Real Estate Owners

Feature Article*

The Big Disconnect:
Who's Responsible for Abandoned Cabling
in Your Building?

By Manuel Fishman, Esq.

On December 11, 2003, BOMA International presented an audio seminar on the new 2002 National Electric Code (“NEC”) requirements concerning abandoned communications cabling in commercial buildings. The two-hour seminar highlighted the potential impact of new national code requirements, and presented various questions that local building owners, property managers, engineers and leasing agents need to consider in the management of their buildings and the negotiation of leases. About 10 BOMA San Francisco members gathered in BOMA’s conference room to participate in the seminar (which BOMA San Francisco hosted at no charge for its members). As one of the attendees at the BOMA San Francisco seminar location, I volunteered to summarize the highlights of the program for presentation to all BOMA San Francisco members.

While not itself codified as law, the NEC is an influential publication that is used by many state and local agencies to set standards for various matters, and is usually incorporated by reference into local building codes. The National Fire Protection Association (the “NFPA”) provides the principal technical assistance for drafting of the Code. Currently, the California State Building Code incorporates the 1999 NEC; and the Building Code of the City and County of San Francisco is based on the 1999 NEC. Hearings on the adoption of the 2002 NEC are scheduled to be held in Sacramento this month (January 2004). There is no information on if and when the 2002 NEC will be incorporated into the San Francisco Building Code. Nevertheless, there is no reason to doubt that in the near future the 2002 NEC will be incorporated by reference in both the California and San Francisco building codes, and other cities in California will likely adopt the 2002 NEC as well.

The 2002 NEC is a 1,200-page bound volume that covers all aspects of electrical construction and operation. Only a few sections of the Code address communications circuits (in particular, Article 800), and fewer sections address abandoned communications cabling. New Code provisions require the removal of “abandoned communications cable.” Section 800.2 defines abandoned communications cable as “installed communications cable that is not terminated at both ends at a connector or other equipment and not identified for future use with a tag.” Section 800.52(B) provides that “the accessible portion of abandoned communications cables shall not be permitted to remain.” The reason that the NFPA is concerned about abandoned cabling is that abandoned cabling increases fire load, may generate toxic fumes when subjected to fire, and can affect air flow in ceiling plenums. With an estimated 45 billion feet of plenum cable in place in commercial buildings nationwide, cables that are abandoned in ceilings, riser systems and air handling systems are a source for fueling fire and for smoke and fumes that can incapacitate building occupants.

Compliance with the new NEC requirements would most likely be triggered upon a remodeling or new tenant build-out in connection with a lease expansion, lease renewal or new tenant move-in. A building inspector may refuse to issue a certificate of occupancy (or give a final sign-off on a building permit) if abandoned communications cabling is found to be in place, and may lead the inspector to focus on other potential violations that are visible. While the Code applies to existing installations, local jurisdictions will have discretion to determine whether to enforce the 2002 NEC prospectively.

Most plenum rated cabling contains lead in the jacketing material insulating the cable. This jacketing material is generally referred to as PVC. The Federal Environmental Protection Agency has determined that low levels of lead can cause adverse health effects, and PVC can lead to indoor air quality issues if the metals in the PVC products are released into the environment when the PVC decomposes (either through natural deterioration or through excessive heat). In response to growing concerns over lead, the vinyl industry has developed a lead-free PVC compound which is being introduced for buildings. Nevertheless, older buildings may contain lead-based PVC products, and disposal thereof is regulated under local and state hazardous materials laws. PVC cable is difficult to recycle. This adds to the cost of removal of abandoned cabling, which some have estimated at $2.00 per square foot.

The principle questions that were addressed at the seminar were: (i) what is included in the definition of abandoned communications cabling, (ii) who bears the cost of removal of this cabling, and (iii) when is compliance required? Because the definition of abandoned communications cable only refers to “cabling that is not terminated at both ends at a connector or other equipment,” many questions arise as to what is abandoned communications cable. Does it include cabling in a building vertical telecommunications riser that terminates at a panel or frame in a telephone closet on an individual floor of an office building? Does it make a difference whether the cabling is contained in separate conduit? What is the “accessible portion” of abandoned communications cable? If removal would trigger OSHA requirements concerning asbestos removal, is such cabling accessible? Does the Code require removal of existing cabling installations? Does simply tagging communications cabling for “future use” exempt the building owner from liability? There are no definitive answers to the foregoing questions, and individual building owners will need to adopt their own level of compliance in areas such as leasing guidelines, tenant improvement construction guidelines, and due diligence checklists in acquiring buildings.

As with most “compliance with law” requirements, a building owner who elects to do nothing and not address the issue in its lease document (including tenant improvement work agreement) and/or its purchase and sale due diligence checklist, may bear the full cost of compliance with the Code requirement -- at times when it is most inopportune to do so. The seminar participants, as well as the San Francisco attendees, all saw a benefit for building owners/managers to perform a communications audit to answer questions relating to the location and amount of existing cabling, the type of PVC covering used in the building, the estimated cost of compliance, and whether building lease forms adequately allocate responsibility for compliance upon surrender of the premises at the end of the lease term.

The general consensus was that building owners need to turn the 2002 NEC cabling obligation into a positive opportunity to achieve a greater understanding of their buildings’ infrastructure. This has been a developing theme of telecommunications consultants, managers and lawyers advising building owners. There is anecdotal evidence that taking control of the telecommunications infrastructure adds value to a building and enables a building owner to more quickly enter into leases with tenants having high bandwidth voice and data network requirements. In a market where commercial tenants have an excess of space and buildings to consider, compliance with the 2002 NEC requirements concerning abandoned communications cabling serves as additional motivation for building owners to take control over an aspect of the building infrastructure that has historically been neglected.

Manuel Fishman is a principal in the law firm of Bartko, Zankel, Tarrant & Miller, a San Francisco based law firm. Mr. Fishman specializes in the issues raised in implementing telecommunications solutions in commercial buildings, as well as leasing and acquisitions and sales of commercial properties. Mr. Fishman serves on the Board of Directors of the San Francisco Building Owners and Managers Association, and is the former chair of SF BOMA’s Telecommunications Task Force. Mr. Fishman is active in State and federal BOMA efforts in representing building owners.