Mdu Agreement

Under exclusive service or „access“ agreements, an owner of an MDU production management unit grants a cable company exclusive access to provide cable services to residents of the field unit. In 2007, the FCC officially stated that a cable company and an owner of an MDU enter into such agreements under section 628 of the Communications Act.2 A few months later, in early 2008, the FCC declared it illegal under section 201(b) of the Act that certain providers, including broadband Internet service providers, enter into such agreements with MDU owners.3 The FCC argued in both orders that: that exclusive service agreements cause significant harm to competition and consumers – harm that far outweighs the potential benefits to consumers. According to the FCC`s decisions, federal law specifically prohibits cable companies and Internet service providers from negotiating with MDU owners about exclusive access to MDU residents. Therefore, as an owner of MDUs, when you negotiate service agreements with these providers, you cannot offer your residents exclusive access in exchange for cheaper rates or other terms. This article attempts to educate MDU owners about some of the key issues associated with negotiating an effective Right of Entry (Roe) agreement with a full-service broadband provider. While many of these issues arise in the context of each provider, we pay particular attention to issues related to SPC agreements with fibre-to-premises network (FTTP) providers in multi-tenant residential buildings, as few owners have experience with fibre. By understanding how FCC regulations affect your rights to internal cabling in the event of termination of service, you can decide upstream whether you need to negotiate other procedures for internal cabling planning in your service contracts with cable companies. The FCC`s rules on the disposal of internal cabling at the end of the service only apply if, among other things, (1) the incumbent operator is the owner of the internal cabling at the end of the service and (2) the service contract between the incumbent operator and the owner of the MDU does not provide for other procedures for the sale of the internal cabling. If your service agreement with a cable company grants you ownership of the internal cabling at the time of installation, or establishes procedures for selling the internal cabling upon termination of the service that differ from FCC regulations, the terms of your agreement will prevail. When negotiating these terms, be sure to specify the internal wiring segments (i.e., home or home wiring) to which the terms refer.

The bottom line is that an access contract to the MDU building should define the services offered in such a concrete way that the builder authorizes the use of his property for the provision of exactly the services that the owner and no one else provide. Unfortunately, there is a high degree of uncertainty as to whether (if any) the former FCC regulations apply to broadband services provided to consumers on FTTP networks. To the extent that FCC rules are not enforceable, the ROE agreement becomes all the more important in defining the legal rights and obligations of the owner. Finally, the type and location of the facility should be subject to definable and generally accepted industry standards for such facilities, including applicable laws and regulations such as fire protection and electrical regulations. It is a good idea for owners to hire a consultant or other expert to review the supplier`s installation plan before signing the building access contract. Just a few years ago, this problem did not exist; because there was essentially no competition between suppliers. Each provider had a monopoly position in its discreet walled garden, and MDU owners simply signed the access agreement offered by the telephone or cable TV provider. The alternative was no service at all and a variety of small satellite dishes throughout the property. Just as an effective ROE agreement should be limited in scope and scope, it should also be limited in time. Owners should avoid access agreements that set indefinite terms or leave the duration indefinite.

A perpetual agreement claims to remain in effect „permanently“ (or similar language), while a perpetual agreement does not identify a specific term or claims to remain in effect as long as the provider provides services, is authorized to do business, etc. Because it is not clear whether and how the FCC`s regulations dealing with competition in multi-tenant buildings apply to FTTP, MDU owners cannot rely on these regulations to determine their rights and obligations to FTTP providers. These rights and obligations will be based on the language used in the development of access agreements, making it all the more important for owners to negotiate clear and effective terms in these agreements. Cohen Law Group is familiar with the laws and regulations that apply to MDU agreements and has extensive experience negotiating with all communications providers. We negotiate all types of agreements – including access agreements, bulk service agreements and marketing agreements – in the best interest of our clients in order to maximize their financial benefits and fully protect their private property. Therefore, before signing an exclusive access agreement for FTTP, owners are advised to inquire with a lawyer about the existence of mandatory access laws in the respective local jurisdiction. When negotiating an ROE agreement, exclusivity should be considered as an axis in a series of access rights to be granted to the provider; other axes are the duration of the contract, the number of services to be provided (and the corresponding marketing rights) and the type of access, whether it is an easement or a licence. Everything can be negotiated.

The more topic-specific the services (voice, video, data, etc.), the greater the risk that the owner will grant exclusive access and marketing rights to a single provider over a longer period of time. In jurisdictions with mandatory legal provisions, exclusive access agreements between MDU owners and cable service providers (e.B. PCO) may not be enforced if these agreements block access by the franchised cable operator. Although the FCC has not issued any regulations providing for the provision of internal cabling dedicated solely to the provision of Internet services, you should be aware that fcc procedures may apply, at least in practice, to all internal cabling installed by an incumbent that provides both cable and Internet services to MDU residents. If the provider uses the same coaxial cable to provide both cable and internet services, it is not clear if and how the FCC`s injunction procedures apply to internal cabling if you or one of your tenants cancels the provider`s cable, but not the internet services. In order to avoid any uncertainty in this regard, you must ensure that your service contract with the provider clearly and precisely sets out the procedures applicable to the sale of the incumbent`s internal cabling upon termination of one or both of the provider`s services. (c) the Order and does not grant Suppliers mandatory access to MDU properties. The prohibition on applying exclusive access agreements with a single provider is not the same as granting equal access to all providers. A supplier who wishes to enter into a long-term SPC contract may be satisfied with a limited contract that provides for a renewal mechanism at the end of the period. However, owners should avoid automatic reinstatement clauses, especially if there is no provision that expressly grants the owner the right not to renew, as these clauses lose the owner`s ability to renegotiate the agreement in modified circumstances.

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