A Minute Orbe Form (06:97) (
‘United States District Court, Northern District of Illinois ?)

Name of Assigned Judge | sittin;
or Magistrate Jedge James B. Moran “nan Aged dude
t
CASE NUMBER | 02 C 5147 DATE 8/27/2003
CASE | Tower Asset Sub, Inc. Vs. MclIenry County Conservation District
TITLE i

‘ [In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintif¥, and (b) state briefly the nature
‘of the motion being presented,

MOTION: :
Memorandum Opinion and Order
|
DOCKET ENTRY: |
qd) a Filed motion of [ usc listing in “Motion” box above.]
(2) o Brief! in support of motion due
3) a Answer brief to motion due__. Reply to answer bricfdue____
(4) o Ruling/Hearing ons setfor at
(3) O Statug hearing[held/continued to] [set for/re-set for)on__set for a
(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on___ssetfor_—at__.
(7) ao Trialfset for/re-set for]on____at
| (8) ia} [Bendh/Jury trial] [Hearing] held/continued toatl
(9) im This ¢asc is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) OLocal Rule41.1 OFRCP41(a)(1) O FRCP41(a)(2).

ao [Other:docket entry] Enter Memorandum Opinion and Order. For the foregoing reasons, plaintiff's
motion for summary judgment is granted. Status hearing sct for September 24, 2003 at 9:15am.

a) ff (For further detail sce order attached to the original minute order.]

No notices required, advised in open court

No notices required. _
unbe ofatives

Notices mailed by judge's staf. SEP oO 2 2003

Notitied counsel by tHephone. date dockgted

wv | Docketing to mail notices.

Mail AO 450 form, tunod 1oluisig “st

Copy to judge/magisirate judge.

RAH Hd GE SMW EO

courtroom
WAH deputy’s eyes tee eT
initials wy sud

Diteitde received in

central Clerk's Office mailing deputy initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TOWER ASSET SUB, NC., )

)

Plaintiff, )

)

vs. ,) No. 02 C 5147

)
McHENRY|COUNTY CONSERVATION ) DOCKETED

DISTRICT, )
) SEP 02 2003

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Tower Asset Sub, Inc, (TAS) brought this action against defendant McHenry

County Conservation District (MCCD) alleging that defendant breached a license agreement
by swans allow plaintiff to license space on its telecommunications tower. Plaintiff filed
a motion for summary judgment as to Count III of the complaint, seeking a declaratory
judgment stating that it has the right to license the space. For the following reasons, plaintiff's
motion is granted.
BACKGROUND

TAS pwns and operates telecommunications towers that house wireless communications
equipment. (On May 19, 1994 MCCD agreed to allow Smart SMR of Dlinois Inc., d/b/a Nextel
Communications (Nextel), to construct and maintain such a tower on property that it owns.
TAS is the guccessor-in-interest to Nextel’s rights and responsibilities under this licensing
agreement. | Pursuant to the agreement, plaintiff makes monthly payments to MCCD in
exchange for the right to use a 60- by 60-foot square parcel of land on which it operates and

maintains the tower.

The tower currently houses the equipment of one wireless service provider but it has | 7]



No. 02 C 5147 Page 3

to TAS but to another wireless service provider, TAS itself is not engaged in the business of
providing wireless service. Moreover, the agreement does not contain any terms that establish
sucha restriction on plaintiff’s use of the tower. Nor does the agreement state that the licensee
may not use the tower to house the equipment of multiple providers.

Defendant maintains that, because the agreement in question is a license rather than
a lease, plaintiff docs not have the full rights that would come with a lease. While it is well
settled that leases and licenses are different legal entities, see North Ave. Properties, L.L.C. v.
Zoning Bd. of Appeals of City of Chicago, 312 Ill. App. 3d 182, 191, 726 N.E.2d 65, 73 (1" Dist.
2000), this does not prevent the plaintiff from obtaining the rights that it bargained for when
negotiating the license. Because the agreement’s terms clearly allow the plaintiff to use the
premises to house telecommunications equipment, the characterization of the agreement is
unimportant,

Finally, the parties disagree as to the interpretation of paragraph 14 of the licensing

i
agreement, which allows the licensee to assign its rights in the tower to other parties. The
agreement states that the defendant may not unreasonably withhold consent for such
assignments, The plaintiff, however, does not seek to assign any of its legal rights in the
property to wireless providers, only to use its rights in the tower to house equipment. Such a
use does not require defendant’s consent and paragraph 14 is not implicated.
| CONCLUSION

|
For the foregoing reasons, plaintiff's motion for summary judgment is granted.

JAMES B. MORAN

Senior Judge, U. S. District Court