A Message From the Web Wars How To Get Your Wiring Agreement Done

Author:Mr Nelson Migdal
Profession:Holland & Knight LLP

It isn't quite a war, but the relationship between building owners and

managers and the many telecommunications companies seeking access to buildings

remains dynamic and sometimes charged. The purpose of this article is to move

beyond the struggles of power, ego and control to an examination of the

essential operational matters that will ultimately control how owners and

providers work together. Make no mistake. In the final analysis everybody knows

that there is too much at stake and too much to be gained not to develop areas

of achievable compromise. The issues of control will yield to the issues of

shared revenue, and the business of doing business will move forward and find

common ground on which to better serve system users and make money. So once a

decision is made to hammer out an agreement to wire a building, shopping center,

apartment project or any other structure, how can you get it done? Here are some

key points and ideas.

Get Smart

The Federal Communications Commission (FCC) and most states, either through

legislation or regulation, have developed and are in the process of continuing

to develop systems and procedures to guide and manage how telecommunications

services and facilities are provided. Some states, such as Texas and

Connecticut, provide some form of mandatory access in multitenant buildings.

Other jurisdictions, like the District of Columbia, have delegated to the Public

Service Commission the authority to promulgate regulations. There are also

regulatory requirements governing ancillary issues such as inside wiring,

antenna placement and satellite dishes. Regardless of the applicable authority,

owners, managers and providers must become informed about what the current state

of the law requires, permits and limits. In addition, given the rapid pace of

change, the knowledge base must be reviewed and maintained as

"current" at all times. The recent rulemaking by the FCC relating to

mandatory access to privately owned commercial buildings is just one example of

possible future change that should be watched. Whether you are an owner or a

provider, finding a way to get smart and stay smart is a primary task.

Term of Agreement

Every telecommunications provider needs the chance to recover the expense of

their due diligence, system installation and commencement of operations. Every

owner needs the ability to limit the term, and, if they can, use the term of the

agreement as another tool to better insure performance by the provider. It is

fairly common to see an initial term of ten years, followed by a series of

renewal periods. ten years is a long time for an owner, and provides plenty of

opportunities for the provider to falter, and, in the process, negatively impact

the relationship between the owner and its tenants. Performance criteria and

events of default will be covered in greater detail later, but initially they

should be raised in relation to the term of the agreement. Something as simple

as linking the term to performance can be a significant help. (Drafting Tip: Try

something like "The Term of this Agreement shall continue for a period ten

(10) years, subject to performance of the terms and conditions set forth herein,

unless this Agreement is terminated earlier or extended...").

The extension options can also be structured to provide flexibility to the

provider and comfort for the owner. An automatic renewal or series of renewals,

unless a party takes affirmative action to stop it, provides...

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