Washington, D.C. – In 2005, BOMA Intl. expects to see telecommunications challenges emerge from all sides as more and more states consider “forced access” legislation and the U.S. Congress gears up for a major rewrite of the Telecommunications Act of 1996.
While most Congress-watchers and members of Congress agree that telecommunications legislation will consume much time and attention, no one can agree on what exactly the end product will look like – and if there will even be an end product before the 2-year session comes to a close in late 2006. Moving a mammoth piece of legislation, which would surely result if all telecommunications issues are on the table, would be a Herculean undertaking and is not likely to occur in a single session of Congress. From past experience, we know that the 1996 Act was actually the culmination of a decade of debate on the issues.
Some of the issues that are expected to come up for debate include universal service reform; voice-over-Internet protocol (VoIP); intercarrier compensation; and regulation (re-regulation) of the Bell companies’ networks; as well as other issues within the wireless, cable, and broadcast industries. Any of these issues may also be treated individually through a smaller bill or series of bills.
While the issue of mandated access for telecommunication service providers in office buildings is always an issue at the forefront of BOMA’s legislative and regulatory agendas, there is no indication at this time that it will be a key issue capturing Congress’ attention. However, BOMA has learned from past experience that the industry must always remain vigilant. The organization will also keep close watch on some other issues that may emerge that impact building owners and managers, such as mandates to support wireless technology and emergency communications issues.
Though telecommunications issues are still largely in flux at the federal level, it is becoming alarmingly clear that there may be a sharp increase in forced access fights at the state level, where the telecommunications industry continues its effort to force “competitive access” on commercial real estate. BOMA was actively involved in preventing several attempts in 2004. In May, the Rhode Island House of Representatives passed legislation that would have mandated forced access for telecomm services in both residential and commercial buildings. Sponsored by Rep. Peter Kilmartin, House Bill 8038 originated out of the concerns of Picerne Cable in trying to compete with statewide giant Cox Cable. BOMA – in conjunction with the Real Access Alliance (RAA), a coalition of real estate associations – was able to hold the legislation up in the Senate with the support of friendly legislators.
The North Carolina Utilities Commission considered a “competitive premises access rule,” which would have barred developers from granting exclusive deals to their properties and prohibit commission-based relations between owner and provider. BOMA and several other associations in the RAA joined forces to fight this effort. RAA assembled a legal team including a local North Carolina attorney to spearhead the effort on the ground, as well as legal counsel in Washington, D.C., with a strong history of experience in forced access issues. Through its legal work, RAA was able to reopen the commission’s docket, which had originally closed April 23, allowing real estate advocates to submit comments.
In issuing its order on the matter, the commission declined to adopt language proposed by the telecommunications industry that would have mandated physical access to properties and invalidated all Preferred Provider Agreements (PPAs). Instead, the commission’s order contained much more property rights-friendly language holding that access can be made competitive by means of sharing unbundled network elements (rather than physical access), and further, that weighted commissions to owners and developers are not anti-competitive. The ruling permits an owner or developer to execute a PPA (so long as it is not called “exclusive”), but does not prohibit a property owner from executing only one such agreement.
Two forced access attempts surfaced at the end of 2004. The Mississippi Public Service Commission issued a rule in November that attempts to bar developers from granting exclusive deals to their properties and prohibit commission-based relations between property owners and telecommunication service providers. In December, the commission amended its order extending the initial comment period until Jan. 12, 2005. The commissioners granted the extension following a request from BellSouth. In Florida, leading telecommunications firms (including Time Warner Telecom and AT&T) drafted legislation that permits service and VoIP providers to gain access to multiple tenant environments.
It is likely that the industry will see this issue arise in other states throughout 2005. BOMA continues to stress to policymakers at all levels of government that telecommunications legislation and regulation must preserve the viability of a free and effective marketplace that respects private property. Forced building entry privileges for telecommunications service providers are unnecessary, unmanageable, and unconstitutional.
For more information on these and other issues, contact BOMA Intl. by calling (202) 408-2662 or visiting (www.boma.org).
Though telecommunications issues are still largely in flux at the federal level, it is becoming alarmingly clear that there may be a sharp increase in forced access fights at the state level.