June 10, 1999
  
                           
                     Separate Statement
                             of
                  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
  
  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.