Eva Talel and E. Gail Suchman
Eva Talel and E. Gail Suchman ()

For almost two decades, New York law has allowed all franchised cable television providers to compete for the business of apartment owners.1 Specifically, Section 228 of the 1995 New York Public Service Law prohibits “landlords” from “interfering with the installation of cable television facilities upon [their] property or premises” and was enacted “to secure the right of the tenant to have access to cable television services[.]“2 Co-op housing corporations and condominium associations are considered landlords for purposes of the law. Therefore, many co-op and condominium buildings in New York have seen the installation of cable television equipment by at least one provider and, in some instances, more than one. Because installed cable is now commonly used for computer and Internet access, as well as for television, the business of providing cable access has grown dramatically.

This column updates and supplements earlier ones dealing with control of access to telecommunications,3 addresses increasingly assertive techniques used by cable providers in seeking installation access to co-op and condominium buildings, and provides recommendations to boards and managers for protecting the building and its apartment owners from damage to persons or property that may be caused by a cable installation.

Public Service Law

Section 228 of the Public Service Law does not afford cable providers unfettered access to residential buildings. To the contrary, under the law, a landlord may require a cable company to: (1) comply with “reasonable conditions as are necessary to protect the safety, functioning and appearance of the premises, and the convenience and well being” of the residents, (2) carry “the entire cost of installation, operation or removal” of the required equipment, and (3) “indemnify the landlord for any damage caused by the installation, operation or removal” of the cable equipment.4 These limitations on the power of cable providers was essential to avoid a potential “taking” by the state through the operation of Section 228. As the U.S. Supreme Court held in Loretto v. Teleprompter Manhattan CATV, whether a state’s affording access for cable installation could be considered a taking is dependent upon the landlord’s ability to control the “timing, extent and nature of the invasion.”5 Therefore, under state law, landlords/building owners have been given significant authority over a cable operator’s activities on the affected property; however, the exercise of such control must be reasonable.6

Cable Provider’s Access Notice. When a cable provider determines to enter a building for the installation of cable and related equipment, it will generally send an initial letter to the owner “requesting” access. The cable provider’s letter frequently states or implies that it has broad access rights under Public Service Law §228 and that the building owner has very limited ability to prevent such access. Often, an “acceptance of proposed work” form is included with the “request” letter, which the building owner is asked to sign and return. There appears to be no standard format for such an access request. The letter may contain limited or detailed technical and scheduling information pertaining to the proposed installation, general or specific requirements regarding work on the premises, and broad or narrow indemnification provisions. Review of the cable provider’s proposed access agreement by the building’s engineer and/or counsel will therefore be required in order for the board and building’s manager to understand the parameters of the access sought.

If the building’s owner does not respond to the request for access, or does not successfully negotiate an access agreement with the cable provider, the provider may file a petition with the New York State Public Service Commission, seeking an order to compel entry onto the premises to install its cable equipment. For example, the website of Verizon New York reflects that over the past 12 months, Verizon has filed petitions seeking entry onto the premises of at least 407 residential buildings in New York in order to install its fiber optic cable.7 All of the petitions appear still to be pending. A review of the commission’s website reveals that several building owners have responded to the Verizon petitions with claims ranging from lack of notice of Verizon’s request for access, to Verizon’s refusal to agree to reasonable installation work conditions.8 It is important for a building owner to respond and participate in any proceedings before the commission in order to preserve the building’s and owner’s statutory protections under Section 228.

Restricting Access

Upon receipt of a request for access to install equipment from a cable provider, a building owner is not required to simply “sign and return” the “acceptance of proposed work” form presented by the provider. Instead, the owner may wish to present its own rider to any access agreement proposed by the provider, which clearly sets forth the technical requirements, operational restrictions and indemnification necessary to protect the building and the premises, as well as its residents, employees and invitees.

Technical Requirements. Section 228 allows for the imposition of reasonable requirements upon the cable provider so as to protect the “safety, functioning and appearance of the premises” in connection with the installation of the provider’s equipment.9 These requirements are important protections for the integrity and security of the building and the premises. The cable provider may have prepared a survey of the building and property and, if so, it is critical for the owner to have an experienced and knowledgeable professional review the survey and provide comments and recommendations and requirements to the cable provider. Often, the building engineer or architect will have much more detailed knowledge of the areas which are best suited for placement of cables outside and within the building.

As part of the installation’s technical requirements, the building owner may require the cable provider to maintain adequate insurance for the protection of the building and premises, as well as to protect residents, employees and invitees from any injury resulting from the cable and equipment installation. The insurance limits may be met by a combination of general commercial liability and excess liability insurance policies. The owner, its managing agent, engineer and architect should be additional named insureds on the policies and receive appropriate insurance certificates prior to the commencement of any work.

Operational Restrictions. Section 228 provides that an owner may place restrictions on the cable operator for the “convenience and well being” of its residents and others working at or visiting the building or the premises.10 These operational restrictions may include time-of-day and weekday work limitations, as well as noise reduction and clean-up and debris removal obligations. These types of restrictions are generally imposed on contractors working in a co-op or condominium building on a non-emergency basis and should therefore be considered reasonable, so as to ensure that building residents and occupants will have their expected privacy and quality of life protected to the greatest extent possible.

There remains an open question as to whether an owner may terminate a cable provider’s right of access if, at some point, there are no residents who wish to obtain services from that cable operator, and whether an access agreement may provide for a future access termination date. The inclusion of “installation, operation and removal”11 in the statutory language appears to imply that termination/removal of the cable operations are contemplated at some point or under some conditions; it cannot be inferred that the decision to terminate lies only with the cable provider. Therefore, an owner may wish to have a termination date or conditions for termination reflected in any negotiated access agreement.

Indemnification. Section 228 clearly states that the cable provider should be responsible for all costs related to the installation, operation and removal of its equipment.12 Further, the owner is permitted, as a condition of entry, to seek indemnification from the cable provider for “any damage” associated with the installation, operation and removal of its equipment.13 Inherent in the language of Section 228 is the right of the owner to seek broad indemnification from a cable provider for any claims or losses associated with work performed by it in the building or on the premises that results in damage to property or injury to persons. The law does not limit this indemnification requirement to negligent or willful acts of the cable provider and indemnification should therefore extend to all acts or omissions.14

Recommendations

Cable providers have statutory protections in New York governing their entry onto premises or into buildings for the purpose of installing and operating cable equipment and providing cable services to apartment owners. However, there are also statutory protections for the building owner, which are intended and designed to protect the building and premises, as well as the occupants and other users of the building and the premises. Therefore, boards and managers should not be intimidated upon receiving an access request letter from a cable provider.

Instead, after consulting with the building’s architect or engineer, boards and managers should work with the building’s counsel to negotiate an access agreement with the cable provider, and seek to obtain appropriate technical, operational and indemnity requirements as part of any access agreement.

Section 228 of the Public Service Law was enacted almost 20 years ago to provide tenants and apartment owners with what was then a new and cutting-edge technology—cable television service. Query whether today—with many available sources for cable services, knowledgeable and well-informed tenants and apartment owners and cable service users, and the relative ease with which building owners can seek out a new cable provider—there is still a need for a law giving cable providers statutory access rights.

However, for so long as the law exists, if negotiation of an access agreement breaks down between a cable provider and an owner, it is important that the board and building management participate in any access proceedings commenced by the cable provider before the commission, so as to make sure that the co-op or condominium building’s statutory protections are respected.

Eva Talel is a partner in Stroock & Stroock & Lavan and an adjunct professor at New York Law School. E. Gail Suchman is a special counsel at Stroock and an adjunct professor at the Earth Institute at Columbia University. Nathalie Bressler, an associate at Stroock, and Margaret Jones, a research librarian at Stroock, assisted in the preparation of this article. Stroock is counsel to the Real Estate Board of New York.

Endnotes:

1. To operate a cable television within a municipality in New York State, a cable system must have a franchise granted by that municipality and approved by the Public Service Commission. Public Service Law §§219(1), 221(1) (N.Y. McKinney 2011).

2. Public Service Law §228 (N.Y. McKinney 2011). See, e.g., Abbatiello v. Lancaster Studio Associates, 3 N.Y.3d 46, 52-53 (2004). See also CSC Holdings, Inc. v. Westchester Terrace at Crisfield Condominium, 235 F.Supp.2d 243. 246 (S.D.N.Y. 2002) (cable access deemed non-exclusive).

3. See R. Siegler and E. Talel, Cooperatives and Condominiums, “Control of Access to Telecommunications,” NYLJ, Jan. 5, 2011, p. 3, col. 1; see also R. Siegler, Cooperatives and Condominiums, “Cable Television Service,” NYLJ, July 3, 1996, p. 3, col. 1.

4. Public Service Law §228(1)(a) (N.Y. McKinney 2011).

5. 458 U.S. 419, 436 (1982).

6. CSC Holdings, 235 F.Supp. at 264-265 (whether a landlord’s restrictions interfere with a cable company’s installation of equipment is an issue of material fact but landlord may not force cable company to share its installed equipment with satellite television provider). But see Abbatiello, supra note 2, 3 N.Y.3d at 52-53 (New York Court of Appeals held that landlords may not be held responsible for injuries to cable company workers on their premises because the workers would not be on the premises but for the access afforded them by Section 228 of the Public Service Law).

7. www.verizon.com/about/community/nypsc_petitions.htm.

8. See, e.g., Response of Tower 53 Condominium to Petition of Verizon New York, Inc. Filed Jan. 24, 2014 for Order of Entry for Tower 53 Condominium, Matter No. 14-00144, Feb. 12, 2014, www.dps.ny.gov, (then search Commission documents).

9. Public Service Law §228(1)(a)(1) (N.Y. McKinney 2011).

10. Id.

11. Public Service Law §228(1)(a)(2) (N.Y. McKinney 2011).

12. Id.

13. Public Service Law §228(1)(a)(3) (N.Y. McKinney 2011).

14. The reference in the law to “any damage” also should not foreclose requiring indemnification for consequential or special damages, such as interference with the building owner’s obligations to perform building work or repairs for apartment owners, or interference with the use of an owner’s apartment.