Improving Competitive Broadband Access to Multiple Tenant Environments, 37219-37228 [2019-16231]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 84, Number 147 (Wednesday, July 31, 2019)]
[Proposed Rules]
[Pages 37219-37228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16231]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 8, 64, and 76

[GN Docket No. 17-142; FCC 19-65]


Improving Competitive Broadband Access to Multiple Tenant 
Environments

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, we seek targeted comment on a variety of 
issues that may affect the provisioning of broadband to MTEs, including 
exclusive marketing and wiring arrangements, revenue sharing 
agreements, and state and local regulations. We also seek comment on 
our legal authority to address broadband, telecommunications, and video 
deployment and competition in MTEs. The Commission adopted the NPRM in 
conjunction with a Declaratory Ruling in GN Docket No. 17-142 and MB 
Docket 17-91.

DATES: Comments are due on or before August 30, 2019, and reply 
comments are due on or before September 30, 2019.

ADDRESSES: You may submit comments, identified by GN Docket No. 17-142, 
by any of the following methods:
    [ssquf] Federal Communications Commission's Website: https://www.fcc.gov/ecfs/. Follow the instructions for submitting comments.
    [ssquf] Mail: Parties who choose to file by paper must file an 
original and one copy of each filing. If more than one docket or 
rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number. Filings can be sent by hand or messenger delivery, 
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. 
All hand-delivered or messenger-delivered paper filings for the 
Commission's Secretary must be delivered to FCC Headquarters at 445 
12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 
8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with 
rubber bands or fasteners. Any envelopes and boxes must be disposed of 
before entering the building. Commercial overnight mail (other than 
U.S. Postal Service Express Mail and Priority Mail) must be sent to 
9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal Service 
first-class, Express, and Priority mail must be addressed to 445 12th 
Street SW, Washington, DC 20554.
    [ssquf] 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 & Governmental Affairs Bureau at 202-418-0530 
(voice), 202-418-0432 (tty).
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Annick Banoun, Competition Policy 
Division, Wireline Competition Bureau, at (202) 418-1521, 
[email protected].

[[Page 37220]]


SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking in GN Docket No. 17-142, adopted on July 10, 
2019 and released on July 12, 2019. The full text of this document is 
available at https://docs.fcc.gov/public/attachments/FCC-19-65A1.pdf. 
The full text is also available for public inspection during regular 
business hours in the FCC Reference Information Center, Portals II, 445 
12th Street SW, Room CY-A257, Washington, DC 20554. To request 
materials in accessible formats for people with disabilities (e.g. 
braille, large print, electronic files, audio format, etc.) or to 
request reasonable accommodations (e.g. accessible format documents, 
sign language interpreters, CART, etc.), send an email to 
[email protected] or call the Consumer & Governmental Affairs Bureau at 
(202) 418-0530 (voice) or (202) 418-0432 (TTY).

Synopsis

I. Notice of Proposed Rulemaking

    1. In this Notice of Proposed Rulemaking (NPRM), we continue our 
efforts to ensure that all Americans have access to high-speed 
broadband, regardless of the type of housing in which they reside or 
the level of income they earn, and regardless of where they work. 
Specifically, we seek comment on ways to facilitate enhanced deployment 
and greater consumer choice for Americans living and working in MTEs.
    2. In this NPRM, we refresh the record in response to the MTE 
Notice of Inquiry and seek further targeted comment on a variety of 
issues that may affect the provisioning of broadband to MTEs, including 
exclusive marketing and wiring arrangements, revenue sharing 
agreements, and state and local regulations. We believe that the 
questions we ask here will facilitate the development of a more 
detailed record to establish effective, clear policy that is carefully 
tailored to promote broadband deployment to MTEs. We also seek comment 
on our legal authority to address broadband, telecommunications, and 
video deployment and competition in MTEs. Specifically, we seek comment 
on ensuring that any new rules we adopt apply equally to all 
competitors in the MTE marketplace and do not create regulatory 
asymmetry.

A. Revenue Sharing Agreements

    3. We seek comment on whether we should require the disclosure or 
restrict the use of revenue sharing agreements for broadband service. 
In revenue sharing agreements, the building owner receives 
consideration from the communications provider in return for giving the 
provider access to the building and its tenants. This consideration can 
take many forms, ranging from a pro rata share of the revenue generated 
from tenants' subscription service fees, to a one-time payment 
calculated on a per-unit basis (sometimes called a door fee), to 
provider contributions to building infrastructure, such as WiFi service 
for common areas.
    4. We seek comment on what impact revenue sharing agreements have 
on competition and deployment within MTEs. Some commenters contend that 
such agreements are a key tool in building owners' ability to build 
out, maintain, and upgrade their networks, and they also contend that 
revenue sharing agreements do not raise costs for tenants. They argue 
that these agreements enable MTE owners to use the consideration they 
receive from communications providers to offset infrastructure costs 
associated with providing broadband service to tenants, and that 
restricting these types of agreements will induce MTE owners to raise 
rents or cut costs by reducing infrastructure investment. Blue Top 
Communications, a small cable and broadband provider, claims that, 
without revenue sharing agreements and other similar agreements 
granting access to the MTE, it will be unable to compete in the MTE 
market. We seek comment on these assertions. Do revenue sharing 
agreements enable competitive broadband providers to offer services in 
MTEs and, if so, how? For example, what effect do these agreements have 
on competitive providers' ability to secure financing to deploy 
facilities? Do revenue sharing agreements affect competition and 
deployment only if they are exclusive to a single provider?
    5. Conversely, we seek comment on whether revenue sharing 
agreements reduce incentives for building owners to grant access to 
competitive providers when any subscriber gained by such a provider 
means reduced income to the building owner. Some commenters argue 
further that protracted negotiations over these types of agreements can 
inhibit competition by preventing providers from deploying broadband 
services on a timely basis. We seek comment on these assertions. In 
addition, we seek comment on whether revenue sharing agreements are 
being used to circumvent the ban on exclusive access agreements, as 
some commenters assert. To the extent that revenue sharing agreements 
are combined with other contractual provisions, such as exclusive 
wiring, sale-and-leaseback, bulk billing, and exclusive marketing, what 
effect does the combination of these arrangements have on competition 
and deployment within MTEs?
    6. Should we require all internet service providers or only 
telecommunications carriers and covered MVPDs to disclose the existence 
of revenue sharing agreements to the public? For purposes of this NPRM, 
the term ``covered MVPDs'' mean those MVPDs subject to section 628(b) 
of the Act: Cable operators; common carriers or their affiliates that 
provide video programming directly to subscribers; and operators of 
open video systems. Disclosure requirements are less burdensome than 
outright prohibitions and can promote informed decision-making. What 
are the costs and benefits of a disclosure requirement here? Would a 
disclosure requirement, by promoting transparency to prospective and 
current tenants, increase the likelihood that revenue sharing 
agreements benefit competition, deployment, and individual subscribers? 
What impact would a disclosure requirement have on small businesses, 
and should we consider exempting some small businesses from such a 
requirement? If we were to require disclosure of revenue sharing 
agreements, should we require the disclosure only of agreements that 
exceed the building's actual costs of allowing service, or all revenue 
sharing agreements? If we require disclosure, where, when, and how 
should we require covered providers to provide the disclosure, and how 
can we ensure that the public is able to associate the disclosure with 
a particular building? What contents should we require in a disclosure, 
and should we specify a format? How would such a disclosure requirement 
interact with First Amendment jurisprudence on compelled corporate 
speech? Any disclosure requirement we adopt would apply to the internet 
service provider (or MVPD or telecommunications carrier) and not the 
building owner, similar to the Commission's prohibition on covered 
MVPDs and telecommunications carriers, but not building owners, 
entering into exclusive access agreements.
    7. If we determine that revenue sharing agreements harm competition 
and deployment and that transparency is an insufficient remedy, should 
we adopt a rule to restrict or prohibit revenue sharing agreements? To 
the extent we propose to regulate the practices of communications 
providers rather than require disclosures to the public, we do not 
propose to impose

[[Page 37221]]

such behavioral regulations on entities other than telecommunications 
carriers and covered MVPDs. For example, we could restrict covered 
MVPDs and telecommunications carriers from entering into revenue 
sharing agreements that provide the building owner with a share of 
revenue beyond the building's actual costs of allowing service. What 
are the benefits, drawbacks, and estimated costs of this approach? What 
is the impact of this approach on small businesses? What economic and 
business justifications, if any, exist for any such revenue sharing 
agreements that exceed the building's actual costs of allowing service? 
Would we face practical difficulties in administering such a 
prohibition? For instance, would covered MVPDs and telecommunications 
carriers when considering entering a revenue sharing agreement, and the 
Commission when considering an enforcement proceeding, be able to 
determine the building's actual costs of allowing service? If we 
determine that a rule restricting revenue sharing agreements is 
necessary, would a different rule be more appropriate?

B. Rooftop Antenna and DAS Facilities Access

    8. We seek comment on whether we should act to increase competitive 
access to rooftop facilities, which are often subject to exclusivity 
agreements. Wireless communications providers rely on access to 
building rooftops to establish or improve backhaul for wireless 
services. We seek comment on the benefits and drawbacks of rooftop 
exclusivity agreements. How prevalent are such agreements, and what are 
common terms and conditions of such agreements that could affect 
broadband deployment? Do such agreements encourage building owners to 
allow rooftop access to the paying party, thereby promoting broadband, 
telecommunications, and video services deployment? Are there technical 
or safety benefits to a service provider, instead of the MTE owner, 
exercising control over rooftop facilities? As to drawbacks, in their 
comments, both INCOMPAS and Lumos Networks cite rooftop exclusivity 
agreements as an example of a common industry practice that reduces 
competition and deployment in MTEs with little to no consumer benefits. 
We seek comment on these claims. If we find that rooftop exclusivity 
agreements harm competition, should we prohibit telecommunications 
carriers and covered MVPDs from entering into such agreements, 
including agreements that would have the effect of exclusivity, just as 
the Commission previously prohibited telecommunications carriers from 
reaching exclusive access agreements with residential and commercial 
MTEs and covered MVPDs from reaching exclusive access agreements with 
residential MTEs?
    9. We also seek comment on whether we should take action on access 
to distributed antenna systems (DAS) facilities, which are ``small 
antennas typically installed on shared wiring within the MTE'' which 
transmit signals using internal wiring within the building ``to a 
carrier point-of-presence.'' Wireless providers use DAS facilities 
within MTEs to ``fill gaps in coverage caused by dense walls . . . and 
provide additional capacity'' in areas with dense concentrations of 
people including stadiums and arenas. According to T-Mobile, if a fixed 
wireless provider is unable to access a DAS facility, that provider's 
customer may have little or no indoor cellular coverage. INCOMPAS, 
Sprint, and T-Mobile allege that building owners enter into private 
agreements with fixed wireless providers or third party operators for 
control over the deployment of wireless broadband service via DAS 
facilities. These commenters claim that fixed wireless providers or 
third party operators benefit from these arrangements by charging 
``monopoly rents'' or otherwise restricting access to their facilities, 
to the detriment of competition and ultimately consumers. We seek 
comment on these assertions. Are such agreements between building 
owners and fixed wireless providers or third-party operators common 
practice? If so, are there benefits to this practice, such as 
encouraging investment in DAS facilities by allowing building owners to 
recoup their costs of installing such facilities, and such as allowing 
building owners to control access to their premises? Have any 
commenters found that these agreements encourage deployment of wireless 
broadband services? T-Mobile claims that in barring LECs from entering 
into exclusive access agreements with commercial MTEs, the Commission 
also prohibited agreements ``that do not explicitly deny access to 
competing carriers, but nonetheless establish such onerous 
prerequisites to the approval of access that they effectively deny 
access.'' Do commenters agree with this argument? Should we take action 
against agreements that render DAS systems effectively inaccessible to 
certain providers due to unreasonable limitations or terms? Should we 
prohibit providers within our jurisdiction from enforcing existing DAS 
exclusivity agreements, and if so, in what circumstances? 
Alternatively, would any such action discourage investment in DAS 
facilities, undermine MTE owners' control over their property, or lead 
to any other harmful outcomes? Property owners note that DAS 
deployments are expensive, and contend that owners often have no 
assurance that carriers will use DAS facilities even if the owner 
incurs the cost to build them. Are there any steps that the Commission 
should take to promote efficient use of DAS in MTEs? Should the 
Commission take any action with respect to wireless providers that 
would reduce the burden of DAS deployment on building owners? Are there 
policies the Commission could adopt that would increase incentives for 
property owners to deploy DAS facilities?
    10. We also seek comment on the effect DAS access agreements have 
on deployment of advanced technology. For example, commenters argue 
that existing DAS facilities may be incompatible with a new provider's 
technology or so antiquated that they require replacement, as they are 
typically designed for the first provider to use them. As a result, T-
Mobile claims that ``many of the DAS facilities currently in place will 
be incompatible with . . . 5G wireless technologies once they are 
available for deployment.'' We seek comment on these claims. Should we 
require parties within our jurisdiction who deploy DAS facilities to 
take into account the compatibility of the systems with potential 
future provider occupants? Should we encourage or require providers to 
use DAS facilities that meet certain compatibility or future-proofing 
requirements? Would any such action reduce the level of investment of 
DAS facilities or otherwise harm deployment and/or competition? Are 
there quantifiable benefits and drawbacks to these approaches? What is 
the impact of these approaches on small businesses? We seek comment on 
these and other actions that can be taken to promote wireless broadband 
deployment and competition in and on MTEs.

C. Exclusive Wiring and Marketing Arrangements

    11. We seek comment on the effect of sale-and-leaseback 
arrangements on competition and deployment of broadband, 
telecommunications service, and video in MTEs. 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 record 
reflects that sale-and-leaseback

[[Page 37222]]

arrangements often include provisions requiring the provider to 
maintain the inside wiring and other facilities.
    12. Some commenters argue that sale-and-leaseback arrangements 
violate the Commission's existing cable inside wiring rules, as set out 
in section 76.802(j). Our rules require a cable provider to ``take 
reasonable steps within [its] control to ensure that an alternative 
service provider has access to the home wiring at the demarcation 
point'' and to not ``prevent, impede, or in any way interfere with, a 
subscriber's right to use his or her home wiring to receive an 
alternative service.'' FBA contends that ``[if] the incumbent provider 
transfers legal title to its home wiring to the property owner before a 
customer terminates service and then leases it back with an exclusivity 
provision that prevents competitive use, the inside wiring will be 
unavailable for use by competitors when the customer is ready to change 
providers.'' Do sale-and-leaseback arrangements violate our existing 
cable inside wiring rules? Are sale-and-leaseback arrangements used to 
evade our exclusive access, cable inside wiring, or any other 
Commission rules? Regardless of whether they violate our rules 
currently, should we adopt a new rule prohibiting such arrangements? 
Alternatively, should we prohibit sale-and-leaseback arrangements in 
limited circumstances? For instance, should we prohibit these 
arrangements unless the provider can demonstrate that they are not 
anti-competitive? What is the impact of these arrangements on small 
businesses, and how would any restrictions on sale-and-leaseback 
arrangements affect small businesses? Can commenters quantify specific 
costs and benefits of restricting sale-and-leaseback arrangements? Are 
sale-and-leaseback arrangements beneficial because they give building 
owners and service providers incentives to deploy facilities?
    13. Sale-and-leaseback arrangements are a subset of exclusive 
wiring arrangements. Under exclusive wiring arrangements, 
communications providers enter into agreements with MTE owners under 
which they obtain the exclusive right to use the wiring in the 
building. In the 2007 Exclusive Service Contracts Order, the Commission 
drew a distinction between exclusive access agreements, which it 
prohibited because they completely denied new entrants access to 
buildings, and exclusive wiring arrangements, ``which do not absolutely 
deny new entrants access to [residential MTEs] and thus do not cause 
the harms to consumers'' caused by exclusive access agreements. We seek 
comment on whether we should revisit the Commission's decision as to 
exclusive wiring arrangements. Do the policy considerations around 
sale-and-leaseback and other exclusive wiring arrangements differ? Is 
it the case today that exclusive wiring arrangements do not preclude 
competitive providers' access to buildings? If a building owner will 
only permit one set of wiring on its premises and enters into an 
exclusive wiring arrangement, is the effect tantamount to an exclusive 
access agreement? Do exclusive wiring arrangements take different forms 
in states and localities that have mandatory access laws? For example, 
NCTA contends that in states and localities with mandatory access laws, 
``building owners must allow additional providers to offer service,'' 
and the exclusive wiring arrangement will only require the new provider 
to install its own facilities. Is that a correct statement of fact and 
the law in areas with mandatory access laws, or can buildings still 
exclude new entrants? And in states and localities without mandatory 
access laws, do exclusive wiring arrangements reduce competition? If we 
were to revisit the Commission's policy about exclusive wiring 
arrangements, should we prohibit providers from entering into these 
arrangements? What are the estimated costs and benefits of this 
potential action? Would it benefit or burden small entities and if so, 
how and to what extent?
    14. Exclusive Marketing Arrangements. An exclusive marketing 
arrangement is an arrangement, either written or in practice, between 
an MTE owner and a 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. In 2010, 
the Commission concluded that exclusive marketing arrangements ``have 
no significant effects harmful to [MTE] residents and have some 
beneficial effects.'' In declining to regulate such arrangements, the 
Commission found that exclusive marketing could lead to lower costs to 
subscribers or partially defray deployment costs borne by buildings, 
without prohibiting or significantly hindering other providers from 
entering the building. While we do not revisit that conclusion at this 
time, we seek comment on whether there are specific circumstances in 
which exclusive marketing arrangements result in de facto exclusive 
access. In its comments, FBA asserts that exclusive marketing 
arrangements ``inhibit competition in practice because MTE owners 
misinterpret the otherwise acceptable terms of the agreement.'' We seek 
comment on whether and to what extent there is confusion among tenants 
and/or building owners regarding the distinction between exclusive 
access agreements, which are not permitted by the Commission's rules, 
and exclusive marketing agreements, which are permitted. If such 
confusion exists, how prevalent is it and what might be done to correct 
it?
    15. Would transparency regarding exclusive marketing arrangements 
reduce any confusion about the impact of exclusive marketing 
agreements? Should we require specific disclaimers or other disclosures 
by carriers and covered MVPDs making clear that there is no exclusive 
access agreement and that customers are free to obtain services from 
alternative providers? If so, when, where, how, and in what 
circumstances should we require carriers and covered MVPDs to make any 
such disclosures, and how can we ensure that the public would associate 
the disclosure with the specific buildings to which they relate? How 
would such a requirement impact the incentives of providers to enter 
into exclusive marketing agreements and the potential benefits of such 
agreements for building owners and tenants? What impact, if any, would 
a disclosure requirement have on small entities? What are the costs and 
benefits of a disclosure requirement?

D. Other Contractual Provisions and Practices

    16. We seek comment on whether there are other types of contractual 
provisions and non-contractual practices, other than those already 
mentioned, that impact the ability of broadband, telecommunications 
service, and video providers to compete in MTEs. If so, what form do 
these provisions and/or practices take, and how do they impact 
competition within MTEs? Are any such practices already prohibited 
under our existing rules?

E. State and Local Policies and Regulations

    17. We seek comment on examples of state or local regulations or 
other policies that have successfully promoted broadband deployment, 
competition, and access to MTEs. We also seek comment on examples of 
state or local government programs that have succeeded in improving 
competition, deployment, and access to broadband in MTE buildings. For 
example, in response to the MTE Notice of Inquiry, Montgomery County, 
Maryland, explained how it had collaborated with private developers in 
an effort to spur

[[Page 37223]]

broadband deployment and how it planned to host a summit that convened 
architects, building engineers, urban planners, and broadband service 
providers. Similarly, the City of Boston described how the Boston 
Planning and Development Agency planned to incorporate broadband 
competition as an element of its review process for new projects, 
planned development areas, and institutional master plans. Have such 
local government programs proved effective?
    18. We also seek comment on whether there are state and local 
regulations, or other state or local requirements, that deter broadband 
deployment and competition within MTEs because they ``prohibit or have 
the effect of prohibiting'' the ability of any entity to provide 
telecommunications service. The Commission has previously concluded 
that ``[i]nfrastructure for wireline and wireless telecommunication 
services frequently is the same infrastructure used for the provision 
of broadband internet access service, and our ruling [in the Wireline 
Infrastructure Third Report and Order that state and local moratoria on 
telecommunications services and facilities deployment are barred by 
section 253(a) of the Act] will promote broadband deployment.'' 
Facilities that provide telecommunications service are frequently used 
for the provision of broadband internet access service on a commingled 
basis. What form do any such regulations or legal requirements most 
often take? Commenters identifying regulations or legal requirements 
should explain how the provisions in question deter broadband 
deployment and investment within MTEs, and why they believe the 
provisions in question violate section 253 of the Act. What should we 
do to address any such regulations or legal requirements? Sprint argues 
that state and local governments that own large MTEs should not be able 
to enter into exclusive access contracts with providers. Do commenters 
agree, and if so what action--if any--should we take consistent with 
our authority under section 253? While the Commission clarified in the 
2018 Wireless Infrastructure Third Report and Order that its 
interpretations of sections 253 and 332 applied to government-owned 
property in the public right-of-way, it did not take a position on 
whether sections 253 and 332 applied to ``government-owned property 
located outside the public [right-of-way],'' such as the government-
owned MTEs that may be at issue in this proceeding.

F. Legal Authority

    19. We seek comment on our jurisdiction and statutory authority to 
address the issues raised in this NPRM. In prohibiting exclusive access 
agreements, the Commission has previously relied on sections 201(b) and 
628 of the Act. We seek comment on our authority pursuant to these 
statutory provisions to facilitate broadband, telecommunications 
service, and video deployment and competition within MTEs.
    20. In the past, the Commission has found that sections 201(b) and 
628 of the Act provide statutory authority to prohibit the execution 
and enforcement of anti-competitive contractual arrangements granting 
common carriers exclusive access to commercial and residential MTEs and 
covered MVPDs exclusive access to residential MTEs. Section 201(b) of 
the Act expressly authorizes the Commission to regulate all ``charges, 
practices, classifications, and regulations for and in connection with 
[interstate or foreign] communication service,'' to ensure that such 
practices are ``just and reasonable.'' In the 2008 Competitive Networks 
Order, the Commission found that a carrier's execution or enforcement 
of an exclusive access provision within an MTE is an ``unreasonable 
practice,'' and that the Commission thus has ``ample authority'' under 
section 201(b) to prohibit such exclusivity provisions in the provision 
of telecommunications services. Section 628 makes it unlawful for a 
covered MVPD ``to engage in unfair methods of competition or unfair or 
deceptive acts or practices, the purpose or effect of which is to 
hinder significantly or to prevent any multichannel video programming 
distributor from providing . . . programming to subscribers or 
customers.'' In the 2007 Exclusive Service Contracts Order, the 
Commission held that it had ``ample authority under Section 628(b) of 
the Act to adopt rules prohibiting [covered MVPDs] from executing or 
enforcing contracts that give them the exclusive right to provide video 
programming services alone or in combination with other services to 
[residential MTEs]''--a determination upheld by the D.C. Circuit. The 
Commission recognized that the business model for competitive entrants 
was a triple-play bundle of video, broadband, and telephone, and that 
``[a]n exclusivity clause in a [residential MTE's] agreement with a 
MVPD denies all these [competitive] benefits to the [MTE's] 
residents.'' The Commission's existing rules thus prohibit both the 
execution and enforcement of any contractual provisions granting common 
carriers exclusive access to commercial and residential MTEs and 
covered MVPDs exclusive access to residential MTEs. We seek comment on 
whether, if we were to act with respect to revenue sharing agreements, 
rooftop exclusivity clauses, or exclusive wiring, sections 201(b) and 
628(b) would provide us authority to do so for telecommunications 
carriers and covered MVPDs, respectively. Are there other statutory 
provisions that grant us sufficient authority to act?
    21. As stated by prior Commission decisions, we have authority over 
infrastructure that can be used for the provision of both 
telecommunications and other services on a commingled basis. 
Infrastructure for fixed and mobile telecommunications services 
frequently is used for the provision of broadband internet access 
service, and we believe that any steps we take in this proceeding to 
promote competition and deployment of telecommunications services 
within MTEs will simultaneously encourage broadband deployment in MTEs. 
For instance, DAS facilities provide telecommunications and other 
services on a commingled basis. We therefore believe that we have 
authority under sections 201(b) to facilitate broadband competition 
within MTEs, in cases where broadband services are offered over the 
same telecommunications facilities, to the same extent that we have 
authority under that provision to facilitate competition in the 
provision of telecommunications services. We seek comment on the 
foregoing analysis.
    22. Congress also provided the Commission authority under section 
628 to prohibit ``unfair methods of competition or unfair or deceptive 
acts or practices, the purpose or effect of which is to hinder 
significantly or to prevent any multichannel video programming 
distributor from providing'' programming to subscribers or consumers. 
We seek comment on whether and how we can use this authority to promote 
competition and deployment of broadband services in MTEs.
    23. Disclosure Requirements. To the extent that we impose 
disclosure requirements, as suggested in the revenue sharing and 
exclusive marketing discussions, under what basis of legal authority 
could such requirements apply to ISPs that are not telecommunications 
carriers under Title II or cable operators under Title VI? We seek 
comment on whether sections 13 and 257 of the Act, as amended by 
section 401 of the RAY BAUM'S Act of

[[Page 37224]]

2018, provides the Commission with authority to require such 
disclosures for all internet service providers, and not just MVPDs and 
telecommunications carriers. The Commission has previously interpreted 
section 257 as providing a continuing obligation on the Commission ``to 
identify any new barriers to entry,'' and that the ``statutory duty to 
`identify and eliminate''' such barriers ``implicitly empower[s] the 
Commission to require disclosures from third parties who possess the 
information necessary for the Commission and Congress to find and 
remedy market entry barriers.'' Congress replaced the triennial 
reporting requirement of section 257[supreg] with a virtually identical 
biennial reporting requirement in section 401 of the RAY BAUM'S Act, 
which continues to require the Commission to report to Congress on 
``market entry barriers for entrepreneurs and other small businesses in 
the communications marketplace.'' Section 401 of the RAY BAUM'S Act 
requires the Commission to assess competition and deployment in the 
communications marketplace, and to determine whether ``demonstrated 
marketplace practices pose a barrier to competitive entry into the 
communications marketplace or to the competitive expansion of existing 
providers of communications services.'' Further, the RAY BAUM's Act 
contains a savings clause, confirming that ``[n]othing in this title or 
the amendments made by this title shall be construed to expand or 
contract the authority of the Commission.''
    24. If we were to act only as to covered MVPDs and 
telecommunications carriers, would sections 201(b) and 628(b) provide 
us authority to require revenue sharing and exclusive marketing 
disclosures? The Commission has previously relied on section 201(b) to 
ensure that telecommunications carriers convey accurate and sufficient 
information about the services they provide to consumers. Do we have 
authority under section 201(b) to require carriers to disclose revenue 
sharing and/or exclusive marketing agreements in order to ensure that 
carriers' charges and practices that affect MTE residents are just and 
reasonable? Section 202(a) of the Act makes it unlawful for common 
carriers to engage in ``unjust or unreasonable'' discrimination, to 
give ``undue or unreasonable preference or advantage'' to any 
particular person, class, or locality, or to subject any person, class, 
or locality to ``undue or unreasonable prejudice or disadvantage.'' 
Does section 202(a) provide additional authority to require these 
disclosures as to telecommunications carriers? Under section 218, the 
Commission has broad authority to obtain ``full and complete 
information'' from carriers. Does section 218 grant us authority to 
impose a revenue sharing and/or exclusive marketing disclosure 
requirement on carriers? Would section 218 allow us to mandate such 
disclosures be made to the public? Are there other sources of authority 
on which we could rely? Would disclosure to the public of the existence 
or terms of revenue sharing and/or exclusive marketing agreements raise 
any confidentiality concerns? Would disclosure requirements be 
consistent with First Amendment jurisprudence?
    25. Sections 253 and 332. We seek comment on whether sections 253 
or 332 can serve as a basis for the Commission to address state or 
local regulations with respect to facilities deployment and competition 
within MTEs. Section 253(a) generally provides that no state or local 
legal requirements ``may prohibit or have the effect of prohibiting'' 
the provision of interstate or intrastate telecommunications services, 
and provides the Commission with ``a rule of preemption'' that 
``articulates a reasonably broad limitation on state and local 
governments' authority to regulate telecommunications providers.'' 
Section 332(c)(7)(B) provides that state or local government regulation 
of the siting of personal wireless service facilities ``shall not 
prohibit or have the effect of prohibiting the provision'' of personal 
wireless services. We seek comment on whether the Commission has 
authority under sections 253 and/or 332 to restrict or prohibit any of 
the contractual provisions and/or non-contractual practices listed in 
this NPRM where a state or local government owns or controls the MTE. 
Why or why not? Are there other preemptive actions we should take under 
sections 253 and/or 332 to promote the deployment of next-generation 
networks and services to MTEs?
    26. Other Authority. Finally, we seek comment whether there exist 
any additional sources of authority on which the Commission may rely to 
prohibit, restrict, or require disclosure of the types of agreements or 
arrangements on which this NPRM seeks comment. If so, from where does 
this authority derive?

II. Initial Regulatory Flexibility Analysis

    27. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on small entities by the policies and rules proposed in this Notice of 
Proposed Rulemaking. The Commission requests written public comments on 
this IRFA. Comments must be identified as responses to the IRFA and 
must be filed by the deadlines for comments provided on the first page 
of the NPRM. The Commission will send a copy of the NPRM, including 
this IRFA, to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA). In addition, the NPRM and IRFA (or summaries 
thereof) will be published in the Federal Register.

A. Need for, and Objectives of, the Proposed Rules

    28. The NPRM seeks to facilitate enhanced deployment and provide 
greater consumer choice for workers and residents of MTEs. 
Specifically, the NPRM solicits comments on whether revenue sharing 
agreements should be disclosed or otherwise regulated, on whether the 
Commission should preempt state and local regulations that may inhibit 
broadband deployment and competition within MTEs; on whether the 
Commission should act to increase competitive access to distributed 
antenna systems and rooftop facilities; about what effect exclusive 
wiring and sale-and-leaseback arrangements have on competition and 
deployment in MTEs; whether exclusive marketing arrangements should be 
disclosed; and on whether there exist other types of contractual 
provisions and noncontractual practices that impact the ability of 
broadband providers to compete in MTEs. The NPRM also asks what impact 
these proposals would have on small businesses and entities.

B. Legal Basis

    29. The NPRM solicits comments about its jurisdiction and statutory 
authority to address these issues. It specifically asks whether 
sections 201(b) and 628 of the Communications Act of 1934, as amended, 
authorize prohibiting revenue sharing agreements. To the extent that 
the Commission would impose disclosure requirements, the NPRM also 
invites comments on whether section 257 of the Act, as amended by 
section 401 of the RAY BAUM'S Act of 2018, authorizes the Commission to 
require disclosures from ISPs. The NPRM seeks comment on whether 
sections 201(b), 202(a), 218, and 628 of the Act would provide 
authority to impose disclosure requirements on MVPDs and

[[Page 37225]]

telecommunications carriers. The NPRM also solicits comments on whether 
sections 253 and 332 of the Act authorize the Commission to address 
state or local regulations with respect to facilities deployment and 
competition within MTEs. Additionally, the NPRM seeks comments on 
whether any additional sources of authority exist on which the 
Commission may rely to prevent parties from entering into any 
agreements or arrangements on which it seeks comment.

C. Description and Estimate of the Number of Small Entities To Which 
the Proposed Rules Will Apply

    30. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules and by the rule revisions on which the 
NPRM seeks comment, if adopted. The RFA generally defines the term 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small-business concern'' under the Small Business 
Act. A ``small-business concern'' is one which: (1) Is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the SBA.
    31. Small Businesses, Small Organizations, Small Governmental 
Jurisdictions. Our actions, over time, may affect small entities that 
are not easily categorized at present. We therefore describe here, at 
the outset, three broad groups of small entities that could be directly 
affected herein. First, while there are industry-specific size 
standards for small businesses that are used in the regulatory-
flexibility analysis, according to data from the SBA's Office of 
Advocacy, a small business in general is an independent business having 
fewer than 500 employees. These types of small businesses represent 
99.9% of all businesses in the United States, which translates to 30.2 
million businesses.
    32. Next, the type of small entity described as a ``small 
organization'' is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field . . . 
.'' Nationwide, as of March 2019, there were approximately 356,494 
small organizations based on registration and tax data filed by 
nonprofits with the Internal Revenue Service (IRS).
    33. Finally, the small entity described as a ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than fifty thousand.'' U.S. Census 
Bureau data from the 2012 Census of Governments indicates that there 
were 90,056 local governmental jurisdictions consisting of general 
purpose governments and special purpose governments in the United 
States. Of this number, there were 37,132 general purpose governments 
(county, municipal, and town or township) with populations of less than 
50,000, and 12,184 special purpose governments (independent school 
districts and special districts) with populations of less than 50,000. 
The 2012 U.S. Census Bureau data for most types of governments in the 
local government category shows that a majority these governments have 
populations of less than 50,000. Based on this data, we estimate that 
at least 49,316 local government jurisdictions fall in the category of 
``small governmental jurisdictions.''
    34. Multiple Tenant Environment (MTE) Operators--Residential. The 
appropriate U.S. Census category for MTE residential operators is that 
of Residential Property Managers and is defined as an industry that 
``comprises establishments primarily engaged in managing residential 
real estate for others.'' The SBA has established a small business size 
standard for this category of firms having $7.5 million or less in 
annual receipts. Economic Census data for 2012 show that 25,936 
residential property managers operated for that entire year. Of that 
number, 25,010 had annual receipts of less than $5 million. Thus, under 
this size standard, the majority of firms in this industry can be 
considered small.
    35. Multiple Tenant Environment (MTE) Operators--Nonresidential. 
The appropriate U.S. Census category for MTE nonresidential operators 
is that of Nonresidential Property Managers and is defined as an 
industry that ``comprises establishments primarily engaged in managing 
nonresidential real estate for others.'' The SBA has established a 
small business size standard for this category of firms having $7.5 
million or less receipts. Economic Census data for 2012 show that 
12,828 nonresidential property managers operated for that entire year. 
Of that number, 12,344 had annual receipts of less than $5 million. 
Thus, under this size standard, the majority of firms in this industry 
can be considered small.
    36. Wired Telecommunications Carriers. The U.S. Census Bureau 
defines this industry as ``establishments primarily engaged in 
operating and/or providing access to transmission facilities and 
infrastructure that they own and/or lease for the transmission of 
voice, data, text, sound, and video using wired communications 
networks. Transmission facilities may be based on a single technology 
or a combination of technologies. Establishments in this industry use 
the wired telecommunications network facilities that they operate to 
provide a variety of services, such as wired telephony services, 
including VoIP services, wired (cable) audio and video programming 
distribution, and wired broadband internet services. By exception, 
establishments providing satellite television distribution services 
using facilities and infrastructure that they operate are included in 
this industry.'' The SBA has developed a small-business size standard 
for Wired Telecommunications Carriers, which consists of all such 
companies having 1,500 or fewer employees. Census data for 2012 shows 
that there were 3,117 firms that operated that year and that of this 
total, 3,083 operated with fewer than 1,000 employees. Thus, under this 
size standard, the majority of firms in this industry can be considered 
small.
    37. Local Exchange Carriers (LECs). Neither the Commission nor the 
SBA has developed a size standard for small businesses specifically 
applicable to local exchange services. The closest applicable NAICS 
Code category is Wired Telecommunications Carriers. Under the 
applicable SBA size standard, such a business is small if it has 1,500 
or fewer employees. U.S. Census Bureau data for 2012 shows that 3,117 
firms operated for the entire year. Of that total, 3,083 operated with 
fewer than 1,000 employees. Thus under this category and the associated 
size standard, the Commission estimates that the majority of local 
exchange carriers are small entities.
    38. Incumbent LECs. Neither the Commission nor the SBA has 
developed a small-business size standard specifically for incumbent 
local exchange services. The closest applicable NAICS Code category is 
Wired Telecommunications Carriers. Under the applicable SBA size 
standard, such a business is small if it has 1,500 or fewer employees. 
U.S. Census Bureau data for 2012 indicates that 3,117 firms operated 
the entire year. Of this total, 3,083 operated with fewer than 1,000 
employees. Consequently, the Commission estimates that most providers 
of incumbent local exchange service are small businesses that may be 
affected by our actions. According to Commission data, 1,307 Incumbent

[[Page 37226]]

Local Exchange Carriers reported that they were incumbent local 
exchange service providers. Of this total, an estimated 1,006 have 
1,500 or fewer employees. Thus, using the SBA's size standard, the 
majority of incumbent LECs can be considered small entities.
    39. Competitive Local Exchange Carriers (Competitive LECs), 
Competitive Access Providers (CAPs), Shared-Tenant Service Providers, 
and Other Local Service Providers. Neither the Commission nor the SBA 
has developed a small-business size standard specifically for these 
service providers. The most appropriate NAICS Code category is Wired 
Telecommunications Carriers. Under that size standard, such a business 
is small if it has 1,500 or fewer employees. U.S. Census Bureau data 
for 2012 indicate that 3,117 firms operated during that year. Of that 
number, 3,083 operated with fewer than 1,000 employees. Based on these 
data, the Commission concludes that the majority of Competitive LECS, 
CAPs, Shared-Tenant Service Providers, and Other Local Service 
Providers are small entities. According to Commission data, 1,442 
carriers reported that they were engaged in the provision of either 
competitive local exchange services or competitive access provider 
services. Of these 1,442 carriers, an estimated 1,256 have 1,500 or 
fewer employees. In addition, 17 carriers have reported that they are 
Shared-Tenant Service Providers, and all 17 are estimated to have 1,500 
or fewer employees. Additionally, 72 carriers have reported that they 
are Other Local Service Providers. Of this total, 70 have 1,500 or 
fewer employees. Consequently, based on internally researched FCC data, 
the Commission estimates that most providers of competitive local 
exchange service, competitive access providers, Shared-Tenant Service 
Providers, and Other Local Service Providers are small entities.
    40. We have included small incumbent LECs in this present RFA 
analysis. As noted above, a ``small business'' under the RFA is one 
that, inter alia, meets the pertinent small-business size standard 
(e.g., a telephone communications business having 1,500 or fewer 
employees) and ``is not dominant in its field of operation.'' The SBA's 
Office of Advocacy contends that, for RFA purposes, small incumbent 
LECs are not dominant in their field of operation because any such 
dominance is not ``national'' in scope. We have therefore included 
small incumbent LECs in this RFA analysis, although we emphasize that 
this RFA action has no effect on Commission analyses and determinations 
in other, non-RFA contexts.
    41. Interexchange Carriers (IXCs). Neither the Commission nor the 
SBA has developed a definition for Interexchange Carriers. The closest 
NAICS Code category is Wired Telecommunications Carriers. The 
applicable size standard under SBA rules is that such a business is 
small if it has 1,500 or fewer employees. U.S. Census Bureau data for 
2012 indicate that 3,117 firms operated for the entire year. Of that 
number, 3,083 operated with fewer than 1,000 employees. According to 
internally developed Commission data, 359 companies reported that their 
primary telecommunications service activity was the provision of 
interexchange services. Of this total, an estimated 317 have 1,500 or 
fewer employees. Consequently, the Commission estimates that the 
majority of interexchange service providers are small entities.
    42. Local Resellers. The SBA has developed a small-business size 
standard for Telecommunications Resellers that includes Local 
Resellers. The Telecommunications Resellers industry comprises 
establishments engaged in purchasing access and network capacity from 
owners and operators of telecommunications networks and reselling wired 
and wireless telecommunications services (except satellite) to 
businesses and households. Establishments in this industry resell 
telecommunications; they do not operate transmission facilities and 
infrastructure. Mobile virtual network operators (MVNOs) are included 
in this industry. Under the SBA's size standard, such a business is 
small if it has 1,500 or fewer employees. U.S. Census Bureau data for 
2012 shows that 1,341 firms provided resale services during that year. 
Of that number, all operated with fewer than 1,000 employees. Thus, 
under this category and the associated small-business size standard, 
the majority of these resellers can be considered small entities. 
According to Commission data, 213 carriers have reported that they are 
engaged in the provision of local resale services. Of these, an 
estimated 211 have 1,500 or fewer employees. Consequently, the 
Commission estimates that the majority of Local Resellers are small 
entities.
    43. Toll Resellers. The Commission has not developed a definition 
for Toll Resellers. The closest NAICS Code category is 
Telecommunications Resellers. The Telecommunications Resellers industry 
comprises establishments engaged in purchasing access and network 
capacity from owners and operators of telecommunications networks and 
reselling wired and wireless telecommunications services (except 
satellite) to businesses and households. Establishments in this 
industry resell telecommunications; they do not operate transmission 
facilities and infrastructure. Mobile virtual network operators (MVNOs) 
are included in this industry. The SBA has developed a small-business 
size standard for the category of Telecommunications Resellers. Under 
that size standard, such a business is small if it has 1,500 or fewer 
employees. Census data for 2012 shows that 1,341 firms provided resale 
services during that year. Of that number, 1,341 operated with fewer 
than 1,000 employees. Thus, under this category and the associated 
small-business size standard, the majority of these resellers can be 
considered small entities. According to Commission data, 881 carriers 
have reported that they are engaged in the provision of toll resale 
services. Of this total, an estimated 857 have 1,500 or fewer 
employees. Consequently, the Commission estimates that the majority of 
toll resellers are small entities.
    44. Other Toll Carriers. Neither the Commission nor the SBA has 
developed a definition for small businesses specifically applicable to 
Other Toll Carriers. This category includes toll carriers that do not 
fall within the categories of interexchange carriers, operator service 
providers, prepaid calling card providers, satellite service carriers, 
or toll resellers. The closest applicable NAICS Code category is for 
Wired Telecommunications Carriers as defined above. Under the 
applicable SBA size standard, such a business is small if it has 1,500 
or fewer employees. Census data for 2012 shows that there were 3,117 
firms that operated that year. Of this total, 3,083 operated with fewer 
than 1,000 employees. Thus, under this category and the associated 
small-business size standard, the majority of Other Toll Carriers can 
be considered small. According to internally developed Commission data, 
284 companies reported that their primary telecommunications service 
activity was the provision of other toll carriage. Of these, an 
estimated 279 have 1,500 or fewer employees. Consequently, the 
Commission estimates that most Other Toll Carriers are small entities.
    45. Wireless Communications Services. This service can be used for 
fixed, mobile, radiolocation, and digital audio broadcasting satellite 
uses. The Commission defined ``small business'' for the wireless 
communications

[[Page 37227]]

services (WCS) auction as an entity with average gross revenues of $40 
million for each of the three preceding years, and a ``very small 
business'' as an entity with average gross revenues of $15 million for 
each of the three preceding years. The SBA has approved these small-
business size standards.
    46. Wireless Telephony. Wireless telephony includes cellular, 
personal communications services, and specialized mobile radio 
telephony carriers. The closest applicable SBA category is Wireless 
Telecommunications Carriers (except Satellite), and under the most 
appropriate size standard for this category, such a business is small 
if it has 1,500 or fewer employees. For this industry, U.S. Census 
Bureau data for 2012 shows that there were 967 firms that operated for 
the entire year. Of this total, 955 firms had fewer than 1,000 
employees and 12 firms had 1,000 employees or more. Thus, under this 
category and the associated size standard, the Commission estimates 
that a majority of these entities can be considered small. According to 
Commission data, 413 carriers reported that they were engaged in 
wireless telephony. Of these, an estimated 261 have 1,500 or fewer 
employees and 152 have more than 1,500 employees. Therefore, more than 
half of these entities can be considered small.
    47. Cable Companies and Systems (Rate Regulation). The Commission 
has developed its own small-business size standards for the purpose of 
cable rate regulation. Under the Commiss'on's rules, a ``small cable 
company'' is one serving 400,000 or fewer subscribers nationwide. 
Industry data indicates that there are currently 4,600 active cable 
systems in the United States. Of this total, all but 11 cable operators 
nationwide are small under the 400,000-subscriber size standard. In 
addition, under the Commiss'on's rate regulation rules, a ``small 
system'' is a cable system serving 15,000 or fewer subscribers. Current 
Commission records show 4,600 cable systems nationwide. Of this total, 
3,900 cable systems have fewer than 15,000 subscribers, and 700 systems 
have 15,000 or more subscribers, based on the same records. Thus, under 
this standard as well, we estimate that most cable systems are small 
entities.
    48. Cable System Operators (Telecom Act Standard). The 
Communications Act, as amended, also contains a size standard for small 
cable system operators, which is ``a cable operator that, directly or 
through an affiliate, serves in the aggregate fewer than one percent of 
all subscribers in the United States and is not affiliated with any 
entity or entities whose gross annual revenues in the aggregate exceed 
$250,000,000.'' There are approximately 52,403,705 cable video 
subscribers in the United States today. Accordingly, an operator 
serving fewer than 524,037 subscribers shall be deemed a small operator 
if its annual revenues, when combined with the total annual revenues of 
all its affiliates, do not exceed $250 million in the aggregate. Based 
on available data, we find that all but nine incumbent cable operators 
are small entities under this size standard. The Commission neither 
requests nor collects information on whether cable system operators are 
affiliated with entities whose gross annual revenues exceed $250 
million. The Commission does receive such information on a case-by-case 
basis if a cable operator appeals a local franchise authority's finding 
that the operator does not qualify as a small cable operator pursuant 
to section 76.901(f) of the Commission's rules. Although it seems 
certain that some of these cable system operators are affiliated with 
entities whose gross annual revenues exceed $250 million, we are unable 
at this time to estimate with greater precision the number of cable 
system operators that would qualify as small cable operators under the 
definition in the Communications Act.
    49. All Other Telecommunications. The ``All Other 
Telecommunications'' category is comprised of establishments primarily 
engaged in providing specialized telecommunications services, such as 
satellite tracking, communications telemetry, and radar station 
operation. This industry also includes establishments primarily engaged 
in providing satellite terminal stations and associated facilities 
connected with one or more terrestrial systems and capable of 
transmitting telecommunications to, and receiving telecommunications 
from, satellite systems. Establishments providing internet services or 
voice over internet protocol (VoIP) services via client-supplied 
telecommunications connections are also included in this industry. The 
SBA has developed a small-business size standard for All Other 
Telecommunications, which consists of all such firms with annual 
receipts of $32.5 million or less. For this category, U.S. Census 
Bureau data for 2012 shows that there were 1,442 firms that operated 
for the entire year. Of those firms, a total of 1,400 had annual 
receipts less than $25 million and 42 firms had annual receipts of $25 
million to $49,999,999. Thus, the Commission estimates that the 
majority of ``All Other Telecommunications'' firms potentially affected 
by our action can be considered small.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    50. The NPRM seeks comments on a number of potential rule changes 
that would affect reporting, recordkeeping, and other compliance 
requirements. Specifically, the NPRM seeks comment on potential 
regulation or disclosure of revenue sharing and exclusive marketing 
arrangements. If the Commission were to move forward with such a rule, 
MVPDs and telecommunications carriers, and potentially all ISPs, would 
have new reporting, recordkeeping, and other compliance requirements 
with regard to these arrangements.

E. Steps Taken To Minimize the Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    51. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance and reporting requirements under the rules for such small 
entities; (3) the use of performance rather than design standards; and 
(4) an exemption from coverage of the rule, or any part thereof, for 
such small entities.
    52. In the NPRM, the Commission seeks comment on alternatives to 
the proposals and on alternative ways of implementing the proposals. 
Any revisions proposed to the Commission's rules are not expected to 
result in significant economic impact to small entities. The Commission 
specifically seeks comment on what effect the proposals will have on 
small entities and whether the Commission should consider alternative 
rules or exemptions for small entities.
    53. We expect to take into account the economic impact on small 
entities, as identified in comments filed in response to the NPRM and 
this IRFA, in reaching our final conclusions and promulgating rules in 
this proceeding.
    54. As discussed in the NPRM, the Commission has initiated this 
proceeding to solicit comments on various types of actions the 
Commission is considering to facilitate enhanced broadband deployment 
and provide

[[Page 37228]]

greater consumer choice for MTE workers and residents.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    55. None.

III. Procedural Matters

    56. Ex Parte Rules. This proceeding shall be treated as a ``permit-
but-disclose'' proceeding in accordance with the Commission's ex parte 
rules. 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 
presenter's 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 Rule 1.1206(b). In proceedings governed by 
Rule 1.49(f) 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). Participants in this proceeding 
should familiarize themselves with the Commission's ex parte rules.
    57. Initial Regulatory Flexibility Analysis. Pursuant to the 
Regulatory Flexibility Act (RFA), the Commission has prepared an 
Initial Regulatory Flexibility Analysis (IRFA) of the possible 
significant economic impact on small entities of the policies and 
actions considered in this NPRM. Written public comments are requested 
on this IRFA. Comments must be identified as responses to the IRFA and 
must be filed by the deadlines for comments on the NPRM. The 
Commission's Consumer and Governmental Affairs Bureau, Reference 
Information Center, will send a copy of the NPRM, including the IRFA, 
to the Chief Counsel for Advocacy of the Small Business Administration.
    58. Paperwork Reduction Act. This document may propose new or 
modified information collection requirements subject to the Paperwork 
Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, 
it may contain new or modified information collection burdens for small 
business concerns with fewer than 25 employees, pursuant to the Small 
Business Paperwork Relief Act of 2002, Public Law 107-198.

IV. Ordering Clauses

    59. It is ordered that pursuant to the authority contained in 
sections 1-4, 201(b), 202, 303(r), 403, 601(4), 601(6), and 628 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151-54, 201(b), 202, 
303(r), 403, 521(4), 521(6), and 548, and section 401 of the RAY BAUM's 
Act of 2018, 47 U.S.C. 163, this Notice of Proposed Rulemaking is 
adopted.
    60. It is further ordered that the Notice of Proposed Rulemaking 
will be effective upon publication in the Federal Register and comments 
will be due on the dates stated therein.

Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2019-16231 Filed 7-30-19; 8:45 am]
 BILLING CODE 6712-01-P