The access law has been on the Texas books since 1995 when legislators rewrote state telecommunications laws to encourage competition. It wasn't until 2000, however, that regulations spelling out how the access provisions work were written and put into effect.

"It's filed now because this is the first time that a carrier has actually gone to the PUC and tried to invoke the protections of the statute," says C. Brian Cassidy, an attorney with the Austin office of Locke Liddell & Sapp LLP. He's the lead BOMA attorney in the case.

In its complaint, Time Warner Telecom has asked to PUC to force the building owner to give it access at rates comparable to those paid by Southwestern Bell Telephone Co., a part of San Antonio-based SBC Communications Corp. Flippo says Southwestern Bell pays nothing for its access. Time Warner Telecom wants to pay $87.50 per month for access. The BOMA groups say that under recent access agreements at the building, telecom providers are paying $1,000 a month for access.

In other cases, Flippo says, Time Warner Telecom has negotiated access and payments. "In this particular case, however, we felt it was necessary to take it to the commission on many fronts." Besides the pricing issue, the company says the building owner is discriminating against Time Warner Telecom and trying to charge a set-up or initiation fee, which she says is prohibited by the Texas law.

While the suit makes a broad constitutional argument, it also says that the PUC is not the appropriate place to set compensation for building access. Cassidy says disputed compensation should be decided in court, by a judge and jury, and not in an administrative hearing. "That's kind of what teed it up," he says of the case.

Until now, Cassidy says, building owners and telecom providers have reached agreements as if the access law didn't exist. "They think it's a market-based transaction that ought to be pursued that way and it's been done that way very successfully," he says.

In Washington, telecom providers have been seeking a national access law, according to Roger Platt, Real Access Alliance, a coalition of trade associations opposing forced access law. One of their arguments, he says, is that access laws have worked in the states that have them, so they should work nationally. That a dispute has arisen over the Texas law and involved a building with 10 telecom providers shows that's not the case, he tells GlobeSt.com.

"The key public policy that is at stake in this discussion is providing people with a choice of competitive providers," Platt says. "Here you've got a situation where the Texas statute is so broad and overreaching and really is having the unintended consequence of punishing a building owner that seems more like an example of what the deregulation of telecommunications is supposed to achieve." A Massachusetts court last year ruled that state's access law unconstitutional.