Backup Power Rule- The Impact on Cell Site Leaseholders

Recent rule making by the FCC has created a requirement that carriers increase or provide sufficient emergency/backup power at their cell sites. These backup power rules, which are currently being contested by CTIA and other entities, require that each cell site have eight hours of backup power. This rule was a direct response to the failure of numerous cell sites in the aftermath of Hurricane Katrina.

Depending upon the resolution of the appeals to these rules by the cellular providers, the backup power rule will have an impact on the individual landowner. The impact could include some or all of the following:

  1. The cellular carriers could need to amend the current cell site lease agreement’s permitted use language to include a generator and fuel storage to meet the 8 hour requirement.
  2. The cellular carriers might need to expand the current lease area to encompass the space necessary for the generator and fuel storage.
  3. The cellular carriers may increase the amount of certain hazardous materials on rooftops or on towers. Under federal requirements, there are thresholds under which the landowner or the building owner may face liability for failing to report the cumulative hazardous materials on their property. Many building owners may be unaware that they have this responsibility and that secondly that the carriers are exceeding the thresholds. To our knowledge, the carriers have not been proactive about letting their landowners know this.

The net result is that many landowners and building owners with cell site leases could be approached in the near future to “amend” their current leases and possibly to expand the lease footprint. Landowners should understand whether they have any exposure to liability as a result of modifying their cell site lease agreements. Landowners and building owners should also understand the value of the proposed amendment. Cell Tower Attorney suspects that the wireless carriers will attempt to procure additional rights or force additional obligations to the landowner in the amendments that the landowner may not wish to accept. These could include extensions to the term of the lease, modifications to the permitted use language, and material modifications to who is responsible for hazardous waste.

Cell Tower Attorney can assist you with reviewing the proposed cell site lease amendments. We can help you determine the value of the proposed modifications and guide you on whether you should accept the proposed amendment. Lastly, we can advise you as to whether you face potential liability and how you can meet the reporting requirements.

Please contact us with any questions regarding the backup power rule and how it impacts cell site landowners and building owners.

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