Building Access for Telecommunications Providers: What Landlords and Tenants Need to Know

Given the ever-increasing role of telecommunications in our world, owners and occupants of commercial properties are faced with the issue of defining their rights and obligations in terms of building access for telecommunications providers. Texas is one of only a few states that has enacted a statute governing building access for telecommunications providers.

The Texas building access statute is intended to ensure nondiscriminatory treatment of a telecommunications provider by a building owner when a tenant requests telecommunications services from that provider. The statute applies to (a) telecommunications utilities that hold the required permits, (b) public or private owners of commercial property and their authorized representatives (such as management companies), and (c) public or private owners of residential property with four or more dwelling units and their authorized representatives. This article will focus on the application of the law to private owners of commercial property and will refer to such owners and their authorized representatives as the "landlord."

The Texas statute begins with the concept that a tenant has the right to choose the provider of its telecommunications services. Once the tenant chooses a provider, the landlord has certain obligations. Specifically, the landlord may not:

• prevent the provider from installing (or interfere with the installation of) the telecommunications equipment requested by the tenant;
• discriminate against the provider regarding installation, terms, or compensation of the telecommunications equipment;
• demand or accept an unreasonable payment from the tenant or the provider for allowing the provider on the property; or
• discriminate in favor of or against a tenant because of the provider from which the tenant receives the telecommunications service.

The landlord does, however, have the right to impose reasonable conditions in order to manage access to the property and to protect its interests. Specifically, the landlord may:

• impose on the provider a condition that is reasonably necessary to protect the safety, security, appearance and condition of the property, and the safety and convenience of other persons;
• impose a reasonable limitation on the time at which the provider may have access to the property for purposes of installing the telecommunications equipment;
• impose a reasonable limitation on the number of providers that have access to the property — if the landlord can demonstrate a space constraint that requires the limitation;
• require the provider to agree to indemnify the landlord for damage caused in installing, operating or removing the telecommunications equipment;
• require the tenant or the provider to bear the entire cost of installing, operating or removing the telecommunications equipment; and
• require the provider to pay compensation that is reasonable and nondiscriminatory among the telecommunications providers.

The Public Utilities Commission of Texas has adopted regulations to implement the statute which include very detailed procedures to be followed.

For further information on these regulations, feel free to contact Beth Tiggelaar at beth.tiggelaar@strasburger.com or Teal Thawley at teal.thawley@strasburger.com.

     
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Articles contained within this newsletter provide information on general legal issues and are not intended to provide advice on any specific legal matter. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional counsel.