UNITED STATES DEPARTMENT OF COMMERCE
National Telecommunications and Information Administration
Washington, D.C.20230
In the Matter of Request for Comments on Deployment of Broadband Networks and Advanced Telecommunications |
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Docket No. 011109273-1273-01 RIN 0660-XX13 |
COMMENTS
OF THE REAL ACCESS ALLIANCE
Matthew C. Ames
Nicholas P. Miller
Miller & Van Eaton, P.L.L.C.
Suite 1000
1155 Connecticut Avenue, N.W.
Washington, D.C.20036
.(202) 785-0600
Attorneys
for the Real Access Alliance
December 19, 2001
Page
introduction............................................................................................................... 1
I.THE REAL ESTATE INDUSTRY SUPPORTS DEPLOYMENT OF BROADBAND SERVICES BY THE FREE MARKET........................................................................................ 2
II.REGULATION SHOULD NOT INTERFERE WITH PRIVATE PROPERTY RIGHTS.3
A.Forced Access to Buildings Is Unnecessary Because the Real Estate Industry is Meeting Tenant Demands for Telecommunications Services......................................... 5
B.The FCC Has Recognized that Forced Access to Property Presents Many Legal and Constitutional Issues...................................................................................... 6
C.Building Owners Must Be Able To Preserve the Security and Safety of Buildings and their Occupants..................................................................................................... 7
D.Efforts To Mandate Entry Will Distort the Free Market and Effectively Subsidize a Handful of Providers....................................................................................................... 9
III.THE RAA HAS DEVELOPED EXTENSIVE EXPERIENCE WITH SEVERAL OF THE SPECIFIC ISSUES RAISED IN THE NTIA NOTICE............................................ 9
A.Access For All Is an Important Goal (Notice Question D).............................. 9
B.Distinguishing Between Legacy Non-Broadband Facilities and New Facilities Would Promote Competition and Therefore Benefit Tenants and Property Owners (Notice Question F).11
C.Competitive Carriers Have Only Limited Facilities in Secondary Markets (Notice Question G).................................................................................................................... 11
D.Building Owners Grant Access to Wireless Providers (Notice Question I)..... 12
E.Any Preemption of State or Local Requirements Must Be Narrowly Drawn to Avoid Affecting Private Property Rights (Notice Question L)................................................. 12
F.Access to Federal Property Should be Governed by the Same Market Principles that Govern Access to Private Property (Notice Question M).......................................... 12
CONCLUSION................................................................................................................. 13
The RAA supports rapid deployment of broadband networks and advanced telecommunications as a means of meeting tenant needs.The experience of the real estate industry since the advent of telecommunications competition indicates that market forces can accomplish that goal.Accordingly, the RAA urges the NTIA to support market-based solutions for the telecommunications and real estate sectors.
In these comments, the Alliance hopes to give NTIA the benefit of the real estate industry's experience in the development of the present telecommunications marketplace.The Alliance will respond to several specific questions asked in the Notice, and also will inform NTIA of the views expressed by the Alliance in various proceedings at the Federal Communications Commission (the "FCC") that have addressed related issues.In particular, the Alliance urges NTIA to avoid any forced access policy, in which the Federal government might attempt to grant telecommunications providers the right to install their facilities on private property over the objections of the property owner.
Broadband networks offer businesses and individuals the potential to increase productivity and improve quality of life in many ways.Access to broadband networks thus is likely to be a high priority for many building tenants, if not now, then in the near future.Therefore, the real estate industry strongly supports the growth of broadband services, just as it has supported the development of competition for telecommunications services.[4]
The RAA believes strongly that market forces will prevail and consumers will continue to get the services they want and need, provided that the government does not intervene in harmful or inappropriate ways.
What was surprising, however, was that the real estate industry quickly found itself swept into the FCC’s regulatory maelstrom.Within a few months of the passage of the 1996 Act, at least five separate FCC proceedings were underway that threatened the interests of property owners, even though the 1996 Act nowhere directs the FCC to regulate the real estate industry.[5] In one form or another, all of these proceedings raised the possibility that the Commission would force property owners to permit the installation of communications equipment on their property, over their objections.In each case, ignoring the irony of regulating the real estate industry in the course of deregulating the telecommunications industry, various parties sought to obtain the right to install communications equipment of various kinds ?? including cable television wiring, telephone wiring, direct broadcast satellite dishes, and other types of antennas ?? in or on the property of third parties.Recognizing that it was treading on new and dangerous ground, the FCC either rejected these approaches or delayed a decision by seeking additional comment.[6]
In response, the Alliance submitted thorough and detailed analyses of the Constitutional, legal and factual issues surrounding access to private property by telecommunications providers.[7]In these comments, the Alliance conclusively demonstrated that regulation of access to buildings is unnecessary because the market is in fact working.The Alliance also demonstrated that forced access regulations would be unconstitutional.Finally, the Alliance argued that forced access regulations would distort the free market by implicitly subsidizing telecommunications providers.
The most recent study submitted by the Alliance is a survey of tenants in commercial buildings conducted in early 2001.Knowledge Systems and Research, Inc. (“KS&R”) contacted tenants nationwide on behalf of the Alliance.[8]The survey, which had a margin of error of +/-4.6%, found:
Ø97% of all business tenants were “satisfied” or “somewhat satisfied” with their current telecommunications service. 94% stated that they had no telecommunications needs that were not being met at their current location.
Ø91% of all business tenants were aware that they can choose alternative telecommunications providers, and 23% actually placed a request for service with such a company in the last year.
ØThe vast majority of business tenants who chose an alternative provider were able to receive service from the alternative provider and were satisfied with their alternative service.
ØOnly three respondents – one percent of the total sample -- reported that building management had ever denied a request to obtain service from a telecommunications provider not already servicing the building.
ØA substantial percentage of business tenants – 39% -- would move at the end of their leases if their telecommunications needs could not be met at their current locations.
ØThe median lease term of respondents was three years, and the median time remaining on their leases was one year.
This survey demonstrates that property owners are ensuring that tenants receive the telecommunications services they desire, including broadband services.
The RAA has submitted several constitutional analyses to the FCC, which demonstrate that mandatory access regulation would violate the Fifth Amendment.[9]After long and careful study, the FCC itself has recognized the risks inherent in adopting such rules.[10]Finally, a Massachusetts court recently struck down state forced access regulations as violations of the Fifth Amendment.[11]
Safety
Code Compliance.Building
owners are the front line in the enforcement of fire and safety codes,
but they cannot ensure compliance with code requirements if they cannot
control who does what work in their buildings, or when and where they do
it.For example, building and fire
codes require that certain elements of a building, including walls, floors,
and shafts, provide specified levels of fire resistance based on a variety
of factors, including type of construction, occupancy classification, and
building height and area.In addition,
areas of greater
hazard
(such as storage rooms) and critical portions of the egress system (such
as exit access corridors and exit stairways) must meet higher fire resistance
standards than other portions of a building. Building management must retain
control over access to buildings to prevent untrained personnel from compromising
the integrity of fire?resistance-rated assemblies.Telecommunications
service personnel generally are not trained to recognize the importance
of such elements in a building’s construction, much less to accurately
assess the types of assemblies they are penetrating or assuming any responsibility
as to code compliance.
Occupant Security.Building operators are also concerned about the security of their buildings and their tenants and residents, and in certain circumstances may be found legally liable for failing to protect people in their buildings.Telecommunications service providers, however, have no such obligations.Service technicians may violate security policies by leaving doors open or admitting unauthorized visitors; they may even commit illegal or dangerous acts themselves.Consequently, any maintenance and installation activities must be conducted within the rules established by a building’s manager, and the manager must have the ability to supervise those activities.
Effective Coordination of Occupant Needs.A building owner must have control over the space occupied by telephone lines and facilities, especially in a multi-occupant building, because only the owner or manager can coordinate the conflicting needs of multiple tenants or residents and multiple service providers.
Effective Property Management.A building has a finite amount of physical space in which telecommunications facilities can be installed.Even if that space can be expanded, it cannot be expanded beyond certain limits, nor can it be expanded without significant expense.Installation and maintenance of such facilities involves disruptions in the activities of tenants and residents and damage to the physical fabric of a building. Telecommunications service providers have little incentive to consider such factors or to correct damage caused in the course of their work because they are not be responsible for any ill effects.
The KS&R survey, however, actually indicates that broadband facilities in commercial buildings have achieved a relatively high penetration rate, considering the relative youth of the technology.Twenty-seven percent of respondents stated that they were currently subscribing to cable modem service, and 18% stated that they had a DSL connection.Furthermore, the vast majority of businesses stated that they were receiving all the telecommunications services they needed.Of the handful (six percent of respondents) who stated that their needs were not being met, the largest single complaint was lack of a DSL connection.
Access for all remains an important policy for numerous reasons.Reducing constraints on the operation and growth of individual businesses offers employers a broader choice of locations.If more businesses can operate profitably in smaller or more remote communities, the strain on the resources of larger communities -- such as transportation and other factors that affect the quality of life -- can be alleviated.Promoting access for all, however, must be based on sound economic principles.Accordingly, any federal policy must take into account current levels of demand, and must avoid imposing undue burdens on property owners or implicitly subsidizing telecommmunications providers.
Respectfully submitted,
_________________________________
Matthew C. Ames
MILLER & VAN EATON, P.L.L.C.
Suite 1000
1155 Connecticut Avenue, N.W.
Washington, D.C.20036-4306
Telephone:(202) 785-0600
Fax:(202) 785-1234
Attorneys
for the Real Access Alliance
December 19, 2001
7379\86\MCA00879.DOC
Of Counsel:
Vice President and Counsel
The Real Estate Roundtable
Suite 1100
1420 New York Avenue, N.W.
Washington, D.C.20005
Bruce Lundegren
Regulatory Counsel
National Association of Home Builders
1201 15th Street, N.W.
Washington, DC 20005-2800
Reba Raffaelli
Vice President & General Counsel
National Association of Industrial & Office Properties
2201 Cooperative Way
Herndon, VA20171
Tony Edwards
Senior Vice President and General Counsel
Robert Cohen
National Policy Counsel
National Association of Real Estate Investment Trusts
Suite 600
1875 Eye Street N.W.
Washington, D.C.20006
Clarinne Nardi Riddle
General Counsel
National Multi Housing Council
Suite 540
1850 M Street, N.W.
Washington DC20036
EXHIBIT
A:Members of the Real Access Alliance
EXHIBIT
B:Statement of Brent Bitz
EXHIBIT
C:Statement of Jodi Case
EXHIBIT
D:Commercial Tenant Survey
EXHIBIT
E:Cooper Carvin Constitutional Analysis
EXHIBIT
F:Tribe Memorandum
MEMBERS
OF THE REAL ACCESS ALLIANCE
·The
Building Owners and Managers Association, International (“BOMA International”)
is an international federation of 101 local associations. BOMA International’s
17,000 members own or manage more than 8.5 billion square feet of downtown
and suburban commercial properties and facilities in North America and
abroad.The mission of BOMA International
is to advance the performance of commercial real estate through advocacy,
professional competency, standards and research.
· The
Institute of Real Estate Management (“IREM”) educates real estate managers,
certifies the competence and professionalism of individuals and organizations
engaged in real estate management, serves as an advocate on issues affecting
the industry, and enhances and supports its members' professional competence
so they can better identify and meet the needs of those who use their services.IREM
was established in 1933 and has 10,000 members across the country.
·The
International Council of Shopping Centers (“ICSC”) is the trade association
of the shopping center industry.Its
38,000 members in the United States, Canada, and more than 70 other countries
represent owners, developers, retailers, lenders, and all others having
a professional interest in the shopping center industry.ICSC’s
34,000 United States members represent almost all of the 43,661 shopping
centers in the United States.
·The
Manufactured Housing Institute is the leading national trade association
for manufactured housing.It represents
all segments of the industry, including manufacturers, component suppliers,
retailers, community owners and operators, state associations, and those
financial institutions involved in the lending and insuring of manufactured
homes.
·The
National Apartment Association (“NAA”) has been serving the apartment industry
for 60 years.It is the largest industry-wide,
nonprofit trade association devoted solely to the needs of the apartment
industry.NAA represents approximately
27,600 rental housing professionals holding responsibility for more than
4.38 million apartment households nationwide.
·The
National Association of Home Builders (“NAHB”) is a federation of more
than 800 state and local home builder associations nationwide, working
to enhance the political climate for housing and for the building industry,
and promoting policies that keep housing a national priority.NAHB’s
members are engaged in all aspects of real estate development, ownership,
and management, and include owners and managers of apartment buildings,
condominiums, cooperatives, and community associations.NAHB
is comprised of over 203,000 members, who collectively employ over eight
million Americans.
·The
National Association of Industrial and Office Properties (“NAIOP”) is the
trade association for developers, owners, and investors in industrial,
office, and related commercial real estate.NAIOP
is comprised of over 9,500 members in 46 North American chapters and offers
its members business and networking opportunities, education programs,
research on trends and innovations, and strong legislative representation.
·The
National Association of Real Estate Investment Trusts is the national trade
association for real estate investment trusts (REITs) and publicly-traded
real estate companies.Its members
are REITs and other businesses that own, operate, and finance income-producing
real estate, as well as those firms and individuals that advise, study
and service those businesses.
·The
National Association of Realtors (“NAR”) is the nation’s largest professional
association, representing more than 720,000 members.Founded
in 1908, the NAR is composed of residential and commercial realtors who
are brokers, salespeople, property managers, appraisers, counselors and
others engaged in all aspects of the real estate industry.The
association works to preserve the free enterprise system and the right
to own, buy, and sell real property.
·The
National Multi-Housing Council (“NMHC”) represents the interests of the
larger and most prominent firms in the multi-family rental housing industry.NMHC’s
members are engaged in all aspects of the development and operation of
rental housing, including the ownership, construction, finance, and management
of such properties.
·The
Real Estate Roundtable (“RER”) provides Washington representation on national
policy issues vital to commercial and income-producing real estate. RER
addresses capital and credit, tax, environmental, technology and other
investment-related issues.RER members
are senior executives from more than 200 U.S. public and privately owned
companies across all segments of the commercial real estate industry.