Building owners in Texas have filed a lawsuit to challenge the
constitutionality of the state's forced-access policy on telecommunications.
The suit was launched by the Texas Building Owners and Managers Association,
joined by national trade group BOMA International.
It was filed Jan. 16 in the 353 District Court of Travis County, Texas, in
Austin, naming as defendants the state, its Public Utility Commission and its
Office of Administrative Hearing.
The legal action was triggered by attempts by Time Warner Telecom in Houston
to gain access to a building to satisfy a tenant's request for service.
The building owners have already negotiated access agreements with 10 other
service providers, each of which settled on compensation agreements with the
owner at rates between $450 and $1,000 per month.
But the owner of the building, known as Geoquest Center, claimed that Time
Warner Telecom proposed to pay only $208.03 per month. When the building owner
refused, the company took the dispute to the PUC.
At a hearing Jan. 7, landlord representatives noted that Time Warner Telecom
already has access to the tenant through a resale agreement with Qwest
Communications International Inc. Space for Time Warner Telecom's own plant is
limited due to the many vendors already in the building.
But the hearing panel granted Time Warner Telecom access, stating, 'Physical
impossibility' is the only justifiable bar to a new entrant.
The compensation rate for the owner has not yet been set.
The lawsuit argued that the 1997 state law that mandated access represents an
illegal taking of private property without a constitutional mechanism to ensure
that an owner is compensated fairly.
The suit argued that a court should grant access and an owner should have the
option of a jury trial, as is policy on condemnation