19 States have enacted “Mandatory Access” statutes. In addition, and indeterminate number of local ordinances (for example, the City of Los Angeles, California) include Mandatory Access provisions. Providers and MDU owners are strongly advised to educate themselves concerning the meaning of any applicable Mandatory Access law affecting the owner’s legal rights.
In general, a Mandatory Access law includes, at a minimum, a prohibition on MDU owner blocking or restricting the ability of a franchised cable operator (including both traditional cable operators and telephone companies that have been awarded a video franchise) to provide cable service to residents of an MDU building.
As a typical (bare-bones) example, West Virginia Statutes § 24D-2-3 provides (in relevant part):
(a) A landlord may not:
(1) Interfere with the installation, maintenance, operation or removal of cable television facilities upon his property or multiple dwelling premises…
(2) Demand or accept any payment from any tenant, in any form, in exchange for permitting cable television service on or within his property or multiple dwelling premises, or from any cable operator in exchange therefor except as may be determined to be just compensation in accordance with this article;
(3) Discriminate in rental charges, or otherwise, between tenants who receive cable television service and those who do not.
The statute applies only to “cable operators” as defined by Federal law – that is, video service providers that utilize public rights-of-way. The statute does not give mandatory access rights to a PCO.
Notice that this statute does not say or imply that the cable operator has a legal right to access or utilize any wiring or other infrastructure that belongs to the MDU owner; nor does the statute give the cable operator any on-site marketing rights, bulk service rights or any other right typically negotiated by the property owner in an access agreement with a cable operator. MDU owners sometimes assume – wrongly – that the Mandatory Access law automatically gives the cable operator a blanket right to operate as it pleases at the property without a service agreement.
The following states presently have mandatory access laws in place:
C Connecticut (Conn. Gen. Stat. ' 16-333a (1997))
C Delaware, (Del. Ann. Tit. 26, ' 613(1997)) (only if utility easements also exist)
C Florida (Fla. Stat. Ann. ' 718.1232 (West 1997)) (still on the books with respect to condominium properties, although identical statute applicable in rental context found unconstitutional)
C Illinois (55 ILCS 5/5-1096 (1997))
C Iowa (Iowa Code ' 477.1 (1997))
C Kansas (Kan. Stat. Ann. ' 58-2553(b) (1997))
C Maine (Me. Rev. Stat. Ann. Tit. 14, ' 6041 (1997))
C Massachusetts (Mass. Gen. L. Ch. 166A '22 (1998))
C Minnesota (Minn. Stat. Ann. ' 238.22 (1997))
C Nevada (Nev. Rev. Stat. Ann ' 711.255 (1997))
C New Jersey (N.J. Rev. Stat. ' 48.5A-49 (1997))
C New York (CLS Pub Ser ' 228 (1997))
C Ohio (ORC Ann. 4931.04 (Anderson 1998))
C Pennsylvania (68 P.S. '250.503-B (1997))
C Rhode Island (R.I. Gen. Laws '39-19-10 (1997))
C Virginia (Va. Code Ann. ' 55-248.13:2 (1997)
C West Virginia (Stat. § 24D-2-3 (1997))
C Wisconsin (Wis. Stat. '66.082 (1995-1996))
C District of Columbia (D.C. Code Ann. '43-18444.1 (1997))