Are DAS Systems “ICE” Costs Defined as a “Utility” Charge?

Are DAS Systems “ICE” Costs Defined as a “Utility” Charge? They can be, under certain structures. If the DAS infrastructure is paid for by the DAS provider, and the wireless communication service is sold back to the building as a “utility,” we believe substantially all commercial leases would cover this charge as a tenant utility expense. Utilities are sometimes handled under separate sections in the lease but are nonetheless treated as pass--- through expenses. In order to appropriately structure the transaction, the DAS provider would ideally be a licensed competitive local exchange carriers (CLECs) with the transaction structured as a utility easement in gross, coupled with a “utility service agreement” provided by the CLEC for a fixed term (with optional renewals). Under this arrangement, the costs of installation, maintenance and provision of the system can be paid over a period of years to deliver the DAS provider its required return on investment and the property owner its desired in--- building DAS as a current “utility” charge. Not only does this structure further reinforce the pass---through nature of the expense by characterizing it as an ongoing operational expense, but also it better tracks the real characterization of wireless communication service – as a utility.