FCC will preempt San Francisco apartment broadband access ordinance, and that’s just for starters

by Steve Blum • , , , ,

The Federal Communications Commission is preparing to preempt part of a San Francisco ordinance that requires landlords to open up access to existing wiring within a building, and allows any Internet service provider to use it to deliver service to tenants. In a draft ruling released yesterday, the FCC proposes to block any requirement that forces a landlord to share wiring it owns that’s already in use. It would apply to both residential buildings, such as apartments or condos, and office buildings – “multiple tenant environments” (MTEs), as the FCC puts it.

Just in case you were worried that the FCC will stomp all over any local effort to improve access to broadband service, the draft also declares that it does not “preempt state and local efforts to promote facilities-based broadband deployment and competition”.

Well, not really.

In language that would do George Orwell proud, the FCC’s draft says it’ll only preempt local initiatives that “contravene federal law and policy”. Since the FCC reckons that it’s in charge of making federal telecoms policy, it’s actually saying if we don’t like it, we’ll preempt it.

The draft is clear that the FCC doesn’t think the City and County of San Francisco should have any say about who can use whom’s facilities, but for now the preemption would be limited to rules about wires are in use. If a customer in San Francisco, say, cancels broadband service from Comcast but keeps video service, then a competitive ISP wouldn’t also be able to use the wiring that serves the apartment. On the other hand, if the customer cancels all services and there’s unused coax between the apartment and a telecoms closet, then the landlord is still obligated to lease it to a competitive ISP of the tenant’s choice. For now.

San Francisco’s ordinance requires landlords to allow tenants to buy broadband service from any ISP, via existing wiring if that’s the most desirable way. ISPs have to pay “just and reasonable compensation” for the use of those facilities, and follow particular procedures for giving notice to landlords, but at the end of the day they can come in.

A challenge to that ordinance was filed, but initially rejected by the FCC because the legal basis was weird. Or rather, not weird enough for the FCC’s republican majority, which now plans to stretch the regulation cited in that case – the over the air reception device (OTARD) rule – way past the breaking point in regards to another case involving cell sites.

The San Francisco preemption and the pledge to only preempt things it doesn’t like are just a couple of items in a long to do list in yesterday’s draft. The FCC also plans to take a broad look at the relationship between telcos, cable companies and independent ISPs, landlords and tenants. Assuming commissioners vote to approve it at their meeting next month – which is a pretty safe bet – they’ll ask for public comments what else they might do to “accelerate the deployment of next-generation networks and services within MTEs” and on “the impact that revenue sharing agreements between building owners and broadband providers, exclusivity agreements regarding rooftop facilities, and exclusive wiring arrangements have on broadband competition and deployment”.