Negotiating an MDU Access Agreement

Owners have newfound leverage over competing providers, but mistakes are harder to fix  January 2006

It is difficult enough for communica¬tions professionals to keep up with the rapidly evolving technological and regulatory environments in which broadband providers operate. How is a residential property owner, manager, or developer going to do the same, while investing time and energy into retaining quality tenants?

Just a few years ago, this problem did not exist; because there was essentially no competition among providers. Each provider occupied a monopoly position in its discrete walled garden, and MDU owners simply signed whatever access agreement the telephone or cable tele¬vision provider offered. The alternative was no service at all, and a proliferation of little satellite dishes all over the property.

The New Digital Landscape

Two things have changed. First, MDU owners in most parts of the country now have the option of choosing among an array of broadband service providers, in¬cluding private cable operators (PCOs), incumbent local exchange carriers in¬cluding RBOCs such as Verizon, AT&T (formerly SBC), BellSouth and Qwest, and an array of more-or-less specialized competitive local exchange carriers.

Second, most of these providers are or soon will be capable of delivering a variety of broadband services, includ¬ing voice telephony, digital video, high-speed Internet access and other services such as security systems, over a single integrated infrastructure. Gone are the days when the property owner needed to choose a specialized monopoly provider for each communications service.

The co-existence of both competitive choice and the reality of "digital con¬vergence" provide an obvious benefit to MDU owners, but this benefit entails a risk. The obvious benefit is that the owner need only allow a single broad¬band distribution system to be installed in the building in order to provide mul¬tiple services to tenants.

The risk is that if the services provided prove to be inadequate, or if the owner becomes dissatisfied for any other rea¬son, the existence of a single installed and integrated infrastructure owned by a single multiple service provider may make it more difficult, practically and legally, for the owner to terminate the provider's access to the building in favor of a competitor.

While this may not seem a press¬ing problem today, this issue is likely to grow in importance in the coming years.

Broadband providers and their legal teams have invested considerable time, expertise and expense in drafting ge¬neric building access agreements that maximize value on behalf of the provid¬er. Therefore, in order to avoid signing away important rights unnecessarily, building owners must review the draft agreements carefully and be prepared to negotiate changes where appropriate to protect the owner's interests.

This article attempts to alert MDU owners to some of the most important issues involved in negotiating an effec¬tive right of entry (ROE) agreement with a full service broadband provider. Although many of these issues arise in connection with any provider, we pay particular attention to questions related to ROE agreements with providers of¬fering Fiber to the Premises (FTTP) networks in multi-tenant residential buildings, because few owners have ex¬perience with fiber.

The issues discussed in this article tend to arise most frequently, in overbuild sit¬uations. The author intends to publish a follow-up article dealing with issues spe¬cific to new or "greenfield" installations, especially condominium and planned unit development (PUD) projects, in an upcoming edition of this magazine.

Regulatory Uncertainty Surrounding FTTP Services

Unfortunately, there is a high degree of uncertainty surrounding which (if any) legacy FCC regulations apply to broadband services delivered to con¬sumers through FTTP networks. To the extent that FCC rules do not apply, the ROE agreement becomes all the more important in defining the owner's legal rights and responsibilities.

There are two kinds of FCC regula¬tions designed to preserve competition in MDU environments, namely, the cable inside wiring rules, and the tele¬phony demarcation point rules.

The cable inside wiring rules (found starting at 47 C.F.R. § 76.800) allow an MDU owner to force an incumbent ca¬ble television provider to remove, sell or abandon in-building ("home run") wir¬ing when the incumbent has no ongoing contractual or statutory right to access the building to provide video service to tenants. These rules allow the owner to make the existing wiring available for use by a competing provider and thus facilitate competitive access by PCOs.

The telephony demarcation point rules (found at 47 C.F.R. § 68.105(d)) allow the MDU owner to control the location of the point at which legal responsibility for the on-premises wiring shifts from the telephone company to the building owner. By assuming control over the inside wiring, the owner can make the wiring available to a competitor.

It is unclear, however, whether either of these pro-competitive regulatory schemes applies to FTTP in multi-ten¬ant buildings.

The cable inside wiring rules apply only to "multichannel video program¬ming distributors," which includes tra¬ditional cable operators and other pro¬viders of video programming, but does not include "common carrier" wiring or fiber that is used to provide "interactive on-demand services."

Are MDUs like individual homes? Probably. The FCC's 2003 Triennial Re¬view Order did relieve incumbent local exchange carrier (ILEC)-installed fiber to the home (FTTH) networks from the common carrier obligations applicable to old-technology local copper loops. Therefore, FTTP wiring in MDUs is probably not a "common carrier facil¬ity," even if that wiring is used by an RBOC (a common carrier) to deliver video programming to MDU residents. Furthermore, the video service being of¬fered by RBOCs such as BellSouth and AT&T (formerly SBC) is characterized by a high degree of interactivity, includ¬ing video on demand.

For these reasons, it is highly doubtful that the owner of an MDU "wired" with fiber can rely on the FCC's cable inside wiring rules to bring in an alternative provider if the FTTP service proves in¬adequate.

The application of the telephony demarcation point rules to FTTP in multi-tenant environments is no less problematic. For one thing, the con¬cept of a "demarcation point," and the regulations based on this concept, are designed to address problems that arise in connection with copper loop architec¬ture. FTTP installations are based on an entirely different design with different characteristics. FTTP networks do not involve, for instance, the installation of a network interface device (NID), and it is unclear what physical device or location in a FTTP system might constitute an appropriate demarcation point, assum¬ing that a building owner is willing to assume responsibility for such a sophisti¬cated communications infrastructure.

Second, the demarcation point rules apply to "providers of wireline telecom¬munications," that is, telephone compa¬nies. While the RBOCs now deploying FTTP to MDUs nationwide are quint¬essentially telecommunications provid¬ers, their IP-enabled services either are already or are likely to be categorized as "information" rather than "telecommu¬nications" services by the FCC.

Because it is unclear if and how FCC regulations dealing with competition in multi-tenant buildings apply to FTTP, MDU owners cannot rely on those regu¬lations in determining their rights and obligations with respect to FTTP pro¬viders. Those rights and obligations will be based on the language used in build¬ing access agreements, making it all the more important for owners to negotiate clear effective terms and conditions in those agreements.

What Owners Should Look for in an ROE

When reviewing a proposed ROE agree¬ment, the MDU owner (together with counsel) should scrutinize the document with the following questions in mind:

What will be installed where, for what purpose, and for how long? And, what can the owner do if things go poorly? What rights does the owner have to ter¬minate the ROE and bring in an alter¬native provider?

A well-drafted ROE agreement should provide specific answers to each of these questions, and any agreement, under¬standing or promise that isn't explicitly incorporated into the formal document should be memorialized in writing.

Moreover, assuming that the agree¬ment itself is clear and unambiguous, prior to signing the document, the owner should be certain that the new ROE is consistent with any existing ac¬cess agreements, as well as any applicable state and local laws.

What Will be Installed, and Where?

Before signing an ROE agreement, the building owner should be certain that the written agreement specifically identifies the nature of the equipment and wiring to be installed, the location and pathway to which the provider will have access, and the defined services to be pro¬vided over that infrastructure. We dis¬cuss the first two issues here, and service definitions later in the article.

Depending on the type of provider involved, wiring an MDU property will involve the installation of hybrid fiber/coaxial (HFC) cable, copper or fi¬ber optic cable (FTTP), with associated equipment. In order to avoid confusion and conflict, the ROE agreement should specify the type of infrastructure to be installed.

When the owner chooses a single firm to provide voice, video and data over an integrated infrastructure, it is important to consider the potential consequences, should that provider's services prove to be inadequate.

This problem is especially significant with respect to FTTP installations. If the FTTP provider's services are termi¬nated, will tenants lose their telephone, video or Internet services? They will if, incident to the FTTP installation, the provider has removed any existing HFC or copper wiring from the building. Moreover, the lack of traditional inter¬nal wiring may make it more difficult and expensive for the owner to find an alternative provider willing to invest in the building.

In overbuild situations, the owner can plan for this contingency by securing the FTTP provider's written agreement at the outset that any existing copper or HFC infrastructure be left in place.

In new builds, the owner should un¬derstand that an exclusive FTTP instal¬lation in effect locks up the property for the indefinite future, because even if the owner manages to gain ownership of the fiber infrastructure after terminating the incumbent's services, few conventional cable PCOs' business plans include the provision of FTTP-based services. That will probably change in the coming years, but it is not the case now.

It is also important that an ROE de¬fine the locations where equipment and wiring will be installed with some de¬gree of specificity. A general license or easement to install equipment necessary for the provision of services lacks speci¬ficity and potentially gives the provider the right to use every nook and cranny of the owner's property. Such a general right is both unnecessary and can easily lead to conflicts down the road; there is no reason for an MDU owner to give the provider more access than is reasonably required. In short: The provider's instal¬lation should be mapped out on a build¬ing plan prior to commencing work.

Finally, both the nature and the loca¬tion of the installation should be subject to definable and generally accepted in¬dustry standards for such installations, including applicable laws and regula¬tions such as fire and electrical codes. It is a good idea for property owners to hire a consultant or other expert to review the provider's installation plan before signing the building access agreement.

Telephony Demarcation Point Rules.

If it is unclear how the FCC's cable inside wiring rules may apply to FTTH facilities in MDU properties, it is no more clear how the FCC's demarcation point rules for telephony might apply in the same context. The question is whether and how an MDU owner might use the demarcation point rules to gain control over on-premises FTTH wiring in order to make it available for use by a competitor.

A Brief History of the Telephony Demarcation Point Rules.

The FCC's involvement with the regulation of telephony inside wiring has a long history going back to pre-divestiture AT&T's resistance to the use of non-AT&T equipment in connection with AT&T netw

What Kind of Access is Granted in an ROE?

From a legal perspective, most ROE agreements grant the provider either a license or an easement in the owner's MDU property. There is a difference. The fundamental concept is that an easement conveys a property interest running with the land, whereas licenses are generally personal to the grantee and may be unilaterally revoked at the grant¬or's option.

Most service providers prefer an ease¬ment because an easement may be en¬forced against subsequent owners of the property should the building be sold – assuming the purchaser had actual or constructive notice of the existence of the easement, whether by virtue of it be¬ing recorded in the registry of deeds or otherwise.

By contrast, a license is in the nature of a personal privilege or permission, and the owner may withdraw that per¬mission at any time. A license may be¬come irrevocable, however, when it is coupled with an interest, such as when the licensee invests substantial money or labor (with the owner's consent, of course) pursuant to the license. When that is the case, the license may become, for all practical purposes, identical to an easement in the sense that it cannot be unilaterally revoked.

In theory, granting a license rather than an easement provides the prop¬erty owner with more flexibility, and doesn't encumber the property to the same degree as an easement, should the owner decide to sell the property. In ei¬ther case, however, the ROE agreement should specify the legal nature of the access granted so that the parties' legal rights and obligations are clear from the outset.

A related question concerns whether the access (and marketing) rights grant¬ed should be exclusive or non-exclusive. While granting a provider non-exclusive rights is obviously preferable from the owner's perspective, many providers will insist on exclusive rights with regard to one or more services, including an exclu¬sive right to market the service to resi¬dents.

Their rationale is that it does not make business sense to invest in wiring a property merely for the right to com¬pete against one or more other provid¬ers for subscribers in a single building or complex. The issue becomes more acute, however, if the owner chooses a single provider to provide multiple services, especially if the provider's right of ac¬cess is in the nature of an easement that encumbers the property in the event of a sale.

In negotiating an ROE agreement, ex¬clusivity should be viewed as one axis in a spectrum of access rights to be granted to the provider; other axes are the length of the agreement, the number of services (and corresponding marketing rights) to be provided, and the nature of the ac¬cess, whether easement or license. All can be negotiated. The more services (voice, video, data, etc.) are subject to the agreement, the greater the risk to the owner in giving a single provider exclu¬sive access and marketing rights, over an extended time term.

Allowing a single firm the right to mo¬nopolize communications services de¬prives the owner of the flexibility needed to compete for tenants in a rapidly evolv¬ing consumer market.

Access for How Long?

Just as an effective ROE agreement should be limited in space and scope, so it should be limited in time.

Owners should avoid access agree¬ments that either specify perpetual terms or leave the term indefinite. A perpetual term agreement purports to remain in effect "in perpetuity" (or similar lan¬guage), while an indefinite term agree¬ment either fails to identify a specific term, or purports to remain in effect as long as the provider provides service, is authorized to do business, and so on.

Perpetual and indefinite term con¬tracts are generally against public policy and for that reason may be unenforceable under state law; they should be avoided for that basis alone.

More to the point, however, owners should realize that broadband commu¬nications exists in a rapidly changing technological and business environment, and a choice that may seem ideal today may turn out to be woefully inadequate tomorrow.

Therefore, building owners should re¬serve the option of terminating or rene¬gotiating service and access agreements after a reasonable time has passed. One way to measure a "reasonable time" would be the period required for the provider to recoup its investment in the building.

A provider wanting a long-term ROE agreement may be satisfied with a lim¬ited contract that provides a mechanism for renewal at the end of the term. How¬ever, owners should avoid automatic re¬newal clauses, particularly where there is no provision explicitly giving the owner the right not to renew, because such clauses forfeit the owner's ability to re¬negotiate the agreement in changed cir¬cumstances.

In the arena of advanced communi¬cations, you need flexibility to accom¬modate consumer demand. A renewal clause should require the party seeking extension to provide advance written notice of its intention, so that the other party has an opportunity to make an in¬formed decision based on consideration of the alternatives.

Likewise, owners should not sign any access agreement that does not provide for termination of the agreement if the owner/provider relationship turns sour. A contract that does not allow for termi¬nation (or non-renewal) isn't much bet¬ter than a perpetual term contract.

Termination clauses can be either unilateral (no cause) or tied to specific ("for cause") default conditions, such as breach of the agreement by the provider. Clearly, a property owner would like to have the power to terminate a provider's access agreement at any time, for any reason, but few providers are likely to agree to such unilateral termination au¬thority.

On the other hand, no provider should object to a contractual provision allow¬ing the building owner to terminate the agreement if the provider's services fall below specified levels of quality, perfor¬mance or price. The owner should have the power to terminate the provider's access if the provider fails to provide a competitive product.

It is crucial that such performance standards be definite and measurable in order that compliance or lack of compli¬ance may be determined with some cer¬tainty. At a bare minimum, the provider should be required to provide services that equal or exceed (in terms of spe¬cifically identified criteria such as price, channel offerings, data speed, and so forth) those of similarly situated provid¬ers of the same or similar services.

orks. These disputes led to the promulgation of Part 68 of the FCC's rules, allowing telephone customers to connect non-proprietary equipment to the publicly-switched-telephone-network (PTSN) in the mid-1970s.

As a part of that effort, the FCC established the concept of a "demarcation point," defined as the boundary between deregulated inside wire, controlled by the building owner, and regulated ILEC facilities at the edge of the PTSN. While the demarcation point was clear in single-family dwellings, multi-tenant buildings presented problems, where, for example, the customer premises might be on the tenth floor, but ILEC wiring entered the building through the basement. To address these problems, the FCC defined the Minimum Point of Entry (MPOE) as either the closest practicable point to the location where the wiring crosses a property line, or the closest practicable point to the location at which the wiring enters a multi-unit building. However, the FCC did not require that multiple subscriber demarcation points within an MDU or MTE be located at the MPOE. Rather, the demarcation point for multi-unit buildings was to be located according to the ILEC's "reasonable and non-discriminatory practices." In buildings built after August 13, 1990, the ILEC was permitted but not required to "establish a reasonable and nondiscriminatory practice of locating the demarcation at the" MPOE. The ILECs were able to exploit ambiguities in the rules by refusing to clarify exactly where their MTE/MDU facilities terminated and the owner's dominion began. As long as the location of the demarcation point could not be determined with certainty, CLECs could not negotiate directly with building owners for the use of on-premises wiring.

The Telecommunications Act of 1996 allowed CLECs to lease unbundled loops from the ILECs, and defined the local loop according to the location of the network interface device (NID) at the customer end of the loop. But ILECs were still able to deny CLECs' access to MDU/MTE riser cables because in many buildings, ILEC equipment did not include a NID. In this situation, ILECs could claim that the demarcation point was located at the subscriber's individual premises, forcing CLECs to lease extended lengths of in-building cable in order to reach any customers, no matter how few, who chose the CLEC's services.

In its 1999 UNE Remand Order, the FCC attempted to redress this situation by (1) defining the NID as a functionality rather than a specific device, and designating the NID as a stand-alone network element available for leasing by CLECs; and (2) requiring sub-loop unbundling of on-premises wire, whether owned or merely controlled by the ILEC. With regard to (2), the FCC redefined the loop to extend from a distribution frame in the ILEC central office to the demarcation point.

Following the UNE Remand Order, the FCC's next step in freeing up telephone competition in MTEs occurred with the Competitive Networks Order in October 2000. Among other accomplishments, the Competitive Networks Order simplified the process for relocating the telecommunications demarcation points.

The Competitive Networks Order is intended to address the MDU/MTE bottleneck described at the outset of this article:

The record ... indicates that incumbent LECs are using their control over on-premises wiring to frustrate competitive access to multi-tenant buildings. Competitive LECs report that they have encountered difficulties with incumbents when attempting to arrange for interconnection or lease unbundled network elements.

Most of the "difficulties" referred to stem from the CLECs' inability to access that portion on the on-premises wiring between the MPOE (generally located at the NID) and the point where ownership/and/or control of the wiring is clearly in the domain of the building owner. Access to that portion of the on-premises wire is seen as crucial to competition in MTE buildings, under one of two CLEC business models:

CLECs leasing ILEC sub-loops (or reselling ILEC services) as a network element under Section 251 of the Telecommunications Act prefer that the riser cable in multi-tenant buildings remain an ILEC responsibility all the way to the subscriber premises. CLECs providing DSL services, for instance, depend on the ILEC for loop conditioning that is unlikely to be provided by the building owner.

The IP Revolution

The phenomenon of communications "convergence" is based on the use of In¬ternet Protocol (IP), which transforms discrete communications services, such as voice and video, into mere data appli¬cations that can seamlessly operate over a single distribution system. The fact that these separate (from the end-user's perspective) services no longer require discrete physical networks means that the once-clear boundaries between the services are eroding – bits are just bits, a fungible commodity.

For that reason, it is important that an ROE agreement, particularly one involv¬ing FTTP, clearly define the services to be provided, in a way that does not create confusion and conflict. Such confusion and conflict can arise with respect to ser¬vices that are already being provided in an MDU building, services that might be provided in the future, and with re¬gard to legacy laws and regulations.

Many buildings, for example, are al¬ready served by a cable operator and a telephone company, providing cable and voice service respectively. These provid¬ers often have exclusive service agree¬ments in place with the building owner. A building owner contemplating an FTTP installation should carefully re¬view any existing cable and telephony agreements to ensure that the new in¬stallation does not violate the terms of any existing agreement, or preclude the owner from bringing in new providers in the future.

Suppose the owner has an ongoing agreement with a franchised or private cable operator under which the cable op¬erator is the exclusive provider of cable video services to residents. Signing a new agreement with an FTTP provider for the provision of "digital communica¬tions" or "Internet" services may create a conflict with the existing cable television agreement, when the FTTP provider be¬gins offering its video service to MDU residents.

While Verizon or AT&T may con¬sider their video offerings to be "digital communications" or an "Internet ser¬vice" rather than cable television, the cable company claims an exclusive right to provide video throughout the build¬ing. Thus, allowing the FTTP installa¬tion could expose the owner to legal li¬ability for breach of the exclusive cable agreement.

Similar conflicts may arise with re¬gard to the marketing of services, for the same reasons. An owner who has granted the cable provider an exclusive right to market its service to residents may unwittingly create a conflict if he or she grants an RBOC a right, exclusive or not, to market its FTTP products to the same residents.

Permitting the RBOC to market its video product, regardless of how it is described, will likely conflict with the incumbent cable operator's (or PCO's) exclusive marketing right. This sort of confusion is enhanced by the FCC's failure so far to classify IP-based services such as interactive digital television and VoIP for regulatory purposes.4 As de¬scribed above, Verizon and AT&T do not describe their video service as "cable television," but the incumbent cable company or PCO certainly doesn't see it that way!

The best way to avoid this sort of con¬flict is to agree on specific definitions of the services to be provided such that there is no overlap between the new ser¬vices and those provided by an incum¬bent. Then, limit any marketing rights to the services actually being provided.

State Laws

Another potential conflict involves the application of state laws. Some nineteen states (and various municipalities in oth¬er states as well) have enacted so-called "mandatory access" laws that prohibit MDU owners from blocking the fran¬chised cable operator's access to MDU residents.

In jurisdictions with mandatory ac¬cess laws, exclusive access agreements between MDU owners and cable ser¬vice providers (such as PCOs) may not be enforced, insofar as such agreements would bar access by the franchised cable operator.

What does it mean? Depending on the precise language of the contract, an MDU owner's exclusive access agree¬ment with an FTTP provider may be unenforceable in a mandatory access jurisdiction, to the extent that the ex¬clusivity provision would block the fran¬chised cable operator's right to install infrastructure needed to deliver cable service to MDU residents.

Therefore, before signing an exclusive access agreement for FTTP, owners are advised to check with counsel regarding the existence of any mandatory access laws in the pertinent local jurisdiction.

Another category of state laws involve a variety of prohibitions or restrictions on MDU access agreements with tele¬communications providers that explicitly or implicitly erect obstacles to competi¬tive access by other telecommunications providers to MDU residents.

These state laws are related to the FCC's Competitive Networks Order,6 which was issued in 2000. This order:

• Barred discriminatory or exclusive contracts between telecommunications providers and owners of commercial multi-tenant buildings (MTEs).
• Prohibited contractual and regula¬tory restrictions on end users' ability to install fixed wireless and other antennas in commercial and residential multi-ten¬ant buildings.
• Required electric utilities and ILECs to allow non-discriminatory access to conduit within MTEs to the extent that such access is consistent with state law.

Encouraged by the FCC's action, sev¬eral states, either through their legisla¬tures or their public utility commissions, have enacted laws prohibiting discrimi¬natory building access agreements with telecommunications providers in the residential (MDU) context.

It is difficult to generalize about these non-discrimination laws because states have taken different approaches to the issue of telecommunications competi¬tion in multi-tenant buildings. In Cali¬fornia, for example, "a public utility may not enter into any exclusive access agree¬ment with the owner ... of ... a property or premises served by the public utility ... that would limit the right of any oth¬er public utility to provide service to a tenant or other occupant of the property or premises."

A "public utility" is anyone (except a publicly owned public utility) who "owns or controls ... support structures or rights of way used or useful, in whole or in part, for wire communications."

A RBOC provider of FTTP com¬munications services to MDU residents qualifies as a "public utility" and there¬fore exclusive access agreements between MDU owners and FTTP providers are prohibited in California. The breadth of this provision – which prohibits con¬tracts that by design or effect "limit" competitive MDU access – might well bar not only exclusive access contracts, but also exclusive marketing agreements, especially if the agreement provided fi¬nancial incentives for the owner to limit other carriers' access to tenants.

More or less similar non-discrimina¬tion rules have been either enacted or are being considered in Connecticut, Tex¬as, Nebraska, Ohio, Massachusetts, North Carolina, Florida, Mississippi and South Carolina.

As with cable television mandatory ac¬cess laws, MDU owners should consult with counsel regarding state laws or reg¬ulations that may affect how a building access agreement should be structured – especially when an FTTP installation is involved.

The bottom line is that an MDU building access agreement should spe¬cifically define the services being offered such that the building owner is allowing use of her or his property for the provi¬sion of just those services the owner de¬sires and no others.

Likewise, marketing rights should be tied to the specifically defined services being offered, rather than being vague or general. If the owner wants tele¬phone and Internet access service from an FTTP provider, there is no reason to grant that provider general market¬ing rights, or to use vague terms such as "Internet service." If "Internet service" is construed to include video service, the owner may be unable to find a PCO willing to wire the building for video without a corresponding and exclusive right to market the PCO's video service.

Conclusion

After a failure to give careful consid¬eration to how the services are defined in the operative documents – a subject to which providers' counsel has surely devoted considerable time – the owner may discover that he or she has unnec¬essarily forfeited the kind of flexibility needed to meet consumer demand in a rapidly changing technological envi¬ronment.

Furthermore, a failure to agree on the definition of the services to be offered can easily lead to unanticipated legal conflicts down the road, including both conflicts with other broadband provid¬ers and conflicts with state legal and regulatory requirements.

As advanced communications capa¬bility comes to be seen more and more as an essential utility rather than as a desirable luxury, a building manager's ability to offer that capability will be¬come an increasingly important weapon in the fight to attract and retain quality tenants.

With a wide variety of providers offer¬ing products that are increasingly seen as indispensable, it is all the more cru¬cial that MDU owners structure their building access agreements in ways that maximize value in the longer term, lest their buildings become monopoly bot¬tlenecks benefiting the incumbent car¬rier and no one else.

After making an informed choice or choices among broadband providers, flexibility – meaning, the reservation of options – should be the goal; the tele¬com boom and bust of the 1990s dem¬onstrates the folly of placing all of one's eggs in a single basket in an unpredict¬able environment.

In broadband, today's headline news is likely to become tomorrow's fish wrapper. By insisting on precise con¬tractual language that defines and lim¬its the provider's rights and obligations, MDU owners can minimize the likeli¬hood of unnecessarily and unwittingly giving up options, such as the option of replacing the incumbent or bringing in a second competitive provider, that may prove indispensable in the future.