Broadband Wireless World Forum 2001 Building Access Case Study: Gaining Customers Without Sacrificing Profitability to Building Owners and Managers Brent Weingardt Brian Andrew Richard Stern Tuesday February 20, :00 – 3:00pm

Broadband Wireless World Forum 2001 Competitive Access to MTEs/MDUs: The Government Weighs In Brent Weingardt Bennet & Bennet, PLLC

Preview:  Precursors to the Access Issue  The Changing Regulatory Environment  New Technologies  The Claims of New Players  The Government Response u A Review of the FCC Decision u What’s Up on the Hill u State Action

Precursors to the Access Issue:  Market Concentration  Regulatory Changes  Technology Changes  MTU Consumer Disconnect

The Changing Regulatory Environment:  Pre  Pre  Post -1996

New Technologies:  DSL  Cable Modems  Digital  Fiber  Satellites  Fixed Wireless

The Claims of New Players:  ILECs Block Access  Consumers Want Choice  MDU Consumers Denied Choice

The Government Response:  Aggressive In Opening Incumbent’s Networks  Section 251  Aggressive In Opening Communities  Section 253  Slow to Open the Last Mile  Section 706  Section 207

A Review of the FCC’s Competitive Network’s Decision  Exclusive Contracts  Demarcation Point  Access to LEC Conduits & Rights-of-ways  Placement of Small Broadband Antennas

Exclusive Contracts  Prohibited in “Commercial” MTEs  “Exclusive” Broadly Defined  Applies to ILECs & CLECs  Treatment of Mixed Use Bulidings  Grandfathering of Current Contracts?

Access to Inside Wiring  Inside Wiring and DEMARC point Defined  Building Owner May Request Move of DEMARC to MPOE  MPOE Not Automatic  LEC Must Disclose DEMARC Point Within 10 Days  ILEC May Install And Maintain Inside Wiring Under Contract With MTE Owner

Access to Conduits and Rights-of-Ways  Section 224: Non Discriminatory Access to Poles, Ducts, Conduits or Rights-of-Way Owned or Controlled by the ILEC  Right-of-Way Defined  Applies to In-Building & Underground Facilities  State Law Applies to Determine ILEC’s Right to Provide Access to Competitors  Reasonable Compensation for ILEC Determined on a Case-by-Case Basis

Placement of Small Antennas  OTARD Rules Extended to Fixed Wireless Antennas  Does Not Apply to Hub or Relay Antennas  Tenant Must Have Exclusive Use or Control of Mounting Site  OTARD Protection Requires Safety Labelling

FCC Still Pondering: Non-Discriminatory Access  Can FCC Prohibit LECs From Serving MTEs Whose Owners Prevent Competitors In?  Does Indirect Regulation Constitute A Taking?  Apply to Commercial or Residential MTEs? Both?  Details, Details, Details !!!  Triggered Only by Tenant Request for Service?

Still Pondering (cont) Exclusive Access Contracts  Apply Prohibition to Residential MTEs?  Apply Prohibition to Existing Contracts?  Sunset Date For Existing Exclusivity Clauses?

Still Pondering (cont): Preferential Marketing (cont)  Ban LEC/Building Owner Relationships that Act to Exclude Others?  BLECs and MTE Owners Cause Abuse?

FCC Still Pondering (cont) Definition of Rights-of-Ways  Could it Apply Any Where In Building?  Absence of a Defined Space or Pathway? Cable Home Run Inside Wiring  May Telecom Providers Purchase Purchase Abandoned MVPD Wiring?

Texas: A Trend in the Making? Non-Discriminatory Treatment by Building Owners  Applies to Commercial and Residential Buildings (4 or more units)  Tenant Entitled to Choose Telecom Service Provider  MTE Owner May Impose Conditions  CLEC Entry Triggered by Tenant Request  No Exclusive Contracts  Right to Tour Building and Receive Technical Drawings  30 Days Notice to Building Owner of Installation and 30 Day Negotiation Period  Inadequate Space and Safety Concerns  Reasonable compensation  Dispute Resolution

Government Response: (cont)  What’s Up on the Hill ?  House  Senate  Prospects

Government Response: (cont)  Executive Orders  State Laws  State Commissioners (NARUC)