The Texas Building Owners and Managers Association (Texas BOMA) filed suit in state court against the Texas Public Utility Commission, challenging the constitutionality of a state statute that requires commercial building owners to grant competing telecommunications service providers access to their buildings. The 1997 Texas access law requires a property owner to grant any telecommunication provider whose service is requested by the owner's tenant the right to enter the building, occupy space, string its cables and lines, and sell its services to the tenant. It also authorizes the Texas PUC to resolve disputes over the compensation the telecom provider must pay the owner.

The Texas BOMA suit seeks to declare the Texas forced access law unconstitutional and enjoin the PUC from enforcing it. The result in this case could have a significant effect on other states considering such laws, and on the pending FCC docket examining whether the FCC should ban exclusive agreements by commercial building owners and owners of MDUs.

The building owners' suit was prompted by a complaint to the Texas PUC initiated by Time Warner Telecom, asking the PUC to force a Houston office-building owner to give Time Warner Telecom access to the owner's building. Texas BOMA claims tenants in the building already were served by 10 other telecommunications providers, all of whom negotiated license agreements with the building owner to gain access, paying the building owner up to $1000 per month to use the building's equipment rooms and riser space. Time Warner Telecom asked the PUC for an order compelling the building owner to provide it with access for $87.50 per month.

The suit, filed on January 15, contends that the access law results in an unconstitutional taking of private property by denying property owners the right to control who occupies space on their property and by failing to provide a constitutional mechanism to assure adequate compensation to property owners for forced occupation of their property. Compensation for the value of real property, Texas BOMA contends, cannot constitutionally be determined by an administrative agency such as the PUC, but only by courts with an opportunity for a jury.

About the Author
Frank W. Lloyd is a partner in the Washington DC office of Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. He may be reached with questions or comments via email at fwlloyd@mintz.com