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Forced Entry is Unconstitutional and Infringes on Community Association Rights, CAI Tells FCC

1/24/2001  -  Alexandria, VA

Forced entry proposals that would allow telecommunications providers unrestricted access to install equipment, wiring and facilities on community association property violate constitutional rights against improper seizure, and seriously infringe upon community association and homeowners' property rights, according to the Community Associations Institute (CAI). CAI filed comments with the Federal Communications Commission January 22, 2001, on behalf of condominium, cooperative and homeowner associations.

"CAI's member community associations oppose what the FCC calls 'nondiscriminatory access' as 'forced access' without the consent of the association. The FCC's 'equal access' is a taking of our members' right to control their own property," said Robert Diamond, Esq., a past president of CAI. "Community associations are run by elected leaders. CAI must protect their rights to negotiate with telecom providers in the best interests of residents."

CAI's survey of its community association members yielded 873 responses, providing the clearest picture to date of the state of the community association marketplace for video, data and voice services. CAI Government and Public Affairs Chair Ronald Perl, Esq., noted, "the high level of member survey responses used in this filing illustrate the potential deep-rooted impact of the FCC's pending action. Moreover, this filing demonstrates that CAI uniquely represents the interests of the one-in-six American homeowners whose plight may otherwise be overlooked."

In its comments, CAI made three arguments with respect to the current Forced Entry proceeding to explain why the FCC should not require community associations to allow unfettered access to telecommunications companies:

  • Community associations should not be subject to FCC imposed Forced Entry requirements. CAI and its members deny that the FCC has the legal authority to impose requirements that result in "regulation" of community associations and owners.
  • Extending the Pole Attachment Act utility rights-of-way infringes on community association rights by interfering with existing easements. As proposed, this action would extend an easement between a community association and a specific utility to include all utilities (i.e., telecommunications providers). CAI believes that the FCC is being cavalier with the property rights of a community association or owner.
  • Community associations should retain the ability to enter into exclusive contracts with service providers. The FCC has banned exclusive contracts in commercial buildings, but CAI contends that market forces should prevail in the residential market to help ensure community association choice, and a community's right to control access to and protect the integrity of the property.

The comments submitted include key information from a CAI-sponsored survey about members' experiences with obtaining telecommunications services—including video, data and voice services—in multiple tenant environments (MTEs).

According to Steve Erd, CAI's Director of Government and Public Affairs, "The survey results—which incorporate the input of nearly 900 of our community association members—provide the FCC with the clearest picture to date of the state of the market for telecommunications services."

Some of the key survey findings include:

  • Nearly 40% of community associations approached by providers in the past year have entered into service agreements.
  • Bulk purchase agreements exist in 40% of survey respondents in which the community association provides some type of telecommunications service. Bulk purchases are closely associated with exclusive contracts.
  • Many (50) respondents indicate that providers have gained access to the property, but have not begun delivering service.
  • Numerous community associations report that a reasonable amount of time passed between the time a provider asked for access to the property and a contract was signed.
  • Community associations that enter into contracts with telecommunications services do so in a reasonable amount of time; 73% of the respondents did so within six months.
  • Only about 1 in 20 (5.9%) community associations claim to have denied access to a telecommunications company. More than one-in-three of those denials was conveyed within one month.
  • Reasons given for not allowing a company access included: no room to run new wiring; chose a different provider; provider wanted 24-hour/7 day access to property; effect on common elements; and no insurance or indemnification against property damage.
  • Only 1% of respondents, a mere 12 of 873, report charging any fees as part of an agreement to provide service. Moreover, such fees are generally limited and/or incentive-based. Fees range from $1 for billing on behalf of the provider to fixed annual rates of about $3,000 to amounts tied to revenue or penetration, ranging from 1 to 5%, and arrangements in exchange for easements.
  • More than 100 respondents expressed complaints about telecommunications company equipment installation without consent of the community association. Examples include: wireless TV and satellite TV has installed equipment without our knowledge; roof damage due to inappropriately installed equipment; running equipment through common property without consent; common area tear up, exposed equipment and cables, lack of response to repair; laying cable over sidewalks creating safety hazards; it constitutes an unlawful taking of private property; external wiring, drilling into building shell, pirating common power outlets for equipment transformers; company causes damage and does not make timely repairs to streets, landscaping, etc.; cosmetic appearance of their equipment; and unsightly installation.

The findings are clear: (1) rather than fighting to keep providers out of their communities, member associations struggle to attract a provider to offer services to residents; (2) only 1% of members charge any fees to telecommunications providers; and (3) only 5.9% denied access to a telecommunications provider; there have been a minority of providers that has caused property damage, security breaches or interruptions in other services to residents of community associations.

Technology now permits transmission of voice, data, video and Internet services over telephone wire, coaxial cable, fiber optic strands or by wireless means. CAI's comments, therefore, urged the FCC to take a fresh look at the regulation of the telephone, satellite, television and Internet service provider companies in this new era of ultimate convergence. CAI's comments reflect the association's belief that ultimately the FCC's regulations should provide meaningful impetus to competition while preserving the investments of providers and protecting the interests of consumers.

CAI's FCC filing, will be 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.


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