Good questions...
 
I know nothing about Jeff's case, but...
 
Its not only an issue of wether it would hold up, also wether it just wasn't worth pursuing.
There are three problems in successfully sueing someone that I see on that issue.
 
1) There have to be damages that can be proven. It does no good to win, if you aren't awarded compensation for damages at a value high enough to pay the legal fees. Its very difficult to prove justification for compensation of potential future revenue. Its hard to prove harm, if you've managed to keep your clients, and trying to put a dollar on goodwill and customer confidence lost.  If someone had 50 clients, interference happened because of the insodent, and all 50 clients were lost, it would be very easy to prove clients were lost and the value of the loss/damages.  However, thats rarely ever the case. Its best to always fight to keep your clients, and fight to stay out of the court room. When we've lost clients to interference (the rare occasion) or I should say custoemer's fear of possible future interference, we rarely are told of there intent to cancel until months down the road, and they rarely fess up to the true cause of why they cancelled, "fear". They don't like to feel like the bad guy when you've given them good service, so they lie. So its not easy getting testimoney from clients stating the damage either. They hold you responsible, and also want to avoid legal distractions.
 
2) Its not legal to offer exclusivity for providing broadband, according to FCC rules. Often it would get thown out for that. Keep "Exclusivity" out of agreements if at all possible, to prevent misinterpretation, if relating to broadband access.  However, it is allowed to give exclusive use of spectrum as its a finite product, and you are selling the space (spectrally), not the oppportunity to reach the tenant. Property owners also have the right to sell licenses for the use of assets for a particular purpose. Just like you can't sell the same physical office space to two tenants at the same.  A lot of people don't realize "unlicensed spectrum" does not mean its usable everywhere, and that property owners have the right to license its use (transmittion) from their facilities controlled by them. 
 
3) If an agreement is not clear, and leaves a lot of room for interpretation, it is likely that it may get thrown out. One of the most important parts of the agreement, is the "definitions" section. Any key term principle that is used for criteria to prove default of agreement needs to be defined. A perfect example is the word "client". A client can be defined in many ways. Many Non-competes get thrown out because the word client was not properly defined.  The big problem in enforcing spectrum disputes is that, there is rarely an agreement between the legitimate holder of the right to use the spectrum, and the competitor that used the spectrum after the fact and getting sued.  There is usually a Property manager in the middle.  The Property Manager has different interests to protect than the first ISP. Maybe the second ISP wants to pay more, maybe the Property manager just doesn't want the legal head ache to inforce it something they can't prove or are not educated in, maybe the property manager did not want to give up control of its roof assets, so insisted upon loose language in there agreements between them and WISPs.  Often the First WISP has no legal right to sue the second WISP, the first WISP instead only has the right to sue the Property manager that they have an agreement with, and then the property managers responsibility to sue the second ISP.  This can be a difficult situation. If the first WISP sues the property manager, its probably the last roof the first WISP will ever colocate antennas on. Property owners talk, and property owners hate to work with troublesome tenants. PLus landlord relationships are so hard to establish, last thing you want to do is tarnish then unless its really necessary. (unless you are getting taken advantage of, and need to prove a point (reputation) to the world thats more important to prove than the relationship with the initial landlord. In that case you hope the landlord does talk.)
 
 
This brings up a more important issue, should there be a property manager in the picture, and what should you pay for that space. When there is no legal obligation from a property owner, there is rarely money that changes hands. And when the property owner does not have a clue how to manage Spectrum rights and roof space, which is the case 90% of the time, including when they have representation from a specialist in roof management, it can get ugly, and also not worth much to pay for the space.
 
But when you find a landlord, that own prime space, and knows what they are doing from a management perspective, and gives the WISP protection, and likely to enforce terms of the agreement (such as preventing other ISPs from non-interference or using your spectrum), thye become a valuable landlord to do business with.  Initially, Property Management companies are looked at as the bad guy, getting in the way of prgress. But once you grow, establish relationships with GOOD property management companies, they can be your best assets, and worth every penny that they weasle out of you for their support.  I charish my property management "partners" like gold. The problem is that property managers are generally obligated to represent the landlord not the buyer of space, so in can be a battle to win good terms. BUt once every one understands everyones position, there is a making for a deal.  The best property manager see both sides of the coin, and educate the property owner on why they must also look after the WISPs interests for mutual benefit. The trade off is they then ask for top dollar :-(
 
So in summary, wether something holds up in court, is not always a legal issue or the wording of your agreement, but often an issue of who and how strong your partnerships are with the people that assist the deployment of your network, such as property owners. 
 
I will also add that the best defense for an infraction or violation of your agreement, (interference or unauthorized use of your spectrum) is not legal action, but injunction relieve (or however that word is spelt). IMMEDIATELY STOP THE VIOLATION. Most landlords don't even know what they are licensing to you, or what they are licensing to the next guy, and really don't know what interferes and doesn't with another. So immediate action on the ISP's part to insist and assistance, or more important providing documentation and explanation clearly on what needs to be done is most helpful.  Also a plan should be made a head of time, of what the course of action is, and who to contact if a violation occurs, so it can be executed quickly.  Roofs that have management, often havethat person that is authorized to immediately take action to cure violations. Once again one of the reason I have chosen to pay heavilly for roof access in our competitive market.
 
I've proven that the right agreement, the right relationships, and licensing exclusive use of spectrum rights, has been invaluable in protecting turf, the spectral environment, and in fact VERY enforceable, both socially and legally. However, anytime anything goes to court, its a disaster, as damages were already done at that point, and financially everyone looses by that point. The purpose of a good agreement, is so that nobody evet chooses to go to court because everyone knows in advance who will win, ot for that matter the outcome, if peopel don't cooperate.
 
Tom DeReggi
RapidDSL & Wireless, Inc
IntAirNet- Fixed Wireless Broadband
 
 
----- Original Message -----
Sent: Tuesday, January 31, 2006 6:06 PM
Subject: Re: [WISPA] Anyone know Verilan?

Huh. What's the difference between quasi and true exclusive rights? What *would* hold up?

Best,
--
Dylan Oliver
Primaverity, LLC


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