NAIOP Wins in Court over Telecom "Forced Access" Rules
NAIOP NAIOP (along with the GBREB and MAR) was successful with its challenge of the Massachusetts Department of Telecommunications and Energy rule that mandated that property owners were to be subject to the regulatory authority of the DTE. Owners would have had to allow open access to their buildings. The DTE further defined "rights of way" to encompass building telecommunications spaces, including roofs for antennas or satellite dishes, that serve customers in commercial buildings or apartments.
The Supreme Judicial Court has just agreed that the DTE forced access rule is invalid. In essence, the court accepted NAIOP's argument that the challenged regulation "reaches private parties who are outside the legislatively granted scope of the department's authority, and is thus ultra vires." There was therefore no need to address the constitutional issues on which Judge Sikora's earlier decision had been based.
The SJC ruled that certain of the DTE 'compulsory access' regulations purporting to afford mandatory access to privately owned buildings for telecommunications connections are invalid as they go beyond statutory authority, stating:
'The Department of Telecommunications and Energy (department) and the Smart Buildings Policy Project, appeal from a judgment of the Superior Court that declared 220 Code Mass. Regs. §§ 45.02 and 45.03(1) (2000) (regulations), to effect an unconstitutional taking of property without just compensation because the regulations compel access to private property for the physical attachment of wires or cables. The judgment also permanently enjoined the department from implementing those regulations to the extent that they applied to private landowners. We transferred the case to this court on our own motion.
We hold that the second paragraph of the definition of "[u]tility" in 220 Code Mass. Regs. § 45.02, which includes commercial and multiple dwelling unit buildings, reaches private parties who are outside the legislatively granted scope of the department's authority, and is thus ultra vires. [FN4] Section 45.04(2) (h), concerning complaints received regarding access to such buildings, is similarly invalid. [FN5] Because we decide that the subject regulations are not statutorily authorized, we need not reach the constitutional issue. We vacate the permanent injunction issued by the judge below as unnecessary in this case.'
(Click here for the full decision)
The commercial real estate industry is committed to delivering to its tenants a broad range of choices for better, faster and cheaper telecommunications services. While the real estate industry continues to believe that the market for competitive telecommunications services in buildings is thriving without government regulation, it has developed and is promoting model building access agreements and "best practices" aimed at facilitating nationwide negotiations with telecommunications service providers and speeding up tenant access to providers of their choice.
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