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Gerard Lederer and McKenzie Schnell: FCC Continues to Undercut Local Authority on OTARD

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The authors of this Expert Opinion are Gerard Lederer and McKenzie Schnell

The Federal Communications Commission’s over-the-air reception devices (known as OTARD) rules limit local governments’, homeowner associations’ and condominium boards’ oversight authority over certain antennas and satellite dishes for certain size specifications.

In the Primary Purpose Report and Order released on January 7, the FCC expanded its rules to eliminate the primary purpose test used to justify the deployment of an OTARD. In addition, on January 11, the FCC released an Order pertaining to a City of Chicago ordinance that reaffirmed its 2018 Philadelphia Order by striking down Chicago’s satellite placement and removal ordinance.

In doing so, the FCC kept its perfect record in place: It has never ruled to uphold a single ordinance or private restriction brought before it.

The growth of OTARD rules

Adopted in response to Section 207 of the 1996 Telecommunications Act, the OTARD rules prohibit state, local and private restrictions that unreasonably impair the ability of the users of antennas that are one meter or less in diameter to deploy OTARDs on property under their exclusive use or control and in which the user has ownership or leasehold interest.

Specifically, it applies to those restrictions that (1) unreasonably delay or prevent installation, maintenance or use; (2) unreasonably increase the cost of installation, maintenance or use; or (3) preclude reception of an acceptable quality signal.

Restrictions prohibited by the OTARD rule include lease provisions, restrictions imposed by state or local laws or regulations, private covenants, contract provisions and even homeowner’s association rules. There is an exception, however, to any OTARD rule restrictions necessary for safety and historic preservation purposes.

The original OTARD rule provided protections for devices used to receive video programming signals. But in its 2000 Report and Order, the FCC expanded the rule to include customer-end devices capable of not only receiving fixed wireless signals, but also devices that had transmission capability.

Fixed wireless signals are those wireless signals that are used in the provision of voice, video and data services to a fixed location. In 2004, the FCC issued another Report and Order expanding the rules to protect hub and relay antennas so long as they were installed for the primary purpose to serve the user on whose premises the device is deployed.

Until this recent Primary Purpose Order, one could argue that an OTARD had to have as its primary purpose providing service to the user on whose premises the OTARD is deployed. But the FCC now makes clear that – in fact – the primary purpose for the installation no longer matters.

All hubs are covered by the revised rule, so long as they meet the rest of the OTARD requirements and serve a user on the premises.

Chicago had to wait 9 years for its order

Given the growth of the OTARD rules, it is of little surprise that local agency ordinances have had a hard time keeping up. Philadelphia, Chicago and Boston each adopted OTARD ordinances to address the placement of satellite dishes and a requirement that they be removed for public safety purposes when no longer in use.

Each of these ordinances were challenged by the satellite television industry (complaints were not filed by an individual dish owner), and pursuant to the automatic stay rule. Each of the ordinances was put on hold while the FCC reviewed the matter. Philadelphia had to wait seven years for its decision. Chicago had to wait nine for its decision, and Boston is still waiting for the opportunity to even defend its ordinance nine years after its ordinance had been challenged.

Despite the OTARD rules’ specific preservation of local authority to protect public safety, the FCC has consistently ruled against OTARD ordinances that relied on that reservation of authority, which was ultimately the case for Philadelphia and Chicago ordinance reviews.

In light of this, local authorities might want to consider addressing the placement and removal of satellite dishes under general rules on external placements of devices that exist today in their zoning and or building codes rather than adopting OTARD-specific rules. For instance, are there rules currently in place that address exterior lighting and how it must be deployed to minimize visual clutter? Are there other external deployments that have to be removed if they become inoperable? When and why are stealth deployments required for other exterior attachments and are their requirements for certification of installers?

Is this a guaranteed winning strategy? The answer to that is not clear, but the FCC seems at least to encourage local government to look to their general police powers to enforce OTARD removal, as noted in the January Declaratory Order where it states that “[A] city may have other means under its local police power to address out-of-service satellite dishes that present a safety hazard or encroach into the public area.”

Gerard Lavery Lederer is a Partner in Best Best & Krieger’s Municipal Law practice group in the firm’s Washington office. Gerry advocates for the rights of public and private property owners with respect to issues of law and policy arising from federal and state communications legislation and regulation. He also serves as legislative counsel and lead Washington advocate for TeleCommUnity, a collection of local governments dedicated to ensuring respect for local rights in federal legislative and regulatory activity.

McKenzie Schnell is an Associate in Best Best & Krieger’s Municipal Law practice group in the firm’s Washington office. McKenzie advises clients on broadband, cable, telecommunications service and data privacy matters, including regulatory compliance, transactions and litigation. She represents public agencies and small private entities at all stages of their  communications projects from infrastructure matters to network practices.

This Expert Opinion is a version of a legal alert, republished by permission of the authors.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views expressed in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

Broadband Breakfast is a decade-old news organization based in Washington that is building a community of interest around broadband policy and internet technology, with a particular focus on better broadband infrastructure, the politics of privacy and the regulation of social media. Learn more about Broadband Breakfast.

Europe

Helge Tiainen: Fiber Access Extension Eases Connectivity Worries for Operators, Landlords and Tenants

A new law presents an opportunity to reuse existing infrastructure for fiber broadband deployment.

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The author of this Expert Opinion is Helge Tiainen, head of product management, marketing and sales at InCoax.

Previously, tenants living in the United Kingdom’s estimated 480,000 blocks of flats and apartments had to wait for a landlord’s permission to have a broadband operator enter their building to install faster connectivity. But that is no longer the case.

At the beginning of the year, a new UK law change meant that millions of UK tenants are no longer prevented from receiving a broadband upgrade due to the silence of their landlords. The Telecommunications Infrastructure (Leasehold Property) Act allows internet service providers to access a block of flats 35 days after the ISP’s request to the landlord. It is estimated that an extra 2,100 residential buildings a year will be connected as a result.

Broadband companies have advised that currently around 40 percent of their requests for access to install connections in multi-dwelling units are delayed or blocked, due to no landlord response. Undoubtedly, tenants residing in these flats and apartment blocks are those most effected by a lack of accessibility to ultra-fast connectivity. So, how can ISPs grasp this newfound opportunity?

Harnessing the existing infrastructure

For many ISPs, MDUs pose a market that is largely untapped in the UK. Why is this? Well, for starters, typically these types of properties present logistical challenges, and are lower down in the pecking order in terms of the low hanging fruits readily available when it comes to installing fiber to the premises. The more attractive prospects are buildings in densely populated areas that can be covered easily with gigabit broadband.

Whereas, MDUs have typically been those underserved. Signing a broadband contract with a customer in a single-family unit is easier than an MDU as it involves securing permissions from building and apartment owners for construction works, as well as numerous tenants. For those ISPs tasked with upgrading tenants’ existing broadband connections, there are other challenges prevalent such as rising costs, wiring infrastructure changes and contract requirements, including minimum take-up rates.

So, there has been no better time to use the existing infrastructure readily available within the property. A fiber-only strategy can be supplemented if fiber to the extension point is employed where necessary. A multi-gigabit broadband service can be delivered at a lower cost and reach more customers over existing infrastructure for a short section of wire leading to the customer premises and inside the premises.

Bringing gigabit connectivity floor to floor

The UK government hopes that 85% of the UK will be able to access gigabit fixed broadband by 2025. However, installing fiber to every flat can be a challenge that is expensive, labor-intensive and disruptive to customers. Landlords may be hesitant to grant permissions due to the aforementioned reasons and potential cosmetic damage caused. Historically, fiber deployments in MDUs can be as much as 40% of fiber to the building deployment costs.

MDU buildings have existing coaxial networks, and reusing this infrastructure is a tangible possibility and time-saving alternative for ISPs instead of installing fiber direct to the premises. Which can be costly if the take-up rate is low for new services. The coaxial networks in MDUs can be used in an innovative way as in-building TV networks are upgraded to support higher frequency spectrums thanks to the analogue switchover to digital TV services.

ISPs can potentially opt to use fiber access extension technology for a cost-effective and less complex upgrade of broadband as it utilizes the existing in-house coax cable infrastructure. The technology provides multi-gigabit broadband services, positioning it as a clear frontrunner when optical fiber cannot be deployed due to construction limitations, a lack of ducts, building accessibility, and technical or historical preservation reasons.

Time for change

Not only does this landmark new law allow ISPs to seek rights to access a flat or an apartment if the landlord required to grant access is unresponsive, but it also prevents any situations where a tenant is unable to receive a service simply due to the silence of a landlord.

This is a crucial opportunity to reuse existing infrastructure for broadband access as TILPA enables subscribers and service providers to circumvent landlords who fail to provide access permission.

As many ISPs look to seamlessly execute their fiber deployment strategies, using cost-effective solutions can accelerate the addressable number of subscribers and allow for a major return on investment.

As head of product management, marketing and sales at InCoax, Helge Tiainen is responsible for developing sales and marketing of existing products and new business opportunities among cable, telecom and mobile operators by developing use cases and technologies within standard organizations as Broadband Forum, MoCA, Small Cell Forum and other working groups. He also manages partnerships of key technology partners suited with InCoax initiatives. This piece is exclusive to Broadband Breakfast.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views reflected in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

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Asia

Dae-Keun Cho: Demystifying Interconnection and Cost Recovery in South Korea

South Korean courts have rejected attempts to mix net neutrality arguments into payment disputes.

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The author of this Expert Opinion is Advisor in Dae-Keun Cho, a member of the telecom, media and technology practice team at Lee & Ko.

South Korea is recognized as a leading broadband nation for network access, use and skills by the International Telecommunications Union and the Organisation for Economic Co-operation and Development.

South Korea exports content and produces platforms which compete with leading tech platforms from the US and China. Yet few know and understand the important elements of South Korean broadband policy, particularly its unique interconnection and cost recovery regime.

For example, most Western observers mischaracterize the relationship between broadband providers and content providers as a termination regime. There is no such concept in the South Korean broadband market. Content providers which want to connect to a broadband network pay an “access fee” like any other user.

International policy observers are paying attention to the IP interconnection system of IP powerhouse Korea and the lawsuit between SK Broadband (SKB) and Netflix. There are two important subjects. The first is the history and major regulations relating to internet protocol interconnection in South Korea. Regulating IP interconnection between internet service providers is considered a rare case overseas, and I explain why the Korean government adopted such a policy and how the policy has been developed and what it has accomplished.

The second subject is the issues over network usage fees between ISPs and content providers and the pros and cons. The author discusses issues that came to the surface during the legal proceedings between SKB and Netflix in the form of questions and answers. The following issues were identified during the process.

First, what Korean ISPs demand from global big tech companies is an access fee, not a termination fee. The termination fee does not exist in the broadband market, only in the market between ISPs.

In South Korea, content providers only pay for access, not termination

For example, Netflix’s Open Connect Appliance is a content delivery network. To deliver its content to end users in Korea, Netflix must purchase connectivity from a Korean ISP. The dispute arises because Netflix refuses to pay this connectivity fee. Charging CPs in the sending party network pay method, as discussed in Europe, suggests that the CPs already paid access fees to the originating ISPs and should thus pay the termination fee for their traffic delivery to the terminating ISPs. However in Korea, it is only access fees that CPs (also CDNs) pay ISPs.

In South Korea, IP interconnection between content providers and internet service providers is subject to negotiation

Second, although the IP interconnection between Korean ISPs is included in regulations, transactions between CPs and ISPs are still subject to negotiation. In Korea, a CP (including CDN) is a purchaser which pays a fee to a telecommunications service provider called an ISP and purchases a public internet network connection service, because the CP’s legal status is a “user” under the Telecommunications Business Act. Currently, a CP negotiates with an ISP and signs a contract setting out connection conditions and rates.

Access fees do not violate net neutrality

South Korean courts have rejected attempts to mix net neutrality arguments into payment disputes. The principle of net neutrality applies between the ISP and the consumer, e.g. the practice of blocking, throttling and paid prioritization (fast lane).

In South Korea, ISPs do not prioritize a specific CP’s traffic over other CP’s because they receive fees from the specific CP. To comply with the net neutrality principle, all ISPs in South Korea act on a first-in, first-out basis. That is, the ISP does not perform traffic management for specific CP traffic for various reasons (such as competition, money etc.). The Korean court did not accept the Netflix’s argument about net neutrality because SKB did not engage in traffic management.

There is no violation of net neutrality in the transaction between Netflix and SKB. There is no action by SKB to block or throttle the CP’s traffic (in this case, Netflix). In addition, SKB does not undertake any traffic management action to deliver the traffic of Netflix to the end user faster than other CPs in exchange for an additional fee from Netflix.

Therefore, the access fee that Korean ISPs request from CPs does not create a net neutrality problem.

Why the Korean model is not double billing

Korean law allows for access to broadband networks for all parties provided an access fee is paid. Foreign content providers incorrectly describe this as a double payment. That would mean that an end user is paying for the access of another party. There is no such notion. Each party pays for the requisite connectivity of the individual connection, nothing more. Each user pays for its own purpose, whether it is a human subscriber, a CP, or a CDN. No one user pays for the connectivity of another.

Dae-Keun Cho, PhD is is a member of the Telecom, Media and Technology practice team at Lee & Ko. He is a regulatory policy expert with more than 20 years of experience in telecommunications and ICT regulatory policies who also advises clients on online platform regulation policies, telecommunications competition policies, ICT user protection policies, and personal information protection. He earned a Ph.D. in Public Administration from the Graduate School of Public Administration in Seoul National University. This piece is reprinted with permission.

Request the FREE 58 page English language summary of Dr. Dae-Keun Cho’s book Nothing Is Free: An In-depth report to understand network usage disputes with Google and Netflix. Additionally see Strand Consult’s library of reports and research notes on the South Korea.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views reflected in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

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Expert Opinion

Luke Lintz: The Dark Side of Banning TikTok on College Campuses

Campus TikTok bans could have negative consequences for students.

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The author of this expert opinion is Luke Lintz, co-owner of HighKey Enterprises LLC

In recent months, there have been growing concerns about the security of data shared on the popular social media app TikTok. As a result, a number of colleges and universities have decided to ban the app from their campuses.

While these bans may have been implemented with the intention of protecting students’ data, they could also have a number of negative consequences.

Banning TikTok on college campuses could also have a negative impact on the inter-accessibility of the student body. Many students use the app to connect with others who share their interests or come from similar backgrounds. For example, international students may use the app to connect with other students from their home countries, or students from underrepresented groups may use the app to connect with others who share similar experiences.

By denying them access to TikTok, colleges may be inadvertently limiting their students’ ability to form diverse and supportive communities. This can have a detrimental effect on the student experience, as students may feel isolated and disconnected from their peers. Additionally, it can also have a negative impact on the wider college community, as the ban may make it more difficult for students from different backgrounds to come together and collaborate.

Furthermore, by banning TikTok, colleges may also be missing out on the opportunity to promote diverse events on their campuses. The app is often used by students to share information about events, clubs and other activities that promote diversity and inclusivity. Without this platform, it may be more difficult for students to learn about these initiatives and for organizations to reach a wide audience.

Lastly, it’s important to note that banning TikTok on college campuses could also have a negative impact on the ability of college administrators to communicate with students. Many colleges and universities have started to use TikTok as a way to connect with students and share important information and updates. The popularity of TikTok makes it the perfect app for students to use to reach large, campus-wide audiences.

TikTok also offers a unique way for college administrators to connect with students in a more informal and engaging way. TikTok allows administrators to create videos that are fun, creative and relatable, which can help to build trust and to heighten interaction with students. Without this platform, it may be more difficult for administrators to establish this type of connection with students.

Banning TikTok from college campuses could have a number of negative consequences for students, including limiting their ability to form diverse and supportive communities, missing out on future opportunities and staying informed about what’s happening on campus. College administrators should consider the potential consequences before making a decision about banning TikTok from their campuses.

Luke Lintz is a successful businessman, entrepreneur and social media personality. Today, he is the co-owner of HighKey Enterprises LLC, which aims to revolutionize social media marketing. HighKey Enterprises is a highly rated company that has molded its global reputation by servicing high-profile clients that range from A-listers in the entertainment industry to the most successful one percent across the globe. This piece is exclusive to Broadband Breakfast.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views reflected in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

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