Arizona Telecommunications & Information Council (ATIC) Multitenant Building Telecommunications Access Study PREVIOUS CONTENTS APPENDIX 4
returnNEXT Submitted Position Statements:
Sprint Position Statement on Access to Multi-Dwelling UnitsAppendix 4: Submitted Position Statements
WinStar Communications
Position Statement
WinStar Communications, Inc. submits these comments to the Arizona Telecommunications Information Council (ATIC) on proposed modifications to state legislation and regulation to ensure that telecommunications carriers and cable television providers have nondiscriminatory access to utility poles, ducts, conduits and rights-of-way (ROW). We applaud ATIC's efforts to align Arizona state regulations with Section 224 of the federal Telecommunications Act of 1996 and to promote non-discriminatory access to utility rights-of-way (ROW). To ensure this stated objective is met, WinStar recommends that ATIC clarify that its proposal will apply to all utility rights-of-way, including rights-of-way located in multiple dwellings units (MDUs).
The success of new entrants in penetrating the local exchange market to compete with incumbent LECs is directly impacted by their ability to access existing rights-of-way (ROW) that are either owned or controlled by utilities. For example, fixed point-to-point wireless carriers need to place microwave transmission facilities on buildings' rooftops, among other structures. Traditional wireline carriers must lay their fiber optic cable across existing rights-of-way in order to create more efficient (and, correspondingly, more competitive) cost structures independent of the incumbent LEC. In the absence of a regulatory framework to make access to the current infrastructure available to new entrants, pro-competitive activities will be stalled, perhaps indefinitely.
With good reason, Congress amended the Communications Act of 1934 to provide new entrants nondiscriminatory access to utility rights-of-way (ROW). In conformance with this mandate, ATIC is now studying legislation or regulation to ensure that new entrants have nondiscriminatory access to utility rights-of-way in Arizona. To make certain that the amendment is truly effective and to avoid unnecessary disputes, ATIC should help the state clarify that all rights-of-way owned or controlled by, or available to, a utility will be made available to new entrants include in multiple tenant environment. In other states, regulation of access to rights-of-way has focused principally on so-called "outside plant," such as cable attachments to poles and conduits in public streets. Arizona should recognize that utility networks do not end at the walls of an MDU. Rather, to provide service to individual tenants in a MDU, a utility must extend its network into and throughout the building.
Historically, the incumbent LEC normally installed, owned and operated its own distribution facilities inside MDUs, including building entrance facilities (the connection of incumbent LEC outside plant to the "minimum point of entry," or MPOE, within the building), a common block where the building entrance facilities can be cross-connected to interior wiring, vertical riser cables to upper floors of the building, horizontal distribution wires connecting the risers to individual tenants' premises, and internal wiring closets and connector blocks (these facilities collectively are referred to below as "interior pathways"). Because it was in the building owners and/or managers' own interest to provide access to telephone services within the MDU, the incumbent LEC often was permitted to enter the building and install these facilities without any written easement, license, or other agreement. Nonetheless, the incumbent LEC necessarily had the express or implied permission of the property owner to install and operate these facilities, as a matter of course.
Section 224 of the Telecommunications Act requires a utility to provide access to "any pole, duct, conduit, or right-of-way owned or controlled" by it. A right to install wires, riser ducts, conduits, and other facilities into or within an MDU (regardless of the side of the demarcation point on which they may fall) is a "right-of-way" within the ambit of this statute. Therefore, to the extent that any easement, license, or agreement (written or unwritten) grants an incumbent LEC or other utility the right to place telecommunications facilities into or within an MDU, the incumbent LEC or utility in turn is required by Section 224 of the federal Act to allow other carriers to "piggyback" on those rights, so that the other carriers may place their facilities within any pathways, ducts, or conduits, including rooftops and riser conduits, subject to the conditions of Section 224 and the state's regulations implementing it.
We believe that any state regulation or legislation should require utilities to provide access to interior pathways. The utility controls, or at the very least "shares control" with the property owner. Since the incumbent LEC or utility uses or previously used the right-of-way to transmit telecommunications to tenants in the building, the right-of-way is used or useful for supporting or enclosing wires for the transmission of telecommunications. Thus, pursuant to the federal Act, any pathway, inside wire, house riser cable, and common spaces under the ownership or control of the utility that is used, or may be used, for transmission of communications must be made available similarly to a CLEC.
Call for State Action:
In order to avoid potential confusion and future disputes, the State should clarify explicitly that rules will apply to interior pathways controlled by utilities within MDUs, in addition to poles, conduits, and other "outside plant" rights-of-way. Legislation or regulation is needed to help facilities-based carriers overcome significant hurdles that they face in deploying telecommunications services and providing consumers with a full range of choices in local telephone service providers. Currently, a significant sector of the public cannot access competitive telecommunications services due to a final "100 foot bottleneck" resulting from anti-competitive actions by incumbent LECs and/or property owners who impede or prevent access to building rooftops, risers (horizontal and vertical), inside wiring and related facilities. We urge ATIC to address critical barrier to competition and to adopt building access regulations. Until such access is mandated and nondiscriminatory guidelines are set and implemented, Arizona consumers will be denied the benefits of competitive telecommunications services.
Pursuant to Section 224(c)(2)(B) of the federal Act, the State is required to consider the interest of subscribers when regulating utility rights-of-way. Subscribers living or working in MDUs are being denied competitive telecommunications services. Section 224(f) requires that utilities provide access to interior pathways that they control within MDUs; however, this section says nothing about access in those instances where necessary interior pathways are controlled directly by the building owner rather than a utility, or where the building owner attempts to impede access to interior pathways, even where the incumbent LEC or other utility has otherwise been granted access. Accordingly, several state commissions have recognized that Section 224 is simply not enough to ensure that these consumers have competitive choice among telecommunications providers.
At least four states have adopted legislation and/or administrative regulations ensuring building access for MDUs, and other states are currently investigating the issue. The Ohio Public Utilities Department, in exercising its general jurisdiction over intrastate telecommunications, has prohibited any "person owning, leasing, controlling, or managing a multi-tenant building [to] forbid or unreasonably restrict any occupant, tenant, lessee, of such building from receiving telecommunications services from any provider of its choice." The Public Utility Commission (PUC) of Texas also has issued an enforcement policy implementing state statutory provisions prohibiting property owners form restricting tenants' access to certificated telephone companies. The Connecticut Legislature enacted a law that requires building owners to allow a telecommunications provider to wire the building and provide service so long as a tenant requests services from the provider. Finally, the California Public Utilities Commission (PUC) adopted specific rules governing access to poles, ducts, conduits, and rights-of-way, and prohibiting telecommunications carriers from entering into exclusive or discriminatory access arrangements with building and other private property owners. These state commissions and others have recognized that without regulations requiring property owners to allow CLECs access to their buildings, consumers will be denied the benefits of telecommunications competition.Affirmative State Action Should Preclude Interference with the Consumer's Access to Competition Telecommunications Alternatives:
Two entities stand between the tenant wishing to receive the benefits of competitive services and the carrier eager and able to provide such services: the incumbent LEC and/or other utility and the building owner. Many building owners have found that the lack of rules requiring building owners to permit access to their premises creates a windfall in their favor and access by CLECs and alternative video providers as a significant new revenue generating opportunity by presenting CLECs with discriminatory rate treatment or outright rejection. This is not fair to tenants, the intended beneficiaries of the federal Act. Numerous cases of abuse by building owners have been cited by CLECs attempting to gain access to serve tenants. Request for exorbitant access fees creates a deadlock between the competitive carrier and the building owner with the obvious loser being the tenant. Surely, the goals of the federal Act were to increase consumer choice and access to innovative technology, and not to provide property owners with a windfall. Ultimately, absent State action, the deployment of alternative and advanced broadband technology will be left to the whim of each building owner. Building owners must not be permitted to unilaterally mandate a tenant's telecommunications carrier. The choice of a telecommunications carrier belongs to each American as mandated by the federal Act. The State should adopt legislation or regulation to prevent continued abuses and to ensure that Arizona consumers receive the benefits of competition.
If the State intends to bring the promise of local competition to Arizona consumers in the foreseeable future, it must take action to assure that residential tenants in multiple dwelling unit developments and commercial tenants in multi-tenant commercial properties have access to the telecommunications service provider of their choice. The history of the telecommunications industry demonstrates that competition brings about technical advancements that improve the way we live and communicate and that in order to open a market mired in monopoly, regulatory agencies must affirmatively establish fair rules and guidelines to ensure the development and survival of competitors. An excellent example is competition in the long distance industry, where changes in laws and regulations released the long distance industry from the grip of monopoly and resulted in enhanced and ubiquitous long distance service, lower and flat rates, universal access, the development of debit/prepaid calling cards, competitive wireless services, and countless other advancements that benefit consumers.
Today, unequal building access is a primary obstacle to true local competition. Opening the bottleneck requires the State, among other things, to prohibit all exclusive building access arrangements and to mandate access to the last 100 feet. As discussed above, CLECs are effectively prohibited today from serving many MDU tenants that they are technically capable of reaching because of restrictions on building access or inside wire imposed by incumbent LECs, landlords, or both. Herein, we propose a number of concrete steps the State can take immediately to ensure that tenants can obtain service from the carrier of their choice, without interference from property owners or incumbent LECs.
The State must ensure that:
- 1. Competitive Carriers Have Access to Risers and Rooftops
The State should act promptly to implement provisions that assure tenants in MDUs can obtain access to the services offered by fixed wireless and wireline carriers over their own facilities. These rules should encompass (1) placement of antennas on MDU rooftops for provisioning of the local loop, (2) access to riser conduits or other pathways connecting the rooftop antenna to the "common block," typically in the basement, at which outside telecommunications facilities are cross-connected to interior wiring, and (3) direct access to the end user where good engineering practices so dictate.
- Exclusive Arrangements are Prohibited
The State should issue a declaratory ruling prohibiting "preferred provider" and/or exclusive contracts between building owners and incumbent LECs. Such contracts are unlawful and completely contradict the competitive mandate of the federal Act, and must be banned. Section 224(c)(2)(B) of the federal Act directs the state to consider the interests of subscribers of utility services. Exclusive contracts discriminate against other carriers and prevent those subscribers from having access to more advantageous pricing, technology and services. Exclusive contracts between ILECs and building owners have been in use since before the federal Act was passed, and often contain burdensome penalties for canceling the contract. Moreover, in the post-Telecommunications Act environment, LECs have been aggressively using preferred provider and/or exclusive contracts anti-competitively. An incumbent LEC, utility or other carrier with an exclusive contract to serve an MDU has a captive audience and little or no incentive to provide competitive, advanced services. Exclusive contracts are contrary to the public interest and to the goals of the 1996 Act, and the State should expressly declare them unlawful and prohibit any party from attempting to enforce any such agreement.
- 3. The Demarcation Point is Established to Eliminate Incumbent LEC Abuse and to Facilitate Technical Access to End Users
Incumbent LECs continue to maintain their strong hold on MDUs by making access difficult or impossible for competitive carriers who have been asked by tenants to provide their service within a multiple tenant building. State rules should require incumbent LECs to reconfigure MDU wiring to establish a single demarcation point at the minimum point of entry (MPOE), which should typically be the closest practical point to where the telephone company's wire crosses the property line, within a prescribed maximum provisioning time frame. Such reconfiguration will also enable competitive carriers to efficiently connect their equipment to the inside wiring via a cross connection at the network interface device (NID).
A clear and concise placement of a single demarcation point at the minimum point of entry in every MDU would facilitate the existence and growth of true end-to-end facilities-based competition. A single demarcation point would ensure that all carriers, incumbent LEC and CLECs, understand the characteristics of an multiple tenant building. A single demarcation point would also stop incumbent LEC actions from thwarting CLEC attempts to interconnect at the NID. Furthermore, such a configuration should assist all carriers in technically connecting individuals in an MDU. Without access to the inside wiring that connects the carrier to the customer, CLECs will never be true end-to-end competitors unless they are willing to and capable of undertaking the extraordinary expense and burden of rewiring every building they wish to serve. Moreover, if more than one CLEC wishes to provide its own local loop to a given building, multiple, duplicative rewiring of the entire building has to occur, as is frequently the case today. This outcome is not desirable for the new entrant nor for the property owner, and is economically wasteful. Establishment of a single demarcation point at the minimum point of entry for all MDUs would be consistent with the goals of the federal Act by facilitating competitive access to individual consumers in an MDU and ensuring the existence of true end-to-end alternative providers.
- ILEC-Owned Facilities within MDUs are "Network Elements"
Section 251(c)(3) of the federal Act requires incumbent LECs to offer "nondiscriminatory access to network elements on an unbundled basis" to competitive providers. The purpose of this requirement is to "permit new entrants to offer competing local services by purchasing from incumbents, at cost-based prices, access to elements which they do not already possess . . ." This purpose is being frustrated by incumbent LECs' refusal to offer access to facilities within MDUs on a meaningful, unbundled basis. CLECs cannot serve individual tenants without access to the house and riser cables owned by the incumbent LEC, even if the CLEC can provide its own facilities up to the entrance of the building.
As noted above, the incumbent LEC typically owns and operates a variety of facilities within an MDU used to distribute telecommunications services to tenants within the building. Depending on the age of the building and the practices of the particular incumbent LEC, some of these facilities are on the customer side of the demarcation point. However, these facilities are still owned and maintained by the incumbent LEC on a deregulated basis, and are used to provide telecommunications services to the tenants. These functions therefore fall within the definition of "network element" in Section 3(29) of the federal Act. The State should clearly mandate that all incumbent LEC owned or controlled inside wire, including house riser (both vertical and horizontal), riser conduit, and connector blocks, are immediately available as unbundled elements. At least one state commission has already implemented this level of unbundling, providing a model for other states to emulate. In New York, New York Telephone is required by the New York Public Service Commission to offer house and riser cable in multi-tenant buildings on an unbundled basis. This enables a CLEC to provide its own link to the entrance of a multi-tenant building and to purchase house and riser cable access within the building.
- Non-discriminatory Access is Paramount
Rules based on the principle of nondiscrimination will encourage competition and reward carriers for quality services, innovate offerings, and competitive rates, rather than rewarding a carrier for getting access. Moreover, the ability of all carriers to obtain nondiscriminatory access will guarantee that tenants have access to their telecommunications carrier of choice. Discriminatory terms, conditions and costs for installation of facilities will result in a de facto choice for tenants and, therefore, discriminatory rules that disadvantage one carrier over another will reduce the choices of available CLECs to tenants. For example, if the rules burden a wireless carrier from gaining reasonable access, then tenants are deprived of choosing a CLEC offering that type of innovative technology and the accompanying advanced services. Furthermore, if the rules permit a building owner to discriminate on compensation, many new entrants without financial resources may be prohibited from accessing the building and, therefore, the tenant is deprived of choosing that CLEC which may offer services that meet that tenant's needs. Therefore, to ensure that tenants realize the significant right to choose a CLEC, the State should design its rules to require access on a fair and nondiscriminatory basis.Thus, WinStar Communications respectfully requests that ATIC and the State of Arizona adopt the modifications proposed herein to help ensure a robust regional telecommunications marketplace.
Russell C. Merbeth, Vice President of Government Affairs, WinStar Communications, Inc., (202) 530-7659, E-mail: rmerbeth@winstar.com, URL: http://www.winstar.com/
Multitenant Building Telecommunications Access Study PREVIOUS CONTENTS APPENDIX 4
returnNEXT Submitted Position Statements:
Sprint Position Statement on Access to Multi-Dwelling Units