Cell tower landowners and building owners across the country are being besieged by requests from wireless carriers to add fiber-optic communications to their cell sites. Due to a consistent increase in data usage (45% year over year growth), wireless carriers must become adept at moving significantly more data to and from their sites with greater speed and reliability. To do this, they are replacing traditional copper telephone wires with fiber-optic cables. The problem is that the nearest location of fiber-optic cable to the property is often not the same location as the nearest telephone demarcation. Even when the fiber-optic cable is close to the telephone demarcation, it could be cheaper for the fiber-optics company to route it elsewhere across the property. When this is the case, companies will send out generic looking consent letters that essentially say: “We have the right to bring in utilities to your property. Please consent to [this] location.” What the wireless carriers do not tell you is that under the terms of your existing lease agreement, they might not have the right to utilize the proposed location of the fiber-optic cables; the truth of the matter is that this additional consent agreement is, in fact, a new easement that you as a landowner have no obligation to accept. Rarely are the carriers willing to pay for this easement, so they attempt to make it seem as though it is their right to begin with. You should be aware that, in some situations, fiber-optic companies try to add equipment outside of the wireless carrier’s pre-determined lease area because the wireless carrier or tower company would charge them additional fees if they worked within the existing lease area. It’s important that you understand what rights and obligations you truly have and what arrangement will serve your best interests.
If you have received a request to add fiber-optic communications to your property, here is what we suggest doing:
In our experience, wireless carriers rarely agree to increase the rent payment for a fiber-optic easement, although, there are occasions where it does happen. Alternatively, they might be willing to pay a one-time fee for additional access to your property. You will need to determine whether the additional burden on the property is worth it. Please note that we aren’t advising you to refuse your consent altogether. In some states, fiber-optic companies are treated as utilities and you can’t prevent them from accessing their tenants (the wireless carriers) on the property you have rented. It’s also possible that your lease may grant the carrier fairly liberal rights to add fiber-optic cables at their discretion. In these cases, if you failed to provide consent, you could be in breach of the lease. Lastly, cell sites without fiber optic or microwave backhaul will become less valuable to the wireless carriers and in extreme cases, the carrier may choose to simply relocate the site to another location.
One question that we are frequently asked is whether a fiber-optic installation is a sublease and therefore means that the tower company is subleasing without paying their revenue share. It is very rare that the fiber-optic company pays the tower owner anything for bringing fiber onto the property. Thus, there is no sublease, and subsequently no revenue share payment.
If you have been approached about a fiber-optic cable and, after completing the steps above, feel that you don’t have to or wish to consent to the proposed installation, please reach out to us and we will review your situation and let you know whether we think we can help and, if so, what our fees would be for doing so.
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