That's basically the issue as telecoms and building owners lineup for a new encounter in the five-year-old battle for unlimitedaccess to properties. A July 27 Massachusetts Superior Courtdecision that appears to favor the building owners is raising a newslate of arguments by both sides.

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The court ruled a Massachusetts regulation that previously gavefree access to buildings to all telecommunications companiesviolated both the Massachusetts and US Constitutions. The stateregulation would have given telecoms an illegal forced entry-likeweapon, building owners contend.

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

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Jonathan Askin, general counsel, Association for LocalTelecommunications Systems, a 150-corporate member Washington, DCtrade group, feels the Massachusetts court ruling missed the mark.Askin maintains the court should have paid more attention to a July6 decision by the US Court of Appeals in the District of Columbia.That court ruled tenants could install satellite antennas in theirrented portion of the building without prior permission from thebuilding owner.

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

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Askin tells GlobeSt.com "the Massachusetts decision effectivelyruns in circles" by refusing to discuss the July 6 DC decision ongrounds that it was not a physical occupation case. Askindisagrees.

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

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

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Askin tells GlobeSt.com his group is encouraged by a recent NewYork Public Service Commission ruling that gives telecom firmsdirect access to telecom facilities in multi-tenant buildings ownedby another carrier.

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He says Texas and Connecticut already have enacted statutes topromote tenant choice, while Ohio and Nebraska have done the samethrough Public Service Commission regulations. (For rulings by theseparate states, go tohttp://www.buildingconnections.org/pages/the_solutions/state.html.)

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

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Johnston tells GlobeSt.com that BOMA International, representing18,000 members, and Real Access Alliance "have gone to greatlengths to develop Model Access Agreements that could help bothlandlords and telecom providers streamline the access process."

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

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

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

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On the question of tenants' privacy violations, Johnston tellsGlobeSt.com, "There are several scenarios where a telecom providercould violate a tenant's privacy, not to mention disrupt a tenant'sleased premises or business operations. Tenant privacy violationsare merely one of many sizable problems created for owners andtenants if unlimited access were mandated" by the courts or stateregulatory agencies.

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

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Johnston is adamant that "owners should protect their privateproperty rights, which does not hinder tenants from selectingtelecom providers of their own choosing. If a tenant wants acertain telecom provider, the owner usually finds a way to make ithappen."

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

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He tells GlobeSt.com, "The simple resolution is to stop thelegislative initiatives and come to the table, willing to negotiateterms. The tenants, the telecoms and the property owners will allachieve what we're trying to achieve if we allow the freeenterprise system to work."

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

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

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

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

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

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For example, Waggoner tells Gore, "A class A, 200,000-sfsuburban building typically attracts four providers when itprobably only justified two."

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The main problem in Texas today, Waggoner says, is keepingproviders, who are still clamoring for access, from cluttering upback spaces in buildings and abandoning equipment when they don'tget a customer foothold."

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

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"Access should be tied to clients," he tells GlobeSt.com. "Ifthe provider has a client, they should get access. When providersdo get access, they should pay for the space they use for theirequipment."

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He says, "There is no need to let an unlimited amount ofproviders into the building if they have no clients. They should beallowed to market tenants to seek clients however, as any othervendor can." Livingston adds, "Economics will, in the end, dictatethis to be unfeasible in the extreme sense."

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

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"If a tenant needs something that a competing building canoffer, that owner is going to work to provide that amenity, nomatter what it is," the broker says. "This is especially true intoday's market where owners are fighting to keep and attracttenants." While building owners should be able to decide who gainsaccess to their property, Sproles also feels tenants should havethe right to select their own provider.

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

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