The idea of forced building access for telecommunications companies has set off a spate of skirmishes across the country. And a recent case in Massachusetts further supports the position of the real estate industry, which holds that forced access by telecom firms is unconstitutional.

The state-level case, decided in late July by Suffolk County Superior Court Justice Mitchell Sikora, overturned Massachusetts' existing regulations governing how building owners should manage and provide building access for telecommunications service providers.

The rules, set by the Massachusetts Department of Telecommunications and Energy, required landlords to give multiple telecom providers mandatory access to both apartment and office buildings. In other words, a landlord could in no way limit the number of companies that could come on his property, install equipment and do business. In essence, the telecoms could someone else's property whether the owner wanted them there or not.

Justice Sikora ruled that these regulations caused an impermissible taking of property without just compensation. To arrive at his decision, the judge relied on a 1982 U.S. Supreme Court 1982, Loretto v. Teleprompter Manhattan CATV Corp.

"Perhaps the most serious invasion of an owner's property interests ... occurs in the circumstances in which a third party is authorized to use and obtain profits from the landowners property without just compensation," the judge wrote in his ruling.

Plaintiffs in the case were led by the Greater Boston Real Estate Board and were joined and assisted by the Real Access Alliance, which has been a major voice in the forced access debate at both the state and federal levels.

So why is this little case in Massachusetts important?

For one thing, that state's regulations were held up as an ideal by those trying to convince the Federal Communications Commission (FCC) to put national forced building access rules into place.

"During the FCC's proceedings, the Massachusetts' regulations were held out by the telecom industry as a model for creating a federal right of access by parties wanting forced access, without running afoul of the constitutional provisions guarding against uncompensated takings," said Roger Platt, spokesman for the Real Access Alliance.

Platt said that under the Massachusetts approach, building owners would have to forfeit their rights to exclude other telecom providers, if they had already provided access to one or more other providers. The Massachusetts court was unconvinced, citing that "a landowner's grant of space to one licensee does not equal a grant of space to all other licensees wanting access to clients."

The decision could be key for the real estate industry as it strives to maintain the status quo with the FCC. Earlier this year, the commission faced a barrage of lobbying and testimony from both telecommunications and real estate players, each eager to win the debate.

For the last year, telecommunications companies have argued -- so far unsuccessfully -- that forced access is necessary so that tenants can get a wide range of price-competitive telecommunications services, from local and long-distance to high-speed broadband access. Without forced building access, they claimed, real estate owners would deal with only a handful of telecom carriers, resulting in high prices and little or no choice for end-users.

Barring proof that consumers cannot gain price-competitive service without forced access, the FCC has signaled that it likely will side with real estate. And a court decision ruling forced access unconstitutional may just shut down the telecommunications industry's campaign -- at least for now.

For more articles by Lesley Hensell, please press here.

Published: August 9, 2001

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Lesley Hensell covers commercial real estate and financial issues for Realty Times. Based outside of Dallas, Lesley works with high-tech and real estate clients as an independent marketing and public relations consultant. She also writes for several publications, including the Dallas Morning News. E-mail Lesley at: lhensell@earthlink.net