Fighting over access: FCC, Congress face rooftop access issue

Office buildings in the U.S. number about 750,000 and nearly 30% of the country's citizens reside in multitenant buildings. Tenants' provider options may be limited because traditionally, that has been up to the building owner.

Though it is an issue that has pervaded the telecom industry for years, gaining building access recently has caught the attention of various levels of the industry. Whether it is called forced access or open access, it is a battle between landlord and carrier, with the FCC, and to a lesser extent Congress, stuck in the middle. Despite its overall significance for both wireless and wireline carriers, it seems as if all sides have lost sight of the most important player - the consumer. For the sake of competitive communications and free choice, everyone involved is counting on the FCC to bring the industry back into focus, whether it's forced or open.

"This is the most important competitive communications issue before the FCC or Congress. For new entrants, this is a critical issue," said Andrew Kreig, president of the Wireless Communications Association.

"This is a big issue for wireless carriers because if they cannot get to those customers, they will be relegated to being a niche business," he said. "Whether it is telephone, Internet or [direct broadcast satellite]-related, this is an effort to block competition."

Although the FCC is on a fast track to resolve the access issue, ultimately Congress needs to be involved, Kreig said. While the FCC has been fairly quick by government standards, the congressional process surely will extend the proceedings into next year, he added.

Because so many consumers live in a multitenant environment, "the question of access is important for the United States and the spread of competition," said David Turetsky, senior vice president of law and regulatory affairs for Teligent. "It is important to realize that it is not an issue unique to the wireless industry, but all facilities-based wireline carriers also need access."

Section 224 of the Telecom Act states that a utility or local exchange carrier "shall provide a cable television system or any telecommunications carrier with nondiscriminatory access to any pole, duct, conduit or right-of-way owned or controlled by it."

However, it does not conclude that the FCC has the authority to open rooftops for antenna placement. This is where the access issue becomes unique for wireless carriers. For instance, when wireless carriers want access where other utilities have rooftop rights, Section 224 kicks in, but this will be an exception because most utilities do not use building roofs.

According to WinStar Communications, getting building access has been the largest factor in delayed deployments. The company has gone head-to-head with landlords between 30% and 50% of the time. Building owners tend to view services from companies such as WinStar as either unnecessary or value-added services because they charge access fees. Although many building operators fall into this category, some remain mindful of what the resident might want.

"We shouldn't lose sight of the fact that there are many landlords who welcome the opportunity to have their buildings made ready for the 21st century, with broadband as a choice. Ultimately, the tenant should decide," Turetsky said. "It ought to be up to the tenant, and I think this is what Congress intended with the Telecommunications Act of 1996."

WinStar must pay a fee to service a building, although RBOCs are not expected to. WinStar finds this unfair, but it would pay the fee to service the building residents.

Last year, 65% of all requests fielded by building managers resulted in approval for building access or contract, said Roger Platt, a spokesman for the Real Access Alliance and vice president and counsel of the National Realty Committee. The association, along with about 10 other organizations, sees federal regulation as inappropriate because they believe the real estate industry is competitive and can adapt to marketplace price signals and customer demand. "There is no evidence of sufficient market failures to warrant regulation," he said.

Like Turetsky, the Real Access Alliance relies on the Telecom Act, although for different reasons. The alliance believes that because today's markets already are healthy and competitive, the issue of access does not deserve federal treatment.

Jim Arbury, vice president of the National Multi-Housing Council and National Apartment Association, agrees that the consumers cannot be forgotten, but he does not see how open access, or as he puts it, forced access, will provide any benefits.

"We have come to the conclusion that forced access does the opposite of enhancing competition," he said. "Although it sounds good, it works only for the big providers. Smaller providers need exclusive contracts in order for [forced access] to work economically." For competition to flourish, managers should decide which providers will service their buildings rather than having an onslaught of companies solicit individual tenants, who may decide to move to another building in a year, Arbury said. The bigger players would beat out the small guys if access were to become a free-for-all, he said.

Arbury describes one situation in which a new tenant could not get phone service because the prior tenant had chosen a provider that had gone bankrupt. The tenant could not get service until the legal issues surrounding the previous provider-tenant relationship were resolved.

"Forced access kills competition; it does not bring it," Arbury said. "It would be possible chaos if there is more than one provider because managers do not know who is moving in or who is moving out."

While Arbury places the emphasis on the managers' situations, Jonathan Askin, vice president of law with the Association for Local Telecommunications Services, maintains that the consumer should not be forgotten in this debate. "If the goal is to give customers as many options as possible, then let them determine what service they use," he said. "The toughest issue in this debate will be to what extent building owners give access."

Both sides submitted their opinions at the end of August, and replies are due by the end of this month. Those involved in the debate do not expect the FCC to come to a conclusion until some time during the first quarter of 2000.

Although both sides have had the opportunity to gauge the beliefs of one another, everyone involved believes that FCC is holding the cards.

"The filings so far by the real estate companies show that they are fighting hard to protect their turf as expected," Turetsky said. "But the FCC's responsibility is to protect the public interest. Therefore, we expect that the FCC will have a compelling basis to protect the consumers."

With Sept. 27 marking the close of the written comment period, the first round of the access battle officially ends.