New Medical Exception to Minnesota Open Meeting Law

Under the Minnesota Open Meeting Law (the “OML”), a municipality’s elected officials and commission, committee, board, etc. members are only able to remotely participate in public meetings under certain circumstances. When elected officials and members of a governing body participate in a meeting through interactive television means (e.g., videoconferencing), the OML requires that the person’s physical location be open to the public. The OML was recently amended to allow military servicemembers at a military location to remotely participate in public meetings without making their physical location open to the public.[1]

The OML was recently amended again to allow a remotely participating individual’s physical location to be closed to the public if “the member has been advised by a health care professional against being in a public place for personal or family medical reasons.”[2] This exception to in-person participation can only be used during a state of emergency declared under Minn. Stat. § 12.31 (National Security or Peacetime Emergency; Declaration) and for a period of 60 days thereafter.

It’s important to note that this new exception doesn’t modify the circumstances under which remote participation is allowed.[3] This new exception only affects the statutory requirement that an individual’s physical location be open to the public when the individual is remotely participating in a public meeting through interactive television means. Elected officials and members of a governing body must still be able to see and hear all discussion and testimony occurring at a public meeting and be seen and heard by all other elected officials or members of the governing body, and, members of public. Notice of the body’s regular meeting location and the remote location of any remote elected official or member must still be provided in compliance with Minn. Stat. § 13D.04.

It’s also important to note that this new exception doesn’t modify any other sections of the OML. Specifically, Minn. Stat. § 13D.021, which allows for remote public meetings to be conducted under emergency conditions, is not affected in any way. If a municipality has already followed the process set forth in § 13D.021, there is no need for an individual to have “been advised by a health care professional against being in a public place for personal or family medical reasons” to remotely participate in a public meeting.[4]

If you have any questions about the Minnesota Open Meeting Law, please speak with your attorney or a Bradley Law, LLC attorney to understand how the OML applies to you.


[1] Laws of Minnesota 2019, chapter 33, section 1.
[2] Laws of Minnesota 2020, chapter 74, article 1, section 1.
[3] Minn. Stat. § 13D.02.
[4] Laws of Minnesota 2020, chapter 74, article 1, section 1.

 

Closing a Public Meeting Under Minnesota’s Open Meeting Law

Under the Minnesota Open Meeting Law (the “OML”), a public body’s meetings must be open to the public unless the OML or another Minnesota law provides an exemption that allows or requires a meeting to be closed. A list of exemptions stated in the OML can be found at the end of this post. Closing a public meeting means that any materials, like a privileged legal report or a document containing confidential information, and discussions related to the closed meeting aren’t open to the public.[1]

Closed meetings are conducted similar to open meetings. Like open meetings, adequate notice must be provided for closed meetings and, except for meetings closed by attorney-client privilege, closed meetings must be recorded, and the recording must be preserved for at least three years.[2] In addition, the OML sets forth specific procedural requirements for discussion of certain issues or topics in a closed meeting.

Failure to properly conduct a closed meeting may result in a penalty of up to $300, and multiple violations may result in a person being forced to resign from a public body.[3] In addition, a court may award reasonable costs, disbursements, and reasonable attorney fees to a prevailing party (i.e., losing party pay’s the winner’s costs).

Exemptions Allowing or Requiring the Closing of a Public Meeting:

  • Discussion of “data that would identify alleged victims or reporters of criminal sexual conduct, domestic abuse, or maltreatment of minors of vulnerable adults.” Minn. Stat. § 13D.05, subd. 2(a)(1).
  • Discussion of “active investigation data as defined in section 13.82, subdivision 7, or internal affairs data relating to allegations of law enforcement personnel misconduct collected or created by a state agency, statewide system, or political subdivision.” Minn. Stat. § 13D.05, subd. 2(a)(2).
  • Discussion of “educational data, health data, medical data, welfare data, or mental health data that are not public data under section 13.32, subdivision 1, 13.384, or 13.46, subdivision 2 or 7.” Minn. Stat. § 13D.05, subd. 2(a)(3).
  • Discussion of “an individual’s medical records governed by sections 144.291 to 144.298.” Minn. Stat. § 13D.05, subd. 2(a)(4).
  • “Preliminary consideration of allegations or charges against an individual subject to its authority” unless the individual who is the subject of the meeting requests the meeting be open in which case the meeting must be open. “If the members conclude that discipline of any nature may be warranted as a result of those specific charges or allegations, further meetings or hearings relating to those specific charges or allegations held after that conclusion is reached must be open.” Minn. Stat. § 13D.05, subd. 2(b).
  • Consideration of “strategy for labor negotiations, including negotiation strategies or developments or discussion and review of labor negotiation proposals, conducted pursuant to sections 179A.01 to 179A.25.” Minn. Stat. § 13D.03, subd. 1(b).
  • Disclosure of not public data “if the disclosure relates to a matter within the scope of the public body’s authority and is reasonably necessary to conduct the business or agenda item before the public body.” Minn. Stat. § 13D.05, subd. 1(b).
  • Discussion of “the performance of an individual who is subject to its authority” unless the individual who is the subject of the meeting requests the meeting be open in which case the meeting must be open. Minn. Stat. § 13D.05, subd. 3(a).
  • If expressly permitted by statute. Minn. Stat. § 13D.05, subd. 3(b).
  • If permitted by attorney-client privilege. Minn. Stat. § 13D.05, subd. 3(b).
  • “To determine the asking price for real or personal property to be sold by the government entity.” Minn. Stat. § 13D.05, subd. 3(c)(1).
  • “To develop or consider offers or counteroffers for the purchase or sale of real or personal property.” Minn. Stat. § 13D.05, subd. 3(c)(3).
  • “To receive security briefings and reports, to discuss issues related to security systems, to discuss emergency response procedures, and to discuss security deficiencies in or recommendations regarding public services, infrastructure, and facilities, if disclosure of the information discussed would pose a danger to public safety or compromise security procedures or responses.” Minn. Stat. § 13D.05, subd. 3(d).

[1] See Minn. Stat. § 13D.01, subd. 6(b). See also Minn. Stat. Ch. 13 (Government Data Practices).
[2] Minn. Stat. §§ 13D.03, subd. 5 & .05, subd. 1(d).
[3] See Minn. Stat. § 13D.06 (2008).

Rooftop Leasing for Wireless Antennas

What is rooftop leasing?

Rooftop leasing for wireless antennas is a business model that involves building owners leasing space on their roofs to wireless service providers (e.g., Verizon, AT&T, etc.) and wireless infrastructure providers (e.g., Crown Castle, American Tower, etc.) (collectively “Service Providers”). As 5G services continue to be tested and deployed, Service Providers will increasingly need access to sites for both antennas and backhaul facilities, which you can read more about here. Generally speaking, antennas provide service to people, and backhaul facilities provide service to antennas.

Although a rooftop lease can be a great source of passive income for a landlord, there are key issues that must be considered.

Key Issues in Rooftop Leasing

1.      What else could a rooftop be used for?

Before entering into an agreement that would allow a Service Provider to install and operate a wireless antenna on a building’s roof, the building’s owner should first determine whether the Service Provider’s presence conflicts with any current or planned future use of the building’s roof. For example, would a wireless antenna’s presence conflict with a rooftop garden, solar farm, or pool? A building owner should carefully study the potential uses of their building before entering into an agreement with a Service Provider.

2.      What type of agreement should I use?

Although a lease (i.e., a landlord-tenant relationship) is the most common type of agreement used to allow a Service Provider to construct and operate wireless antennas on top of a building, it is also possible to simply license rooftop access to a Service Provider. Whereas a lease creates a landlord-tenant relationship, a license creates only a contractual relationship that may be easier to terminate or modify. However, it should be noted that a Service Provider may desire the protections of a landlord-tenant relationship and refuse to enter into a license agreement.

3.      How many years should my agreement be for?

The answer to this question will vary from building owner to building owner, but the answer should never be forever (or effectively forever). Often, Service Providers will ask for 99-year agreements or shorter agreements (e.g., 5 years) that automatically renew solely at the Service Provider’s discretion. Clearly, neither of these options are in a building owner’s best interest. A better starting point might be to ask for a term similar to the limit imposed on Service Providers when attaching antennas to municipally-owned assets (e.g., a utility pole in the public rights-of-way). These types of attachments are typically limited to 10-years but will vary from state to state.

4.      How should payments be structured?

Service Providers are often willing to negotiate option payments, lump sum payments, periodic payments, or any combination thereof. Although the answer to this question will vary from building owner to building owner, building owners should be aware that a Service Provider may ask for competitive equity language in an agreement. Competitive equity refers to the equitable treatment of multiple Service Providers by a single building owner. This doesn’t mean that each Service Provider must be treated the same, but it does mean that each Service Provider must be treated fairly in light of how other Service Providers are being treated. As it relates to payments and payment structures, building owners should pay careful attention to how they are being compensated.

5.      Who is responsible for maintenance and repairs?

In almost all cases, a Service Provider should be responsible for repairing and maintaining their equipment. However, it will be important to discuss how and when a Service Provider will have access to their facilities (i.e., a building’s roof). For instance, a Service Provider might want unfettered 24/7 access to a building’s roof whereas the building may only be open during normal business hours. If such access is granted, who will give this access to the Service Provider? Will the Service Provider have their own access to the building? These are questions that should be answered in a rooftop leasing agreement.

6.      What type of insurance does a Service Provider need to have?

A building owner should ensure that a Service Provider is adequately insured against any damage that might be caused by the Service Provider’s equipment and facilities. For instance, what happens if a Service Provider’s transformer falls through a roof and causes damage to another tenant’s equipment? These damages should be covered by the Service Provider, but it is important to address these issues in an agreement.

Conclusion

It is important to understand that effects and implications of a rooftop leasing agreement, and the above issues may not address all of your issues. Each building presents its own unique set of issues that should be carefully studied. Before entering into any negotiations with a Service Provider, a building owner should contact their legal counsel or the experienced telecommunications attorneys at Bradley Law, LLC to identify any legal issues unique to their building and to develop strategies that maximize the value of their assets.

Closed Captioning Requirements for Local Governments and PEG Operators

Local governments and PEG operators may be required to provide closed captioning by the Americans with Disabilities Act, the Communications Act, or the Rehabilitation Act. Bradley Law, LLC’s Vince Rotty recently spoke about these legal requirements at Tightrope Media’s PEG Experts Forum. Please watch the video below to learn more and contact your legal counsel or one of Bradley Law, LLC’s telecommunications attorneys if you have any questions.

FIRST QUARTER 2019 FEDERAL UNIVERSAL SERVICE CONTRIBUTION FACTOR OF 20% IN EFFECT

On December 12, 2018, the Federal Communications Commission (“FCC”) Office of Managing Director (“OMD”) released Public Notice DA 18-1249 announcing a proposed federal Universal Service contribution factor of 20% for the first quarter (January-March) of 2019.

Because the Commission took no action in the 14-day period following the release of the Public Notice, the proposed contribution factor is now in effect for the first quarter of 2019.

The Public Notice can be viewed at Public Notice DA 18-1249.

Calendar Year 2018 Estimated De Minimis Threshold Released for FCC Form 499-A

FCC Form 499 filers be advised that USAC recently released the Calendar Year 2018 estimated de minimis threshold.  According to USAC, filers that report less than $62,655.75 of combined interstate and international telecommunications revenue (Line 423, columns (d) and (e)) on the 2018 FCC Form 499-A will likely be considered de minimis for Calendar Year 2018.

As we move to the close of the calendar year, FCC Form 499-A filers should keep the estimated threshold in mind.  This is particularly true for filers who originally anticipated being de minimis but now determine they may exceed the estimated de minimis threshold.  Such filers will be assessed true up charges by USAC on their July 2019, August 2019, and September 2019 invoices.  In addition, resellers who are no longer de minimis will need to notify their underlying carriers of their non de minimis status so that their underlying carriers can adjust their own 2018 FCC Form 499-A reporting and make any necessary internal billing adjustments.

Additional information regarding the announcement can be found here: Estimated De Minimis Threshold Announcement.

What are small cell facilities, and why are they in the public rights-of-way?

On September 27, 2018, the FCC released a declaratory ruling and report and order (available here). This post has been updated to reflect the FCC’s new regulations.

I.       What are small wireless facilities?

A small wireless facility (sometimes referred to as a small cell facility) is a cellular network facility capable of delivering high transmission speeds but at lower ranges. Although they are called “small,” this is in reference to their small coverage area, not their physical size. These facilities, due to their heightened transmission speeds and capacities, are critical to the wireless industry’s deployment of 5G services. However, because a small wireless facility, when compared to a traditional macrocell tower, is only able to transmit data at low ranges and is not capable of transmitting through buildings and other structures, many more small wireless facilities are needed to cover the same geographic area that a single, traditional macrocell tower would cover. It is estimated that each wireless provider will need at least ten times as many small wireless facilities as macrocell towers to provide the same network coverage.[1]

II.     Why are small wireless facilities in the public rights-of-way?

Wireless service providers and wireless infrastructure providers will seek to collocate small wireless facilities and construct wireless support structures in a municipality’s rights-of-ways for a number of reasons, but one of the primary reasons is that small wireless facilities require two resources: (1) data via fiber optic cable and (2) power, and both of these resources are often found in a municipality’s rights-of-way.

Additionally, many states have enacted statutes that, among other things, limit rights-of-way and permit application fees that a municipality can collect from a wireless service provider or wireless infrastructure provider and create statutory review periods for small wireless facility permit applications.[2] Often, utility poles and wireless support structures owned by private entities are exempt from these state statutes, further prompting wireless providers and wireless infrastructure providers to prefer to collocate small wireless facilities to existing municipal assets in the municipality’s rights-of-way.[3]

III.  Which types of entities are collocating small wireless facilities or constructing wireless support structures?

In addition to traditional wireless providers, neutral host and other infrastructure providers are also expected to play a critical role in the deployment of small wireless facilities. Neutral host and other infrastructure providers will often lease their wireless assets to traditional wireless providers. As a result, your municipality might not receive any permit requests of applications for collocating small wireless facilities or constructing wireless support structures from traditional wireless providers such as AT&T, Verizon, T-Mobile, and Sprint. Instead, your municipality may be receiving permit requests and applications from neutral host providers such as ExteNet and Mobilitie.

IV. Why should my municipality be concerned?

Not all small wireless facilities are created equal. While wireless providers and wireless infrastructure providers may initially propose to construct facilities that are integrated into light poles, monopoles, traffic signals, and other existing rights-of-way structures or assets, the reality is that your municipality should expect that very few small wireless facilities will be constructed in this manner. For example, a light pole with a pole-top antenna and integrated equipment cabinet is shown below. As can be seen in the below image, there are almost no exposed elements or cables, and there is only a minimal intrusion into the rights-of-way. The rights-of-way in the below image appears to be largely undisturbed by the small wireless facility integrated into the light pole.

Source: https://twitter.com/stealthsite/status/851882939633762304

However, in reality, many small wireless facilities are likely to be collocated on existing wooden utility poles. Because these existing utility poles are almost universally incapable of integrating equipment cabinets within the pole’s base, as is in the above image, wireless service providers and wireless infrastructure providers will instead install equipment cabinets at ground level or mount the cabinets to utility poles in the rights-of-way. These facilities can create safety, aesthetic, and noise issues, including violations of the Americans with Disabilities Act of 1990 (“the ADA”).

An example of a non-integrated small wireless facility is shown below. As can be seen in the below image, the small wireless facility extends beyond the wooden utility pole, the cabling is loose, and there are equipment cabinets mounted at the top of the pole.

Source: https://www.cleveland.com/middleburg-heights/index.ssf/2018/05/middleburg_will_closely_regula.html

These rights-of-way impacts and concerns are compounded by the increased number of small wireless facilities necessary to operate a small cell network. Regulating how and when small wireless facilities can be collocated in your municipality’s rights-of-way is key to addressing a municipality’s concerns such as safety, noise, aesthetic, and undergrounding of ground-level facilities.

V.    How should my municipality respond to requests to collocate small wireless facilities or construct wireless support structures in its public rights-of-way?

When a municipality receives a permit request or application to collocate a small wireless facility or construct a wireless support structure, there are three sources of law that must be followed: (1) federal law, (2) state law, and (3) local law.

A.     Federal Law

In 2018, the FCC issued a declaratory ruling and report and order addressing how municipalities must process small wireless facility applications.[4] A small wireless facility application is an application for a permit or other authorization that seeks to either: (1) collocate a small wireless facility on an existing structure or (2) collocate a small wireless facility on a new structure (i.e., construction of a new structure to collocate a small wireless facility).[5] The primary difference between these two types of small wireless facility applications is the number of days that a municipality is allowed to process the application (shown below).

Type of Permit Request Review Period Remedy
Collocation on an existing structure 60 days Judicial Cause of Action
Collocation on a new structure 90 days Judicial Cause of Action

If a municipality fails to grant or deny an application within either of these review periods, the applicant may appeal the municipality’s failure to act to an applicable court.[6] Unlike Section 6409(a) applications, there is no deemed granted remedy for small wireless facility applications.[7] A deemed granted remedy means that an application is automatically granted if a municipality fails to act on the application.

For more information on the details and impacts of federal law, please consult your legal counsel or the attorneys at Bradley Berkland Hagen & Herbst LLC.

B.      State Law

After determining how to process a permit application or request under federal law, a municipality should next examine their state law. Often, state small wireless facility statutes will reduce review periods, limit the criteria by which a permit can be denied, and limit fees that municipalities can charge. A list of states that have passed small wireless facility laws can be found here. In short, state small wireless facility statutes are rarely, if ever, helpful for local governments. Instead, these statutes almost invariably limit municipal authority. For example, Oklahoma’s small wireless facility statute reduces the 90-day review period in federal law to 75-days and limits fees to $40 per small wireless facility collocated on a municipally-owned utility pole in the rights-of-way.[8] If your state has enacted a small wireless facility statute, it will be important to understand the restrictions and limitations placed on your municipality by state law in addition to federal law.

If your municipality is in a state that hasn’t passed small wireless facility-specific legislation, your municipality should nevertheless look for any processes or requirements that apply generally to wireless towers. These statutes were likely enacted with macrocell towers in mind but are often applicable to small wireless facilities.

C.      Local Law

Finally, your municipality should examine its local law to determine how to process an application. Many municipalities have passed ordinances governing the municipality’s rights-of-way or wireless towers, but some municipalities have passed small wireless facility ordinances as well. While no small wireless facility ordinance “may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service” (i.e., a prohibition on the collocation of small wireless facilities within a municipality), these ordinances do allow a municipality to enact aesthetic and design standards, undergrounding requirements, and other zoning restrictions.[9]

If your municipality has not already enacted a small wireless facility ordinance, please speak with an attorney at Bradley Law, LLC to discuss how your community’s unique needs and interests can be addressed through an ordinance or other legal mechanisms.


[1] https://www.commscope.com/Docs/Powering_5G_Cell_Densification_WP-112370-EN.pdf
[2] https://www.smartworkspartners.com/state-legislation
[3] Collocating a small wireless facility means attaching a small wireless facility to any existing wireless support structure such as a utility pole or a building. Collocation is often confused to mean attaching a small wireless facility to an existing wireless support structure that already has a small wireless facility. This would imply collocation of the small wireless facilities themselves, but under federal law, it is the small wireless facility and wireless support structure that are being collocated.
[4] In the Matter of Accelerating Wireless Broadband Deployment by Removing Barrier to Infrastructure Investment, Declaratory Ruling and Third Report and Order, WT Docket No. 17-79 (Sep. 27, 2018).
[5] 47 C.F.R. § 1.6003(c)(1) (2018).
[6] 47 U.S.C. § 332(c)(7)(B)(v) (1996).
[7] 47 C.F.R. § 1.40001(c)(4) (2015).
[8] https://webserver1.lsb.state.ok.us/cf_pdf/2017-18%20ENR/SB/SB1388%20ENR.PDF
[9] 47 U.S.C. § 253(a) (1996). See 47 U.S.C. § 332(c)(7)(A) (1996).

 

THIRD QUARTER 2018 PROPOSED FEDERAL UNIVERSAL SERVICE CONTRIBUTION FACTOR OF 17.9% ANNOUNCED BY FCC OMD

On June 13, 2018, the Federal Communications Commission (“FCC”) Office of Managing Director (“OMD”) released Public Notice DA 18-613 announcing that the proposed federal Universal Service contribution factor for the third quarter (July-September) of 2018 will be 17.9%.   

If the Commission takes no action in the 14-day period following the release of the Public Notice, the proposed contribution factor will be deemed approved.

USF Fund Transferred to Treasury – How It Impacts Contributors and Beneficiaries!

Be advised that the federal Universal Service Fund (USF) has transferred to the U.S. Treasury. 

Important changes for contributors include: 

  • The USAC April 2018 invoice (due May 15, 2018) may be paid using your current payment process or E-File.
  • The USAC May 2018 invoice (due June 15, 2018) must be paid using E-File.
  • Beginning with the May 2018 invoice (due June 15, 2018), USAC will no longer accept checks or wire transfers.
  • There are video tutorials on the USAC website and scheduled USAC training webinars to help contributors learn about the new payment system. 

There are no changes for USF Beneficiaries.  Disbursements will come from the U.S. Treasury, will continue to be made via ACH transfers, and will continue to be identified as coming from USAC.  

Additional information about the transfer can be found here: USF Transfer.

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