The Massachusetts Department of Telecommunications and Energy (“DTE”) adopted a regulation requiring owners of commercial and multifamily residential buildings that permit cable television or telecommunications access by one company to allow cable television and telecommunications access to all companies. Because its regulatory enabling authority is limited to utilities, DTE redefined “utility” to include all residential rental buildings of more than four units (more than three if not owner-occupied) and all commercial rental buildings, provided that the building owner permited at least one traditional utility to attach its wires, cables, or conduits to the building. The Greater Boston Real Estate Board (“GBREB”) filed for declaratory and injunctive relief against DTE. The superior court granted summary judgment for GBREB, finding that the regulation was an uncompensated taking of building owners’ property. DTE appealed and the Supreme Judicial Court granted direct appellate review. The SJC then solicited amicus briefs.
NELF filed a brief in support of GBREB. The touchstone case on utility attachments to buildings is Loretto v. Teleprompter Manhattan CATV Corp., a United States Supreme Court decision holding that a New York statute permitting cable television wires to be placed on rental buildings without owner permission constituted a physical taking, regardless of the size of the physical occupation. Since DTE has no taking authority, NELF argued that an SJC finding that the regulation permits a taking would invalidate the regulation. In addition, building on its success in Chandler v. Nantucket County Commissioners, where NELF agued that “highway” meant “highway,” NELF argued in this case that “utility” means “utility,” and that it is a perversion of the legislature’s intent in the authorizing statute to regulate buildings, as opposed to traditional utilities. DTE does not have authority to regulate buildings, and cannot acquire that authority simply because a building contains a utility wire. 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.