Re: [WISPA] Anyone know Verilan?
Tom DeReggi <wirelessnews <at> rapiddsl.net>
2006-02-01 15:11:53 GMT
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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<div>
<div>Good questions...</div>
<div> </div>
<div>I know nothing about Jeff's case,
but...</div>
<div> </div>
<div>Its not only an issue of wether it would hold
up, also wether it just wasn't worth pursuing.</div>
<div>There are three problems in successfully sueing
someone that I see on that issue.</div>
<div> </div>
<div>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.</div>
<div> </div>
<div>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. </div>
<div> </div>
<div>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.)</div>
<div> </div>
<div> </div>
<div>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.</div>
<div> </div>
<div>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 </div>
<div> </div>
<div>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. </div>
<div> </div>
<div>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.
</div>
<div> </div>
<div>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.</div>
<div> </div>
<div>Tom DeReggi<br>RapidDSL & Wireless, Inc<br>IntAirNet- Fixed Wireless
Broadband</div>
<div> </div>
<div> </div>
<blockquote>
<div>----- Original Message ----- </div>
<div>From:
<a title="dylan.oliver <at> gmail.com" href="mailto:dylan.oliver <at> gmail.com">Dylan
Oliver</a> </div>
<div>To: <a title="wireless <at> wispa.org" href="mailto:wireless <at> wispa.org">WISPA General List</a> </div>
<div>Sent: Tuesday, January 31, 2006 6:06
PM</div>
<div>Subject: Re: [WISPA] Anyone know
Verilan?</div>
<div><br></div>Huh. What's the difference between quasi
and true exclusive rights? What *would* hold up?<br><br>Best,<br>-- <br>Dylan
Oliver<br>Primaverity, LLC
<p>
</p>
<p></p>-- <br>WISPA Wireless List: <a href="mailto:wireless <at> wispa.org">wireless <at> wispa.org</a><br><br>Subscribe/Unsubscribe:<br><a href="http://lists.wispa.org/mailman/listinfo/wireless">http://lists.wispa.org/mailman/listinfo/wireless</a><br><br>Archives:
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</blockquote>
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