FCC Gets Mixed Reaction on MTE Broadband Access

The FCC received mixed reaction as it sought to refresh the record on broadband access in multi-tenant environments, in comments posted through Thursday in docket 17-142 (see 2109070047). Many telecom and consumer groups urged to limit or outright exclusivity agreements and other practices that limit MTE options for ISPs and consumers. Others argued against additional regulation.

The FCC should "do what it can within its legal authority to limit the chilling effect" the agreements may have on broadband competition, said the National League of Cities. Prohibit “non-cost-based revenue sharing agreements, exclusive marketing agreements, and exclusive wiring and rooftop agreements," said the Wireless ISP Association. Revenue sharing agreements should be allowed only if they're "cost-based and non-discriminatory," said the Fiber Broadband Association.

Exclusive wiring arrangements “preclude competition amongst providers on core factors based on which a consumer might normally make individual service decisions,” said the Boston Housing Authority, which the city echoed. T-Mobile said any arrangement that "explicitly or effectively restricts other providers' access to MTEs" should be prohibited. The commission has "ample authority" to do so, it said.

ISPs "regularly exploit loopholes in commission rules" and the FCC should limit revenue sharing agreements and exclusive wiring or marketing arrangements, said Public Knowledge and Consumer Reports. Next Century Cities said such agreements come "at the expense of diverse service offerings for residents."

Providers are "routinely denied access to MTEs" due to exclusivity, said Incompas. The pacts are the "single biggest barrier to competitive providers." Revenue sharing and exclusive marketing agreements "make it impossible for our companies to provide service to those living in MTEs or to effectively compete for residents' business," said Consolidated Communications and Ziply Fiber, which Adtran echoed. Such agreements "have an outsized impact on affordable communities and low-income residents when these consumers are limited to one provider," said Starry. Prohibiting them "will ensure that new entrants can introduce more affordable, innovative offerings for consumers on a level playing field," the ISP said.

Don't let providers enter agreements that "require revenue sharing or other above-cost fees as a condition of access to the MTE," said Lumen. Revenue sharing "should never be a condition of access," it said. "Bar all wireless and wireline broadband providers from entering into MTE exclusive access agreements," said NCTA, saying revenue sharing and exclusive marketing agreements should still be allowed. "Promote competition and encourage deployment" by "prohibiting providers from entering into agreements with MTEs that restrict others’ access," said the Competitive Carriers Association. “We are actively reviewing the record and considering next steps," emailed an FCC spokesperson Thursday.

The National Multifamily Housing Council, National Apartment Association, Council for Affordable and Rural Housing, ICSC, Institute of Real Estate Management, Nareit, National Leased Housing Association, and Real Estate Roundtable asked the commission to "refrain from adopting any further regulation affecting broadband deployment" in the MTE market. FCC proposals "would do nothing to address deployment where it is actually needed most,” the groups said, saying exclusivity agreements are "beneficial to consumers" and "allow competition." The Wireless Infrastructure Association said potential requirements in the NPRM "did not reflect the realities of network deployments" and "failed to consider that technological flexibility and competition are essential to the profitability of neutral-host, in-building" distributed antenna systems operators.

The "burden" is on the FCC and proponents of change to "clearly demonstrate that the current state of competition is harmful to consumers," said the U.S. Chamber of Commerce’s Technology Engagement Center, saying the practices identified in the proceeding "are in fact pro-competitive." The group said it's "concerned" that the FCC appears to be implementing the policy recommendations in President Joe Biden's June executive order, "which is contrary to the FCC's status as an independent federal regulatory agency."

Commenters disagreed whether disclosure or disclaimer requirements would be effective. It would be "a burden on even larger providers with little consumer benefit" unless such a disclosure was informing tenants that service was available and how to contact that provider, WISPA said. ACA Connects said members "face substantial competition in seeking to enter and provide service in MTEs." The FCC should consider "adopting disclosure requirements that make various service arrangements more transparent," it said. Lumen backed disclosure requirements for revenue sharing.