Could a Connecticut landlord deny a telecommunications provider access before state access regulations took effect?

Plain-English summary

In 1995, Connecticut's Attorney General concluded that owners of covered rental buildings could deny telecommunications providers access until implementing regulations were adopted. Public Act 94-106 gave tenants a choice of provider, but the opinion said the mandated access provision could not operate before the Department of Public Utility Control established rules for wiring agreements and compensation for a partial taking of the owner's property. The opinion's conclusion was: “until regulations implementing Public Act 94-106 are adopted, owners of commercial or residential rental property may deny telecommunications providers access to their buildings.”

The opinion addressed buildings within the act's definition of an “occupied building,” quoted in its first footnote. It did not decide access rights under later regulations.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the 1994 act immediately require landlords to admit tenants' telecom providers?
A: The Attorney General said no. He concluded the access requirement was not enforceable before the Department adopted the required implementing regulations.

Q: Why did the opinion require regulations first?
A: The act called for rules on how wiring would be performed and how owners would be compensated for the partial taking of their property. The opinion treated that compensation mechanism as essential to the access scheme.

Q: Did the opinion cover every private building?
A: No. Its first footnote says only buildings within Public Act 94-106's “occupied building” definition were subject to its provisions.

Background and statutory framework

The request concerned commercial and residential rental property before the Department of Public Utility Control had adopted regulations under Public Act 94-106. The opinion relied on State v. Sanabria for the proposition that a statute requiring implementing regulations is not self-executing in this setting. It also discussed the compensation scheme for cable television access as an analogy.

Citations and references

• Public Act 94-106, the access law discussed in the opinion.
• State v. Sanabria, 192 Conn. 671, 688, 473 A.2d 760 (1988).

Source

• Landing page: https://portal.ct.gov/ag/opinions/1995-formal-opinions/senator-m-adela-eads-legislative-office-building-1995009-formal-opinion-attorney-general-of-connecti

Original opinion text

Senator M. Adela Eads, Legislative Office Building, 1995-009 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

March 3, 1995

Senator M. Adela Eads

President Pro Tempore

Legislative Office Building

Hartford, CT 06106

Dear Senator Eads:

This is in response to a request for advice from fromer President Pro Tempore John B. Larson in which he asked if owners of commercial or residential rental properties are required to permit telecommunications providers access to their buildings prior to adoption of implementing regulations by the Department of Public Utility Control.1 We conclude that until the Department of Public Utility Control adopts regulations implementing a compensation mechanism for the taking of the building owner's property, the mandated access requirements of Public Act 94-106 cannot be enforced.2 (FN2) Where a statute requires implementing regulations, as in this case, it cannot be read as self-executing. State v. Sanabria, 192 Conn. 671, 688, 473 A.2d 760 (1988).

Among the provisions most relevant to this opinion, Public Act No. 94-106 creates a tenant's right to be served by a telecommunications provider of his or her choice.3 Once a tenant requests service from a telecommunications provider, the provider can insist that the landlord grant the provider access subject to the constraints of the Public Act. Two of the more important constraints are the need to reach a contractual agreement with the landlord concerning how the wiring will be performed and what compensation the landlord is entitled to for the value of the partial taking of the property. The act requires the Department of Public Utility Control to adopt regulations with respect to both subjects. Similar provisions exist for cable television service providers, particularly with respect to a process to resolve the cost of the "taking" of the landlord's property; an issue recently litigated in Amsat Cable Ltd v. Cablevision of Connecticut Limited Partnership, 6 F.3d 867 (2nd Cir. 1993). In that case, the Court of Appeals upheld the constitutionality of the cable television compensation scheme embodied principally in regulations determining landlord compensation which were developed by the Department of Public Utility Control.4 (Id. at p. 874-75). The presence of a compensation scheme, therefore is an imperative part of the statutory scheme -- one that will not be in place until the Department of Public Utility Control adopts implementing regulations.

Therefore, until regulations implementing Public Act 94-106 are adopted, owners of commercial or residential rental property may deny telecommunications providers access to their buildings.

Very truly yours,

Richard Blumenthal

Attorney General

Robert S. Golden, Jr.

Assistant Attorney General

RB/RSG/js

1 Only properties referred to as "Occupied Building" are subject to the provisions of Public Act 94-106. The definition reads:

Section 1. (NEW) (a) As used in this section:

(1) "Occupied building" means a building or a part of a building which is rented, leased, hired out, arranged or designed to be occupied, or is occupied (a) as the home or residence of three or more families living independently of each other, (b) as the place of business of three or more persons, firms or corporations conducting business independently of each other, or (c) by any combination of such families and such persons, firms or corporations totaling three or more, and includes trailer parks, mobile manufactured home parks, nursing homes, hospitals and condominium associations.

2 FN2. It is well settled that legislatively mandated access to another's property for providing service to a tenant constitutes a partial "taking" of the building owner's property. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

3 Telecommunications provider is defined as "a person, firm or corporation certified to provide interstate telecommunications services pursuant to section 16-247f to 16-247h, inclusive of the general statutes, as amended by sections 4 to 6, inclusive, of Public Act 93-330." 1994 Conn. Pub. Acts No. 94-106(a)(2).

4 The plaintiff claimed the cable legislation violated the Takings Clause of the Fifth Amendment as applicable to Connecticut under the Fourteenth Amendment.