FCC Seeks Updated Information on Competition in Multi-Tenant Environments

Davis Wright Tremaine LLP

Davis Wright Tremaine LLP

The Federal Communications Commission has invited comments to update and refresh the record in a 2019 proceeding that examines broadband competition within apartments, gated communities, and other multiple tenant environment (MTE) buildings (also known as multiple dwelling units or MDUs). The Commission's Public Notice seeks input on three types of currently permissible MTE agreements—revenue-sharing, exclusive wiring, and exclusive marketing agreements—and how they might reduce competition or infrastructure deployment within MTEs.

The 2019 Notice of Proposed Rule Making is the most recent in a long line of Commission proceedings examining MTE competition and setting rules for the use and sharing of inside wiring. The Commission previously declared that provisions for exclusive access or exclusive service in agreements between cable operators and MTE managers are unenforceable. On the other hand, the Commission has allowed service providers to enforce contractual provisions for bulk billing and exclusive marketing arrangements, finding that the benefits of these agreements outweighed any negative effects.

The Public Notice renews questions the Commission asked in a 2019 NPRM it issued with a Declaratory Ruling preempting part of a San Francisco ordinance that required service providers to share existing wiring already in use in MTEs. The Commission found that the San Francisco ordinance's requirement for operators to share wiring even if they were using it deterred broadband deployment, undercut the Commission's rules regarding control of cable wiring in residential MTEs, and threatened the Commission's framework to protect the technical integrity of cable systems for the benefit of viewers.

The Public Notice requests new and updated information on these issues:

  • The potential impact of revenue sharing agreements, including "door fees," on MTE competition, and whether any specific types of such agreements should be limited (e.g., agreements for above-cost shares of revenue);
  • The effect of exclusive wiring arrangements on competition and deployment of facilities in MTEs, including "sale-and-leaseback" agreements whereby a service provider sells its wiring to the MTE owner and leases that wiring on an exclusive basis; and
  • The effect and potential benefits of exclusive marketing agreements, including the potential for such agreements to confuse consumers.

The Public Notice does not ask for information on previously approved bulk billing arrangements, under which a building owner pays a single provider monthly for service to all MTE residents and then factors each unit's pro rata charge into the unit's monthly rent or condominium fee.

Comments are due 30 days after publication of the Public Notice in the Federal Register, and replies are due 15 days later. 

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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