A recent California Appellate Court ruling (T-MOBILE WEST LLC et al., v. CITY AND COUNTY OF SAN FRANCISCO et al.) continued the ongoing debate concerning how and where cell sites are deployed. The Court considered whether state law preempted the local governments in determining whether aesthetics are a factor in approving cell site installations. This question affects not only the formal application process required by local governments but also the leases between property owners and the wireless and tower companies. The Court held that local governments are not preempted by state law meaning they can consider aesthetics when considering new and modified cell sites for approval.
Property owners who lease space to the wireless industry are impacted frequently by changes in the local, state and federal law. For example, the Federal Communications Commission (FCC) ruling in 2013 allowing wireless and tower companies to make certain modifications to cell sites without local government approval meant that many sites were modified without the landlord’s knowledge and consent. Many leases require review and approval by the landlord prior to any modifications of the cell site and yet the FCC ruling was used to bypass this requirement. In most cases, the requirements of the local government trigger notice and consent from the property owner which allows for a review of the lease by the landlord to determine if the proposed changes to the site comply with the lease terms. A detailed review of the lease can result in a determination that the lease must be amended which can lead to negotiation of key lease terms such as rent and termination.
The Appellate Court ruling protecting the local government’s right to consider aesthetics is yet another chapter in the cell tower siting saga. The push and pull between local, state and federal law has indirectly impacted cell site landlords and their leases. Over time, the local governments’ control of cell site location and design has been eroded by federal preemption. This has caused a ripple effect with cell site leases whereby wireless and tower companies frequently overlook or skew provisions in the lease pertaining to site modifications. The result is missed opportunities for the landlord to level the playing field. The Court’s ruling helps maintain necessary checks and balances important to both local government officials and cell site landlords.
Michael H. Ritter practices cell site leasing law. He can be reached at mritter@clearskylaw.com and (760) 917-1123.
