The Community Associations Institute (CAI) submitted reply comments on February 21, 2001 to the Federal Communications Commission (FCC) regarding the issue of "forced entry." Forced entry is the term applied to the FCC's proposals to allow telecommunications providers unrestricted access to install equipment, wiring and facilities on community association property.

CAI believes that the FCC's forced entry proposals violate constitutional rights against improper seizure, and are an infringement on community association and homeowners' property rights.

Essentially, CAI's main arguments against forced entry proposals are the following:

• Expansion of the non-discriminatory access requirements to residential housing will not foster competition and is not warranted.
• Extending the reach of the federal pole attachment statute, Section 224 of the Communications Act, would infringe community association rights by interfering with existing easements.
• Community associations should retain the discretion to enter into exclusive contracts with competitive service providers.

CAI's comments also included a summary of results of a member survey that showed that (1) far from opposing competitive telecommunications entry, community associations must struggle to attract providers for their residents; (2) only one per cent of the respondents reported charging fees for entry; and (3) only six per cent of the respondents said they had denied access to a telecommunications provider.

Generally, CAI believes that the FCC should not extend mandatory access requirements to self-governing residential communities such as those represented by CAI. The FCC should abandon its interpretation of rights-of-way under Section 224 as permitting access, indirectly or directly, to residential property without an owner's consent. Exclusive access agreements may represent a residential community's only means of attracting competitive telecommunications service, and should not be prohibited. CAI's specific arguments are outlined as follows.

1. Access to resident-governed communities is not a problem requiring further regulation.

Whether organized as condominium associations, homeowner associations, cooperatives or planned communities, CAI's members govern themselves in a manner guided by the prevailing interests of the community as a whole. Congress has recognized this self-governing concern for the common good by exempting cooperatively-organized utilities from regulation, saying that "cooperative utilities are already subject to a decision making process based upon constituent needs and interests." Congress also said that poor television service in rural areas gave cooperative utility customers (also shareholders) "an added incentive to foster the growth of cable television in their areas." States—including Massachusetts and Nebraska—have created similar exemptions. CAI believes that the FCC should stay its regulatory hand here. Beyond the decision making process that must take into account the needs of each community resident, CAI members frequently find themselves having to "struggle to attract" competitive providers for their constituents. Like the utility cooperative customers, these residents have an incentive to foster the growth of competition. CAI believes that the FCC has no legal authority "to impose requirements that result in the 'regulation' of community associations and owners." Competitive telecommunications access to self-governing residential communities, CAI submits, on this record is not a federal problem. There is no need for general FCC regulation.

2. Requiring access through private utility rights-of-way does not avoid improper regulation of community owners.

As CAI commented in the opening round January 22, 2001, "[u]nless the consent of the community association or owner is also required, the [utility access] requirement effects an expansion of the incumbent local exchange carriers (ILEC's) or utility's easement rights without the consent of the owners, without compensation to the owners and without a corresponding benefit to the owners." This violates established law, and represents an unconstitutional taking of the owner's property. Says CAI's Director of Government and Public Affairs, Steve Erd, "Suppose, for example, a competitive carrier wants to extend lines from the utility right-of-way to each unit. If a unit owner does not grant permission to enter the unit, that should be the end. Unlike an apartment setting, the community manager may not be authorized to grant access against the owner's wishes."

3. Exclusive contracts for residential access may be pro-competitive and should not be banned.

CAI doubts that banning exclusive contracts will be effective, and for the reasons concerning CAI members' residential self-governance, the discretion to enter into exclusive contracts should be preserved. According to Steve Erd, "Our members have had direct experience over the past several years in trying to obtain competitive telecommunications services for their communities. The problem was not that exclusive contracts kept out providers, but rather that without an exclusive contract the provider could not risk the infrastructure investment to provide services."

CAI's FCC filing is available in the Government & Public Affairs section of CAI's Web site.

The Community Associations Institute is a nonprofit association created in 1973 to educate and represent the nation's 210,000 community associations—condominium associations, homeowner associations and cooperatives. CAI members include homeowners, associations and the professionals who provide products and services to them.