Winstar Communications Inc. has successfully negotiated access rights to over 8,000 buildings nationwide, making it the industry leader in telecommunications, so testified Timothy Graham, general counsel and executive vice president of the telecommunications firm before the House Subcommittee on the Constitution on March 21, 2000. Yet, in spite of this obvious success, the telecommunications leader is asking Congress to support forced building access.
The hearing on "Private Property Rights and Telecommunications Policy" was held to review the Federal Communications Commission Notice of Proposed Rulemaking dated July 7, 1999, that, if enacted, would force building owners to open their doors to all telecommunications providers without compensation.
In his opening statement, Chairman Charles T. Canady (R-FL) noted that "such a rule would implicate the Fifth Amendment of the United States Constitution, which states, in part, that "private property [shall not] be taken for public use without just compensation."
Additionally, he noted that the Supreme Court decision in Loretto v. Teleprompter Manhattan CATV Corp. established that such an invasion of real property always effects a taking, regardless of how small the physical occupation may be in relation to the remainder of the owner's estate.
In his statement, attorney Steven S. Rosenthal, Cooper, Carvin Rosenthal, PLLC, noted, "The proposed rules contained in the NPRM would require building owners to acquiesce to the physical presence on their premises of uninvited telecommunications providers, and therefore they fall squarely within the per se takings rule as articulated by the Supreme Court."
He also testified that "under the different standards of a regulatory taking, these proposals unfairly transfer substantial economic value from building owners to investors in telecommunications businesses, and thereby unreasonably interfere with the investment backed expectations for the real estate industry.
| |
|
 |
| |
"What I cannot accept is the telecommunications industry's one-
sided request for forced access, which benefits them with no balancing obligations for service." |
|
 |
|
|
|
While this NPRM would force building owners to make their properties accessible to telecommunications firms, it does not force telecommunications firms to deliver on service.
