Greater Boston Real Estate Bd. v. Mass. Dept. of Telecomm. and Energy, 438 Mass. 197, 779 N.E.2d 127 (2002).

The Massachusetts Department of Telecommunications and Energy (“DTE”) succumbed to pressure from new cable television and telecommunications companies to provide them with access to residential tenants. DTE therefore adopted a regulation that defined commercial and multifamily residential rental buildings as “utilities,” so that DTE could regulate them. At the same time, DTE passed a regulation requiring building owners (as regulated utilities) to allow all cable television and telecommunications companies equivalent access to their buildings. The Greater Boston Real Estate Board (“GBREB”) sued to prevent the regulations from coming into effect. The Superior Court granted judgment for GBREB on the ground that the DTE regulations constituted an uncompensated taking. The Massachusetts Supreme Judicial Court took direct appellate review and affirmed the decision below without reaching the takings issue. The SJC agreed with NELF’s argument that the legislature, in granting DTE the power to regulate utilities, did not intend to define “utilities” so broadly that ordinary rental buildings could be treated as public utilities.