FCC denies challenge to San Francisco open ISP access law

by Steve Blum • , ,

San Francisco’s open access rule for Internet services providers in apartment and condo buildings is legal according to the Federal Communications Commission. Or at least, a federal law originally written for satellite television viewers doesn’t make it illegal.

The FCC summarily denied a challenge to the San Francisco law from a lobbying front organisation that represents companies, mostly small ones, that make a living signing exclusive broadband service deals with landlords and homeowners associations, who then force their tenants and members to use it and, usually, get a cut of the action. The San Francisco ordinance is aimed squarely at that practice. It requires landlords and HOAs to 1. allow any qualified ISP to offer service in the building and 2. allow them to use any wiring belonging to the building.

The group, which calls itself the Multifamily Broadband Council, asked the FCC to block the law, claiming it prevents them from exercising their right to exclusive building access under a 1990s law that says that landlords and HOAs can’t prevent tenants from using satellite dishes and similar receiving antennas.

Huh?

Right. The FCC thought that line of reasoning was bizarre too…

Ultimately, the [Over the Air Receiving Device] Rule exists to enable consumers to use the services of their choosing free from undue restrictions imposed by property owners or governmental authorities, and not to protect the ability of any particular service provider to secure financing by excluding others. [The San Francisco ordinance] requires building owners to allow additional communications service providers to provide services requested by occupants and thus appears to support these objectives by promoting choice in the provision of communications services to consumers.

That doesn’t mean that San Francisco’s ordinance has a clear road ahead of it. It relies on the general authority that cities have under the California constitution, rather than on any broadband-specific power granted by it or state law. In fact, it might, and probably will, be argued that such matters are in the hands of state, and not local, regulators.

This abortive challenge at the FCC was just a warm up act, and not the main show. That’s still to come.