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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.

Digital Inclusion

Broadband Association Argues Providers Not Engaged in Rollout Discrimination

Trade group says telecoms are not discriminating when they don’t build in financially difficult areas.



Image of redlining from historic map of the Home Owners’ Loan Corporation of Richmond, Virginia, from PBS.

WASHINGTON, September 18, 2023 – Broadband association US Telecom sent a letter to the Federal Communications Commission last week saying internet service providers don’t build in certain areas because it is financially difficult, not because they are being discriminatory.

The FCC proposed two definitions of digital discrimination in December 2022: The first definition includes practices that, absent technological or economic constraints, produce differential outcomes for individuals based a series of protected characteristics, including income, race, and religion. The second definition is similar but adds discriminatory intent as a necessary factor.

“To make business determinations regarding capital allocation, an ISP must consider a host of commercially important factors, none of which involve discrimination,” said the September 12 letter from USTelecom, which represents providers including AT&T, Verizon, Lumen, Brightspeed, and Altafiber.

“As the Commission has consistently recognized, such deployment is extremely capital-intensive…This deployment process is therefore subject to important constraints related to technical and economic feasibility” added the letter.

US Telecom explained that ISPs’ will choose to invest where they expect to see a return on the time and money they put into building broadband.

The association added that factors like population density, brand reputation, competition and the availability of the providers’ other services all go into deciding where broadband gets deployed.

“The starting point of the Commission’s approach to feasibility should be a realistic acknowledgement that all ISPs must prioritize their resources, even those that invest aggressively in deployment,” added the letter.

The association also highlighted the fact that it hopes to see as little government intervention in broadband deployment activity as possible, a concern that has been echoed by lobbyists before.

“Rather than attempting to use Section 60506 to justify taking extra-statutory intrusive actions that could paradoxically undermine ongoing broadband investment, the Commission must enable ISPs to make decisions based on their own consideration of the kinds of feasibility factors discussed above” read the letter.

Section 60506 of the Infrastructure, Investment and Jobs Act says that the FCC may implement new policies to ensure equal access to broadband.

The FCC is also looking to develop guidelines for handling digital discrimination complaints filed against broadband providers.

USTelecom said that ISPs should be allowed to demonstrate financial and logistical concerns as a rebuttal to those claims, in addition to disclosing other reasons for directing investment elsewhere to demonstrate non-discriminatory practice.

Reasons for investment elsewhere would include rough terrain, low-population density, MTE owners not consenting to deployment, zoning restrictions, or historical preservation review.

“To aid in the success of the Infrastructure Act and facilitate equal access, the Commission must continue to foster an environment conducive to ISP investment in the high-speed broadband infrastructure that Congress rightly views as central to our connected future,” concluded the letter.

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FCC Comments

CAF II Auction Recipients Push FCC to Extend Letter of Credit Waiver, Relax Restrictions

The agency proposed a shorter, more restrictive waiver.



Photo of $100 bills

WASHINGTON, September 14, 2023 – Internet service providers who received project funding under the Connect America Fund Phase II Auction are asking the Federal Communications Commission to continue waiving their letter of credit requirements. 

The FCC requested in August comments on a proposal to extend the waiver for one year — through December 2024 from the current December 31, 2023 date — and limit it to providers who have filed all location reports on time and have finished at least 60 percent of the total locations they agreed to build in each state. In 2020 the FCC waived the letter of credit requirements — requiring a cash collateral on agreements for risk assessment — for auction recipients in response to the pandemic, allowing them to comply with the less restrictive Rural Digital Opportunity Fund letter of credit rules. 

Without the waiver, providers would need to secure letters of credit for all support they had previously received, plus the money they are slated to receive in the coming year. The waiver reduces that requirement to a single year of funding if providers build infrastructure at the agreed upon pace.

Auction recipients, through the Connect America Fund Phase II Coalition, pushed back on both conditions in a filing to the FCC dated Monday and asked for a two-year extension on the waiver, citing long-term economic effects of the pandemic and rising interest rates. That would keep the waiver in place until December 31, 2025, the entire remaining build timeline.

The coalition asked for a lighter deployment threshold, 57 percent of a provider’s obligated locations rather than 60. It also pushed the FCC to include providers who have missed a filing deadline in the waiver, calling the “one strike and you’re out” proposal “disproportionate,” the filing said. 

The CAF II auction provided in 2018 nearly $1.5 billion for providers to build out network infrastructure in areas that are expensive to serve. Recipients of funds under the auction are not required to provide broadband speeds, with a minimum requirement of 10 Mbps upload and 1 Mbps upload.

RDOF, which concluded a similar reverse auction in 2020, has allocated over $9 billion for the same purpose, with up to $11.2 million available for a second phase. 

Future auctions are in jeopardy, though, as providers defaulted on nearly $3 billion of the initial award. Those that have not defaulted are pressing the FCC for more funding.

More than 300 people in the broadband industry asked the National Telecommunications and Information Administration to remove the requirement for the upcoming $42.5 billion BEAD grant program, arguing it prevents smaller providers with less capital on hand from participating.

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Senate Approves Anna Gomez as Fifth Federal Communications Commissioner

The Democrat-held Senate voted 55-43 in favor of Biden’s second nominee for the spot, after Gigi Sohn withdrew.



Photo from the National Hispanic Caucus of State Legislators.

WASHINGTON, September 7, 2023 – The Senate voted Thursday to approve Anna Gomez as the fifth commissioner of the Federal Communications Commission, finally completing the panel and breaking the party deadlock in favor of the Democrats. 

The Democrat-held Senate voted 55-43 in favor of President Joe Biden’s May nomination

The vote breaks the almost two-and-a-half year delay in filling the last commissioner seat after the FCC was stuck in a deadlock. 

Gigi Sohn, an internet advocate and co-founder of Public Knowledge, was originally nominated for the fifth commissioner in October 2021, but stepped down earlier this year, citing “dark money political groups” tainting her career. She had been in front of the Senate commerce committee three times about her nomination, with Republicans accusing her of being partial on the relevant issues. 

“Congratulations to Anna Gomez on her confirmation by the United States Senate,” FCC Chairwoman Jessica Rosenworcel said in a statement. “Anna brings with her a wealth of telecommunications experience, a substantial record of public service, and a history of working to ensure the United States stays on the cutting edge of keeping us all connected. 

“Her international expertise will be a real asset to the agency. I look forward to working with her to advance the agency’s mission to ensure the benefits of modern communications reach everyone, everywhere and that the United States can continue to lead in the digital age,” Rosenworcel added. 

Positive comments poured from organizations including Free Press Action, America’s Communication Association, and Competitive Carriers Association. 

“CCA is enthusiastic about collaborating with Commissioner Gomez and a full Commission to address the evolving challenges and opportunities in the rapidly changing wireless landscape” said CCA president and CEO Tim Donovan in a statement. 

Chris Lewis, CEO of Public Knowledge, offered his congratulations to the new commissioner. “We are excited for the diversity and experience Ms. Gomez brings to the agency.” 

Gomez served as a senior advisor for international information and communications policy in the State Department’s Bureau of Cyberspace and Digital Policy. She served as the National Telecommunications and Information Administration Deputy Administrator from 2009 to 2013 and spent over a decade in various positions at the FCC.  

Current commissioners Geoffrey Starks and Brendan Carr were also nominated by Biden in May but have yet to get Senate votes. Starks must be voted in before the end of the year or he must resign; Carr can serve throughout 2024 without reconfirmation. 

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