UPDATE One portion of the FCC’s proposed rulemaking concerning broadband access for carriers in apartments, condos, and office buildings sparked discussions of government overreach during yesterday’s vote.
Overall, the proposal notes that to provide service, broadband providers must have access to potential customers in the building. But when broadband providers know they will have to share the communications facilities that they deploy with their competitors, they are less likely to invest in deployment.
In particular, the proposed rulemaking seeks comment on the impact that revenue sharing agreements between building owners and broadband providers, exclusivity agreements regarding rooftop facilities, and exclusive wiring arrangements have on broadband competition and deployment in multiple tenant environments (MTEs.)
The Commission clarifies that it welcomes state and local experimentation to increase access to MTEs—so long as those actions are consistent with federal law and policy. It preempts part of a San Francisco ordinance to the extent it requires sharing of in-use wiring in MTEs.
Commissioner Michael O’Rielly called that provision “completely warranted,” while Commissioner Jessica Rosenworcel dissented, saying: “For the roughly one-third of Americans who live in apartment buildings, choice is especially hard to find. Securing high speed service multi-tenant environments is challenging and involves a tangle of different wire facilities, property rights and marketing arrangements.” Because Washington is doing little to increase competition, cities and states have stepped into the breach and are developing their own efforts to increase consumer choice, she said, citing San Francisco’s efforts.
Rosenworcel said it’s “crazy” for the FCC to tell San Francisco, where more than half the population rents housing, to say, “you cannot encourage broadband competition.” “The city’s law prohibits building owners from interfering with the right of tenants to exercise choice when it comes to communications. It is designed to make sure that those in apartment buildings have more broadband options so the ordinance includes a requirement that existing wiring controlled by property owners should be made available if feasible,” said Rosenworcel. In contrast, she said the FCC describes the city law as some sort of “nonexistent bogeyman,” suggesting the ordinance compels sharing wiring already in use.
Chairman Ajit Pai said the Commission is doing what it must to ensure broadband is deployed in MTE’s. The current rules demand sharing access with competitors, which makes it so, “you’d be less likely to build a home at your own expense if you knew it could easily become someone else’s castle.”
On San Francisco’s law specifically, Pai said: “The record shows that the ambiguity alone over whether the ordinance requires in-use wire sharing has already chilled broadband investment in San Francisco.” As an example, he cited Mill Creek Residential Trust, which owns several buildings in San Francisco and allows as many as six service providers in a single building. The company told the agency: “Several providers have changed their policies and now refuse to install inside wiring,” according to Pai. Last week, Pai added, the city, “finally stopped playing games with the cat of an ordinance and belatedly claimed it doesn’t require the sharing of in-use wiring.”
Pai defended the agency’s ruling. “It is difficult to understand how anyone can be harmed by a decision to preempt a city mandate that the city itself claims doesn’t exist. And if the city isn’t correct, if the ordinance does indeed require the sharing of in-use wiring, then it is also difficult to understand how the city or anyone else could object to our ruling.”
Pai said the city has had “every opportunity” to defend an in-use wiring sharing mandate and has not done so. “In the end, all of this suggests that the opposition here is driven not by the facts, not by the law, but instead by that crass impulse in politics, ‘If he’s for it, I’m against it.’” Comments? Email us.
By Leslie Stimson, Inside Towers Washington Bureau Chief
July 11, 2019