Panelists at the 2014 NMHC OpTech session, “The Stakes are High! Telecommunications, Media and Music Licensing Policy Update,” provided a comprehensive overview of important emerging telecommunications regulations and key takeaways for apartment owners and operators. Panel participants included Matt Ames, partner with Hubacher & Ames, and Christopher Mohr, partner with Meyer, Klipper & Mohr.
Cell Signal Boosters
In September, the Federal Communications Commission (FCC) made minor amendments to signal booster rules that apply to the manufacturers and deployers of cell signal boosters.
The FCC also asked for comment on whether personal use restriction for single provider boosters should be removed. Under current rules, if you want to use a signal booster, you must have the providers consent. If you have a consumer grade booster, consent has already taken place.
Small Cell Towers
The FCC has issued a small cell tower order. Any kind of cell installation is potentially subject to review under the National Environmental Protection Act. There are other categories that are completely excluded-for example, installing an existing tower on a building.
Notable FCC WiFi Case
Staff at Marriott’s Gaylord Opryland Hotel blocked guests from using their own mobile WiFi hotspots. The FCC fined Marriott $600,000 for violating Section 333 of the Communications Act (forbidding willful interference with licensed radio communications).
Broad consensus is in favor of some form of regulatory oversight when it comes to net neutrality, but there is no consensus on how much. Concerns include:
- Internet Service Providers (ISPs) could block consumer access to certain content;
- ISPs could degrade network performance in a way that has the same effect for disfavored users; and
- Paid prioritization would favor larger, wealthier users over smaller competitors.
The Communications Act doesn’t directly address regulations of Internet services. Currently, the FCC is trying to adopt net neutrality rules that courts will accept within existing authority.
Congress is likely going to have to resolve net neutrality and push legislation forward. Although the original goal was to act this year that seems unlikely. No matter what the FCC does, the issue is not going away.
The Comcast and Time-Warner merger is expected to take place in the second quarter of 2015. However, the direct effect on apartment firms would be minimal - existing franchise agreements and building access agreements would be transferred and enforceable.
Direct effects of the planned AT&T and DirecTV merger could be significant for the apartment industry - it is unclear at this time what will happen in buildings served by both AT&T and DirecTV or a DirecTV reseller.
Media and Music Licensing Policy
The most commonly used right for music is for pubic performance. Performing rights organizations go after those who play music without obtaining the right. This ensure that artists are compensated for their work. SESAC is the organization that talks to the apartment community primarily.
As a result, for example, if an apartment community plays music in the lobby, the rights to play that music need to be obtained. Their interpretation includes, but it not exclusive to, the following:
- A place that is open to the public;
- A place where a substantial number of persons outside of a family and its close acquaintances is present; and
- Where and when the members of the public capable of receiving the performance or display receive it.
So what can apartment firms do to mitigate their risk of breaking copyright law?
- Remember that it only applies to radio and TV;
- Note that if there is more than 2,000 square feet then the apartment firm will be subject to restrictions;
- Make sure no TV is bigger than 55 inches; and
- Note that “Family DVD Night” in a common area would be subject to copyright laws.
Much of the information provided by the panelists and reported in this article was simplified due to the often complex nature of telecommunications, media and music licensing policy. As a result, the best advice for apartment owners and operators is to consult with the appropriate legal authority in relationship to these issues.
NMHC’s website offers numerous online telecommunications and music licensing resources for members.
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