FCC Urged to Drop Bulk Billing Ban Proposal
Citing two recent court rulings, broadband advocates argued the FCC lacked authority to enforce the proposed rule.
Jericho Casper
WASHINGTON, Oct. 28, 2024 – A coalition of broadband advocates has urged the nation’s telecom regulator to abandon its proposal to regulate bulk billing for internet in apartment complexes, arguing the federal regulators lack the legal authority to enforce such a rule.
In a recent filing, the Bulk Broadband Alliance said, "Not only is the FCC confronting overwhelming evidence that bulk billing arrangements are pro-consumer and an opt-out regulatory regime is not, it also faces insurmountable legal obstacles to regulating bulk deals."
BBA pointed to two court decisions that it said had severely constrained the FCC’s regulatory reach.
The first decision, issued by a panel of the U.S. Court of Appeals for the Sixth Circuit on Aug.1, stayed the FCC’s 2024 reclassification of broadband as a Title II telecommunications service under net neutrality rules. The stay prevented the FCC from asserting Title II authority over broadband services, which the BBA claimed eliminated any legal basis for the FCC to regulate bulk billing practices among broadband providers.
The second decision – Loper Bright Enterprises v. Raimondo – issued by the U.S. Supreme Court in June, further narrowed the scope of agency power. In Loper Bright, the Court scuttled longstanding Chevron deference, which had allowed agencies to interpret ambiguous statutory language broadly if the interpretation was reasonable. The BBA argued that Loper Bright made it unlawful for the FCC to regulate bulk billing without explicit statutory authority.
Citing these decisions, the BBA emphasized that any FCC attempt to implement an opt-out rule in bulk billing would face substantial legal obstacles.
“We respectfully request that the FCC withdraw its proposed [rulemaking],” the BBA wrote, urging the FCC to avoid a rulemaking that could result in prolonged legal challenges.
Behind the letter was a coalition of nonprofits and housing groups that have been making their case to the FCC since April.
The Bulk Broadband Alliance includes organizations like EducationSuperHighway, the Community Associations Institute, the National Multifamily Housing Council, the National Apartment Association, and ACA Connects - America’s Communications Association.
The groups formed BBA back in July to oppose FCC Chairwoman Jessica Rosenworcel’s plan to ban bulk billing contracts for internet and other communications services in condos, apartments, and other multi-dwelling units. Rosenworcel said her plan would give consumers the ability to opt out of bulk deals and search for their own Internet Service Provider.
However, according to the BBA, these bulk arrangements typically reduce prices by at least 50% compared to retail plans, eliminate extra fees such as installation costs, and often lead to better service quality.
The coalition has contended that permitting opt-outs would undermine these benefits, resulting in higher prices, reduced market efficiency, and harms to low-income residents. This would ultimately harm consumers by diluting the bargaining power that MDUs wield when negotiating for bulk services, BBA argued.
