The Federal Communications Commission (FCC) voted to move forward on a proposed rule on July 10 that aims to take a broad look at the state of broadband deployment and competition in multi-tenant environments (MTEs), which includes apartment communities, condominiums and traditional commercial properties. The proposed rule builds upon the FCC’s 2017 Notice of Inquiry, where NMHC twice filed comments arguing against new regulatory action. In addition, NMHC and NAA member firms and other real estate trade groups submitted supportive reply comments,
The new Notice of Proposed Rulemaking (NPRM) is not overly prescriptive and does not impose new regulations on the MTE telecom marketplace. It does, however, pose significant questions about current industry practices – including revenue sharing, rooftop access, exclusive wiring and exclusive marketing agreements. The FCC appears to have taken a balanced approach in citing the many positive benefits of facilities-based competition and the importance of negotiating agreements between property owners and service providers,
Of particular note, the NPRM includes a Declaratory Ruling that pre-empts, on a limited basis, a San Francisco mandatory access ordinance because it requires the sharing of in-use wiring. The majority of the flawed ordinance still stands but the move by the FCC is welcome news to NMHC and NAA who called for pre-emption. In a proceeding filed by the Multifamily Broadband Council (MBC), NMHC and NAA submitted original comments and reply comments, and facilitated an industry advocacy effort supporting MBC’s challenge to the San Francisco ordinance.
The timing on the Proposed Rule is still fluid. Once the Proposed Rule is published in the Federal Register, the industry will have 30 days to comment and then have an opportunity to file reply comments later. Again, NMHC and NAA will continue to review this matter and will be formulating a plan to engage industry stakeholders, allied real estate organizations and other interested parties in hopes of educating the FCC about the need to preserve property rights and to ensure that infrastructure deployment of any kind be done in cooperation with property owners.
This FCC action to pre-empt the San Francisco ordinance, even on a limited basis, has drawn opposition from some policymakers. Representative Katie Porter (D-CA) offered an amendment to the FY2020 Financial Services/General Government Appropriations bill to prevent the FCC from moving forward with the pre-emption. NMHC and NAA sent a letter of opposition to the House in advance of the vote. Unfortunately, the amendment passed as part of a larger package of amendments. Notably, Representative Tim Walberg (R-MI) spoke forcefully against the measure. Final enactment of the amendment and the overall bill remains unlikely as the Senate and the White House have expressed opposition to many components of the legislation.