FCC Seeks Comment on Competitive Access to Multiple Tenant Environments and Preempts San Francisco’s Competitive Access Ordinance

In July 2019, the Federal Communications Commission (FCC or Commission) adopted a Notice of Proposed Rulemaking (NPRM)1 to review and update its rules regarding competitive access to residential and commercial multiple tenant environments (MTEs) to provide wireless and wireline broadband, telecommunications and video services. Comments are due to the FCC by August 30th, and reply comments are due September 30th. The Commission also adopted a Declaratory Ruling preempting a San Francisco Code provision that required sharing of in-use MTE inside wiring.

Issues Raised for Public Comment in the NPRM

The NPRM seeks public comments and reply comments for the following issues:

  • Actions the FCC could take to accelerate the deployment of next generation networks and services within MTEs.
  • The impact of agreements between MTE owners and service providers that affect competition between providers and investment in MTE networks, including:
    • Revenue-sharing agreements;
    • Exclusivity agreements for access to rooftops;
    • Exclusive marketing and wiring arrangements and in-building wiring arrangements;
    • Arrangements that limit competitive access to the distributed antenna system (DAS) MTE facilities of wireless carriers and third-party operators;
    • Sale-and-leaseback arrangements; and
    • Other agreements impacting competition between MTE service providers.
  • Preemption of state and local laws that conflict with FCC regulations or rulings adopted in this proceeding.

In general, the NPRM seeks comments on these issues but does not state tentative conclusions. Thus, the proceeding is an opportunity for all sides of these issues to advocate for more FCC requirements or for FCC deregulation or preemption of current state and local access laws.

Declaratory Ruling Preempting San Francisco’s Competitive Access Law

Unlike the NPRM, the Declaratory Ruling is an FCC final order preempting Article 52 of the San Francisco, CA Code to the extent that it required the sharing of in-use wiring between broadband service providers in MTEs. The Declaratory Ruling, however, clarifies that the FCC welcomes state and local efforts to increase competitive access to MTEs, so long as those efforts are consistent with federal policies and laws.

Additional Assistance

For additional information regarding the FCC’s recent NPRM and Declaratory Ruling, or other matters regarding telecommunications law, please contact Douglas W. Dimitroff at (716) 847-5408, ddimitroff@phillipslytle.com; David E. Bronston at (212) 508-0470, dbronston@phillipslytle.com; or Mark J. O’Connor at (202) 617-2732, mo’connor@phillipslytle.com.

  1. In the Matter of Improving Competitive Broadband Access to Multiple Tenant Environments, Notice of Proposed Rulemaking and Declaratory Ruling, 84 Fed. Reg. 37219 (July 31, 2019).