At its monthly meeting next week, the FCC will initiate a Notice of Proposed Rulemaking (NPRM) in Docket 17-142 designed to bring more broadband competition to Multiple Tenant Environments (MTEs). Industry comments will be due 30 days after the NPRM appears in the Federal Register. The Rulemaking is long overdue!

The Commission defines MTEs as commercial or residential premises such as apartment buildings, condominium buildings, shopping malls, or cooperatives that are occupied by multiple entities. It notes that the density of MTEs makes them attractive to broadband providers but serving the customers within is a complicated effort.

First, installing facilities inside MTEs is often complicated and expensive because providers must access building conduits, lay wire that can reach each unit in the building or premises, and make necessary repairs once the wiring is installed. Second, broadband deployment to MTEs involves three, rather than two, interested parties—the broadband provider, the end user tenant, and the premises owner or controlling party—all of whom must take coordinated action for deployment to occur. (Draft Notice, at para. 1)

Historically, the agency has always had a policy that encouraged facilities-based competition by “promoting access to customers and infrastructure, including MTEs and their occupants,” by limiting mandatory sharing requirements that reduce incentives to invest.

The Commission has found that promoting access to infrastructure encourages competition by eliminating restrictions on who can compete, while mandatory sharing decreases broadband providers’ and MTE owners’ incentives to deploy facilities because they cannot recover the full benefit of their investment. (id., at para. 3)

In the NPRM, the Commission continues this policy and seeks industry input on the following questions:

Revenue Sharing Agreements

In which the building owner receives consideration from the communications provider in return for giving the provider access to the building and its tenants, should the Commission require the disclosure or restrict the use of revenue sharing agreements for broadband service?

What impact do revenue sharing agreements have on competition and deployment within MTEs?

Conversely, do 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?

Rooftop Antennas and DAS Facilities Access

Wireless providers rely on access to building rooftops to establish or improve backhaul for wireless services. Should the Commission increase competitive access to rooftop facilities, which are often subject to exclusivity agreements?

Should it improve access to distributed antenna systems (DAS) facilities?

These 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.” According to the Commission, 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.

Exclusive Wiring and Marketing Agreements

These agreements occur when a service provider sells its wiring to the MTE owner and then leases back the wiring on an exclusive basis. They often include provisions requiring the provider to maintain the inside wiring and other facilities.

What impact on competition do these agreements have?

Should they be prohibited?

Should they be prohibited unless the provider can demonstrate they are not anti-competitive?

State and Local Policy and Regulations

Are there specific state or local policies that improve broadband access and competition in MTEs?

Conversely, are there any such policies that limit broadband competition in MTEs?

Legal Authority

What jurisdictional and statutory authority does the Commission have to address the issues raised in this NPRM?

Declaratory Ruling

At the same time as the Commission adopts the NPRM it will also approve a complementary Declaratory Ruling to clarify that it welcomes state and local efforts to increase access to MTEs, so long as those efforts are consistent with federal policy. Specifically, the Ruling affirms that the agency will not preempt mandatory state and local laws that simply create a right of access to MTEs.

The Declaratory Ruling will take effect immediately when it is released to the public. This is a wise proceeding for the Commission to initiate. As it notes,

Thirty percent of Americans live in apartments or condominiums, and millions more work every day in office buildings. As we strive to close the digital divide, we must address the needs of those who live and work in these buildings (Id., at para. 1).