FCC Approves Competitive Access Rules

If market forces do not produce open and unfettered competition among broadband providers, the FCC is willing to step in and level the playing field.

by Roy Mark of dc.internetnews.com [October 10, 2000]

After delaying action for more than two weeks, the Federal Communications Commission finally implemented several controversial measures mandating that commercial landlords open their communications facilities to all service providers on an equal basis, not just the carrier of their choice.

The FCC adjusted the rules in order to further foster competition in local communications markets under the mandate of the Telecommunications Act of 1996.

In its decision, the FCC asserted jurisdiction over all communications technologies inside buildings, which addressed the issue of building owners who denied tenants access to competitive services. The federal rule change also outlawed exclusive contracts between commercial building owners and incumbent providers.

No closed doors
In addition to banning exclusive contracts, the FCC also changed the demarcation point for wires inside buildings. It ruled that the pole attachment provisions in section 224 of the Communications Act requiring that utilities provide nondiscriminatory access to all telecommunications carriers were in order.

Additionally, federal regulators decided that Section 207, which prohibits restrictions on the use of antennas, applies to fixed wireless Internet services. At the same time, the FCC rejected calls from competitive local exchange carriers to adopt a full-scale regulatory regime that critics said "might have cost taxpayers millions for the government to administer."

The rush to wire apartments and office buildings with high-speed broadband access spiked the value of landlords' telecom infrastructures, ultimately leading to Thursday's FCC action mandating competitive access for carriers.

Prior to Thursday's ruling the contractual terms for access to an owner's property for installing and maintaining cable, fiber-optic wiring, satellite dishes or antennas, were being privately negotiated between property owners and broadband service providers.

Fees regulated
Because communications regulations did not govern the prices carriers can charge CLECs for access to wiring closets, risers or rooftops of multiunit dwellings, CLECs argued that incumbent carriers often received building access for free, which excluded CLECs from competitive bidding on communication services.

Last year, in a movement led by Teligent, Inc. of Vienna, VA the CLECs asked that the FCC look into the issue. The real estate industry had adamantly opposed any FCC action, threatening at one point to initiate "the mother of all lawsuits" against the five federal regulators. Land lords argued that the FCC orders amounted to "taking" their property without just compensation, in violation of the Fifth Amendment. However, by late Thursday afternoon both sides were praising the FCC's action.

"The FCC's decision is a green light for CLECs, and sets the stage for competitors to bring the information superhighway to business and residential tenants," said John D. Windhausen, Jr., president of the Association for Local Telecommunications Services.

"The FCC's decision sets the nation on the right path toward a fully competitive local marketplace where no provider enjoys an unfair advantage, and no tenant can be restricted to the telecom provider chosen by the landlord," Windhausen said. "In other words, the building owner cannot 'just say no' to competitors."

Roger Platt, a spokesman for the Real Access Alliance, said it appears the FCC action consists of constructive, reasonable steps to ensure tenants receive the best possible access to competitive telecom services.

"This decision charts a middle ground that recognizes real estate's critical role for ensuring tenants have access to the types of telecom services they need and want - without infringing on the constitutional rights of private property owners," Platt said.

Best practices
In its official statement on the ruling, the FCC noted that the real estate industry has taken positive steps to facilitate tenant choice of telecommunications providers by working towards the development of best practices and model agreements.

"In particular, a coalition of 11 trade associations representing over 1 million owners and operators has committed to a best practices implementation plan regarding these issues," the statement read.

The Commission said it would closely monitor its efforts to create competitive access for CLECs seeking to provide broadband services in multiunit dwellings and and business buildings. The FCC is wholly prepared to consider taking additional regulatory action if competition is not created.

—End