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June 10, 1999

Separate Statement
Commissioner Susan Ness

Re: Promotion of Competitive Networks in Local Telecommunications Markets; Implementation of the Local Competition Provisions in the Telecommunications Act of 1996; Wireless Communications Association International, Inc. Petition For Rulemaking to Amend Section 1.4000 of the Commission's Rules to Preempt Restrictions on Subscriber Premises Reception or Transmission antennas Designed to Provide Fixed Wireless Services Association International, Inc. Petition

This Notice grapples with a critical component of the competitive landscape -- the ability of wireless carriers to gain access to essential communications facilities to serve tenants in multi-dwelling buildings. Multi-dwelling customers represent a substantial portion of the residential and business population. Access to these customers, therefore, is a pivotal part of the business plan of many competitive carriers.

The proposals in this Notice are aggressive, but reflect the pro-competitive spirit imbued in the Telecommunications Act of 1996, and I am pleased to support this initiative. I write separately, however, to voice my concern over one proposal: imposing a nondiscrimination building access requirement on building owners. Under this proposal, once a building owner allows a telecommunications provider access to its premises, the building owner must make comparable access available to all other telecommunications carriers under nondiscriminatory rates, terms and conditions.

While well intended, the concept would impose a new regulation on building owners -- a class of persons not otherwise regulated by the Commission. Less than a year ago, the Commission considered a similar issue. In the OTARD Second Report & Order, the Commission declined to impose an affirmative obligation on building owners to allow a tenant access to building common and rooftop areas for the placement of over the air video reception devices. In that proceeding, the Commission expressed its reluctance to use its express authority under Section 207 of the Telecommunications Act of 1996, which was limited to prohibiting regulations that impair a viewer's ability to receive video programming through devices designed for over the air reception as a basis for imposing obligations on how building owners should use their private property. I have difficulty distinguishing that precedent from the instant case.

Moreover, where constitutional rights are at stake, judicial precedent informs us that the courts do not favor the imposition of obligations by a federal administrative agency which relies on ancillary jurisdiction. Rather, this may be one area that is better served by a legislative solution. Notwithstanding these reservations, I enthusiastically support this Notice, and look forward to a spirited debate on the issue of the Commission's authority to impose nondiscrimination obligations on building owners.