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Housing, Public Interest Groups Oppose Multitenant Exclusivity Agreements

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

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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.

Assistant Editor Ahmad Hathout has spent the last half-decade reporting on the Canadian telecommunications and media industries for leading publications. He started the scoop-driven news site downup.io to make Canadian telecom news more accessible and digestible. Follow him on Twitter @ackmet

FCC

FCC Watchdog Finds Evidence of Fraud in Emergency Broadband Benefit

Inspector General report finds “dozens” of cases of EBB abuse across the country.

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FCC Chairwoman Jessica Rosenworcel

WASHINGTON, November 24, 2021 – The watchdog that monitors fraud and abuse of Federal Communications Commission programs said it has found evidence that service providers are enrolling into the Emergency Broadband Benefit program more students than exist at some schools.

The Office of Inspector General said in a Monday report that service providers, who are reimbursed from the program for offering subsidized broadband services to schools, and their sales agents have been abusing the program by enrolling more “households that claimed they have a dependent child” than students “who are actually enrolled in those schools.”

The report found “dozens” of eligible schools across the country are overenrolled six months into the program. That includes schools in Alaska, Arizona, California, Colorado, New York and Florida.

The most “egregious examples” of such abuse, the OIG said, came out of Florida, with one example of a school that had enrolled 1884 households in the EBB program, when OIG research showed that “no more than 200 students attend” the school. Another school with 152 students had 1048 households enrolled in the program. The OIG said it will not disclose which schools to preserve its on-going investigation.

The report notes that additional households were blocked from enrolling in the program “by other program safeguards.”

Majority of abuse done by “handful” of providers

“Evidence shows this is not consumer-driven fraud – enrollment data directly links certain providers and their sales agents to these enrollments,” the report said, adding the same sales agents who overenrolled students in the aforementioned schools also did the same in other state schools.

“Sales agents who work for just a handful of EBB providers are responsible for the majority of this fraudulent enrollment activity,” it added.

Other examples of abuse, the report said, includes failure to identify the dependent child, the repeated use of the provider retail address as the address of homes served, and more than 2000 EBB households were noted as being more than 50 miles from their schools.

“As EBB providers incentivize sales agents to maximize enrollments by providing commission-based compensation, many of the abuses that once plagued the FCC’s Lifeline program have reappeared in the EBB program,” the report concluded, adding these providers will be liable for violations.

“If providers discover enrollment problems, OIG reminds them of their obligation to take appropriate remedial measures,” the report added. “Providers who defraud FCC programs by violating program enrollment rules and claim support for those households will be held accountable and may be subject to civil or criminal sanctions.”

The $3.2-billion EBB program, which launched in May, provides a subsidy of $50 per month to eligible low-income households and $75 per month for those living on native tribal lands, as well as a one-time reimbursement on a device. The program has enrolled over five million households so far.

The FCC is currently asking the public for comment on how it should handle the program’s expansion into a permanent fixture as a result of the Infrastructure Investment and Jobs Act signed by President Joe Biden last week.

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FCC Requires Telecom Companies to Let Subscribers Text to Suicide Prevention Hotline

The measure would increase access for those seeking emergency mental health assistance.

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WASHINGTON, November 18, 2021 – The Federal Communications Commission voted Thursday to require providers of telecommunications to permit individuals to text directly to a three digit number, 988, the National Suicide Prevention Lifeline.

The suicide prevention lifeline is a national network that offers free and confidential support in Americans in suicidal crisis or emotional distress. The move increases access for individuals in crisis by  routing text messages sent to 988 to the group’s 10-digit number, 1-800-273-8255 (TALK).

The vote to establish text-to-988 comes after Americans spent months isolated under stay-at-home orders in 2020. The CDC reported that last year, 44,834 individuals died by suicide in the United States. Experts have suggested that the pandemic has increased mental health struggles for Americans.  The FCC has repeatedly recognized suicide’s impact on at-risk communities, including youth, the Black community, the LGBT community, Veterans, and the deaf, hard of hearing, deaf-blind, and people who have speech disabilities that affect communication.

The FCC required text providers to support three digit dialing and text messages to 988 by July 16, 2022. “This uniform deadline will help to prevent confusion and facilitate unified outreach campaigns,” said Commissioner Geoffrey Starks, who described 988 as “life-saving work.” “I am pleased to approve today’s decision because Text-to-988 will save lives in vulnerable and underserved communities by taking advantage of this vital communications channel,” he said.

Commenting on her vote to approve the measure, FCC Chairwoman Jessica Rosenworcel noted that LGBT youth are almost five times as likely to attempt suicide than their heterosexual peers. “These young people deserve a future,” she said. “They deserve support. And that support should be simple to access. Today we help make that possible.”

Americans sent an estimated 2.2 trillion text messages in 2020. Texting to 988 may be an especially important option for young people, who may prefer the anonymity and convenience of texting a crisis counselor instead of engaging in a phone conversation, said the FCC.

The agency urged Americans who need help during the transition to 988 should contact the Lifeline by calling 1-800-273-8255 (1-800-273-TALK) and through online chats.

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Senators, Citing Funding Influx, Press Need to Confirm Rosenworcel

Senators pointed to FCC’s initiatives on mapping, which will need to be good to maximize federal funds for broadband.

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FCC Chairwoman Jessica Rosenworcel

WASHINGTON, November 18, 2021 – Senators tasked Wednesday with questioning Federal Communications Commission chairwoman Jessica Rosenworcel as part of her confirmation hearing urged the Commerce, Science and Transportation committee to hurry her through the process so she can focus on implementing critical initiatives, including better broadband maps that will be used to effectively implement the billions allocated in the infrastructure bill passed into law this week.

Rosenworcel was selected by President Joe Biden to be the permanent head of the agency late last month after being selected as the interim head following his inauguration as president. She now must get confirmation from the Senate.

Wednesday’s largely welcoming hearing included members expressing urgency to confirm Rosenworcel to the FCC before her term expires on January 3, 2022.

“We have a once in a lifetime opportunity to nominate someone who will effectively implement the infrastructure law to address the digital divide’s impact on disadvantaged communities,” said Sen. Richard Blumenthal, D-Connecticut.

“[Rosenworcel] has been a distinguished champion, energetic and compassionate champion on a number of issues, including robocalls, net neutrality, and providing spectrum coordination.” Blumenthal, who said he was “honored to introduce [Rosenworcel] as the nominee,” has worked closely with Rosenworcel since her confirmation to the FCC as a commissioner in 2012.

Sen. Brian Schatz, D-Hawaii, said it was “important” that Rosenworcel’s nomination goes through the committee’s markup process to expedite her confirmation.

The warm reception at committee was in line with a previous request from lawmakers representing 17 states urging Biden to nominate Rosenworcel as the permanent head of the agency.

Rosenworcel addresses mapping

Rosenworcel answered a number of questions from Senators about the FCC’s progress on completing its broadband mapping ahead of more federal funding to deploy broadband.

Rosenworcel told Sen. Amy Klobuchar, D-Minnesota, that to overcome challenges in funding broadband programs from the Infrastructure Investment and Jobs Act – which became law this week – funding communities “requires good execution to do it well.

“We need to make smart decisions about where to fund and deploy,” she said. “All of the funding for the infrastructure bill depends on the mapping.” By confirming her nomination to the FCC, Rosenworcel says she would “get the money out quickly after getting mapping” and focus on “putting a premium on the projects we can complete fastest.”

The FCC released a statement of objectives this month to commission mobile wireless and fixed broadband data for better mapping. Mapping faults, such as that from relying on less-than-reliable internet service provider data, was most prominently seen from the fallout of the Rural Digital Opportunity Fund’s reverse auction. The new initiative is part of the  Broadband Deployment Accuracy and Technological Availability Act, which became law last year.

“We need to make sure 100 percent of us in this country have access to fast, affordable, and reliable broadband—every household, every business, every consumer, everyone, everywhere,” she said. ‘If confirmed, it will be an honor to lead this charge,” Rosenworcel said.

“If confirmed, I pledge to listen to this Committee, which not that long ago I had the great honor of serving as counsel. And if confirmed, I pledge more broadly to listen to the Congress, those with business before the FCC and above all—the American people.”

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