Apr 13, 2021

Phillips Lytle’s Take on Telecom Today

Featuring: David E. Bronston

Phillips Lytle’s Take on Telecom Today

David E. Bronston is an attorney and Telecommunications Team leader for Phillips Lytle LLP, a regional law firm with a national telecommunications practice. Bronston has extensive experience with network licensing at the intersection of telecommunications infrastructure and real estate.

“We have a multidisciplinary team that serves a mix of clients, large and small. We follow the idea of converged digital infrastructure and a holistic view that encompasses towers, small cells, fiber and data centers. We speak fluent infrastructure; we know it well,” Bronston tells Inside Towers Business Editor John Celentano.

Phillips Lytle has seen every type of transaction in these spaces: regulatory and permitting at the federal, state and local levels; operational matters involving master lease agreements, service level agreements and MMR agreements; and transactional matters such as basic leases and licenses to deploy infrastructure on towers and rooftops, in basements, inside buildings, in public rights-of-way, and on street furniture and streetlights.

Bronston says he’s seeing an uptick in M&A work at the firm as well. “We have 20-25 attorneys and professionals handling every aspect of an M&A deal, including managing due diligence on purchase and sale agreements, assessing zoning and environmental issues, documenting the financing for digital infrastructure acquisitions, and even the recording of the Assignments and Memorandum of Lease in the county recorder’s office.”

Clients appreciate that with Phillips Lytle, there is no learning curve in these types of deals. Its attorneys are involved with everything from small cells in shopping centers and parking lots to sales of large tower portfolios, telehealth regulations and large venue distributed antenna system (DAS) projects, to name a few. “We do everything except climb towers and splice cables,” says Bronston.

The firm has built its brand from the ground up, literally, which is appropriate for a firm working on horizontal and vertical, above- and below-ground real estate. Phillips Lytle has established itself as a “go-to” firm in this niche area of the law. It is no surprise that situations can escalate to a complicated level when a client must install equipment on someone’s property – public or private; developed or raw; urban, suburban or rural. “That intersection of telecom equipment and real estate, that transaction is where we get involved,” explains Bronston.

The D.C. Scoop

A new administration brings new perspectives and a shift at the FCC. “As long as the Commission remains a 2-2 (Democrat/Republican) split, I don’t think anybody is expecting big policy initiatives that would be controversial,” says Bronston, who describes new Commissioner Nathan Simington as “thoughtful and analytical in his approach.” Phillips Lytle does not expect any massive overhaul of the Small Cell Order, but perhaps some tweaks and assistance to municipalities and local governments on implementation.

“The pandemic made clear we need robust telecommunications infrastructure. I heard someone say kids are going to be disappointed that we’ve seen the end of the ‘snow day’ because now everything can be done remotely.” Still, internet connectivity is not available to everyone, so that’s a high priority. The $3.2 billion Emergency Broadband Benefit Program is one tool that the FCC is using to close the digital or “homework” divide.

Phillips Lytle also hopes local governments will work with the industry to solve connectivity issues raised by the pandemic. “In cities, reasonable right-of-way fees is money they need going forward, and greater broadband coverage is critical. The industry has to combat misinformation about 5G and small cells with grassroots educational initiatives. In New York State, we have something called ‘NYers for 5G,’ an industry-sponsored group that is working with local business groups and others to promote the economic development benefits of greater wireless capacity and coverage,” explains Bronston.

A 5G Future

Spectrum, however, is critical. Commerce Secretary [Gina Raimondo] appears to be publicly supportive of wireless broadband, says Bronston. “There is a need to reassign spectrum for other uses, and spectrum sharing is obviously a hot topic.”

“Also, the biggest takeaway of the results of the C-band auction, from my point of view, is that the carriers didn’t spend that money to sit on the spectrum. How does the auction’s $80 billion trickle down? The carriers will ultimately need infrastructure to make use of that new spectrum,” says Bronston.

Big Apple Broadband

Bronston was General Counsel to New York City (NYC) Department of Information Technology and Telecommunications and says current NYC Mayor, Bill de Blasio, is determined to close the digital divide. “The City recently issued a solicitation for universal broadband from the NYC CTO based on the Broadband Master Plan,” Bronston says.

Meanwhile, New York City has a number of commercial fiber providers, both for dark fiber and enterprise fiber. New York City has also provided multiple providers with access to its large stock of light poles for collocating small cells, yet the city is not moving as fast as some companies would like.

“It’s tough to get things done in New York City; it gets expensive. Some fixed wireless access companies are offering competitive internet access, but they have to get permission to go on someone’s rooftop to provide those services.” The digital divide may be everywhere, but New York City is unique. Who else has 200,000 light poles and street furniture in most neighborhoods? According to Bronston, all the players have the same primary objective of providing broadband access in the City, and each party’s goals should thereby align: service providers need to deploy; residents need service; and the City will benefit financially and from enhanced educational and economic development opportunities.

So, how are commercial and residential multi-tenant environments addressing broadband deployment? In New York City, there is a lot of push-pull to providing services versus the costs involved. At that juncture, “sophisticated landlords see the obvious benefits with providing broadband in attracting and keeping tenants. In the past, agreements tailored with landlords for access were a lot thicker than they are now. As broadband becomes more prevalent, property owners are more comfortable with the technology, the equipment, the installation and the providers,” says Bronston. Phillips Lytle is interested in seeing how CBRS and Private LTE will impact in-building wireless (IBW). “We agree with the consensus that the neutral host DAS model may stay with bigger venues. We’re starting to see other interesting models for IBW.”

Wires Needed for Wireless

Phillips Lytle’s practice spans fiber and wireless, an interconnected relationship – pun intended. “On the deployment side, we handle any of the pieces of the puzzle – towers, fiber, nodes and other wireless equipment. We span all of those elements; it’s all converged these days. To quote my friends Jennifer Fritzsche and Ray LaChance, wireless means wired,” says Bronston. Not surprisingly, Phillips Lytle is seeing continued high investment in fiber.

What’s Next?

“We are getting a lot done. We helped a client acquire a pole attachment license in Maine in two weeks. I bet you can’t even get a fishing license in Maine in two weeks!” says Bronston.

The need for mobile densification means more fiber with small cells. The challenge now, according to Bronston, is that one piece of equipment can be installed in different locations. Radio units can be on a streetlight, in a private shopping center parking lot or on a campus. Fiber is in the public right-of-way, and the baseband equipment is in a mini base shelter or in an edge hotel. “That’s the architecture we’re starting to see in dense cities or ex-urban areas.”

Unfortunately, Bronston notes, you may need three different permissions from the different property owners, as well as a fiber agreement in a public right-of-way. It isn’t the same as an in-building access agreement, and an agreement with a private landlord isn’t the same as a small cell agreement with a local government.

Phillips Lytle continues to develop its team in D.C., adding Joel Thayer and Darren Fernandez – two top telecom attorneys – to expand its work on converged digital infrastructure and expand its contacts at the FCC.

The industry is buzzing. A number of activities are underway, including mobile network densification, digesting C-band, CBRS spectrum sharing, more stimulus money, and a lot of liquidity and funds for infrastructure.

“I’m not an investment banker, but I believe if low interest rates continue, we will see continued M&A work,” says Bronston. “It’s always a question of time and money for the deal and operations guys: how quickly to deploy? How much will it cost? What’s the most efficient way of doing it? You have to hook the equipment up somewhere, and every different location has a different agreement.” Money needs to be invested to make it happen up and down the chain.

With a new generation of technology, smaller, lower-to-the-ground, millimeter-wave infrastructure will help. “There will always be instances where you have to install some pieces in different locations, always some deviation or twist from a standard deployment layout, or other problem or hurdle. And that’s where we step in.”

For over 185 years, Phillips Lytle’s history of legal excellence has stood strong on the principle of “Accept great trusts and responsibilities, and fulfill them with the utmost skill and fidelity.” Founded in 1834 by Orsamus H. Marshall, this firm has earned top recognition, including U.S. News – Best Lawyers® “Best Law Firms,” The Best Lawyers in America©, Super Lawyers® and Chambers USA. For more information about Phillips Lytle, visit www.phillipslytle.com, or contact Bronston directly by email at dbronston@phillipslytle.com or by phone at (212) 508-0470.