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In February, President Obama signed into law HR 3630, also known as the “Middle Class Tax Relief and Job Creation Act of 2012,” which extended unemployment benefits and payroll tax deductions. Congress stuffed the bill with several additional provisions, including one that affects local government decisions regarding the siting of wireless facilities.

The legislation expressly requires that a local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station, so long as the modification does not substantially change the physical dimension of the tower or base station. This approval must be granted regardless of provisions in the Telecommunications Act of 1996 (Section 704) or any other provision of law. An “eligible facilities request” is any modification request that involves the collocation of new transmission equipment; removal of transmission equipment; or replacement of transmission equipment.

City of Arlington, Texas v. Federal Communications Commission, ___ F3d ___, 2012 WL 171473 (5th Cir.) involved certain new commission rules to assure timely, reasoned local decisions on the grant or denial of wireless communication facilities. The declaratory ruling was the result of a petition from a wireless trade association to clarify ambiguities in the law under the Telecommunications Act (“TCA”). Petitioner sought (1) time limits for acting on wireless applications for land use approval, (2) to deem the applications approved if not acted upon within a certain time, (3) a determination that if one provider already in the area, that other providers could also take advantage of the TCA to locate in the same jurisdiction and (4) the prohibition in the use of a variance to allow for the siting of a wireless facility. The FCC granted the petition in part.

Rooftop leasing to telecommunications companies can be an attractive way for a building owner or operator to increase revenues. Rents can range from $1,000 to $10,000 a month based on the strength of the location, and capital outlays for the owner are often minimal because the telecommunication company usually provides the necessary equipment. Ashok Kumar notes these and other benefits in his article, “Wireless is Going Through the Roof – Can Your Hotel Make Money on it?”

Before entering into a rooftop telecommunications lease, however, one should consider some of the traps and pitfalls that are often associated with telecommunications company lease forms. Below are a few tips for an owner or operator’s consideration when evaluating a rooftop lease.

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We regularly update clients about changes in real estate law and on industry trends. This includes briefing clients on legislative proposals in the federal tax, housing and other legal areas affecting their businesses. Staying current enables you to anticipate and prevent legal problems as well as capitalize on new developments.
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