BY LINDA BENTLEY | SEPTEMBER 1, 2010
DFL board could use reading lessons
‘You need to drop your high ideals for the common good’
The Desert Foothills Library board recently entered into a new license for broadband service with a new provider dispite having an existing license agreement through May 2011 with Western WiMAX.
Photo by Linda Bentley
CAVE CREEK – On July 15, 2003, Tim Shea, owner of Black Mountain Broadband, LLC (BMB), now Western WiMAX, LLC, entered into a license agreement with Desert Foothills Library (DFL), authorizing BMB to install, operate and maintain equipment, at its own expense, on the premises of DFL, to provide high-speed Internet (broadband) service.
As compensation to DFL, BMB agreed to provide DFL with high-speed Internet service at a rate of not less than 2 Megabits per second for the duration of the lease at no cost to DFL.
BMB also agreed to provide DFL with website, e-mail hosting and one Voice Over IP phone line for credit card processing and fax service with 24 hours per day and 365 days per year service, consulting services for the integration of service into the library network and 24/7 monitoring of the connection to DFL at no charge.
Having antennas located at the library enabled BMB to sell high-speed Internet service to other subscribers in the area where it was previously unavailable.
Paragraph 3 of the contract states: “The term of this license shall be for (3) years commencing on June 1, 2003 or installation, whichever occurs first. After the initial term, this license shall continue year to year provided that either licensor or licensee may then terminate this license, with or without cause, upon 30 days written notice prior to the end of any such period, sent by certified mail.”
In other words, the license agreement between BMB and DFL automatically renewed each year, unless either of the parties provided 30 days written notice to cancel on or before May 1 of any given year, stating it wished to terminate the license agreement, which would otherwise automatically renew for another year.
Despite the apparent simple wording of the license agreement, on June 16, 2010, Attorney Kathryn Bradley sent a certified letter to BMB stating she, as a member of the DFL Board of Directors, was “authorized by the board to inform you that, in accordance with Paragraph 3 of the License for Antanna (sic) Site/Space, dated June 15, 2003, we are hereby giving a 30 day notice of cancellation.
“As negotiations of a new license are ongoing, no removal of the equipment is requested at this time. The existing license will be treated as continuing on a month-to-month basis until a new lease is negotiated and executed, or until an equipment license with a new carrier is executed.”
Shea alerted the board to the fact DFL and BMB, now Western WiMAX, had a license agreement that automatically renewed on June 1, as per Paragraph 3 of the license.
Additionally, Paragraph 6 of BMB’s license agreement with DFL states, “Licensee shall have the sole right for all public spectrum within the 2.4 Ghz, 5.2 GHz and 5.8 Ghz frequency ranges …”
However, DFL has since negotiated and entered into a new license agreement with another provider, only after the DFL board gave the new provider repeated assurances it had terminated its existing license.
On Aug. 24, DFL Board Member Jim Whitmer, who served on the library’s technology committee, sent BMB another certified letter, stating he was “authorized by the board to inform you that, in accordance with Paragraph 3 of the License for antenna Site/Space, dated July 15, 2003 and our letter dated June 16, 2010, you are hereby directed to remove your equipment from our roof.
“Please make arrangements of (sic) accomplish this at your earliest convenience,” wrote Whitmer, who thanked BMB for its past service and stated, “[W]e assure that you will be considered in the future as our needs arise.”
On Aug. 26, Attorney David V. Burkett, of Mariscal, Weeks, McIntyre & Friedlander, sent a letter to DFL, to Whitmer’s attention, on behalf of Western WiMAX, responding to both Bradley and Whitmer.
Quoting Paragraph 3 of the license, Burkett stated the purpose of his letter was to notify DFL that its attempt to terminate the license, as asserted in both Bradley’s and Whitmer’s letters, “is wholly without force or effect.”
Burkett goes on to explain that the license, which began on June 1, 2003 and expired on May 31, 2006, has automatically renewed, on a year-to-year basis since, and stated, “This year, as has been the case every year, the prior term expired and then was renewed automatically on May 31.
While DFL did, in fact, have a right to terminate the license during 2010, Burkett states “it was required to exercise that right, if at all, ‘upon 30 days written notice prior to the end of the [existing term].’ In other words, DFL’s notice of termination was due on or before Friday, May 1, 2010.”
However, he noted, DFL’s “first attempt to terminate the license was not sent until June 16, 2010, approximately six and a half weeks late.”
Burkett stated, “Likewise, DFL’s unilateral declaration, included in Ms. Bradley’s letter, that ‘[t]he existing license will be treated as continuing on a month-to-month basis until a new lease is negotiated and executed,’ is also without effect. Such treatment of the license lacks any support in the terms of the license and doesn’t merit further discussion.”
Because the agreement remains and will remain in effect until at least May 31, 2011, Burkett informed Whitmer that “Western WiMAX intends to continue performing its obligations and exercising its rights …”
In conclusion, Burkett stated, “Any attempt by DFL to prevent Western WiMAX from performing such obligations and exercising such rights will be deemed a breach under the license. In the event of any such breach, Western WiMAX intends fully to enforce all of its rights under the license and at law, including bringing a civil suit, if necessary.”
He also advised DFL, under Arizona law, “[B]ecause such an action would arise out of contract, Western WiMAX would also be entitled to its attorneys’ fees and costs,” and asked for a written confirmation from DFL acknowledging “that its obligations under the agreement continue unabated.”
DFL Vice President Jon Coates stated, “I checked with parties that were of interest in this and we think we handled the contract appropriately and didn’t violate our responsibilities. The library is nonprofit, we do things in an ethical manner and we think we’re within our bounds.”
Kris Bishop, the library’s only full time librarian for the past five years, resigned a little over a month ago, stating she took issue with some of the board members.
According to Bishop, things started to change at the library after several people were elected to the board, including former Carefree Mayor Wayne Fulcher and former Carefree Councilman Greg Gardner both of whom, when not reelected during the last primary election, withdrew their candidacies rather than be voted out in the general election.
Bishop quoted DFL Treasurer Ralph Pip, whom she said told her, “You need to drop your high ideals for the common good.”
Apparently, Bishop said lowering her ethical standards for the “common good” meant putting up with power-hungry, micro-managing board members because they have donated large sums of money to DFL.
