Washington, D.C. - Government-mandated access for telecommunications service providers (TSPs), or Forced Access, has been a key battleground for BOMA International and BOMA local affiliates since the mid 1990s, and for good reason. The efforts to gain access to the buildings owned and managed by BOMA members through government edict at any time and at no (or greatly reduced) cost hits at the heart of the issue held most dear by the real estate industry – protection of Private Property Rights.
BOMA and its industry partners in the Real Access Alliance (RAA) have been successful in defeating forced access proposals both in Congress and in the Federal Communication Commission regulatory process, and activity on the national level is dormant at this time. However, the issue continues to present challenges to BOMA members at the state and local level.
A flurry of activity in several states over the past few months has re-ignited concerns that the TSPs are finding creative ways to accomplish state-by-state what they have failed to do on the national level. The outcome of the initiatives in two cases may prove to have national implications.
In late May, our industry suffered its first setback since 1999 with a ruling from the Texas Court of Appeals upholding a lower court ruling on the constitutionality of the Texas mandatory access law. The Texas law states that building owners cannot prevent a TSP from installing facilities or demand an “unreasonable” payment if a tenant requests the services of that TSP. BOMA/Texas, BOMA International, and the RAA appealed a state trial court decision that held the statute was facially constitutional and did not result in a “taking” of property. BOMA and BOMA/Texas are considering a potential challenge to the Texas Supreme Court, but this ruling could provide precedent for the enactment of mandatory access legislation in other states.
About the same time as the Texas Court of Appeals handed down its ruling, the real estate industry was fighting similar legislation in Missouri. While successful in thwarting attempts to amend “must pass” legislation with mandatory access rules not unlike those enacted in Texas, the Missouri legislative battle underscores the problem we face if confronted with multiple, simultaneous legislative initiatives in multiple states in the next couple of years.
In Massachusetts, the State Supreme Court has decided to have the state’s mandatory access case brought forward for argument next fall. The case involves a state regulation forcing building owners to forfeit their rights to exclude other telecom providers if they had previously provided access to one or more providers. In ruling against this type of non-discriminatory access policy, the lower court noted that “perhaps the most serious invasion of an owner’s property interests … occurs in the circumstances in which a third party is authorized to use and obtain profits from the landowner’s property without just compensation …”
If either the Texas or Massachusetts Supreme Court find against the interests of the commercial real estate industry, BOMA members could be vulnerable to mandatory access initiatives throughout the country.
BOMA members are facing forced access issues in other states as well in 2003. The real estate industry prevailed in a Kansas case that concerned ownership of the telecommunications wiring. In Utah, building owners are fighting the reclassification of all buildings as “essential facilities,” making them subject to mandatory access rules. And in Florida, the RAA is challenging a state regulation allowing TSPs to access the building beyond the owner designated point of entry, or demarcation point, that conflicts with Federal Communication Commission rules.
The legislative and judicial arenas are not the only places where building owners must keep vigilant about forced access and other telecommunications issues that pose potential problems. It is true that numerous bankruptcies of TSPs over the past couple of years have been a key factor in changing the telecommunications landscape and made it more difficult for the remaining TSPs and their allies to enact forced access laws and regulations. Issues such as ownership rights to the equipment and wiring abandoned by former TSPs can pose potentially serious legal questions and liability for building owners.
It is imperative that building owners know how current tenant leases are structured so that any preexisting rights can be identified, assignment of license agreements to a third party can be avoided, and a determination can be made of available space for TSPs seeking to provide facilities and services to tenants in the future. Abandoned wiring may also constitute a safety code violation, depending on the electrical and building codes adopted in the state or local jurisdiction.
Ron Burton is vice president of Advocacy for the Building Owners and Managers Association (BOMA) International (www.boma.org), Washington, D.C.