Improving Competitive Broadband Access to Multiple Tenant Environments
| Published date | 20 September 2021 |
| Citation | 86 FR 52120 |
| Record Number | 2021-20147 |
| Section | Proposed rules |
| Court | Federal Communications Commission |
Federal Register, Volume 86 Issue 179 (Monday, September 20, 2021)
[Federal Register Volume 86, Number 179 (Monday, September 20, 2021)]
[Proposed Rules]
[Pages 52120-52122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20147]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 8, 64, 76
[GN Docket No. 17-142; DA 21-1114; FR ID 48290]
Improving Competitive Broadband Access to Multiple Tenant
Environments
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Wireline Competition Bureau (WCB)
refreshes the record in Improving Competitive Broadband Access to
Multiple Tenant Environments Proceeding.
DATES: Comments are due on or before October 20, 2021, and reply
comments are due on or before November 4, 2021.
ADDRESSES: You may submit comments, identified by GN Docket No. 17-142,
by any of the following methods:
Electronic Filers: Comments may be filed electronically
using the internet by accessing ECFS: https://www.fcc.gov/ecfs/.
Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing.
Filings can be sent by commercial overnight courier, or by first-
class or overnight U.S-. Postal Service mail. All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
Annapolis Junction, MD 220701.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 45 L Street NE, Washington, DC 20554.
Effective March 19, 2020, and until further notice, the
Commission no longer accepts any hand or messenger delivered filings.
This is a temporary measure taken to help protect the health and safety
of individuals, and to mitigate the transmission of COVID-19. See FCC
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, 35 FCC Rcd 2788 (Mar. 19, 2020),
https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
People with Disabilities: To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an email to [email protected] or call the
Consumer & Government Affairs Bureau at (202) 418-0530.
Ex Parte Rules. This proceeding shall be treated as a ``permit-but-
disclose'' proceeding in accordance with the Commission's ex parte
rules. See 47 CFR 1.1200 et seq. Persons making ex parte presentations
must file a copy of any written presentation or a memorandum
summarizing any oral presentation within two business days after the
presentation (unless a different deadline applicable to the Sunshine
period applies). Persons making oral ex parte presentations are
reminded that memoranda summarizing the presentation must: (1) List all
persons attending or otherwise participating in the meeting at which
the ex parte presentation was made; and (2) summarize all data
presented and arguments made during the presentation. If the
presentation consisted in whole or in part of the presentation of data
or arguments already reflected in the presenters written comments,
memoranda, or other filings in the proceeding, the presenter may
provide citations to such data or arguments in his or her prior
comments, memoranda, or other filings (specifying the relevant page
and/or paragraph numbers where such data or arguments can be found) in
lieu of summarizing them in the memorandum. Documents shown or given to
Commission staff during ex parte meetings are deemed to be written ex
parte presentations and must be filed consistent with Sec. 1.1206(b)
of the Commission's rules. In proceedings governed by Sec. 1.49(f) of
the rules or for which the Commission has made available a method of
electronic filing, written ex parte presentations and memoranda
summarizing oral ex parte presentations, and all attachments thereto,
must be filed through the electronic comment filing system available
for that proceeding, and must be filed in their native format (e.g.,
.doc, .xml., .ppt, searchable .pdf). See 47 CFR 1.1206(b). Participants
in this proceeding should familiarize themselves with the Commission's
ex parte rules.
FOR FURTHER INFORMATION CONTACT: Jesse Goodwin, Attorney Advisor,
Competition Policy Division, Wireline Competition Bureau, at (202) 418-
0958, or email: [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
document, Public Notice, in GN Docket No. 17-142, DA 21-1114; released
on September 7, 2021. The complete text of this document is available
for download at https://docs.fcc.gov/public/attachments/DA-21-1114A1.pdf. To request materials in accessible formats for people with
disabilities (Braille, large print, electronic files, audio format),
send an email to [email protected] or call the Consumer and Governmental
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).
Synopsis
By this document, the Wireline Competition Bureau (Bureau) invites
parties to update the record on issues raised in the 2019 Improving
Competitive Broadband Access to Multiple Tenant Environments Notice of
Proposed Rulemaking (NPRM), including but not limited to (1) revenue
sharing agreements; (2) exclusive wiring arrangements, including sale-
and-leaseback arrangements; and (3) exclusive marketing arrangements.
Americans living and working in multiple tenant environments (MTEs)
face various obstacles to obtaining the benefits of competitive choice
of fixed broadband, voice, and video services. Telecommunications
carriers and multichannel video programming distributors (together,
``service providers'') need to access building conduits, install wiring
to individual units or premises, and make repairs once wiring has been
installed. Complicating these tasks is the fact that providing service
to MTEs involves not just the service provider and the end-user tenant,
but a third party: The premises owner or controlling party (MTE owner).
As a result, deploying facilities-based fixed services to the millions
of Americans living and working in MTEs can be uniquely challenging.
The Commission has endeavored to increase competition among service
providers and reduce potential barriers to broadband deployment in
MTEs. Beginning in 2000, the Commission, through a series of orders,
prohibited service providers from entering into contracts with MTE
owners that give a service provider exclusive access to the building to
offer its services. In the NPRM, the
[[Page 52121]]
Commission sought comment on a range of common practices in MTEs that
could have the effect of dampening competition or deployment. We seek
to refresh the record to better understand how the Commission can best
``facilitate enhanced deployment and greater consumer choice for
Americans living and working in'' MTEs. (The Commission has defined
MTEs as ``commercial or residential premises such as apartment
buildings, condominium buildings, shopping malls, or cooperatives that
are occupied by multiple entities.'')
Revenue Sharing Agreements. We seek to refresh the record on the
impact revenue sharing agreements have on competition and deployment of
facilities in MTEs. In the NPRM, the Commission explained that revenue
sharing agreements are contracts between MTE owners and service
providers where the owner ``receives consideration from the
communications provider in return for giving the provider access to the
building and its tenants.'' The Commission recognized that revenue
sharing agreements can take various forms. For example, they can be
simple one-time payments calculated on a per-unit basis (sometimes
referred to as door fees); or they can be pro rata, calculated as a
portion of revenue generated from tenants' subscription service fees.
These pro rata agreements may also be graduated, where the building
owner receives more revenue as the proportion of tenants in a building
choose that service provider. And some revenue sharing agreements may
be considered ``above cost''--that is, they may give MTE owners
compensation beyond actual costs associated with the installation and
maintenance of wiring. The Commission sought comment on the impact
revenue sharing agreements have on competition and deployment, as well
as whether they reduce incentives for building owners to grant access
to competitive providers given that a lower number of subscribers for
the incumbent provider means reduced income to the building owner. It
also asked whether revenue sharing agreements were being used to
circumvent Commission rules prohibiting exclusive access agreements,
whether alone or in combination with other contractual provisions.
We seek to refresh the record on whether the Commission should
restrict some or all of these types of revenue sharing agreements. Have
there been changes over the last two years as to how frequently these
agreements are used in MTEs? How do these agreements affect the ability
of tenants to choose their service provider? How do they affect the
prices that tenants ultimately pay for service? What are the effects of
these agreements on competition among service providers? Do these
agreements promote or inhibit entry by competitive providers? In what
ways do revenue sharing agreements affect how service providers compete
for customers? Do they encourage or discourage service providers to
compete on the basis of price or service quality? Do service providers
attempt to negotiate agreements that work to exclude competitors? If
revenue sharing agreements function to prevent competing providers from
deploying, does the MTE in effect become a locational monopoly? What
legitimate reasons might a competitive provider and building owner have
to enter into such agreements? For example, do these agreements affect
competitive providers' ability to offer services in MTEs, such as by
enabling providers to secure financing to deploy facilities? Do the
drawbacks of such agreements outweigh any benefits? Should the
Commission restrict the use of revenue sharing agreements?
Alternatively, should the Commission require the disclosure of such
agreements?
We seek comment on whether the Commission should address specific
types of revenue sharing agreements. For example, should it restrict
above-cost revenue sharing agreements? If so, how should the Commission
define costs? How would any such restrictions impact tenants? How could
the Commission best and most effectively monitor compliance?
Additionally, we seek comment on whether the Commission should take
action to address graduated revenue sharing agreements. To what extent
do such agreements lead building owners to favor one provider over
others and to exclude competitors? Similarly, we seek comment on
revenue sharing agreements containing exclusivity provisions that may
prevent building owners from offering equal terms to other providers.
Do such provisions negatively affect competition and deployment in
MTEs? Should the Commission restrict or prohibit such agreements, or
require their disclosure? Are there any other provisions in such
agreements that may serve to hinder competitive access?
Exclusive Wiring Arrangements. Second, we seek to refresh the
record on the effect of exclusive wiring arrangements on competition
and deployment of facilities in MTEs. In the NPRM, the Commission
explained that under an exclusive wiring arrangement, service providers
``enter into agreements with MTE owners under which they obtain the
exclusive right to use the wiring in the building.'' The Commission
sought comment on whether it remained true that, as it had previously
concluded in 2007, ``exclusive wiring arrangements do not preclude
competitive providers' access to buildings.'' It also asked whether
such arrangements differ in states and localities where mandatory
access laws have been introduced.
We seek to refresh the record in light of possible developments
since the NPRM. Should the Commission revisit its conclusion that
exclusive wiring arrangements generally do not preclude access to new
entrants, and thus do not violate its rules? What are the practical
effects of exclusive wiring agreements in today's communications
marketplace? Can exclusive wiring arrangements otherwise circumvent
Commission rules? What anti-competitive effects or adverse impacts on
deployment, if any, do exclusive wiring arrangements have? What
benefits, if any, do exclusive wiring arrangements have, and do the
benefits outweigh any drawbacks, particularly to tenants? Do exclusive
wiring arrangements affect tenants' choice in providers? Do they
inhibit entry by competing service providers? Do they encourage or
discourage service providers to compete on the basis of price or
service quality? Are there specific varieties of exclusive wiring
arrangements, such as those containing provisions for exclusive use of
MTE-owned wiring, that the Commission should study? What are the
benefits and drawbacks of shared access to wiring and other facilities,
in contrast to exclusive wiring arrangements? Does shared access
promote competitive entry and tenant choice?
We seek to refresh the record on sale-and-leaseback arrangements, a
subset of exclusive wiring arrangements. In the NPRM, the Commission
explained that sale-and-leaseback arrangements ``occur when a service
provider sells its wiring to the MTE owner and then leases back the
wiring on an exclusive basis.'' The Commission has in place rules that
facilitate competitive choice by making the previous provider's inside
wiring available to MTE owners and tenants for other service providers
to use after it has terminated service. Do sale-and-leaseback
arrangements act as an end run around these rules by putting wiring
ownership in the hands of the building owner, which is not subject to
the Commission's rules? Regardless of whether they in effect act as a
loophole, should the Commission prohibit such arrangements generally or
in limited circumstances? The Commission also
[[Page 52122]]
sought comment on whether ``the policy considerations around sale-and-
leaseback and other exclusive wiring arrangements differ.'' Are there
reasons to distinguish sale-and-leaseback arrangements from other kinds
of exclusive wiring arrangements?
Exclusive Marketing Arrangements. Third, we seek to refresh the
record on exclusive marketing arrangements. In the NPRM, the Commission
explained that an exclusive marketing arrangement is ``an arrangement,
either written or in practice, between an MTE owner and service
provider that gives the service provider, usually in exchange for some
consideration, the exclusive right to certain means of marketing its
service to tenants of the MTE.''
The Commission asked whether specific circumstances might lead to
such arrangements resulting in de facto exclusive access. For example,
do these arrangements create confusion on the part of tenants or
building owners as to whether only one provider can or does offer
service to the building? We also seek to update the record on the
Commission's question regarding ``what might be done to correct''
possible consumer confusion. Additionally, the Commission asked whether
disclosure or disclaimer requirements would alleviate these problems,
and when they might be warranted. Commenters have addressed the impact
and costs of such requirements. We seek updated information on these
issues, as well as on the benefits of exclusive marketing arrangements,
particularly with respect to small competitive carriers. Do the
benefits of such arrangements outweigh the costs? Do disclosure
requirements affect tenant choice in providers, or the ability of
competitors to deploy? And do they affect how service providers
compete, such as in terms of price or service quality? What impact does
this have on tenants? Have there been developments over the last few
years that should impact the Commission's analysis on this issue?
Other Issues. In addition to refreshing the record on the issues
outlined above, we also seek to refresh the record on other issues
outlined in the NPRM and raised in the record. For example, in
evaluating these issues, does the calculus differ based on the size of
the MTE and, if so, should the Commission approach small MTEs
differently than others for purposes of any rules it adopts? How should
it define small MTEs for these purposes?
We also seek comment on whether there are other types of
contractual provisions and non-contractual practices that affect
competition, limit tenant choice, or lead to increased prices or
decreased service quality. Are there benefits and drawbacks to shared
access to facilities in MTEs, including telecom closets, conduit, and
wiring? Can the sharing of facilities increase competition and tenant
choice in MTEs? We also seek to refresh the record on mandatory access
laws and other efforts to increase competitive access to MTEs and the
infrastructure within them. What are the effects of these laws on
competition, choice, and price in MTEs?
Finally, we seek to refresh the record on the Commission's
jurisdiction and statutory authority to address the issues and
practices raised above.
Federal Communications Commission.
Pamela Arluk,
Division Chief, Wireline Competition Bureau.
[FR Doc. 2021-20147 Filed 9-17-21; 8:45 am]
BILLING CODE 6712-01-P
