Steve Smith
The Real Access Alliance, a group of 11 national building and real estate associations, has filed an argument with the Federal Communications Commission (FCC) against telecommunications providers` efforts to permit "forced building entry"--the taking of space within office buildings for the installation of equipment and wiring.
Since 1995, Congress and the FCC have rejected telecommunications lobbying efforts for open-access legislation and regulation, but as industry competition has increased, so has the lobbying effort. According to the Building Owners and Managers Association (BOMA), active debates are taking place in five states, with Connecticut and Texas already passing modified open-access legislation.
As competing telecommunications service providers (TSPs) vie for access to office buildings and their tenants, BOMA claims some are "seeking a special statutory privilege to use others` private property for their economic benefits."
In its filing as a member of the Real Access Alliance, BOMA documented that the commercial real estate industry regards competition in telecommunications as beneficial for office buildings and their tenants but argues that the real estate marketplace can efficiently negotiate and govern building access without government intervention.
"Forced access is nothing but a policy in search of a problem," the alliance wrote in its FCC filing early this fall. "Even competitive local-exchange carriers [CLECs] admit that they are not being harmed or restrained by market forces. They simply want the Commission to give them the edge in their dealings with property owners."
CLEC lobbyists claim that FCC action is needed because some property owners do not see the merit of granting a particular CLEC access to a building. Other arguments include unreasonable access agreements, that building owners have "bottleneck control" over access to individual buildings and that tenants are locked into their current leases, and that it takes too long to negotiate access agreements.
Jay Kitchen, president of the Personal Communications Industry Association, says "without this access, the small businesses that operate in a multitenant environment and the residents who live in these dwellings will never be able to realize the benefits of a truly competitive environment."
The alliance counters that "CLECs... have no evidence and make no attempt to analyze or explain the basis for their claim." The CLECs` case, the alliance adds, is "a classic example of the old lawyers` saw, `when the facts and the law are against you, just pound on the table.` "
This summer, FCC Commissioner Susan Ness threw caution to the wind, voicing concern over "imposing a nondiscrimination building-access requirement on building owners. Under this proposal, once a building owner allows a telecommunications provider access to its premises, the building owner must make comparable access available to all other telecommunications carriers under nondiscriminatory rates, terms, and conditions. While well-intended, the concept would impose a new regulation on building owners."
Ness cited a similar issue considered by the FCC a year ago, when it declined to require that building owners allow tenants access to common and rooftop areas for the placement of over-the-air video-reception devices. "I have difficulty distinguishing that precedent from the instant case," Ness said. "Moreover, where constitutional rights are at stake, judicial precedent informs us that the courts do not favor the imposition of obligations by a federal administrative agency....Rather, this may be one area that is better served by a legislative solution."