if you have a trust? A major reason for a trust is to avoid Probate. However, just as in the above scenarios, assets can be outside your trust when you die. In the case of a Trust, lawyers will draft what is called a “Pour-Over Trust”. This is a simple will that states that in the event of Probate, the Personal Representative (Executor) is to follow the terms of the trust when distributing the Probate assets.

How Specific Should Your Estate Plan Be?

Posted on February 13, 2015 by Vince Rotty

I have just read the associated press article www.startribune.com/entertainment/…/290621711.html. Titled: “Robin Williams’ Family Is Feuding Over His Will”. As one reads further into the story, it turns out that the family is not in fact at odds over his Will, but rather are seeking clarification regarding Mr. Williams’s Trust. Be that as it may, what this short article points out is the need for clarity in an estate plan.

Personal property, the ‘things’ one owns, are generally left all to the spouse, and if the spouse is not living, then equally to the children. Most estate plans assume well behaved children, and leave it to the children to determine who gets what. If children have trouble deciding how to split items, such books as Who Gets Grandma’s Yellow Pie Plate https://www.extension.umn.edu/family/personal-finance/who-gets-grandmas-yellow-pie-plate/ can be of great help. It is seldom necessary or financially worthwhile to involve lawyers. Seldom are items of a personal nature left to children before the spouse, and if they are, those items are usually listed specifically, with the recipient clearly indicated .

This plan of leaving items to one’s spouse then to children is contingent on the idea that everyone is of the same mind. As soon as additional spouses (it appears from the article that Mrs. Williams was married to Robin Williams for less than 3 years), step children, or sibling animosity enters the picture, general statements in the Trust Agreement are not helpful, especially when the potential worth of such items is large.

When planning one’s own estate distribution, it is important to keep in mind the value, both market value and sentimental value, that your heirs may place on certain items, and examine realistically whether your heirs will be able to agree when the terms are vague. This may sound as if an inventory and specific assignments are the way to go, but if your family is harmonious, not just in your mind, but in the real world, there is no need to pay for such specificity, nor to keep your inventory current.

In short, be aware that distribution of personal items can cause tension in a family, and if at your death, you have a family where all children do not have only your spouse and you as parents, think about how specific you need to be.

Municipal Competitive Franchising Process in Minnesota

Posted on February 10, 2015 by Vince Rotty

Many cities/cable commissions in the Twin Cities Metro area have been approached by CenturyLink about submitting an application for a cable franchise. While receiving an application to provide competitive cable service may be an exciting prospect, it is important to recognize that, in Minnesota, the cable franchising process is quasi-judicial and certain procedural safeguards must be followed. The following is a general point of reference for interested city/commission staff and policy makers generally describing the cable franchising process. Cities/commissions are encouraged to consult their attorneys.

State Law – Process for Additional Cable Communications Franchises

The Minnesota Cable Act, found in Minnesota Statutes Chapter 238, lays out the process for granting an additional cable franchise. Each franchising authority should also review its records to determine if it had adopted a franchising policy in previous years. Charter cities should also consult their city charters for additional requirements. The following is a summary of the franchising process found in Section 238.081:

Publication of Notice. A notice of intent to franchise must be published once a week for two successive weeks in a newspaper of general circulation. The statute identifies the information required in the notice.
Written Notice. In addition to publishing the notice of intent to franchise in one or more newspapers, a franchising authority must mail copies of the notice of intent to franchise to any person it has identified as being a potential candidate for a franchise.
Deadline for Application Submission. A franchising authority must allow at least 20 days from the first date of published notice for the submission of franchise proposals. In other words, the deadline for submitting franchise proposals cannot be earlier than 20 days after the date that a jurisdiction’s notice of intent to franchise was first published in a newspaper of general circulation.
Contents of franchising proposal. The Minnesota Cable Act requires all franchise applications be signed in front of a notary and that certain other information also be included in all franchise applications. Additional federal law requirements should also be reviewed.
Public hearing on franchise. Each franchising authority must hold a public hearing before the franchising authority affording reasonable notice and a reasonable opportunity to be heard with respect to all applications for a franchise. We address the conduct of the public hearing below.
Award of franchise. Cable franchises may be awarded only by ordinance, after holding any necessary public hearings. A franchise may not be awarded until at least seven days after the public hearing.

FCC 90/180-Day Shot Clock

In 2007, the FCC released a Report and Order and Further Notice of Proposed Rulemaking, which was subsequently affirmed by the Sixth Circuit United States Court of Appeals and recently clarified by the FCC in an Order on Reconsideration in 2015. The Report and Order addressed how local franchising authorities could franchise new franchise applicants.

The FCC found “the current operation of the local franchising process in many jurisdictions constitutes an unreasonable barrier to entry that impedes the achievement of the interrelated federal goals of enhanced cable competition and accelerated broadband deployment.” To eliminate these alleged barriers, the FCC promulgated certain market entry rules and furnished “guidance” to cable franchise applicants and local franchising authorities in several subject areas, including the franchise application process.

The Report and Order established a 90-day deadline for acting on franchise applications submitted by an entity with existing authority to access public rights-of-way. Franchise applications for all other entities must be acted on within 180-days. These deadlines begin to run from the date that a complete application or other writing containing all the information required by FCC rules and state and/or local law is first filed with a franchising authority. Payment of a “reasonable application fee” may be required.

Federal Cable Act Considerations

The federal Cable Act does not disturb the process set forth in Minnesota law, however, it does prohibit a franchising authority from unreasonably refusing to award an additional competitive franchise.

Procedural Due Process Considerations

The Minnesota Supreme Court has held that the basic rights of procedural due process required in a hearing such as this are reasonable notice of the hearing date and a reasonable opportunity to be heard. Quasi-judicial proceedings such as this do not invoke the full panoply of procedures required in regular judicial proceedings. The rules of evidence that you would find in a regular judicial proceeding are of course not applicable in municipal public hearings.

The failure to provide adequate due process exposes a franchising authority to possible claims under 42 U.S.C. § 1983 (government deprived a person of a constitutionally protected liberty or property interest) and 42 U.S.C. § 1988 (authorization of attorney fees to the prevailing party of a section 1983 claim).

Minnesota Cable Franchising is Quasi-Judicial

In Minnesota, the consideration of a cable franchise application is quasi-judicial if it complies with the requirements of Minnesota Statutes Section 238.081. “Quasi-judicial proceedings involve an investigation into a disputed claim that weighs evidentiary facts, applies those facts to a prescribed standard, and results in a binding decision.” The franchising procedure under Minnesota law (as described above), “requires documentary evidence in the proposal and allows for testimonial evidence at the public hearing and results in a binding decision.” In most instances, to be upheld on appeal, a quasi-judicial decision must not be arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.

Quasi-Judicial Municipal Best Practices

Bias of a Council Member who takes part in a quasi-judicial process may render a City’s decision as arbitrary and capricious. It is therefore critical that once a cable franchise application has been submitted, Council Members/Commissioners should take measures to provide adequate safeguards for the due process rights of cable franchise applicants that will appear before them.

In a separate post I discuss some aspirational “best practices” that Council Members and/or Commissioners should consider using in connection with quasi-judicial matters over which they may have decision-making authority.

Appeal of Additional Franchise Decision

An applicant may seek Certiorari Review by the Minnesota Court of Appeals of any quasi-judicial final action by a City/Commission. An applicant may also seek judicial review under 47 U.S.C. § 555, which may be brought in– (1) the district court of the United States for any judicial district in which the cable system is located; or (2) in any State court of general jurisdiction having jurisdiction over the parties.

Mike Bradley is a partner at Bradley Hagen & Gullikson, LLC. He has been practicing law for over 20 years and is licensed in Minnesota, Wisconsin and Washington. Mike represents cities on cable television franchising issues.

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