Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2000 Private Property Rights and Telecommunications Policy: Hearing Before the H. Comm. on the Judiciary, 106th Cong., Mar. 21, 2000 (Statement of Viet D. Dinh, Prof. of Law, Geo. U. L. Center) Viet D. Dinh Georgetown University Law Center, [email protected] CIS-No.: 2000-H521-97 This paper can be downloaded free of charge from: http://scholarship.law.georgetown.edu/cong/3 This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: http://scholarship.law.georgetown.edu/cong Part of the Administrative Law Commons, Communications Law Commons, Constitutional Law Commons, and the Property Law and Real Estate Commons PRIVATE PROPERlY RIGHTS AND TELECOMMUNICATIONS POUCY HEARING BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION OF THE COMl\IITTEE ON THE JUDICIARY HOUSE OF- REPRESENTATIVES ONE HUNDRED SIXTH CONGRESS SECOND SESSION - MARCH 21, 2000 Serial No. 70 Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 6fK)1l WASHINGTON: 2000 For .ale by the U.S. Government Prmting Office Superintendent of Documents, Congressional Salea Office, Washington, DC 20{02 COMMlTI'EE ON THE JUDICIARY HENRY J. HYDE, Illinois, Chairman F. JAMES SENSENBRENNER, JR., JOHN CONYERS, JR., Michigan Wisconsin BARNEY FRANK, Massachusetts BILL McCOLLUM, Florida HOWARD L. BERMAN, California GEORGE W. GEKAS, Pennsylvania RICK BOUCHER, Virginia HOWARD COBLE, North Carolina JERROLD NADLER, New York LAMAR S. SMITH, Texas ROBERT C. SCOTT, Virginia ELTON GALLEGLY, California - MELVIN L. WATT, North Carolina CHARLES T. CANADY, Florida ZOE LOFGREN, California BOB GOODLA'fTE, Virginia SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio MAXINE WATERS, California BOB BARR, Georgia MARTIN T. MEEHAN, Massachusetts WILLIAMJ... JENKINS, Tennessee WILLIAM D. DELAHUNT, Massachusetts ASA HUTCHINSON, Arkansas ROBERT WEXLER, Florida EDWARD A. PEASE, Indiana STEVEN R. ROTHMAN, New Jersey CHRIS CANNON, Utah TAMMY BALDWIN, Wisconsin JAMES E. ROGAN, California ANTHONY D. WEINER, New York LINDSEY O. GRAHAM, South Carolina MARY BONO, California SPENCER BACHUS, Alabama JOE SCARBOROUGH, Florida DA YID YITTER, Louisiana THoMAS E. MOONEY, SR., General Counsel-Chief of Siaff JULIAN EPSTEIN, Minority Chief Counsel and Staff Director SUBCOMMITIEE ON THE CONSTITUTION CHARLES T. CANADY, Florida, Chairman HENRY J. HYDE, Illinois MELVIN L. WATT, North Carolina ASA HUTCHINSON, Arkansas MAXINE WATERS.-California SPENCER BACHUS, Alabama BARNEY FRANK, Massachusetts BOB GOODLA'ITE, Virginia JOHN CONYERS, JR., Michigan BOB BARR, Georgia JERROLD NADLER. New York WILLIAM L. JENKINS, Tennessee LINDSEY O. GRAHAM, South Carolina CATHLEEN CLF.AVER, Chief Counsel BRADLEY S. CLANTON, Counsel JONATHAN A. VOGEL, Gcunsel PAUL B. TAYLOR, Counsel Oil ._--_._----- CONTENTS HEARING DATE Page March 21. 2000 1 OPENING STATEMENT Canadr. Hon. Charles T. a Representative in Congress from the State of FIonda. and chairman. Subcommittee on the Constitution .. ...... ..................... 1 WITNESSES Bitz. Brent W., executive vice president of management services, Charles E. Smith Commercial Reality................ ................ .................. .......... ............ ...... 36 Dinh, Viet D .• associate professor of law, Georgetown University School of Law ........................................................................................................................ 16 Eagle, Steven J .• professor of law, George Mason University School of Law..... 22 Graham, Timothy R, executive vice president and general counsel. Winstar Communications, Inc. .......................................................................................... 42 Haring. John. principal, Strategic Policy Research. Inc. .................... .................. 52 Hayes, John B.. principal. Charles River Associates. Inc. ......... ........ ......... ......... 56 Rosenthal, Steven R. partner, Cooper, Carvin & Rosenthal............................... 5 LETTERS. STATEMENTS. ETC .• SUBMITTED FOR THE HEARING Bitz. Brent W., executive vice president of management services, Charles E. Smith Commercial Reality: Prepared statement ........................................ .. 38 Dinh, Viet D., associate professor of law, Georgetown University School of Law: Prepared statement ................................................................................... 17 Ea~:p~~d~~t~;!e~o[~~~.~ .. ~.~ ..I.~.~: .. ~~~~~ ..~~~.~~ .. ~~.i.~.~~~.i.~~ .. ~.~~.~~.. ~:' .~~~: 24 Graham, Timothy R, executive vice president and general counsel. Winstar Communications, Inc.: Prepared statement ..................................................... .. 44 Haring. John. principal. Strategic Policy Research. Inc.: Prepared statement .. 54 Hayes, John B.. principal. Charles River Associates, Inc.: Prepared statement 58 Rosenthal. Steven R, partner. Cooper, Carvin & Rosenthal: Prepared state- ment ..................................................................................................................... 6 (III) 16 uniquely valuable telecommunications assets, the prohibitions also amount to a reg­ ulatory taking. But whether viewed as a Loretto taking or a regulatory taking, the regulations proposed by the Commission in the NPRM would trigger a very large financial li­ ability for the (rl,vernment to pay just compensation to building owners. This liabil­ ity was certainly not foreseen or-intended by CODgress when it passed the Commu­ mcations Act, nor was there any indication at all in the act that Congress meant for the Commission to have the authority to issue regulations restricting the estab­ lished rights of real property owners. For these reaSODS, the Real Access Alliance has submitted comments to the Com­ mission stating that the proposals discussed in its NPRM cause a taking of property under the Fifth Amendment to the Constitution. Again, thank you for this opportunity to address the Subcommittee on this impor­ tant subject. Professor Dinh. STATEMENT OF VIET D. DINH, ASSOCIATE PROFESSOR OF LAW, GEORGETOWN UNIVERSITY SCHOOL OF LAW Mr. DINH. Thank you, Mr. Chairman. Congressman Conyers, members of the committee, thank you very much for the oppor­ tunity to be here, and to Mr. Rosenthal for providing a very thoughtful analysis and framing the issues. I appear today on be­ half of the Smart Building Policy Project, although I should note that I appear as an analyst and not as an advocate. So please don't hold what I say against them. These are my positions as to how I see the constitutional issues in this case and not necessarily the position that their counsel, or the members of the Project would necessarily take. - It seems to me that the issues posed by this hearing and by the FCC's notice of proposed rulemaking are twofold. One, whether there would be an unconstitutional -taking of property and, two, whether the FCC has authority to effect such a nile. And I start with the fIrst by noting that Chairman Canady and Mr. Rosenthal are perfectly correct and cogent in their analysis of the Loretto de­ cision, and with that I have absolutely no quibble with the analysis set forth there, nor with the court's decision in Loretto. I think it is correct. By the same token, I believe that the 11th Circuit's decision on the takings issues in 47 USC section 224, the mandatory access provisions with respect to the utilities, is also correct. That works as a taking because those statutory provisions require the utilities to open up their lines, open up their utilities, their rights of way and their premises which they own or control to uninvited telc­ communications providers. What the FCC proposes, as I understand in "this case, is not such a "mandatory access requirement." It is not forcing building owners to open up their doors to uninvited telecommunications providers. Rather, it is simply a requirement that should building owners open up- their door to any telecommunications provider, then they would have to open up their door to other telecommunications pro­ viders on nondiscriminatory terms. So in that sense, I think that this case poses a potential conflict, if you will, that requires careful line drawing between two lines of Supreme Court jurisprudence, the Loretto line of cases, which I think is jurisprudentially valid and very sensible, and also another line of cases, cases like Heart of Atlanta Motel, which says that it 17 is not a taking where you open up your premises for public accom­ modation to require nondiscrimination on bases of race, religion and gender and the like, as announced by Congress in the Civil Rights Act of 1964. , Analogously, if you open up a mall to public access, as Pruneyard Shopping Center v. Robbins, the court says you cannot discriminate against certain speech because you happen to disagree with that speech. If you open it up, you have to open it up equally, and that is simply a condition of the access provisions. In that sense I think that the case of Yee v. Escondido is quite apt, and that case specifically addressed the the discussion in foot­ note 17 of Loretto, which Mr. Rosenthal referred to regarding the conditioning of access on a nonpayment of rental for the cable tele­ vision line that case. In Yee v. Escondido, the court made very clear that the Loretto does not seek to address cases like Heart of At­ lanta Motel. Indeed, it cited it, or cases like the cases that uphold rent control laws or fire codes, which, in some sense, require a physical