Mass. Might Appeal Ruling On Access


The Massachusetts Department of Telecommunications and Energy might appeal a court order that struck down a state regulation requiring all multiple-dwelling units to furnish access to any telecommunications provider.

Judge Mitchell Sikora on July 25 ruled that the access regulation was an unlawful taking of property. Several landlord groups — including the Greater Boston Real Estate Board and the Real Access Alliance — had challenged the rule.

"We're obviously disappointed with the decision," DTE spokesman Rob Wilson said. "We felt our regulation is in the spirit of the federal telecom policy to give consumers a choice in providers.

Several states considered changing their building-access policies following passage of the federal Telecommunications Act in 1996. But only Massachusetts and Texas took concrete steps to assure that competitive telecommunications providers could get into any building where tenants might want service.

The Bay State held off on implementing its policy for one year, expecting a legal challenge.

"That showed real leadership by the folks that put legislation out there we didn't like," said Gerry Lederer of the Washington law firm of Miller Van Eaton, which represented the landlords' interests. That year stretched into several years, due to court extensions.

"The access crisis is a legal fiction," Lederer said, citing owner-commissioned surveys that indicate 95 percent to 98 percent of tenants indicated they bought communications service from the incumbent vendor.

New England Cable Television Association president Paul Cianelli said the court "would never allow a ban on the delivery of the Boston Globe
The New York Times, but yet they have cut out a whole sector."

Landlords "are only interested in a piece of the action," Cianelli added. "They want surcharges for access."

Landlords have not yet challenged the Texas access regulation, but Lederer said they would if regulators in that state try to enforce the measure.