FCC Revives MTE Rules Proceeding After Two Years
The FCC revived its proceeding on broadband access in multiple tenant environment buildings Tuesday, announcing it will seek comments on revenue sharing and exclusivity agreements. President Joe Biden signed an executive order in July encouraging the FCC to prevent ISPs from signing exclusivity agreements with landlords and promote competition (see 2107090006).
The Wireline Bureau wants comments on the impact of revenue sharing agreements on competition and deployment, and whether those agreements are being used to circumvent commission rules banning exclusive access agreements. The bureau also wants to know whether exclusive marketing agreements create confusion for tenants or building owners about whether only one provider is available to service that building. Comments will be due 30 days after publication in the Federal Register, 45 days for replies, in docket 17-142.
It’s “time to take a fresh look at how exclusive agreements between carriers and building owners could lock out broadband competition and consumer choice,” said acting Chairwoman Jessica Rosenworcel in a statement. An FCC spokesperson didn’t say whether the commission will issue an NPRM or order after the comment period. “We’re focused on reviewing the record,” she said.
The public notice also seeks comment on the commission's statutory authority to address the issues. Two years ago the FCC approved an NPRM seeking comments on the issue and voted along party lines to partially preempt San Francisco's Article 52 open-access rule (see 1907100020). “We somehow claim we have unfettered authority when it comes to broadband in buildings but disown our general authority over the same in our net neutrality proceeding, where we pronounced broadband beyond the reach of this agency,” Rosenworcel said then.
The FCC took “fairly unhelpful actions” when it preempted San Francisco’s ordinance, said Free Press Associate Director-Broadband Policy Dana Floberg: “We’re certainly pleased to see these issues being lifted up and the commission trying to get some actual data.” The group hasn’t decided whether it will submit comments. There are “still workarounds” for providers to have some sort of exclusivity arrangements with buildings, said Public Knowledge Director-Government Affairs Greg Guice: "Hopefully [the FCC] will get to a decision because this is an ongoing problem." Whether the commission acts after comments are reviewed depends on there being a fifth commissioner, Guice said (see 2107090063): "A fifth commissioner is going to be critical to this decision."
Several groups said they plan to submit comments. Incompas will “renew our call to end arrangements that exclude competition and create scarcity,” said Attorney-Policy Advisor Christopher Shipley in a statement. The National Multifamily Housing Council will “[build] off of our previous filings and industry data that shows renters, by and large, are well served by the multifamily broadband market,” emailed Vice President-Government Affairs for Technology and Strategic Initiatives Kevin Donnelly: “NMHC believes the FCC should uphold the existing model and continue to look for ways to bridge the digital divide.”
The Wireless ISP Association "fully supports the FCC’s refresh of the administrative record” to “help identify and eliminate the continuing market entry barriers for new competitive providers’ access to MTEs,” emailed Vice President-Policy Louis Peraertz: “Long-standing exclusivity wiring and marketing agreements, as well as perpetual revenue sharing arrangements, do not foster competition and choice for consumers.” WISPA plans to submit comments. It’s “too early to say” whether AT&T will file comments, emailed a spokesperson. "We’re still reviewing the notice," emailed a Lumen spokesperson. USTelecom declined to comment.