Arizona Telecommunications & Information Council (ATIC) Multitenant Building Telecommunications Access Study PREVIOUS CONTENTS APPENDIX 4
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Arizona Consumers Council (ACC)Appendix 4: Submitted Position Statements
Real Access Alliance
"Forced Access" Issue Background
What's the "Forced Access" Issue?
Forced access proposals at the federal and state levels seek government-mandated access for some telecommunications service providers that would allow them to install their equipment in private buildings at little or no cost. Building access costs are now freely negotiated between individual property owners and telecom providers for installing and maintaining cable, fiber-optic wiring, satellite antennas/dishes and wireless technologies. Under these proposals, a select group of telecommunications providers could be relieved of any obligation to compensate building owners for the use of their private property. These proposals could also undermine the ability of building owners to create or maintain a reliable and secure wiring infrastructure for all tenants.
Those who support these proposals claim that new telecommunications service providers merely want access to buildings on a "nondiscriminatory" basis. In this context, "nondiscriminatory access" is really code for government-mandated and regulated rates of access to private property.
What's at Stake?
First, the ability of building owners to offer tenants the most advanced, cost-effective, quality telecommunications services from among a wide array of telecom providers.
Second, the constitutionally protected rights of property owners.
Third, higher costs for building owners to ensure telecom providers provide reliable, secure services for tenants over the long term.
What's Happening Now?
Federal Communications Commission (FCC):
On July 7, 1999 the FCC issued a Notice of Proposed Rule Making (99-141) entitled "Promotion of Competitive Networks in Local Telecommunications Markets. " This proposed rulemaking asks for public comment as to whether the FCC should force building owners to provide access to all telecom providers under identical terms and conditions, regardless of the extent or nature of their proposed use of the property. In effect, this proposed rulemaking could force building owners to price building access at government-regulated rates (which are generally defined by what incumbent local exchange carriers [ILECs] currently pay). The notice also considers prohibiting exclusive access contracts between building owners and telecommunications providers. In addition, the FCC seeks comment on the experience of certain states that have already enacted forced access legislation. The comment deadline was August 27, 1999.
Congress:
In the Senate, a bill has been introduced by Senate Appropriations Committee Chairman Ted Stevens (R-AK) known as the Competitive Access to Federal Buildings Act (S. 1301). S. 1301 requires building owners to agree to a number of unprecedented conditions in order to be able to lease to, or renew existing leases with, any federal agency. Specifically, building owners would need to bind themselves contractually - via agreements with any and all telecommunications carriers seeking access or currently providing service to - their building. In those contracts, they must agree to:
- commit to set access charges for all telecommunications providers, regardless of their impact on building space or ability to make capital improvements to the buildings, at an amount equal to or less than that charged to ILECs
- relinquish their rights to due process - in fact, any recourse at all through the courts - with respect to disputes with any telecommunications company seeking access or currently providing service
- allow telecommunications carriers whatever access they deem necessary while the dispute over the terms and conditions of that access is pending
In the House of Representatives, a hearing on building access issues was held on May 13, 1999 by the House Subcommittee on Telecommunications chaired by W. J. "Billy" Tauzin (R-LA). At that hearing, telecommunications service providers maintained that they were unfairly denied access to some private buildings and that at others the terms of access were unreasonable. On September 21, 1999 a companion bill to S. 1301 was introduced (H.R. 2891) and referred to the House Commerce Committee for consideration. A similar measure (H.R. 3487) was introduced on November 18, 1999 and also referred to the House Commerce Committee.State Legislatures:
Although forced access proposals have been defeated in various state legislatures (including Louisiana, Virginia, Indiana and Iowa), California remains a likely battleground for forced access legislation. Formal consideration of the bill in California (CA AB 651) is not expected until January 2000.Why Should Forced Access Proposals be Rejected?
Competitive telecommunications access is at work in the marketplace.Property owners are operating in the best interests of their tenants.
- An independent survey conducted by Charlton Research in July 1999 reveals that nearly two-thirds (65%) of all requests fielded by building owners and managers from telecommunications companies within the last year regarding potential telecom services either led to approval for building access or to contract negotiations
- Standard office lease agreements take an average of 3 months to negotiate, while the terms and conditions of specialized telecommunications access to building infrastructure and rooftops average slightly less than 5 months to negotiate
Where access is denied, it's for valid business reasons, such as telecom providers':
- Tenants benefit when property owners negotiate contracts for the best possible price and level of service from qualified telecommunications service providers
- 82% of building owners/managers cite tenant-related reasons (choice, satisfaction, retention) and building marketability as their primary reasons for offering telecom services
- Many building owners are already working in partnership with a variety of telecommunications providers to deliver even better, faster and cheaper services to tenants
Forced building access may be unconstitutional.
- Refusal to meet standard contractual requirements agreed to by a great majority of other providers for building access
- Failure to assume liability for the safety and security of the building's infrastructure
- No business track record or limited company capitalization
- Inability to meet relevant building codes
- Insistence on exclusive access rights to a building
- "Cherry picking" the most profitable markets while ignoring other, underserved markets
- Telecommunications providers want what amounts to a federal subsidy to expand their business -- and they want to do it on the backs of building owners
- Any FCC action giving telecommunications providers access at non-market rates would amount to an unconstitutional "taking" of private property
(Available online at http://www.realaccess.org/background.htm)
Multitenant Building Telecommunications Access Study PREVIOUS CONTENTS APPENDIX 4
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Arizona Consumers Council (ACC)