using them currently, then I would suppose your "exclusive" rights would
hold up, but am unaware of any legal precedence to show this.
Thats correct. Its still a grey area.
In our case, they settled before going to court, based on the likeliness
we'd win.
I also am not aware of any case that did not hold up, based on the fact that
the spectrum used was unlicensed spectrum.
In all cases that didn't hold, there was some other deficiency that caused
it not to hold up. Technicalities like unclearly written contracts or
definitions. When attempting to license unlicense spectrum, there are many
approaches to do it. There is a subtle difference, but its a big difference,
in what ways will hold up or not.
FCC rules can't be prejudice between providers of broadband. But it doesn't
define unlicensed spectrum as "broadband". The spectrum could be used for
any of many purposes. So the rules don't apply. Until they expand OTARD to
include shared common area controled by property owners, licensing the
exclusive use of unlicensed spectrum from their controlled areas will in
fact hold. Of course I can't prove it without going to court. Obviously I
can't share detailed information pertaining to our case and agreement, as
that would not bewise, as some day I may need to defend our agreements in
court. All I can tell you, is if that day comes, we are well prepared to
defend our case, and plan to win it.
Now you could find a tenant on the 24th floor of the building, and put an AP
in their window, and with their permission be able to broadcast, and the
landlord or WISP with exclusive rights wouldn't be able to do anything about
it. When there is a will there is a way. The point is how much hassle is
it, how fast can you move, and which way offers the best overall value
proposition. If I can broadcast from the roof, and get 10 extra DBs on a
links, to survive interference better, its worth paying for and worth
having.
There was a company that had a similar contract on the BOA tower in
seattle that tried using this without any success as well, when I was
with another firm a few years back. Reality is there is no exclusive
rights to bands within unlicensed. ( my 2 cents)
I fully disagree. You don't license unlicensed spectrum. You license the
right to operate equipment of a specific type from the property controlled
by property owner. You can't control what spectrum is in the air, but an
agreement can clearly control who has the right to put something on a roof
and of what type. The landlords won that battle years ago, battling
Teligent.
And if for any reason I'm wrong, which I'm not, the right agreement would
still result in ability to get injunctive relief, until the issue made it
through court for a final ruling. Easilly able to keep it tied up in court
for years, accomplishing the same benefit to keep the competition from using
your broadcast sites, for a long period of time, while you install customers
and the opportunity passes them by.
There were a number of ISPs that thought, they'd move into my markets, to
deploy Wireless. As you will see, not any of them that tried, are still in
my markets. They learned it didn't do any good to have wireless gear
deployed from the wrong places. Broadcast site was everything, to get
coverage. If you didn't ahve coverage, marketing didn't work and sales
people got pissed off and quit. I'm banking that my agreements will hold,
and I am confident it is what is going to make the biggest difference in me
getting the buy out terms, that I am holding out for, when the day comes
that I sell. When someone can't steal your assets, they either go away, or
they buy them (the assets). When someone controls the market to some extent
through a unique asset, it can easilly double their worth. If it went to
court, you bet that the Property owners would lobby hard to also protect the
right, that they've fought so hard to keep the right to control whats on
their roof over the years. Because they resell that right to people like me,
and make a small fortune off it. They clearly have made a lot more off my
business than I have :-)
I'd argue, that it would be worth a couple million (at the right time) to
buy me out, even if I didn't include one customer in the sale, based on the
fact that I have so many prime locations under contract, that could speed
deployment, and by default is creating a ton of intererence, chewing up
spectrum, for anyone trying to deploy new in my areas. I'm not attentially
doing so (creating interference), I deploy in a way to optimally try to
avoid causing interference, I just have deployed a lot of prime sites
deployed to expand my network, to optimize my change to have LOS to my
customers..
My point is it doesn't matter wether the agreements will hold up in court.
Because they exist, and it needs to be proven that they wouldn't hold up in
court, before they can be gotten around, and it will cost someone a lot less
money to buy me, than to battle me in court, after considering their lost
market share and time to market if they really wanted to succeed in my
market, not to consider the added benefit of taking over my revenue from my
customers. One of the best thing that I've done that I feel will help my
success, is I've negotiated the best spectrum rights and agreements that I
could negotiate. In the long run, I think it will pay off. I advise veryone
to get smart about their agreements. It also benefits the buyer, knowingthat
the assets they will buy are protected. It prevents the property owners
(landlords) from raising the rent when the VC funded company tries to take
over the space. I calculated it was worth buying me out for a couple
million, just on the saving the Buyer would get over 5 years, based on the
fact that I negotiated low rates during a down economy, compared to what
they typically went for in an UP economy. With WiMax comming, and Telecom
ACT flopping, I can tell you the demand for roof space will likely
skyrocket. These long term methods of maximizing ROI, that occur at exit
strategy time, will benefit those who are smart enough to plant the seeds
early in their growth. Maybe the buyout never happens, and no ROI, but
there is nothing to loose by writing the contracts to optimize the chances
of maximum return. But what I can tell you is the quality of contractual
agreement, are just as important of an asset as any other owned by a WISP,
to include, revenue, customers, management teeam, equipment type, staff,
intellectual property.
Tom DeReggi
RapidDSL & Wireless, Inc
Jeff
On Tue, 31 Jan 2006 17:06:23 -0600, "Dylan Oliver"
<[EMAIL PROTECTED]> said:
Huh. What's the difference between quasi and true exclusive rights? What
*would* hold up?
Best,
--
Dylan Oliver
Primaverity, LLC
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