Groups Seek More Scrutiny in MTE, ISP Agreements

"Every possible communication tool” will be needed to boost awareness of ACP, said EducationSuperHighway, citing exclusive marketing agreements. There “must be no impediment of any kind to ensuring MTE residents are aware of these opportunities to connect to broadband in the home,” it said. New America’s Open Technology Institute agreed and said that “restrictive MTE practices could undermine the commission’s ongoing efforts to enroll people,” which Incompas echoed.

Many of the issues the FCC sought comments on in 2019 "are still relevant today," said the New York State Public Service Commission. Exclusivity agreements "inhibit the ability of a tenant to choose their preferred broadband provider because they are left with only one choice," NYSPSC said, and eliminating them “will allow competitive broadband providers to more easily provide service to MTEs.” ISPs are “circumventing” commission rules to “thwart competition,” OTI said. Revenue sharing and exclusive marketing agreements “allow a broadband provider to extract monopoly rents from tenants,” it said.

ISPs “exploit loopholes in the rules and mislead landlords,” said Access Now. The FCC “has ignored the market imbalance that favors cable and [telecom] incumbents at the exclusion of smaller companies” for 14 years, said the Wireless ISP Association. WISPA backed banning exclusive wiring or marketing accords.

Such pacts “act as de facto exclusive access,” Incompas said. Extending the ban on access agreements only “would preserve the troublesome status quo that has installed building owners and incumbent providers as monopoly gatekeepers to competition,” it said. Clarify that revenue sharing agreements are a subset of access agreements, said Verizon. Prohibit “any arrangement that effectively limits other providers’ ability to access an MTE, including rooftops,” said T-Mobile. Adopt a process to determine whether a specific agreement acts “explicitly or effectively” as an exclusive access agreement, the Fiber Broadband Association recommended.

A coalition of ISPs, including Everywhere Wireless, GiGstreem and National Wi-Fi, disagreed: There is “no public interest need to newly saddle the MTE broadband market with additional regulation.” Exclusivity can "protect returns on investment" and "enable newer, smaller independent providers to obtain the financing they need to deploy new facilities,” the providers said.

Stakeholders that support regulation “have yet to make their case,” said real estate associations including National Multifamily Housing Council, National Apartment Association and Council for Affordable and Rural Housing. The groups said backers of regulation “have submitted almost no factual support for their position” and asked the FCC to “terminate this proceeding without further action.” NCTA agreed, saying the MTE market is “robustly competitive.” Any action should be “narrowly tailored to address specific, substantiated problems,” said ACA Connects. Regulatory action “would be ill-advised and inconsistent with the Commission’s authority,” said the Wireless Infrastructure Association.

Place "reasonable standards" on exclusive wiring agreements, said Stewards of Affordable Housing for the Future, such as requiring ISPs to "offer low-cost programs or owner-provided broadband at a competitive cost while also offering landlords the option to renegotiate or exit after a certain period." NCTA backed extending the ban on exclusive access agreements to “all providers in an MTE,” which USTelecom echoed. AT&T backed the idea but it’s “by no means clear the commission has authority to adopt such a prohibition.”

Don’t preempt state and local access laws, said the NATOA. Localities “are committed to improving broadband access in MTEs,” so “avoid any rules or actions that may limit local efforts to promote broadband competition,” NATOA said. Boston; Portland, Oregon; and Ontario, California, said participation in USF or ACP “should be conditioned upon accepting any such exclusive ban.”