FCC Forced Access Update

The FCC released the text of its decision in the Forced Access proceeding late Wednesday, October 25. The text of the order follows closely the RAA's expectations.

This decision represents a substantial victory for the real estate industry. While the FCC stated that it may revisit adopting possible rules to assure non-discriminatory building access for competitive telecommunications companies sometime in mid- to late 2001, the Commission resolved conclusively that it would not now adopt any regulations or rules that intrude on the discretion of building owners to negotiate access agreements with telecommunications providers.

The FCC did modify two of its existing rules that will affect relationships with tenants and with carriers. It also banned future "exclusive access" contracts for office buildings. It increased the obligation of the incumbent telephone company to cooperate with the building owner if the owner decides to move the ownership line ("demarcation point") between inside wiring the building owns and wiring the incumbent owns. And it extended its OTARD rules to all forms of "end-user" wireless antennas of 1 meter or less. OTARD rules permit tenants to install video antennas and small satellite dishes (1 meter or less) on their premises . The RAA is considering asking the FCC to reconsider those elements of its order that might adversely affect building owners.

The good news is the FCC did NOT give competitive carriers the right to demand non-discriminatory access to buildings from building owners. Carriers can request a utility to provide access to the existing conduits which a utility company "owns or controls" in a building. But the utility cannot give access to property rights that the utility company does not hold. The utility can only provide access to the extent the "utility could voluntarily provide access to a third party and would be entitled to compensation for doing so." This formulation does not appear to change the existing law of building access in any substantial way.

In several places in the text the FCC explicitly recognizes the property interests of building owners and the need for "just compensation" if this interest is "taken" by a future FCC rule.

The FCC also stated it will monitor the building access market "closely" and will take "further comment" on the statistical developments in the market over the next 8 months. The FCC acknowledged the real estate industry's voluntary undertakings to develop model access contracts and model lease language dealing with building access issues. The FCC "hopes" this industry effort will adequately assure tenants access to choice and competitive alternatives.

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