Ron Egatz in Legal/Financial on October 12, 2017
In a case that could significantly expand the powers of condo boards, 54 multiple-dwelling properties in New York City refused to grant access to Verizon fiber-optic cable installers. The 63-unit Beekman Regent Condominium, in Manhattan’s Turtle Bay neighborhood, was among them. If the rebuff of Verizon holds up, condo boards will possess a power not available to co-op boards or landlords.
Under the state’s Public Service Law, a cable, telecommunications company, or similar utility can appeal to the Public Service Commission (PSC) if a landlord denies the company physical access to the building to install cable services. When rejected, Verizon typically walks away from these properties. In this case, however, after the 54 buildings denied access to cable installers, Verizon went to the PSC seeking an Order of Entry that would require all of the buildings to allow Verizon to install cable.
In documents on file in the case, lawyers for the Beekman Regent board argued that Verizon’s request for an Order of Entry was unlawful on a number of levels, primarily because condominiums do not have the landlord-tenant relationship that exists in co-ops and rental properties. Therefore, the lawyers contend, condo boards are exempt from section 228 of the Public Service Law.
Anderson Kill, the Manhattan law firm hired by the Beekman Regent board, also argued that while the PSC does have oversight on Orders of Entry in rental properties and cooperatives, the commission does not have the authority to rewrite the law. That power belongs solely to the New York State legislature. If the PSC were to issue an Order of Entry to condominiums, the Beekman Regent lawyers contend, the commission would in effect be rewriting the law, thus creating a separation-of-powers conflict between the executive and legislative branches of state government.
Writing on behalf of the Beekman Regent board in a letter to the PSC in August of 2016, attorney Deborah Koplovitz of Anderson Kill states, “Instead of supplying any such required legislative authority, Verizon cites a 1991 ‘Declaratory Ruling’ from the New York State Commission on Cable Television, which was abolished by legislative action in 1995, over 20 years ago.” Verizon is relying on that Declaratory Ruling to buttress its contention that the Public Service Law can be interpreted to include condos. It’s a stance that no condominium has challenged – until now.
In February of this year, the PSC granted Verizon’s request for Orders of Entry to install its cables in 20 of the 54 properties that had originally denied access. The Beekman Regent was not among those ordered to open its doors.
The situation is now on hold. The PSC has not ruled on the condo board’s argument, which has effectively blocked Verizon from entering the building. Many buildings, condos included, already have coaxial cable or similar connectivity from one or more vendors. Some boards feel they have enough connectivity. Others are concerned that additional cables would harm the aesthetics of the building.
A definitive ruling from the PSC could come at any time, with major implications for every condo board. Stay tuned.
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