New Dork Law Journal TRENDS IN REAL ESTATE AND TITLE INSURANCE ‘Mondiy June U1, 2007 Building Density of New York presents challenges to building network infrastructure. BY DAVID E. BRONSTON NL COMMUNICATIONS chips are Implanted in our brains and we then communicate directly by telepathle brain waves, the telecommunications in- dustry will continue to require wie, anten- nae and other equipment as infrastructure. Jn the real world, that infrastructure has to 0 on someone's property, whether public fr private. In crowded cities like New York there are huge challenges to building a net work infrastructure, The rewards of such density are also big as smllions of eonsumers can be reached more eff- ciently. Where that physical infastructure goes and how the legal relationships are forged is the subject ofthis survey Cable Versus Phone (One ofthe mos important developmentsin the [New York City communications marke isthe head- te-head competition berween the cable television companies and Verizon to provide the socalled “triple play” of services to residential consumer ‘The triple play is a bundled st of services from one service provider—cable television, high-speed lntemec accessand telephone sevice. Wich much fanfare, Verizon has introduced its FOS product tw provide a tiple play! Each service provider is responsible for building its own network infea- David E. Bronston i « poriner with WolBlack m the New Yerk ofc. He wes fore rely general counsel to the New York City Deparemen of infomation Tecnology and Tele- conmuncaions and chat of te Teecomms- cations Law Commie of the New York City Bar Associaton seructut of equipment and cables under or above the stress and then into private homes or apart ment buildings (mlti-dwelling units or MDUs) [Neale ro say the MDU market will be a major ‘competitive battleground? Verizon's major MDU. marker isin New York Cicy, where 32 percent of the potential marke lives in apartment or other ‘multi-unit residences? ‘The physical plant of the cable celevision. ‘companies is generally already in place in most MDUs in New York City as the cable companies have taken advantage of New York's mandatory access law. Under §228 ofthe Public Service law, landlords mus give franchised cable companies access to apartment buildings The law states that ‘no landlord “shall interfere with the installation. of cable television facilities upon his property cx premises However, Veron, as phone company, has no similar statucory mandatory acess right? ‘Telephone companies formerly cbesined access to MDUs a protecced monopolies A landlord basically had to give Verizon’shistorical ancestors acces to place ther wires and equipment on the Janalon!’s property because tenants had to have telephone service as an essential service and there was no alternative. It was not de ure mandatory access but de facto. In order for Verizon to deliver the triple play and add cable television programming to its DSL. and traditional phone servic, it must upgrade is exiting network in New York City. ts existing network of copper wites isnot capable ofhandling all the bits of information. Instead, Veron has ‘opted to embark on a large-scale upgrade ofits old copper plant tothe new ROS sytem of fiber and microfiber optic cables directly to each subscribers apartment, In order to do s, i will need to sek. acces ona building by-buidingbasisto physically changeover is icles. ‘Should Verizon receive a cable television fan cise from the City of New York,” it most likely will Sock to take advancage of $228, as 2 cable ser vice provider. Alternatively, chere has been a bill Introduced by Assemblyman Richard L. Brodiky (AB 39808) to provide a "statewide" cable fan- ‘chise. The bill also contains a provision (§7) that prohibits a landlord fom discriminating against a “telephone company, broadband services or scivanced communications company or thet abil- ity to provide services to one or more tenants ofa multi-tenant propery.” Acthe urgingof Verizon and other phone com- panies sockng lower barriers to entry the Federal ‘Communications Commission asalo scppedin to help the teloos acces the MDU matkecforis tiple play service. On March 27,2007, the FOC ised a "Notice of Propose Rule Making, seeking comment on whether exclusive agreements berween cable companies and landlords shouldbe eliminated in residential builings*In its Competitive Networks (Order of October 2000? the FOC has already pro- hibited exclusive agreements for telecornmunica: tions services i commercial properties InNew York exclusive areementsin MDUsare ‘generally prohibited fortwo reasons Fist, because of $228, a landlord cannot prevent access to a franchised cable company if tenant wants that service. Although a cable company may not want to install a system for potentially single tenant subscribes ic is required by franchise t serve all residents who desie the service. Second, the New m\W JOURNAL York Sue Public Service Commision in Peto of Nob Hil Apartments” determined that exchaive contracts between a franchised eable operator and the owner ofan MDU was anti-competitive, “The installation and use ofthe vertical ane hosi- zontal wires and cables running through an MDU {sa topic worthy ofa separate article, However, t should be noted that the FOC an May 31, 2007, took actions to make the telephone wite andthe cable wire previously installed in buildings more accessible to competitive providers and noe solely contol by an incumbent service provide Thisis indicative ofthe dese of policy makers to remove “economic and operational bases to infastuc- ture investment” and open the MDU marker 9 telecmmunications competition" Satellite TV Dishes Another competitive form of dlivry of mult: channel video programming” the satelite dish, such as DIRECTV service. Fo a private hom: own, thiss generally stmightforwand decison under the homeowner's control Fora renee in a ‘New York city apartment building this is 2 more complicated proposition, Fis the renter nceds @ clear line of sight ro the southwest sky. Second, the renter mast be concerned about the landlord and the terms ofthe lease, ie, can the landlord probibic a dish? (Congress andthe FOC anemted to balance the inereats of tenants who desive acces to satellite services and the inceress of landlords who seek to control use oftheir propery, The FOC issued rules perutting the installation of ‘over the ie (defined as dishes ofone meter diameter or less) on property within d reception dev exclusive 1 oF conta” ofthe tenant, such as balconies, ratios and yards, subject safety requirements “Thispermision doesnot extend tothe placement cfartenras on areas of common orescted access such a outside walls rotons 12862 Knipe Asis, LLC Jon Mani ‘et he Supreme Cat, Bro County, deine’ that stele dh installed on the window guard andor window frame was not an ate of exclusive senant se or cntzol ae therefore alas prohbi- Sin on sich intallaions was nos pre-empeby che federal ule Silay in Shera Complex Jocelyn Vows the Apple Division, Second Deparunent, overtumed a Civil Coun decision that had allowed dlih slfied tothe ends of boards protnding into the air pace tse the tenant's windows, The apellate court eld that “thisisan rea thas clearly x physically within the demise ‘remixes and thus i ne within the ambi ofthe federal ues In Urban Horizons Tax Credie Fund, LP. v Angela Zari, the New York Civil Court noted ¢haratachment of dhesto wood boked © window spuds isnot allowed because a window guard isan area outside of the demised premises, where the tenant has aces, but not possesion or exclave ‘we and contol. However the cour distinguished the Martner ease above by noting thatthe dish in Maainez was attaches the window guadin Api 2002 an the holdover rocesing was commenced Jessthansix months later, while the landlord inthe ‘Zavck case waited over 44 years afer the dish was installed vo commence the proceeding. The court ‘eld thatthe landlord waived its ight to compel removal ofthe dish ‘TheFOChasexcendd the overthesirrecepion device oc ‘OTARD nulesto dishes or equipment ‘ofone meter ores tha re used wo receive voce, video or data, including Wii systems. The FOC ruledin late 2006 that Masport sould notincerfee with Continental Aislines! WAR system installed within the afin’ Presidents Cub lounge at Logan Aiport eventhough Masspore had is own prop: cacy aipore-wide WiFsatem. The FOCeuled that any restrictions by Masport on Continental’ ws cof a Wii system in its leasehold were pre-empted by the OTARD rules® Cellular Antennas [New York City is the largest celllar market in the country Ie aso a growing market as more subscribers use their mobile phones for more com. munication (voice, vide and data), in many cases, abarvdoning land line phones altogether New Yor City is aso a compestive marker with four major service providers, each with ts own network infia- structure (with another seeking to enter shortly) Each of these companies neods is own anten- ‘nas aseach company operates at an KOC licensed fisquency. And each company nendsmore antennas at various locations thei capacity need increase and more subscribers use theircell phones fr more services Providing wiles sevice ina dense and ‘vertical city ke New York is challenge, There are few open areas where 200-fone monopalescan be paced Becatecf the rene the care bave lly foregone installing monopoles in lew ofroofop tena: Rooftop antes are peice by bul ing permit by the Department of Buildings pus ant Technical Policy and Procedure Notice 58, ‘Unde the TPPN 598, a oohop ste is exempted from soning and permis as fightin residential disci (1) he antennae tached wa bul ‘ng orosherstucrse that es ase independent of supporting the antennas (2) the antes Jo nk extend higher than fect above the eight ofthe roof or parage onthe cof o sx fet above any penthaseorbikbeal.fpacedon uch penthouse cx bulhed (3) he antennas cach have an areano more than 845 aque et or one meter in dames snd (9) therelated elllarequpent ceapiesnot sno than 5 percent ofthe lor area on a20Ing lor oF 400 square fer. Roop installations that donot mest thes ttera and monopoles have ro receive aspecil perc fom the Boa of Stns ane Appeak* “This soaightfervard appeoval rocesshas sreatly expedited the build-out ofa safe, robust, competitive wireless market in New York City, wih omer dropped calls ester apacioyan more advanced services including video and broadband cover wireles networks Tn atklition, the City of New York has fan- his its light poles to wiles carers to place their equipment at lower heights to supplement roofep locations The cy wll abo be biking out a proprietary wireless public sfty ster hat wll requie aditional wires ifasucture.” In Building Wireless ‘Ascell phones become more ubiquitous sub- seribers want to be able co we them everyuhere, including indoors, Asa result, companies have approached landlords to provide in building wire- Jess service by signing agreeinents that give them theright to place equipment that allows caries to sse“dstributed antennas yt.” A DAS system can be a neutral platform, available to all eariss ‘or only used by the carir serving the tenants of a paricular building. Such 2 DAS agreement isMONDAY, JUNE 11, 2007 similar to other rooftop or in building infrastructure lense agrements with tems sch a insurance, indemnification review of plans and alterations, rem of bulking acces The landlord should have no responsibility forrmainterance or operation of any system. The Jkndlod should isis that he installation (and removal) of the system comply with all applicable Jaws and rules, including, above all, he 2002 ‘atonal Elecnie Code prohibiting abandoned cables, Abandoned cables defined a “cable hat {snot erminaed at both ends at connector or ‘other equipment and not identified for furure use vith ata” Public Rights of Way “Moving from private to public property, the New ‘York City Charter provides in Chapter 14 for the rant of franchises which give private companies ‘the “right to occupy or use the inalienable prop- erty of the city to provide a public service." The inalienable propery isthe property that under the wharves park set aves highs, pas ana waternas In exchange for franchise fees exer publi service commitments, the city esen- tilly ens the sees sidewall and other public ‘rights of way for conduits and the installation of fier optic and oes cable clits, Besides the light pole franchise mentioned above, the admin- istration has been authorized by the City Council ‘to grant franchises for cable television, public pay telephones and “broadband” or fiber optic telecom “Time Wamer and Cablevision hold franchises for cable television service which expr in 2008 CNS Open Video Sizes agreement, silat 0 «a eanhie expres this year The autho of the city to grant cable franchises has been challenged ‘in many forums and is subject to state pre-emption under propased Assembly Bill 3980B. The city tas alo ied fanchises to other facies bacd telecommunication companis suchas Abovent snd Lexet. Thecityalfanchises the placernent ‘of (ane advertising on) pay phones on public side- walks. Pay phones are not incled inthe recent ‘street furniture franchise and must be owned by a separately franchise pay phone operator if pay hones tached: Conclusion ‘New York Citystarssasa world capital raquires thar ic mainmain aall mesa “sae ofthe ar” ole- ‘communications infastrocture Tilions of dollars in financial ranmctins take place over that infra structure each day. or residential and cornmeal Property owner; the necesyofredundan nerves in their buildings and lange bandwidth capabilities are apparent. As former Public Service Commis- sion Chairman William M. Flynn noted, “New Yori telecommunicatons infasmucrue is critical ‘tour economy and to the heath an safety of cur ciaens"™ Thousand of New Yorker tlecommite ‘oF work from home, and New York's population srowth will continue to challenge the telecoramu- ications infratructre, Although Mayor Michael R. Bloomberg's PlaNYC 2030 omitted relecommunications infrastructure as an isue for discussion, the pres- cence of telecommunications networks in and on. the public and private property of New Yark City ‘scritical tthe city’s sustainability as a vibrant, rowing and competitive environment. The legal relations berween the service providers and the property owners will continue to evolve with the technology and services. |. Whe Mose, "Veboss OS Seve Manes eae net Bee Src” Wal J Sa 15. 105, BL 2. Ken Besa Wa aj "Phone Cab: Tif Was alr New York Tne, Now 24,2005, 3. Kae Be, Ven Paes Maley Tp Male ihe New May 22,206, 14 4. Meiners Caria Law of New Yk Anat, Pe Sere Law 28), 5 Gea 07 Telemann hess, a (6 Seven Cahn ei Mow The Tar ‘runt Land Retin on Real Prope Inet owl on Real Foe 201, $TOCO 1. Amaia Lure," New Pern TV: Can Veriton ip "be Sitch Cin New Yak Basie Nov. 27,2086 sev Amana H. Fg “Cale TV Markee Opening Cy Moving Allow More Fach Verio Want” Cras [New ae Bune Au 7.20065. 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New Vk Cy Depron of Tema Teco sd Tekconmunicaions Teton Bore he City Case Coositeacr Thos n Goversnerand Lin Ue Foal ‘ear 2008 Femina Bs, Mach 8,207 20. New ak Cy Charet Chaer14 $3620 2. City Can fhe Ct New Ye Reslason No. OG LU No. 2264, Aug 19,20. 22 °PSC. Chiman Fyn Arson NewYork Tees: sccatre Relat vin Coe ie Bone 14,2005 PSC cee Repantad with prminion fo he June 11, 2007 ‘dition of the NEW YORK LAW. JOURNAL, {© XOOT ALM Proper, Inc.All rights reserved Farther duplication wichout pension is prob co For tefomatin, contact ALM Reprint Depart ‘pent at 212.5456111 or watt wtalmreprinsncom, 201006.07-0017