5G Wireless: How It Changes Local Regulatory Environments

Dominating the next generation of wireless technology, known as 5G, is a high-stakes competition taking place on a global scale. The FCC recently adopted a “Declaratory Ruling and Third Report and Order” that brings the impact of this global race to every local community. The Ruling is designed to facilitate rapid and expansive 5G rollout by limiting local government regulation of the installation and deployment of small cell wireless infrastructure in local communities. The Ruling lowers the costs for applicants, shortens the timeline for government approvals, and broadens the scope of potentially prohibited regulatory fees, charges and non-fees, such as aesthetic, undergrounding and minimum spacing requirements.

5G requires a vast network of thousands of small cells that utilize lower-powered, miniature antennas and signal receivers. Due to the short-distanced nature of their signals, small cells need to be deployed in close proximity to each other. And therein lies the problem: telecommunication providers often desire to attach equipment to existing infrastructure that is in the public right-of-way, such as street light poles and utility poles, or newly constructed stand-alone poles. However, the public right-of-way has traditionally been strongly regulated by local governments in order to ensure public access, enjoyment and use of the right-of-way.

Meyers Nave attorney Claire Lai published an article in the June 2019 issue of North County Lawyer that helps local governments understand the FCC’s new parameters when drafting, updating and enforcing their ordinances. Claire’s article includes an important table that outlines the Ruling’s new requirements and restrictions.

Please click here to read the article.

SCOTUS Expands Statute of Limitations for FCA Whistleblowers

Under the federal False Claims Act, a false claim action must be brought by whichever is later: (1) six years after the violation or (2) “3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed.”

In Cochise Consultancy, Inc. v. United States ex rel. Hunt, the question considered by the U.S. Supreme Court was whether a qui tam relator could benefit from the longer limitations period provided by Section 3731(b)(2) when the government had declined to intervene in the action. In a 9-0 decision, the Court held that Section 3731(b)(2)’s tolling provision applies to all FCA cases, including ones to which the government has not intervened as a party. The May 13 ruling effectively expands the window in which a private relator may bring a claim, even if the government ultimately decides to stay on the sidelines and not intervene in the lawsuit.

Nancy Harris, Chair of Meyers Nave’s Commercial Litigation Practice, published an article in the Daily Journal that explains the court’s decision and its impact. Nancy also explains that, despite the Court’s unanimous decision, the whistleblower provisions of the FCA might be subject to a broader attack in the pending case of Intermountain Health Care, Inc., et al. v. U.S. ex rel. Polukoff et al., which challenges the constitutionality of FCA qui tam provisions under the appointments clause of the U.S. Constitution.

Please click here to read Nancy’s article.

California Supreme Court Upholds Local Wireless Facility Rules, But the Debate Isn’t Over

In the age of 4G LTE and the rise of 5G wireless technology, many local governments in California find themselves tasked with deciding how to regulate telecommunications facilities within their streets, often times at the expense of community aesthetics. The desire to preserve local control frequently results in a debate with telecommunications carriers about the boundaries of local authority and the scope of Public Utilities Code sections 7901 and 7901.1. On April 4, the California Supreme Court addressed the debate with a ruling in favor of local authority. In T-Mobile West LLC v. City and County of San Francisco, the Supreme Court affirmed the decision of the First District Court of Appeal and held that a local ordinance conditioning wireless facilities permits to locate in the public right-of-way on aesthetic review was not preempted by Section 7901 and did not violate Section 7901.1.

Meyers Nave Associate Claire Lai published an article in the Daily Journal that explains the T-Mobile case and the impact of its ruling on local governments and telecommunication services and equipment providers.

Please click here to read the article.

Practical Tips for Negotiating Today’s Complex IT Services Contracts

Information technology equipment and services are critical to every aspect of a public entity’s daily operation. For example, information technology is the foundation for providing free Wi-Fi in downtown areas, upgrading a police department’s dispatch system, creating large scale systems for public records data retention, and enhancing a city’s fiber-optic network to provide ultra-high speed internet use for businesses.

Meyers Nave Principal Richard Pio Roda published an article in California Special Districts magazine to help public entities avoid the potential pitfalls in IT agreements and incorporate best practices when negotiating IT contracts. Focusing on Software as a Service (Saas), Rich explains the primary areas of contractual risk and shares advice on best practices for addressing each one. His article covers:

  • Data Breach and Data Security
  • Uptime Commitment
  • Application Performance Warranty

Please click here to read Rich’s article.

Rich also recently provided a webinar on this topic, which can be viewed here.

Public Contracting Update: Court of Appeal Rules on Conflicts of Interest Involving Independent Contractors

The California Court of Appeals recently held in Strategic Concepts, LLC v. Beverly Hills Unified School District that an independent contractor can be considered a “public official” for the purpose of determining conflicts of interest under Government Code section 1090. It is critical for public agencies to understand how section 1090 applies to independent contractors and what to do to avoid potential violations because penalties are severe – the contract is deemed void, the California Fair Political Practices Commission (FPPC) has the authority to fine violators, and criminal sanctions may apply in extreme cases.

Meyers Nave Principal and former FPPC Commissioner Eric Casher published an article in California Special Districts magazine that explains the impact of the Strategic Concepts decision and provides an overview of the law related to 1090 conflicts of interest involving independent contractors. Eric also provides information about how to spot issues relating to 1090 and practical steps that can be taken to prevent violations. The decision in Strategic Concepts confirmed several Court of Appeals decisions, mirrors the position of the FPPC, and aligns with the California Supreme Court’s holding in People v. Superior Court (Sahlolbei, 2017).

Please click here to read Eric’s article.

A Checklist of Reporting Obligations for Hazardous Material Spills

Almost every industrial facility has hazardous material on site. Small spills or emissions of that material can trigger immediate reporting obligations. Companies that do business in multiple states face the dual challenge of understanding federal release reporting laws and state laws that could impose additional requirements. Meyers Nave Of Counsel Viviana Heger and Andeavor Senior Counsel Deborah Felt published an article in the ACC Docket that helps simplify reporting and provides companies with general legal guidance when spill accidents occur.

Vivi and Deborah’s article includes:

  • Compliance checklist of federal and California laws and regulatory requirements
  • First three investigation steps for every incident to help determine the reporting path
  • Approaches to voluntarily reporting incidents even if under a reportable threshold
  • Overview of penalties and liabilities
  • Answers to five frequently asked questions

Please click here to read their article.

New Safe Sidewalk Vending Act: What Does it Mean for Cities and Counties?

Whether, where, and under what terms to allow sidewalk vending has historically been a question left to each unique city and county to address after weighing the often competing interests of various local stakeholders. All that changed on September 17, 2018, when Governor Brown signed SB 946, the Safe Sidewalk Vending Act, into law. Effective January 1, 2019, sidewalk vending will be elevated to a new and prominent status statewide, and local authorities will be prohibited from regulating sidewalk vending in a manner that is inconsistent with the restrictions and requirements in the new law.

Deborah Fox, chair of Meyers Nave’s First Amendment and Trial and Litigation Practice Groups published an article in The Recorder to help explain the new law and outline what cities and counties need to do in order to comply. Their article answers the questions noted below. Please click here to read their article.

  • What brought SB 946 to the scene?
  • Which sidewalk vendors are covered?
  • How does SB 946 limit local control?
  • How does SB 946 impact decriminalization?
  • What should cities and counties do to comply with SB 946?
  • What are the best next steps?

Social Media & Government: What Are the New Rules of Engagement?

Government entities and elected officials are becoming more accessible and connected to constituents through the ubiquitous use of social media, email, text messaging and other communication technologies. The 21st century question is what may government entities and elected officials do and not do to regulate the public’s participation in their social media accounts? Once social media accounts are used for official business, there may be limited ability to restrict or block users or comments on the accounts.

Deborah Fox, Chair of Meyers Nave’s First Amendment Practice, and Of Counsel Margaret Rosequist published an article in The Recorder that explains the state of the law regarding this nuanced area of constitutional concern. First Amendment law recognizes four types of fora – public forum, designated public forum, nonpublic forum and limited public forum – and the classification of the forum at issue is key to assessing whether a government entity’s or an elected official’s restrictions on a particular social media account can withstand a First Amendment challenge. The critical inquiry is whether a digital channel of communication is open for expressive activity and on what terms. A court’s analysis will focus on the actions and policies of the government entity or elected official. As the law lags technology, the challenge is applying legal concepts found in current jurisprudence to the social media environment.

In their article, Deborah and Meg also provide insight on the importance of government entities and elected officials setting policies and standards for public engagement on social media platforms. Please click here to read their article.

Prop 10 Could Expand Local Rent Control in California

When they cast their ballots on Proposition 10 in November, California voters could open the door to a dramatic expansion of rent control across the state.  The current state law governing local rent control, known as the Costa-Hawkins Act, allows local governments to adopt only a narrow range of rent control measures. The three primary restrictions that cities and counties must follow are: (1) local rent control laws can restrict only apartments that were constructed before February 1995, (2) local ordinances must permit “vacancy decontrol,” which allows landlords to raise rents to market levels once a tenant moves out and a new tenant moves in, and (3) rents on single family homes and condominiums cannot be restricted.

Proposition 10 would repeal the Costa-Hawkins Act and give cities and counties explicit authority to adopt local rent control laws. The only restriction in the initiative is that local rent control laws cannot abridge a landlord’s right to a fair rate of return on its property.

Meyers Nave attorney Jon Goetz published an article in Western Real Estate Business magazine that explains what would happen if the initiative passes. Please click here to read his article.

Top 5 #MeToo Lessons for Employers

The #MeToo movement created a seismic cultural shift in society’s awareness of the widespread presence of sexual harassment and assault in business, media, Hollywood, and government. In the still unfolding aftermath, all employers must adapt to five primary lessons learned that relate to effective harassment prevention policies, credible workplace investigations, and updated training programs. Camille Hamilton Pating, Principal and Chair of Meyers Nave’s Workplace Investigations Practice, published an article in the Daily Journal that explains the five lessons summarized below and provides advice to employers about crucial next steps. Please click here to read her article.

Lesson 1: Update Personnel Policies to Address Civility and Fear of Reporting  

In a June 2018 nationwide survey of 150 human resources executives, 52% have reviewed their sexual harassment policies (up from 34% in January 2018) and only 42% reported they were comfortable with their policies (down from 63% in January). Among other critical components, personnel policies are being updated to contain “silence breaking” provisions that address fear of reporting based on employees’ concerns about retaliation, damage to a career, mistrusting the process, or expecting no change will result. Another key update addresses complaints about an underlying lack of respect and civility in the workplace as the core of harassment problems. Employers are creating separate civility or respectful workplace policies and training programs, or adding these requirements to existing anti-harassment or anti-bullying policies.

Lesson 2: Update Investigation Policies to Consider “Stale” Claims 

In response to #MeToo, employees are coming forward with allegations long after the statute of limitations has expired for making complaints under the California Fair Employment and Housing Act. Despite the evidentiary difficulties in such inquiries, employers should update investigation policies and procedures to investigate such complaints in appropriate cases. Employers may still face liability if they choose not to investigate, particularly when the accused is still employed by the organization and has the capacity to retaliate against the victim or commit the same misconduct against others.

Lesson 3: Conduct Independent Investigations

Post #MeToo, employee complainants are frequently expressing mistrust in workplace investigations that are conducted by the employer’s internal human resources or legal departments. These inquiries can be seen as influenced by organizational bias or the prominence of the subject, or that the primary purpose of the investigation is to protect the employer rather than uncover the truth. Complaints are also being raised about the prosecutorial style of some investigators which is inconsistent with a neutral factfinding process. Employers should consider using independent outside investigators, particularly in high-profile situations where the credibility and integrity of the investigation process and its findings could be questioned.

Lesson 4: Change Training Programs to Encourage #IsItOK? Conversations

#MeToo demonstrates that harassment training programs, just like policies, have not prevented harassment. Why? Perhaps because they (1) focused on compliance and technical interpretations of legal concepts, (2) provided scenarios and hypotheticals of obvious unwelcome sexual misconduct with little application to real world employee interactions, and (3) did not cover micro-inequities and unconscious bias (which, while not yet illegal, are newly emerging claims in workplace investigations). Employers should revise training programs to model respectful and civil behavior and provide practical guidance and tools to help employees have honest and welcomed conversations with each other about what is acceptable and unacceptable conduct.

Lesson 5. Avoid Unintended Consequences

A frequently expressed concern is that the #MeToo movement is causing some male employees and leaders to withdraw from and avoid interacting with women because of the fear of being accused of misconduct. This backlash has significant consequence for women, particularly in industries where mentorship, sponsorship, group projects and relationship-building are critical to success. Employers should make sure recruitment, retention and promotion related policies and programs are designed to prevent such backlash, and employers should leverage the opportunity for #MeToo to help create a positive, respectful and inclusive culture for the entire organization.