FCC Prohibits Exclusive Agreements Between Telecommunications
Carriers
FCC Seeks Comments on Other Access Issues as Well as Exclusive
Marketing Issues for Telecommunications Carriers
By Alan Fischel, Arent Fox Kintner Plotkin & Kahn, PLLC
In a highly anticipated decision, on October 12, 2000, the FCC ruled,
among other things, that telecommunications carriers, such as incumbent and
competitive local exchange carriers, cannot enter into exclusive agreements
with owners of commercial buildings.
The FCC did not extend this ruling to residential buildings. Therefore,
owners of residential buildings and telecommunications carriers are still
permitted to execute exclusive agreements. The FCC also did not hold that the ruling will have
retroactive effect. Therefore,
pre-existing exclusive agreements between commercial building owners and
telecommunications carriers are not rendered non-exclusive as a result of this
ruling. The FCC also did not compel either commercial or residential building
owners to allow access to their properties to any telecommunications provider
who wants to provide service to the properties.
These issues, however, are far from resolved. The FCC has requested comment on whether it should extend
its ruling to residential buildings and whether it should apply the ruling
retroactively to affect existing agreements. The FCC also seeks comment on whether it can and should bar
local exchange carriers from serving properties where the owner
"unreasonably prevents competing carriers from gaining access." In addition to requesting
comments on access issues, the FCC also seeks comment on whether it should
prohibit exclusive marketing agreements and certain other types of agreements
in some or all situations.
Comments also may be submitted on whether the FCC should extend its
cable inside wiring rules to telecommunication providers, and on what is the
proper definition of "right-of-way" in customer buildings for
purposes of Section 224.
As for the decisions the FCC did reach on October 12, in addition to
its ruling on exclusive contracts between telecommunications carriers and
office building owners, the FCC also (1) prohibited restrictions by building
owners on residents' rights to place antennas and other fixed wireless devices
on areas within the exclusive use or control of the resident, such as a porch,
balcony or unit leased by a tenant in an apartment complex; (2) required
utilities to provide telecommunications carriers and cable service providers
with nondiscriminatory access to conduits and rights-of-way located in customer
buildings where such conduits and rights-of-way are owned or controlled by the
utility; and (3) established procedures to facilitate moving the telephone
demarcation point in certain buildings.
As of October 12, the FCC has only issued a news release as to its
decision. The FCC expects to issue
a Report and Order on this matter the week of October 16, which Report and
Order will provide much greater detail regarding the decision and the request
for comments on the additional issues discussed above. While the decision itself is highly
important to those telecommunications providers that serve multiple tenant
environments, the FCC's decision on the issues on which comment is sought may
be even more important. Moreover,
while the access and exclusive marketing issues that will be decided involve
telecommunications carriers, the FCC undoubtedly will take into consideration
such decisions to the extent it addresses similar issues for video service
providers. The FCC has not yet
reached any decision on the outstanding issues relating to exclusive cable
agreements that it is currently considering in another proceeding.
Alan G. Fishel is a partner with the Washington DC based law firm of
Arent Fox Kintner Plotkin & Kahn, PLLC. The author may be reached with
questions or comments via email at fishela@arentfox.com