FCC didn’t succeed in blocking San Francisco’s open access broadband law

27 February 2020 by Steve Blum
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San francisco skyline 625

San Francisco’s open access rules for broadband in multi-tenant buildings is alive and well, according to a local independent Internet service provider. That’s despite the Federal Communications Commission’s determination to preempt the ordinance passed by San Francisco supervisors in 2016. It requires landlords to allow any ISP access to buildings, regardless of whether or not an exclusivity contract is in place.

In an opinion piece published in the San Francisco Examiner, Preston Rhea, the director of engineering for the policy program at broadband provider Monkeybrains, says that tenants and ISPs are still using the ordinance as leverage to pry open building doors…

Monkeybrains’ experience in the months since the FCC’s rulemaking indicates that [the San Francisco broadband access ordinance] is intact and operating as intended. Landlords in San Francisco are opening their doors to competition from alternative ISPs in their buildings, usually without legal proceedings.

Since the FCC’s rulemaking in July, Monkeybrains has used the process defined in [the ordinance] to legally provide notice to landlords with ISP exclusivity agreements that their tenants want Monkeybrains service in the rare case that they do not welcome us through a regular service agreement. The same lawyers who advised the Multifamily Broadband Council to demand the FCC take action against [the ordinance] are now guiding their clients to accommodate our reasonable requests for access to their buildings. Monkeybrains has healthy subscription rates and a productive relationship with building management in these properties.

Broadband exclusivity contracts are controversial. ISPs will pay landlords – sometimes more than $10,000 a year, according to Rhea – to prevent competitors from serving building tenants. Although the technical details of how to make it work are messy, San Francisco’s ordinance essentially says decisions about who to buy broadband service from are in the hands of the end user, not landlords or other middlemen.

The legal fight over the ordinance and the FCC’s attempt to, at least, partially preempt it continues. The City and County of San Francisco is appealing to the federal ninth circuit appellate court, which is a process that can take years to resolve.