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.