The U.S. Congress continues to move forward with its plan to overhaul the Telecommunications Act of 1996, yet the real action continues on a fast pace in the states. Despite the fact that there still hasn’t been a bill introduced in Congress to update the 1996 law, House Energy and Commerce Committee Chairman Joe Barton (R-TX) stated that “there’s probably a 75-percent chance we’ll get it done this year” in a recent interview with Roll Call newspaper.
In the states, government-mandated access for telecommunications service providers (TSPs) - forced access - has been a key battleground for BOMA Intl. and its 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 Communications Commission regulatory process. 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 reignited concerns that TSPs are finding creative ways to accomplish state-by-state what they have failed to do on the national level.
The telecommunications industry has concentrated its efforts in both the Southeast and the Southwest. In June 2004, the Southeastern Association of Regulatory Utility Commissioners held its annual meeting in Charleston, SC. Two sessions on the agenda featured speakers from the telecomm industry who encouraged decision-makers to “invest in innovation” and reverse current policy preventing forced access. Their lobbying efforts have paid off as forced access attempts have appeared in Florida, Mississippi, North Carolina, and South Carolina.
In conjunction with the RAA, BOMA Intl. was able to halt efforts in the North Carolina Utility Commission that would have potentially required forced access and invalidated preferred provider agreements. This matter is not entirely closed as the telecomm companies have filed seven “Petitions for Reconsideration.” Additionally, the issue has moved from the regulatory arena to the legislature as three bills were introduced in the General Assembly. Two of the bills, House Bill 1468 and House Bill 1469, have passed the House and are currently being debated by the Senate Commerce Committee. The third, House Bill 1470, remains in a House committee and is not expected to pass. While this legislation mainly has residential implications, BOMA Intl. continues to monitor them as they may be amended to include commercial.
The situation is more tenuous in South Carolina. In June, Governor Mark Sanford (R) signed House Bill 3840 into law. This legislation bans preferred provider contracts (PPCs) and the payment of any incentives to a property owner for the purpose of encouraging property owners to refuse or restrict access to a community. In Florida, real estate advocates were more fortunate. Senate Bill 762 and its companion, House Bill 1023, failed to pass their respective houses. These bills would have provided mandatory access not just for telecommunications providers but also for providers of Voice-over-Internet Protocol (VoIP). This permits cable and data companies that might not otherwise fit the definition of a telecommunications provider to be eligible to demand mandatory access.
In Mississippi, the Public Service Commission issued a proposed order to establish rules to address PPCs between local carriers and developers within the context of competitive access to residential and commercial developments. Serving as the voice of commercial real estate, the RAA and a number of state affiliates filed motions in the docket.
In the Southwest, activity was more subdued but nonetheless present. Introduced in January, Arizona House Bill 2244 provided for mandatory access to commercial properties. Fortunately, commercial real estate advocates were able to successfully lobby the House Federal Mandates and Property Rights Committee chair and kill the legislation. In response, BOMA Arizona is mounting a proactive campaign to introduce favorable telecommunications legislation next year. In New Mexico, House Bill 281 passed the House of Representatives in February but died in the Senate Judiciary Committee upon the adjournment of the legislature. The bill provided conditions for telecommunications access to private property. Real estate advocates gained the support of Governor Bill Richardson (D), who opposed the legislation.
Telecommunications legislation and regulation, at the state and local levels, must preserve the viability of a free and effective marketplace that respects private property. Forced building entry privileges for TSPs are unnecessary, unmanageable, and unconstitutional. BOMA Intl. is strongly opposed to any such initiatives.
For more information on the issues discussed in this column, visit (www.boma.org) or call BOMA Intl. at (202) 408-2662.