Condo Media - July 2014 - 18

by Mark Einhorn, Esq.

C A I

R e g i o n a l

N e w s

MASSACHUSETTS

Cable Service Agreements
The Drive for Wiring and Marketing Rights Has Grown More Intense

I

t's apparent from the often dueling
advertisements being run by cable
providers that there remains fierce
competition in many markets. The
battle for subscribers often spills over
from the airwaves to the streets, with
cable providers fighting for turf dominance building by building. As a result,
many providers are increasingly persistent
in their efforts to obtain so-called multidwelling unit access or services agreements (generally referred to herein as the
service agreement) from communities.
The drive for wiring and marketing
rights has grown more intense since
the Federal Communications Commission (FCC) banned exclusive access
agreements in 2007 and as a natural
consequence of many states (including Massachusetts, Rhode Island, and
Maine) adopting mandatory access laws
which allow any cable provider access to
any multi-dwelling property so long as a
subscriber at the property is requesting
its service. Since cable companies generally have the right to access properties
(in mandatory access states) and cannot
exclude their competition from specific
sites by the use of exclusive contracts
in all states, providers have
looked to gain control
over the internal

18

Condo Media * July 2014

wiring and marketing at specific properties to deter other providers from serving their subscribers.

Service Agreement Details

Unfortunately, these types of agreements
are usually multi-page documents filled
with technical (and provider-friendly)
language which often leave board members, property owners, and managers
confused as to the purpose and implications of signing them. Savvy communities should understand the language as
well as the motivation of the providers
prior to entering into these agreements, so that they can accurately assess
whether the particular agreement being
offered is right for their community.
Within the realm of service agreements, providers are generally looking to
gain rights in two areas: the internal wiring of a property and marketing rights
within the common areas. Granting
exclusive wiring rights will not bar other
providers from serving the property, but
it will require another provider to install
its own wiring to provide service which

can be expensive. Further, securing the
right to market directly to residents onsite also gives the provider an advantage
over competitors. For this reason, many
of the cable providers are willing to pay a
door fee to the property in exchange for
wiring and/or marketing rights. As the
revenue can be substantial, in many cases
it may make sense for an association to
grant such rights, especially in situations
where there is only one provider currently onsite.

Wiring and
Marketing Rights

Although the FCC wiring rules are complex and can be applied differently in
many scenarios, under the current provisions, it is still generally permissible for a
multi-dwelling property to grant the exclusive use of the cable home run wiring
to a specific provider. That wiring is the
portion which runs from the lockbox
(or distribution center) down to each of
the individual units. (The cable home
run terminates just outside of each unit.
The wiring within the unit is referred to
separately as the home wiring.)
If a community does grant wiring
rights, attention should be paid to
make sure that the provider, and not
the association, is responsible for the
maintenance and repair of the wiring,
and that the grant of such rights does
not conﬂict with any previous rights
that were granted to any other provider.
Further, associations should also be on
the lookout for tolling language or selfrenewing provisions which can greatly
expand the term of the contract and are
often not so easy to spot.
In terms of marketing rights, providers
want the exclusive right to market their
services on the common areas of the
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