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FCC to Issue Key
Ruling on Building Access The FCC is actively considering whether to adopt new building access rules that would benefit PCOs and fixed wireless operators that provide telecommunications services. As proposed in the FCC’s ongoing "Competitive Networks" docket (WT Docket No. 99-217), the new rules may give competing telecommunications providers nondiscriminatory access to residential and commercial multi-tenant environments ("MTEs"). A final decision could be released as early as this summer. The fundamental problem with the FCC’s existing rules is that they do not provide competing telecommunications providers with nondiscriminatory access to rooftops and riser conduit in residential and commercial buildings. Accordingly, competing telecommunications providers have asked the FCC to declare that the term "right-of-way," as used in Section 224 of the Communications Act of 1934, includes rooftops and riser conduit. Subject to certain limited exceptions, this would allow competing telecommunications providers to claim a federally protected right of nondiscriminatory access to rooftops and riser conduit controlled by a public utility or local exchange carrier. The United States Court of Appeals for the Eleventh Circuit recently released a decision that may affect how the FCC rules on this issue. In Gulf Power Company v. Federal Communications Commission (available at http://www.law.emory.edu/11circuit/apr2000/98-6222.opn.html), the Court ruled that rights of nondiscriminatory access under Section 224 are not available to providers of wireless telecommunications services. In so doing, the Court stated that Congress adopted Section 224 to eliminate public utility/LEC control over bottleneck facilities, and that there is no such thing as a facilities bottleneck where wireless services are concerned. It could be argued that Gulf Power, read literally, precludes PCOs and fixed wireless operators in the telecommunications arena from claiming any rooftop or riser access rights under Section 224. It appears, however, that the Court was focusing on cell site attachments made by mobile wireless carriers, which may be installed on any tall structure. By contrast, a PCO or fixed wireless operator that provides telecommunications services does not have multiple options for installing antennas, wiring and other equipment necessary for provision of service to an MTE. That is, if a PCO or a fixed wireless provider’s facilities cannot be installed within the MTE itself, service to the MTE is virtually impossible. In this regard, utilities and LECs that own or control MTE rooftops and riser conduit arguably are "bottlenecks," since a PCO or fixed wireless provider that is denied access to those facilities has no other means by which to serve the building. It should be noted, however, that even if the FCC were to give all wired and wireless telecommunications providers nondiscriminatory access rights under Section 224, the statute still would not provide them with nondiscriminatory access to MTE areas owned and controlled by the landlord. Thus, the competing telecommunications providers have also asked the FCC to adopt a rule that would give them nondiscriminatory access to rooftops, riser conduit, and other MTE areas owned and controlled by property owners. To date, only Texas and Connecticut have adopted similar laws at the state level, though building access legislation is pending in a number of other states.
Obtaining an FCC building access rule that applies to landlord property is perhaps the greatest challenge confronting the competitors in the Competitive Networks proceeding. Several FCC Commissioners have already raised substantial questions as to whether the Commission has the necessary statutory authority to adopt such a rule. For that reason, PCOs and fixed wireless providers of telecommunications services would be well advised to make their views known to the FCC’s staff as soon as possible. Finally, in direct response to a petition filed by The Wireless Communications Association International, Inc. ("WCA"), the FCC has proposed to expand its antenna preemption rule (47 C.F.R. § 1.4000) so that it protects all fixed wireless antennas one meter in diameter or diagonal measurement, not just those designed to receive video programming services via MDS, ITFS, LMDS, DBS or off-air television. If adopted, WCA’s proposal would be of significant benefit to fixed wireless providers who offer or plan to offer bundled or stand-alone telecommunications services in single-family environments, where homeowners association restrictions on outdoor antennas have proven to be very problematic. WCA’s proposal would also benefit fixed wireless telecommunications providers in the MTE environment where tenants install their antennas on balconies, patios or other areas within their individual leasehold. Again, it is essential that PCOs and the fixed wireless industry monitor these developments in cooperation with their representative in Washington and at the state level. The FCC’s ultimate resolution of the Competitive Networks docket will be reported in future issues of Private and Wireless Broadband. About the authors Paul J. Sinderbrand and Robert D. Primosch are partners with the Washington, DC law firm Wilkinson Barker Knauer, LLP. They may be reached at 202-783-4141.
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