Regardless of who installed the cabling within your plenums and risers, the building owner will ultimately be held responsible for compliance with the NEC.  Building owners or managers, therefore, need to know the status of abandoned wire in their building(s) before the fire marshal or insurance adjuster comes calling.  Please do not take this threat lightly, as there are cabling contractors already marketing their services to insurance companies and underwriters to determine if properties are in compliance with the new NEC.  In fact, a national magazine for the cabling industry described the new NEC as the “double employment act” --   “We’ll get paid to install the wires and then again to remove them.”

A comprehensive cabling audit should determine the following:

1.  Are there wires in the risers or plenums that are not being used?
     (If the answer is “no,” either your building is brand new and has never had a tenant turnover or a deal with a
     failed carrier, or your need a new building engineer, because they did a poor job of looking).

2.   If there are wires in the risers or plenums that are not being used, you need to determine:
            What type of wires are they and/or what service did they provide?
            What brand and model is the cable?  This many times may be ascertained by the color of the wrap and
            identification markings on the cable.

3.   Once you learn what type of abandoned cable you have, refer to the appropriate NEC section to determine if
      the cable is a permitted type. 

4.   If the abandoned cabling is a permitted cable type, your engineers or consultants can tag those wires for
      future use and avoid the NEC requirement for removal.

5.    If the abandoned cabling is not a permitted cable type it must be removed.  (It may be worth an investigation
       as to what party deployed the wires to seek recovery of the funds spent for removal and disposal of the
       wires.)

6.    Building Owners might also consider pursuing policy changes to hold responsible the carrier that deployed
       the wiring, since under current law cable and telephone carriers are free to abandon the wires in place.

II.     Amend Lease / Condo Rules / Internal Operating Procedures

Building engineers confirm that tenants increasingly abandon rather than remove phone and network wiring.  In some cases, the occupants abandon numerous generations of network wires, as faster network speeds and newer cabling technology have required deployment of enhanced cabling.  Because the NEC no longer permits such wire storage in plenums, building owners and facility managers must institute removal procedures for such wiring, or they run the risk of bearing all the expense of removal  -- or worse: violating local fire codes and the potential loss of fire insurance.
     
Here is some suggested language for amending new Commercial Leases and/or Residential Rules: 

CABLING ADDENDUM

1.             "The parties to this agreement acknowledge that there are no abandoned wires, as defined by the
National Electric Code (NEC), within the demised premises at the commencement of the term of this agreement;" and

2.             "Tenant/Occupant agrees that any cabling installed during the tenancy shall meet the requirements of
the NEC and other national applicable fire and safety codes;" and

·         "Tenant/Occupant agrees to remove all wiring installed during the tenancy, unless excused in writing by
  the owner (management); or to forfeit such sums from the security deposit (or by judgment if insufficient
  funds exist in the security deposit), for the removal and disposal of any such wires."

·         Aggressive Option – "Tenant/Occupant shall supplement the security deposit required in this Agreement
  by fifty cents per linear foot of cabling deployed during the duration of the term of the Agreement.  The
  terms of treatment of such additional funds shall be governed by the terms of the security deposit.

 III.      Existing Tenants

Leases and/or residential rules of conduct with existing occupants are more complex as you must first find a legal basis for amending the agreement.  Most leases provide such options, as they require tenants/occupants to comply with all applicable codes and regulations.  A suggested course of action with existing clients might include the following:

1.       Review your existing lease to ensure that it mandates that all actions taken by the tenant during the term of the lease will comply with all local codes and standards.

2.       Determine when your local or state jurisdiction adopts the 2002 edition of the NEC.

3.       Communicate to the tenant their responsibility to maintain the demised premises code compliant by not deploy any wiring in the plenum that does not meet the cabling categories identified by the NEC and not to abandon any wiring within the demised premised during the term of the tenancy. 

IV.      Amend Your Access License Agreements

Tenants are not the only parties who install cables within your premises which may trigger NEC review.  Telephone companies, cable providers, satellite or fixed wireless providers, rooftop occupants (such as paging and cellular companies), and fire and security alarm companies have all installed wires in your building.  Many have done so pursuant to a negotiated access license agreement, other have accessed your property under tariff or simple need.

If you have employed the “Model Access Agreement” developed by the Real Access Alliance or the sample license agreement contained in the BOMA/NAA book “Wired for Profit”, you may have some protection, since these agreements require the carrier to comply with all applicable laws and regulations, as well as removing wires at the termination of the contract.  Neither of those model documents, however, required any kind of escrow to cover the removal of abandoned wires.  Even if they had, recovery such sums may be difficult since many of the parties that executed such agreements went bankrupt or are otherwise no longer in business. 

Nonetheless, before executing any new access agreements, ensure that the document explicitly references the NEC, and investigate whether you can obtain a bond or letter of credit to cover the expense of removing abandoned wires should the carrier fail to do so.

                                                                       
About the Author:  Gerry Lederer of  Miller & Van Eaton is one of the nation's leading voices on the integration of telecommunications technology into traditional workspace. Lederer has authored numerous texts on tenant needs and telecommunications.  Most of his research and writing was done as BOMA International’s Research and Advocacy Division head.

Miller & Van Eaton, P.L.L.C.  MVE is a law firm that offers specialized services in telecommunications. Clients rely on Miller & Van Eaton for counsel and legal representation on a wide range of business and regulatory matters that relate to every communications industry: cable television, broadcasting, telephony, wireless communications, and other telecommunications entities.

  
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