Does Our Community Need To Sign a New Access Agreement

Q: A service provider wants my community to sign a new access agreement, they are also requesting that we sign the contract quickly or they will have to discontinue providing services. Should we just sign the agreement? -G.W., Boca Raton

ATTORNEY RESPONSE

A:The issue at hand is complex, but the simple answer is no, I usually do not recommend signing a new agreement “as is.” Although your existing agreement is set to expire, your telecommunication service provider is prepared for a period of time in which to negotiate a new agreement, and, I advise our clients not to sign a new agreement unless it contains some key factors that will protect your community going forward.

If your community has private easements or is a condo association and is therefore considered “private property,” telecommunication service providers do not have the right to enter the property without the owners’ (board members who manage and have oversight of the common areas in both condominiums and private homeowners’ associations) permission. Therefore, it is important for both a telecommunication service provider and your community to have this type of agreement (an Access Agreement or a Right of Easement Agreement, known as “ROE”) in place to outline the rights and responsibilities of both parties. To that end, it is important that the community engage the telecommunications service provider in discussing among other things, the provider’s obligations going forward, as well as how much compensation the provider will offer the community. There are various factors to consider when negotiating an agreement of this type.

Here are the top four important items to negotiate and discuss (and this list is by no means exhaustive) include:

• Including language that provides that the service provider will be responsible for the network they are using within the community and what that responsibility entails.

• Including language that provides that if the network fails, the service provider will be responsible for repairing it during the term of the agreement.

• Including language that provides that the network be upgraded, perhaps to fiber optic lines to the home or at least to a capacity that can keep the community ready for the future. For example, the contract can include language providing that the community be upgraded during the term to a “1 Gig ready network” at no cost to the community, in exchange for a new access agreement.

• Including language for proper compensation back to the community for the rights to use the easements in a Homeowners Association or the conduit in a condo.

  These examples are some of the very critical terms necessary to assure the residents and board members that their community is “future-proofed,” compensated correctly, and have some assurances of network maintenance and reliability and these are not issues for which one should guess. It is important to have a professional who has expertise in the field of telecommunications looking out for the best interest of your community to ensure your community is receiving the best possible level of service and compensation on an ongoing basis.

  Because the team at CCG represents the interest of thousands of Homeowners Associations as well as REIT investment communities for their telecommunications services, we review telecommunication service provider contracts for Bulk Services, Rights of Easements, Marketing Agreements and Access Agreements from all service providers across the country on a daily basis. We enjoy sharing our experiences and informing our clients, potential clients as well as service providers of our views in the hopes that both the communities we represent, as well as the service providers that work hard to bid on them, can keep up to date and informed of the current issues.

  The legal team at CCG provides the following for information purposes only and should not be considered legal advice

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