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New Entrants in the Multifamily Broadband Space Create Policy Turnabouts and Clashes on Infrastructure



Photo of Matt Ames from Broadband Communities

January 2, 2021 – Expect issues of broadband and multifamily housing to gain renewed attention in 2021. Watch for some strange alliances and interesting policy turnarounds.

The subject matter is complicated because of both policy challenges and infrastructure issues associated with the inside wiring of a multi-tenant environments.

For example, on Tuesday the Wireless Internet Service Providers Association announced that it will take over leadership of the Multifamily Broadband Council; their members converted into WISPA members at the start of the new year on Friday.

See “WISPA and Multifamily Broadband Council,” Broadband Breakfast, December 30, 2020

As a trade association, MBC represented telecommunications companies delivering broadband to apartment buildings and condominiums. WISPA, by contrast, has generally represented broadband providers using fixed wireless solutions. Generally, those connections have been to more rural customers, which is a smaller share of the multifamily housing market.

The former executive director of MBC, Valerie Sargent, said that “WISPA had more members starting to venture into the MDU space yet had no aspect of its membership dedicated to multifamily needs.”

The two groups have taken different approaches to multifamily infrastructure

In the past, the two groups have emphasized different approaches multifamily infrastructure.

For example, MBC was allied with an effort – led by the real-estate industry – to challenge Article 52, a controversial San Francisco ordinance that required the owners of multiple-dwelling units to allow individual apartment-dwellers to choose their broadband provider.

Among those involved in that effort were the National Multifamily Housing Council, which supported the MBC effort to overturn Article 52. It was ultimately successful: The Federal Communications Commission pre-empted the measure in July 2019.

But now NMHC and WISPA are on opposite sides of an issue that appears to be gaining traction at the FCC: Requiring building owners to allow wireless internet service providers access to their rooftops so that providers can offer broadband to any MDU dweller.

Currently, the Over-The-Air-Reception-Device rule allows consumers to place satellite dishes on their units, in spite of any pre-existing restrictive real estate covenants. Now some broadband providers are seeking to put “hubs” on apartment buildings. WISPA said that a rule change would “help align OTARD rules with how today’s wireless broadband networks are being built.”

Matt Ames, an attorney at Hubacher, Ames and Taylor representing the NMHC and other real estate associations, recently argued before the FCC that the agency should refrain from extending the OTARD rule.

How the Article 52 and OTARD controversies intersect

Speaker earlier in the fall, at the Broadband Communities Virtual Summit, Ames said real estate interests were skeptical of sharing inside wiring, which was a central part of Article 52. As part of the July 2019 action preempting the San Francisco ordinance, the agency asked for broader information from cable and broadband providers about all kinds of agreements they enter.

Ames said that in his meetings with FCC officials, the real estate companies argued that if the existing OTARD rules were changed, anyone leasing access on a rooftop (a cell carrier or tower company, for example) would automatically have the right, regardless of the terms of the lease, to put in a hub site or wireless broadband antenna, which would affect current and future lease agreements.

According to Ames, the OTARD rule, which states that if you lease or own property you can put up certain antennas, be they satellite, Wi-Fi, or broadband antennas, was aimed at people being able to receive the service.

However, the rulemaking would expand this so that service providers would have the ability to put in transmitting antennas, “turning the original purpose of the rule on its head,” he said.

The FCC was asked to look at several multifamily issues such as exclusive marketing, exclusive use of wiring, compensation payments to owners, and proposed transparency requirements, meaning whether or not companies would be required to disclose terms of marketing and revenue share agreements.

The FCC is also investigating general issues such as like exclusive rooftop agreements and whether providers should be allowed to share digital antenna systems if permitted in a building.

NMHC’s arguments against the OTARD changes

The real estate industry has made six key arguments at the FCC.

Ames said the first point was that “new competitors aren’t being shut out, there’s just a lot of competition and they need to find a market niche where they can compete.”

While a lot of competitors have anecdotes about going to one place or another and being shut out, that’s not the same as the marketplace being unfair.

Second, the regulations they were asking for were likely to be counterproductive because none of the terms would encourage owners to bring people in because they were just regulating the terms with the owners.

Third, competition is already strong in the industry. The level of penetration of competition in multifamily market shows that in 75 percent of apartment communities there are already two providers. In 80-90 percent of new construction, the developer is assuming or looking to get two or more providers.

Screenshot from the Broadband Communities Virtual Summit

Fourth, the FCC’s rules have created the current competitive climate.

“Competitors have accused sale and lease agreements of being unfair, but really the existing situation is the result of the FCC’s rules.” Explained Ames, “Cable operators don’t have the incentive to own wiring, which is why owners own it and then make it available on various terms.”

The FCC also told phone companies that if they owned fiber networks the FCC won’t regulate them, and they now “insist on owning the fiber all the way to the unit.”

This is significant because it would mean that the FCC would have to tell phone companies that they need to share their wiring, which Ames does not think is likely to happen.

Fifth, providers find the repeal of net neutrality really helpful because they’re not in the business of regulating broadband.

Sixth, there’s a lot more involved in developing a new multifamily/apartment network than one might think. Some have complained that it’s unfair for owners to get a little back on a door fee or revenue share; however, said Ames, “when you’re spending 50 million dollars to develop a property and you’re paying for a lot of the initial wiring costs, I don’t think that argument flies.”

Reporter Liana Sowa grew up in Simsbury, Connecticut. She studied editing and publishing as a writing fellow at Brigham Young University, where she mentored upperclassmen on neuroscience research papers. She enjoys reading and journaling, and marathon-runnning and stilt-walking.


Housing, Public Interest Groups Oppose Multitenant Exclusivity Agreements

The FCC is looking at how to promote broadband competition and access in buildings.



Photo of Jenna Leventoff from Internet Law & Policy Foundry

WASHINGTON, October 21, 2021 – Opponents of exclusivity arrangements that give tenants of multitenant buildings less choice of internet service provider are urging the Federal Communications Commission to eliminate all manifestations of these contracts that they say harms competition and locks landlords into burdensome long-term contracts.

While the FCC has previously banned exclusive access agreements that granted a single provider sole access to a building, it did not do so for exclusive wiring, marketing and revenue sharing arrangements. That means third party service providers cannot share the building wires with the telecom with that privilege and cannot market their services to the building’s residents.

The FCC launched a comment period in September to field arguments about what to do with these holdout issues that gave priority to ISPs. In an early submission, the internet and television association NCTA said the commission should deny all broadband providers exclusive access to these buildings, but not exclusive wiring agreements.

Internet and competitive networks association INCOMPAS said in its submission that the competitive environment has continued to suffer due to these exclusive deals and, in the case of retail shopping centers, their deals have been extended over the “last several years.”

It is asking for a complete ban on the wiring, marketing and revenue sharing arrangements, which they say “make it tougher for new entrants to effectively compete in MTEs.

“Competitive providers are still asked to participate in revenue sharing arrangements or are routinely denied access to MTEs because of exclusive wiring or marketing agreements,” INCOMPAS said, adding consumers and businesses “lose out on the faster speeds, lower pricing, and better customer service that competitors offer.”

Public Knowledge similarly said there is a lack of competition emerging from these practices that is increasing prices and restricting choice for tenants.

“Although the FCC has banned explicit exclusive agreements in multi-tenant environments (MTEs) such as apartment, condos, and office buildings, landlords and internet service providers have exploited loopholes to nevertheless create de facto monopolies in buildings,” said Jenna Leventoff, senior policy counsel at Public Knowledge.

The group is asking for a ban on “all types” of these arrangements that “negatively impact consumer choice, ensuring all ISPs have access to a building’s wiring regardless of the owner, creating a ‘rocket docket’ to quickly adjudicate supposed violations, and creating a single regulatory regime for both commercial and residential MTEs.”

In a joint submission on Wednesday, Consolidated Communications Holdings and Ziply Fiber said they “often confront such anti-competitive agreements,” with revenue sharing and marketing arrangements being the most “prevalent and troublesome.

“In practice, these agreements frequently work together as a complete bar to competing providers, giving the incumbent broadband provider a de facto exclusive service agreement with respect to an MTE,” the submission said, alleging MTE owners will “explicitly cite their lucrative revenue sharing agreements with an existing provider as their reason for not allowing our companies to access their buildings” and so to not to lose out on that compensation.

Harm on building owners

For the Stewards of Affordable Housing for the Future, exclusive wiring arrangements have not only limited choice for residents, but it has allegedly locked housing providers into “long-term onerous contracts that prohibit them from pursuing connectivity solutions, such as owner-provided broadband, at their properties.”

Members of the affordable housing group are recommending the FCC impose “reasonable standards” on such agreements, which require ISPs to offer low-cost programs or owner provided broadband at a competitive cost and give landlords an option to exit or renegotiate a contract after a certain time.

The FCC’s look into the issue comes after a bill, introduced on July 30 by Rep. Yvette Clarke, D-New York, outlined plans to address exclusivity agreements between residential units and service providers, which sees providers lock out other carriers from buildings and leaving residents with only one option for internet.

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FCC Votes on Proposals Ranging From Emergency Response to SIM Swap Fraud in Open Meeting

The agency held an open meeting Thursday to hammer out votes on a range of issues.



Acting FCC Chairwoman Jessica Rosenworcel.

WASHINGTON, September 30, 2021 — The Federal Communications Commission voted in an open meeting Thursday on several items, including expanding the E-Rate program and addressing SIM swap fraud and robocalls.

The commission voted to increase backup power to networks in case of emergencies and natural disasters and update outage reporting requirements. This follows an aggressive response from the agency during Hurricane Ida. The federal government lost $284 million of productivity during the winter storms last year.

Targeting robocalls from overseas, the FCC passed a set of rules for gateway voice service providers. Gateway providers will be asked to block calls from numbers the FCC lists, to authenticate caller ID and to submit to the FCC a certification of the practices they are using to block robocalls. This follows the June 30 deadline for large voice service providers to implement the STIR/SHAKEN regime, which requires telecoms to work to limit robocalls and ID spoofing or face fines and penalties.

In an effort to reduce SIM swapping and port-out fraud, rules were proposed which would require carriers to adhere to a set of secure methods of authenticating the identity of a customer before moving a customer’s phone number to another carrier or device.

SIM swapping is the act of identity theft whereby a person convinces a wireless carrier to transfer a victim’s cell service into the thief’s possession. Port-out fraud is when the thief creates an account with a new carrier and convinces the victim’s carrier to port out the victim’s service to the new carrier.

The notice also proposes that customers be alerted immediately whenever a SIM change or port request is made under a customer’s identity and account. FCC Acting Chairwoman Jessica Rosenworcel quoted senator Ron Wyden, D-Oregon, stating that “consumers are at the mercy of wireless carriers when it comes to being protected against SIM swaps.”

The FCC also updated the definition of library to include tribal libraries for use with their E-rate program, following a 2018 law from Congress. Many tribal libraries under the law were excluded from the program, which subsidizes broadband for schools and libraries, for over 20 years. Only 15 percent of tribal libraries reported having received E-Rate support.

The FCC also adopted and made transparent a series of questions that will be asked of foreign-owned companies wishing to participate in the US telecommunications market.

Questions include whether the applicants or investors have been charged with felonies, been subject to penalties for violating regulations of the US government, have undergone bankruptcy, are on the Specially Designated Nationals and Blocked Persons list and more.

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FCC Commissioner Simington Says Universal Fiber to the Home Can Wait

Simington also raised idea of Big Tech contributing to Universal Service Fund.



FCC Commissioner Nathan Simington.

WASHINGTON, September 29, 2021 – Federal Communications Commissioner Nathan Simington said Tuesday that adoption issues for fiber is delaying the need to make universal fiber to the home a priority right now.

“I think we can push back on fiber to the home universally, at least in noting that there are edge cases and adoption issues there and that some degree of wireless is going to have to be part of the broadband future,” Simington said in a one-on-one conversation with the Internet Innovation Alliance.

A large part of the discourse surrounding the future of broadband expansion in the country is what kinds of technologies are most prudent to ensure connectivity now and scalability in the future. The Wireless Industry Association has pressed the fact that multiple technologies, including wireless, have a play in broadband’s future, while the Fiber Broadband Association and others have said fiber buildout is the best, most scalable technology.

The last mile, where the cable physically attaches to the home or business, was said at the Digital Infrastructure Investment conference this week to be a goal for broadband expansion.

But Simington said that while fiber is a “robust technology,” there’s a chunk of Americans that may not want it.

“I’m going to go out on a limb and say that there are some users who are not particularly interested in fiber,” Simington said. “That might be people who are, for example, device-only users and they don’t want a home broadband connection — that’s about 20 percent of the national population (of broadband users), although the question of want is sort of up in the air.

“Obviously to a person who is device-only, the only use that fiber would have would be to provide hotspot. And if you’re spending your entire day out and about working, what matters to you is having adequate wireless coverage in your area,” he added.

Simington touches on Universal Service Fund

Modernizing the Universal Service Fund has been one of the hot topics for broadband this year. The fund, which extends basic telecom services to all Americans, has been called unsustainable due to its reliance on shrinking voice revenues.

Some have suggested that the fund’s reliance be wholesale replaced with general taxation from Congress, while others have said that the fund’s revenue base should be extended to include the increasing broadband revenues.

Simington prefaced his comments by saying he didn’t want to get ahead of Congress, which would set the parameters of a new regime, but raised previous recommendations – including from FCC Commissioner Brendan Carr – that part of the money can come from big technology companies, like Facebook and Google.

“We might also say that there are companies that have built their model on there being universal broadband and have been the beneficiaries of the buildout without having to do much to contribute to it…that’s something that has been raised on both sides of the aisle,” he said.

He added that another approach “would simply be to say that broadband is essentially the equivalent of a telephone service back in the day and therefore we are going to put it on everyone’s broadband bill instead of on the relatively small installed base of phone line subject to the USF. That would certainly be one approach. It would smooth things out somewhat, it would presumably broaden the base very substantially.”

In any case, Simington said the USF is “absolutely vital” and that it’s failure would be “at minimum…immensely disruptive.”

Spectrum strategies and future technologies  

In his roughly hour-long chat, Simington touched on a myriad of other issues before the FCC, including the future of satellite technologies, spectrum strategies, and funding for programs to deliver telecommunications services to all Americans.

The commissioner noted that the FCC is prioritizing clearing spectrum for technologies including the next-generation 5G networks, and that the agency is looking to “squeeze every drop” of mid-band frequencies for that end. The FCC has already held a number of auctions for mid-band spectrum, including its massive C-Band auction.

FCC Acting Chairwoman Jessica Rosenworcel said earlier this year that the mid-band spectrum is a priority for the agency over millimeter wave spectrum to close the digital divide.

Simington also said spectrum sharing will increase as technological advances are made. The FCC is fielding comments about how to handle the 12 GHz spectrum band, which is effectively pitting satellite providers who say it can’t be shared and 5G providers who say that it can.

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