Improving Competitive Broadband Access to Multiple Tenant Environments, 52120-52122 [2021-20147]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[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 20701.
     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