Posted by: John Pestle, Partner, Varnum Riddering Schmidt & Howlett
As a lawyer who has spent the better part of three decades representing municipalities against utilities, I still have the capacity to be shocked by their disregard for being truthful. And the cell phone companies are my current poster child in that respect.
Over the years, I have gotten used to the big conventional utilities stretching the facts and the law rather elastically in court and regulatory filings. It’s part of the game to say you need a 20% rate increase when 10% is all you need. Or to argue that a statute promotes competition, when it does the opposite.
As a lawyer, I have gotten used to these games. Maybe they should shock me, but they are much the same as what we lawyers deal with every day in litigation: The light was red when you entered the intersection – – no it was green; The cases clearly support my client on this point – – no, they don’t, etc. Just part of the adversarial process. And such statements occur in well-defined arenas – – courts, administrative agencies or the legislature – – where the judge/legislator to whom you are “pleading” (literally) knows the rules of the game, and is usually well equipped to separate fact from fiction.
Cell phone companies in their dealings with municipalities and landowners on cell towers are beyond the pale, though. They often make statements without regard to, or in the face of, the facts and law. And why is not always clear, as the true facts often come back to bite them.
A few examples: In recent negotiations on a lease for a cell tower beside a grade school, the cell phone company lawyer responded to the school’s objections to the permanent installation of an electric generator and large gas tank by stating that “it is required by the FCC.” Having followed the FCC case in question, we knew that the order (largely at the request of the cell companies) did not require generators where the landlord would not agree. But beyond that, the order had in fact been stayed by the D.C. Circuit!
Why make the claim to a lawyer well versed in telecommunications law, when all it could do is harm your credibility for future negotiations on this and other matters?
Another one dear to my heart: Cell phone company applies for zoning approval for a cell tower. After changing the location slightly, delaying it, reinstating it and finally pushing it forward, it gets turned down. Result – – A Federal Court suit claiming the tower is essential, the City violated Federal law in rejecting it, and so on.
Only when the municipal litigator insisted on a site visit, did the cell phone company become aware that the site was under water part of the year! Bottom line, site was not buildable, and the result was a dismissal of the case.
Why didn’t the cell phone company ever visit the site during the several years in question? Not doing so cost the company (and the city) a fair amount in legal fees. And the city is now somewhat jaundiced about future claims.
And one last one: We represent a large school district – – let’s call it Metropolitan Public Schools – – on cell tower leases. We developed a good form of lease for them with Acme Cell Phone’s lawyers and used it repeatedly over a period of years for several of Acme’s towers on school property.
Acme then went to a small rural community – – let’s call it Village of Smallville – – and proposes their standard three page, one-sided lease. As Smallville Village attorneys, we respond with the Metropolitan Schools’ form of lease. Acme’s emailed response filled the air with the sound of rending garments and gnashing teeth as they claimed “we have never done X before”, “Y insurance is simply not available” and so on.
But the cell phone company apparently employs technological Luddites, or at minimum persons who are a tad lazy, because their email back to us included their whole internal email chain about Smallville’s response! Along the lines of “Oh my God, it’s the lawyers who represent Metropolitan Schools, this can’t be good news”, “Find some way, any way, to tell them we don’t want to use that form of lease”, and the best two “I think this means I’ll actually have to read the Metropolitan lease” followed by “My head hurts from reading it, and I’m only half way through”!
We forwarded the response to both our clients. Suffice to say that Acme’s credibility with each of them took a nose dive. Again, the cell phone company shot itself in foot.
Let me conclude with my concerns, a possible explanation, and a closing comment.
The concern is that the public loses. Unsophisticated landowners leasing property for cell towers do so based on “facts” from the cell company that aren’t true. Cell towers get granted zoning approval in places they need not be, or for greater heights or otherwise lacking restrictions which reduce their impact in the immediate area.
The possible explanation is that the cell phone companies subcontract out their cell tower work – – both the lease acquisition and zoning. This is in contrast to traditional utilities which handle most of this work in house. The difference appears to be that the subcontractors are not very knowledgeable, are paid on commission (hence an incentive to “exaggerate”), or both.
A closing comment – – there is always another day, and the cell phone companies seem oblivious to the harm items like the preceding will cause them down the line. In the words of Shakespeare “Reputation, reputation, reputation! O! I have lost my reputation. I have lost the immortal part of myself, and what remains is bestial.” Othello, the Moor of Venice, Act II, Scene III, lines 225-226.