That's basically the issue as telecoms and building owners line up for a new encounter in the five-year-old battle for unlimited access to properties. A July 27 Massachusetts Superior Court decision that appears to favor the building owners is raising a new slate of arguments by both sides.

The court ruled a Massachusetts regulation that previously gave free access to buildings to all telecommunications companies violated both the Massachusetts and US Constitutions. The state regulation would have given telecoms an illegal forced entry-like weapon, building owners contend.

GlobeSt.com polled key trade associations, brokers, lawyers and owners for their views.

Jonathan Askin, general counsel, Association for Local Telecommunications Systems, a 150-corporate member Washington, DC trade group, feels the Massachusetts court ruling missed the mark. Askin maintains the court should have paid more attention to a July 6 decision by the US Court of Appeals in the District of Columbia. That court ruled tenants could install satellite antennas in their rented portion of the building without prior permission from the building owner.

That would mean a telecom company could access the building on a tenant's request and by so doing would open the door for other telecom firms to follow, ALTS' president John Windhausen Jr. says in an Aug. 6 article in The Wall Street Journal.

Askin tells GlobeSt.com "the Massachusetts decision effectively runs in circles" by refusing to discuss the July 6 DC decision on grounds that it was not a physical occupation case. Askin disagrees.

"The Yee decision (in BOMA vs. FCC, Otard decision, Case # 99-1009) is central to the determination as to whether one is discussing physical occupation or non-discriminatory access…a decision that the court was called upon to answer and did so summarily," Askin says.

(The July 6 Washington, D.C. court decision is available in full on htttp://pacer.cadc.uscourts.gov/common/opinions/200107/99-1099a.txt)

Askin tells GlobeSt.com his group is encouraged by a recent New York Public Service Commission ruling that gives telecom firms direct access to telecom facilities in multi-tenant buildings owned by another carrier.

He says Texas and Connecticut already have enacted statutes to promote tenant choice, while Ohio and Nebraska have done the same through Public Service Commission regulations. (For rulings by the separate states, go to http://www.buildingconnections.org/pages/the_solutions/state.html.)

BOMA International president Sherwood Johnston III in Washington, DC understandably opposes ALTS' position.

Johnston tells GlobeSt.com that BOMA International, representing 18,000 members, and Real Access Alliance "have gone to great lengths to develop Model Access Agreements that could help both landlords and telecom providers streamline the access process."

But "at the end of the day, buildings are still private property and no one should have the right to access them without the landlord's consent," Johnston says.

BOMA is particularly concerned that "some telecom companies want the right to access a building, regardless of whether they have customers in that building. Others simply don't want to have to take the time to negotiate access agreements with owners when a government mandate is much easier for them."

Johnston tells GlobeSt.com, the underlying issue to the dispute is "not about who the telecom providers want to put in buildings; it's about who the tenants of those buildings want as service providers." He says, "What's the point of providing access to telecom providers if the tenants in a building don't want their services?" he says.

On the question of tenants' privacy violations, Johnston tells GlobeSt.com, "There are several scenarios where a telecom provider could violate a tenant's privacy, not to mention disrupt a tenant's leased premises or business operations. Tenant privacy violations are merely one of many sizable problems created for owners and tenants if unlimited access were mandated" by the courts or state regulatory agencies.

On the choice of either tenant or building owner selecting a telecom provider, Johnston says "tenants already pick their own telecom providers. Owners may offer tenants alternative solutions, but in a market-driven economy such as ours, tenants usually get what they want. If they don't get the provider they want, they don't renew their lease and will move to a building that will allow access to the tenant's provider of choice."

Johnston is adamant that "owners should protect their private property rights, which does not hinder tenants from selecting telecom providers of their own choosing. If a tenant wants a certain telecom provider, the owner usually finds a way to make it happen."

BOMA/Orlando president Bert Locke, like Johnston, sees unlimited access as strictly a private property rights issue.

He tells GlobeSt.com, "The simple resolution is to stop the legislative initiatives and come to the table, willing to negotiate terms. The tenants, the telecoms and the property owners will all achieve what we're trying to achieve if we allow the free enterprise system to work."

Locke says "an unconstitutional taking that's even more egregious than eminent domain cannot be allowed to occur. Our Constitution protects us from this type of taking."

The BOMA/Orlando president says property owners "are anxious to work with providers with whom our tenants want to conduct business. It is in our best interest to respond to the needs of our customer." Locke adds, "We cannot, however, allow our constitutional rights to become violated for the sake of one group's desire to take something they should be willing to earn."

In Texas, unlimited building access has been mandated by the courts for the past two years but it is also bringing an unexpected cost item for telecoms--access fees.

GlobeSt.com Southwest Bureau Chief Connie Gore reports building owners are charging contracted license fees from $1,000 to $1,500 per building. Telecoms without contracts are barred.

The Texas scenario has also brought a predicted headache--more carriers than are realistically needed per building, Keith Waggoner, chief operating officer, Macfarlan Real Estate Services, Dallas, tells Gore.

For example, Waggoner tells Gore, "A class A, 200,000-sf suburban building typically attracts four providers when it probably only justified two."

The main problem in Texas today, Waggoner says, is keeping providers, who are still clamoring for access, from cluttering up back spaces in buildings and abandoning equipment when they don't get a customer foothold."

In metro Orlando, George D. Livingston, a property owner and founder/chairman, Realvest Partners Inc., sees the ongoing dispute between telecoms and building owners as a no-brainer.

"Access should be tied to clients," he tells GlobeSt.com. "If the provider has a client, they should get access. When providers do get access, they should pay for the space they use for their equipment."

He says, "There is no need to let an unlimited amount of providers into the building if they have no clients. They should be allowed to market tenants to seek clients however, as any other vendor can." Livingston adds, "Economics will, in the end, dictate this to be unfeasible in the extreme sense."

Christopher T. Sproles, first vice president, CB Richard Ellis Inc., Orlando, supports Johnston's position. "Owners should have the ability to make their own decisions as to what is best for their building and their tenants," he tells GlobeSt.com.

"If a tenant needs something that a competing building can offer, that owner is going to work to provide that amenity, no matter what it is," the broker says. "This is especially true in today's market where owners are fighting to keep and attract tenants." While building owners should be able to decide who gains access to their property, Sproles also feels tenants should have the right to select their own provider.

"If a telecom provider is not servicing a particular building, they can always subcontract with other existing providers to gain access," the CBRE executive says. "It is in the owner's interest, however, to have enough telecom providers to give tenants multiple options and provide some level of competition for service."

Instant Insights /

BIG PICTURE: Telecoms' Push for Unlimited Access Still a Thorny Issue

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