Federal Register / Vol. 87, No. 59 / Monday, March 28, 2022 / Rules and Regulations 17181 

DATES: The regulations in 33 CFR 

100.701, Table 1 to § 100.701, section 

(c), Item 8, will be enforced from 12:00 

p.m. until 3:00 p.m., on April 10, 2022. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this 

notification of enforcement, call or 

email MST2 Shawn Keeman, Sector 

Jacksonville, Waterways Management 

Division, U.S. Coast Guard; telephone 

904–714–7661, email 

Shawn.R.Keeman@uscg.mil. 

SUPPLEMENTARY INFORMATION: The Coast 

Guard will enforce special local 

regulations in 33 CFR 100.701, Table 1 

to § 100.701, section (c), Item 8, for the 

Blessing of the Fleet—St. Augustine 

regulated from 12:00 a.m. until 3:00 

p.m., on April 10, 2022. This action is 

being taken to provide for the safety of 

life on navigable waterways during the 

event. Our regulation for recurring 

marine events within the Seventh Coast 

Guard District, § 100.701, Table 1 to 

§ 100.701, section (c), Item 8, specifies 

the location of the regulated area for the 

Blessing of the Fleet—St. Augustine 

which encompasses portions of the 

Matanzas River at the St. Augustine 

Municipal Marina. During the 

enforcement periods, as reflected in in 

§ 100.701, if you are the operator of a 

vessel in the regulated area you must 

comply with directions from the Patrol 

Commander or any Official Patrol 

displaying a Coast Guard ensign. 

In addition to this notification of 

enforcement in the Federal Register, the 

Coast Guard plans to provide 

notification of this enforcement period 

via the Local Notice to Mariners, marine 

information broadcasts, local radio 

stations and area newspapers. 

Dated: March 22, 2022. 

M.R. Vlaun, 

Captain, U.S. Coast Guard, Captain of the 

Port Jacksonville. 

[FR Doc. 2022–06431 Filed 3–25–22; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[Docket No. USCG–2022–0162] 

Special Local Regulations; Seventh 

Coast Guard District, Mug Race 

AGENCY: Coast Guard, Department of 

Homeland Security (DHS). 

ACTION: Notification of enforcement of 

regulation. 

SUMMARY: The Coast Guard will enforce 

the special local regulations for the Mug 

Race on May 7, 2022, to provide for the 

safety of life on navigable waterways 

during this event. Our regulation for 

marine events within the Seventh Coast 

Guard District identifies the regulated 

area for this event on the St Johns River 

from Palatka, FL, to Jacksonville, FL. 

During the enforcement periods, the 

operator of any vessel in the regulated 

area must comply with directions from 

the Patrol Commander or any Official 

Patrol displaying a Coast Guard ensign. 

DATES: The regulations in 33 CFR 

100.701, Table 1 to § 100.701, section 

(c), Item 14, will be enforced from 7:00 

a.m. until 9:00 p.m. on May 7, 2022. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this 

notification of enforcement, call or 

email MST2 Shawn Keeman, Sector 

Jacksonville, Waterways Management 

Division, U.S. Coast Guard; telephone 

904–714–7661, email 

Shawn.R.Keeman@uscg.mil. 

SUPPLEMENTARY INFORMATION: The Coast 

Guard will enforce special local 

regulations in 33 CFR 100.701, Table 1 

to § 100.701, section (c), Item 14, for the 

68th Mug Race regulated from 7:00 a.m. 

until 9:00 p.m., on May 7, 2022. This 

action is being taken to provide for the 

safety of life on navigable waterways 

during the event. Our regulation for 

recurring marine events within the 

Seventh Coast Guard District, § 100.701, 

Table 1 to § 100.701, section (c), Item 

14, specifies the location of the 

regulated area for the Mug Race which 

encompasses portions of the St Johns 

River from Palatka, FL, at the U.S. 17 

Bridge, to Jacksonville, FL, near the 

I–295 Bridge. During the enforcement 

periods, as reflected in in § 100.701, if 

you are the operator of a vessel in the 

regulated area you must comply with 

directions from the Patrol Commander 

or any Official Patrol displaying a Coast 

Guard ensign. 

In addition to this notification of 

enforcement in the Federal Register, the 

Coast Guard plans to provide 

notification of this enforcement period 

via the Local Notice to Mariners and/or 

marine information broadcasts. 

Dated: March 11, 2022. 

M.R. Vlaun, 

Captain, U.S. Coast Guard, Captain of the 

Port Jacksonville. 

[FR Doc. 2022–06430 Filed 3–25–22; 8:45 am] 

BILLING CODE 9110–04–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 64 and 76 

[GN Docket No. 17–142; FCC 22–12; FR ID 

76238] 

Improving Competitive Broadband 

Access to Multiple Tenant 

Environments 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission or FCC) adopts final rules 

to improve competition for 

communications services in multitenant environments. The rules prohibit 

telecommunications carriers and 

covered multichannel video 

programming distributors (MVPDs) from 

entering into certain revenue sharing 

agreements with a building owner that 

keep competitive providers out of 

buildings. The rules also require 

providers to inform tenants about the 

existence of exclusive marketing 

arrangements in simple, easy-tounderstand language that is readily 

accessible. The Commission adopted the 

Report and Order in conjunction with a 

Declaratory Ruling in GN Docket No. 

17–142 in which the Commission 

clarifies that existing Commission rules 

regarding cable inside wiring prohibit 

so-called sale-and-leaseback 

arrangements that block competitive 

access to alternative providers. 

DATES: 

Effective date: This rule is effective 

April 27, 2022. 

Compliance dates: See paragraph 77 

of the SUPPLEMENTARY INFORMATION for 

information on the compliance dates for 

47 CFR 64.2500(c), (d), and (e) and 

76.2000(b), (c), and (d). 

FOR FURTHER INFORMATION CONTACT: For 

further information, please contact 

Benjamin (Jesse) Goodwin, Competition 

Policy Division, Wireline Competition 

Bureau, at (202) 418–0958 or 

Benjamin.Goodwin@fcc.gov. For 

additional information concerning the 

Paperwork Reduction Act proposed 

information collection requirements 

contained in this document, send an 

email to PRA@fcc.gov or contact Nicole 

Ongele at (202) 418–2991. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Report 

and Order in GN Docket No 17–142, 

FCC 22–12, adopted on February 11, 

2022, and released on February 15, 

2022. The full text of this document is 

available for public inspection at the 


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following internet address: https://

docs.fcc.gov/public/attachments/FCC22-12A1.pdf. To request materials in 

accessible formats for people with 

disabilities (e.g., braille, large print, 

electronic files, audio format, etc.) or to 

request reasonable accommodations 

(e.g., accessible format documents, sign 

language interpreters, CART, etc.), send 

an email to fcc504@fcc.gov or call the 

Consumer & Governmental Affairs 

Bureau at (202) 418–0530 (voice) or 

(202) 418–0432 (TTY). 

This document contains new or 

modified information collection 

requirements subject to the Paperwork 

Reduction Act of 1995 (PRA), Public 

Law 104–13. It will be submitted to the 

Office of Management and Budget 

(OMB) for review under section 3507(d) 

of the PRA. OMB, the general public, 

and other Federal agencies will invite to 

comment on the new or modified 

information collection requirements 

contained in this proceeding. Comments 

should address: (a) Whether the 

proposed collection of information is 

necessary for the proper performance of 

the functions of the Commission, 

including whether the information shall 

have practical utility; (b) the accuracy of 

the Commission’s burden estimates; (c) 

ways to enhance the quality, utility, and 

clarity of the information collected; (d) 

ways to minimize the burden of the 

collection of information on the 

respondents, including the use of 

automated collection techniques or 

other forms of information technology; 

and (e) way to further reduce the 

information collection burden on small 

business concerns with fewer than 25 

employees. In addition, pursuant to the 

Small Business Paperwork Relief Act of 

2002, Public Law 107–198, see 44 U.S.C. 

3506(c)(4), we seek specific comment on 

how we might further reduce the 

information collection burden for small 

business concerns with fewer than 25 

employees. 

Synopsis 

I. Introduction 

1. Millions of people work and live in 

multiple tenant environments (MTEs), 

with a third of Americans residing in 

apartments, condominiums, or other 

multiunit buildings. And MTEs 

disproportionately serve residents in 

lower-income and marginalized 

communities. Access to high-quality, 

affordable communications service— 

including broadband internet access 

service—has become essential to all 

Americans, including those living and 

working in MTEs. The COVID–19 

pandemic has brought into sharp focus 

the critical importance of these 

communications services as never 

before. Increasingly we rely on telework, 

remote learning, telehealth and other 

online applications to meet our personal 

and professional needs—all of which 

require access to broadband internet 

access service or other high-quality, 

affordable communications services. 

Despite the importance of these 

services, the millions of people across 

the nation living and working in MTEs 

face obstacles to obtaining the benefits 

of competitive choice of fixed 

broadband, voice, and video services. 

By MTEs, we specifically mean 

‘‘commercial or residential premises 

such as apartment buildings, 

condominium buildings, shopping 

malls, or cooperatives that are occupied 

by multiple entities.’’ The term MTE, as 

we use it here, encompasses everything 

within the scope of two other terms the 

Commission has used in the past— 

multiple dwelling unit and multiunit 

premises. When referring to residential 

MTEs, past Commission rules and 

actions have sometimes used the term 

multiple dwelling unit, or MDU. In this 

document, we use the term ‘‘residential 

MTE’’ coterminously with ‘‘MDU.’’ 

2. To ensure competitive choice of 

communications services for those 

living and working in MTEs, and to 

address practices that undermine 

longstanding rules promoting 

competition in MTEs, we take three 

specific actions. First, we adopt new 

rules prohibiting providers from 

entering into certain types of revenue 

sharing agreements that are used to 

evade our existing rules. Second, we 

adopt new rules requiring providers to 

disclose the existence of exclusive 

marketing arrangements in simple, easyto-understand language. Third, we 

clarify that existing Commission rules 

regarding cable inside wiring prohibit 

so-called ‘‘sale-and-leaseback’’ 

arrangements which effectively deny 

access to alternative providers. In taking 

these actions in this document, we 

promote tenant choice and competition 

in the provision of communications 

services to the benefit of those who live 

and work in MTEs. 

II. Background 

3. Over the last 30 years, recognizing 

the need to promote competition in 

emerging technologies, Congress and the 

Commission have demonstrated a strong 

commitment to promoting access to 

telecommunications, cable, and 

broadband services in MTEs. In 1992, 

Congress passed the Cable Television 

Consumer Protection and Competition 

Act (1992 Cable Act) to, among other 

things, promote competition in cable 

communications. And in the 

Telecommunications Act of 1996 (the 

Act), Congress directed the Commission 

to promote competition between 

telecommunications carriers, as well as 

prohibit certain unfair practices by 

covered multichannel video 

programming distributors (MVPDs). 

Following this congressional direction, 

and acknowledging the millions of 

Americans that live and work in MTEs, 

the Commission adopted rules 

prohibiting telecommunications carriers 

and covered MVPDs from entering into 

certain exclusionary agreements in 

MTEs and governing the disposition of 

cable inside wiring in residential MTEs. 

4. Prohibitions on Exclusive Access 

Agreements. The Commission has long 

prohibited agreements between 

providers of certain communications 

services and MTE owners that grant the 

provider exclusive access and rights to 

provide service to the MTE. In two 

orders adopted in 2000 and 2008, 

respectively, the Commission prohibited 

telecommunications carriers from 

entering into or enforcing exclusivity 

contracts with MTE owners in both 

commercial and residential MTEs. And 

in 2007, the Commission prohibited 

certain MVPDs from entering into or 

enforcing exclusivity contracts with 

residential MTE owners. The 

Commission concluded that exclusive 

access contracts harm competition and 

‘‘discourage the deployment of 

broadband facilities to American 

consumers’’ by impeding entry of 

competitive providers. And it 

highlighted that ‘‘[b]y far the greatest 

harm that exclusivity clauses cause 

residents of [residential MTEs] is that 

they deny those residents another 

choice of MVPD service and thus deny 

them the benefits of increased 

competition.’’ Noting the ‘‘inextricabl[e] 

link’’ between ‘‘broadband deployment 

and entry into the MVPD business,’’ the 

Commission determined that 

deployment of the former would be 

hampered by impediments to the latter. 

While the Commission has prohibited 

exclusivity contracts that explicitly 

prohibit entrance by competitors, in 

2010 it declined to prohibit MVPDs 

from entering into exclusive marketing 

arrangements because it could not 

‘‘conclude, based on the record, that 

they hinder significantly or prevent 

other MVPDs from providing service to 

[residential MTE] residents.’’ 

5. Cable Inside Wiring. Separately, 

pursuant to specific congressional 

direction, in 1993 the Commission 

promulgated inside wiring rules to 

facilitate competitive access to unused 

cable wiring, including in residential 

MTEs. In a series of Orders in the 

decade to follow, the Commission 


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refined and expanded on those rules. 

These cable inside wiring rules govern 

the disposition of cable wiring owned 

by an MVPD after a subscriber 

(including one living in a residential 

MTE), or a residential MTE owner, 

terminates service. They apply to both 

cable home wiring, which is the wiring 

inside an MTE resident’s unit, and 

home run wiring, which is the 

dedicated wiring that runs from a 

common space (such as a 

telecommunications closet) to an MTE 

resident’s unit. Generally speaking, the 

rules require MVPDs, after termination 

of service, to either remove the wiring; 

abandon and not disable the wiring; or 

sell it to another party such as the 

subscriber, residential MTE owner, or 

an alternative provider. The 

Commission’s stated objective with 

these rules is to ‘‘foster opportunities for 

[MVPDs] to provide service in’’ 

residential MTEs by governing the 

disposition of wiring after the MTE 

owner or tenant terminates service. The 

rules are designed to promote 

competitive choice by ‘‘enabl[ing] 

subscribers to subscribe to services 

offered by an alternative MVPD without 

incurring additional installation costs or 

experiencing disruption in 

programming.’’ 

6. Recent Developments. In 2017, the 

Commission released a Notice of Inquiry 

(NOI) with the goal of ‘‘promoting 

competition and easing deployment of 

broadband services within MTEs.’’ The 

2017 MTE NOI sought comment on the 

state of broadband competition within 

MTEs, ways to facilitate greater 

consumer choice and enhance 

broadband deployment in MTEs, and a 

variety of specific practices that may 

impede competition in MTEs. Among 

those specific practices, it sought 

comment on (1) revenue sharing 

agreements, whereby a provider 

compensates an MTE owner with a 

portion of the provider’s revenue 

generated from the building’s 

subscribers; (2) exclusive wiring 

arrangements, in which an MTE owner 

agrees to make wiring within its control 

available to a provider on an exclusive 

basis, and related sale-and-leaseback 

arrangements, in which a provider sells 

wiring it owns to an MTE owner and 

then leases that wiring back on an 

exclusive basis; and (3) exclusive 

marketing arrangements, including 

whether to revisit the 2010 decision not 

to take action regarding MVPD exclusive 

marketing arrangements (75 FR 12458, 

March 16, 2010). 

7. In 2019, the Commission released 

a notice of proposed rulemaking that 

again sought comment about these 

practices and others that could have the 

effect of dampening competition or 

deployment (2019 Improving 

Competitive Broadband Access to 

Multiple Tenant Environments Notice of 

Proposed Rulemaking (2019 MTE 

NPRM) (84 FR 37219, July 31, 2019)). 

The Commission raised various 

proposals, including whether providers 

should be required to disclose the 

existence of contractual provisions like 

revenue sharing agreements or exclusive 

marketing arrangements. It additionally 

sought comment on the Commission’s 

authority to target different kinds of 

entities, including telecommunications 

providers, MVPDs, and broadband-only 

providers. 

8. On July 9, 2021, President Biden 

released an Executive order encouraging 

the Commission to examine issues 

previously raised in this proceeding. In 

September 2021, the Wireline 

Competition Bureau issued a Public 

Notice seeking to refresh the record on 

the issues raised in the 2019 MTE NPRM 

and on developments that may have 

occurred in the intervening two years. 

The 2021 MTE NPRM (86 FR 52120, 

September 20, 2021) specifically sought 

comment on revenue sharing 

agreements; exclusive wiring 

arrangements, including sale-andleaseback arrangements; and exclusive 

marketing arrangements. 

III. Report and Order 

9. In light of the evidence in the 

record, we take steps to promote 

competitive choice in MTEs and target 

three specific practices that frustrate 

competition, impede deployment by 

competitive providers, and reduce 

choice for Americans living and 

working in MTEs. In this document, we 

adopt new rules prohibiting practices 

which undermine the Commission’s 

longstanding prohibition on exclusive 

access contracts. We prohibit 

telecommunications carriers and 

MVPDs from entering into exclusive and 

graduated revenue sharing agreements. 

And we require that 

telecommunications carriers and 

MVPDs include disclaimers on 

marketing materials distributed to MTE 

tenants that inform tenants of the 

existence of an exclusive marketing 

arrangement. Through these actions, we 

halt practices that serve as an end run 

around our rules intended to foster 

competition, and we promote all the 

benefits that competition entails by 

addressing practices which limit 

consumer choice. While we take these 

specific steps in this document, we do 

not address other issues raised in this 

record, including but not limited to 

exclusive wiring arrangements, bulk 

billing, and rooftop antenna and 

Distributed Antenna Systems (DAS) 

facilities access. 

A. Need for Action 

10. We act in this document to 

promote consumer choice and address 

practices that undermine our procompetitive rules against exclusive 

access contracts. Twenty years ago, the 

Commission first prohibited exclusive 

access contracts between 

telecommunications carriers and 

commercial MTE owners. In the eight 

years to follow, it expanded that 

prohibition to cover different types of 

providers and MTE owners. It took these 

steps to promote competition and 

broadband deployment, consistent with 

Congress’s policies and goals. The 

Commission last explored MTE 

exclusivity in 2010 when it declined to 

prohibit two practices by MVPDs in 

residential MTEs—bulk billing and 

exclusive marketing arrangements—on 

the basis that the record before it did not 

demonstrate that these practices ‘‘hinder 

significantly or prevent other MVPDs 

from providing service to [residential 

MTE] residents.’’ The Commission 

stated at the time that it ‘‘may review 

marketplace conditions again, however, 

if future events show that any of these 

practices is having new and significant 

anti-competitive effects.’’ 

11. The record before us demonstrates 

that new practices have emerged that 

negatively impact competition, contrary 

to the goals of our rules against 

exclusive access contracts. The practices 

we address in this document—exclusive 

and graduated revenue sharing and 

exclusive marketing arrangements— 

reduce the opportunities for competitive 

providers to offer service to MTE 

tenants. Many commenters, including 

small competitive providers, advocacy 

groups, and MTE residents, document 

challenges in providing and obtaining 

services due to the obstacles these 

practices, alone or in combination with 

others, pose for access. Despite our 

prohibition on exclusive access 

agreements, the use of some of these 

practices has had the same practical 

effect of barring competitive entry to 

MTEs. Further, as many commenters 

state, the COVID–19 pandemic has 

underscored the critical role that 

broadband plays in MTE tenants’ lives. 

As other commenters highlight, the 

practices identified in the 2021 MTE 

NPRM may limit an MTE resident’s 

ability to enroll in the Emergency 

Broadband Benefit Program with the 

participating provider of their choice. 

And the United States Small Business 

Administration Office of Advocacy 

identified the importance of 


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competition in MTEs to small 

businesses in America. 

12. We disagree with those 

commenters who claim that the market 

for broadband service in MTEs make 

actions like those we take in this 

document unnecessary. The Real Estate 

Associations highlight internal survey 

data that they say demonstrates that 

competition is strong; claim these 

numbers compare favorably to the 

Commission’s own data regarding 

Americans’ access to broadband 

generally, including in single-family 

homes; and argue that action to promote 

competition in MTEs is consequently 

unnecessary. We disagree that these 

statistics, which other commenters rely 

on, are reason to delay action. First, the 

experiences of numerous commenters 

strongly indicate otherwise. Second, the 

survey information provided by the Real 

Estate Associations is largely conclusory 

and provided without the underlying 

data that would enable the Commission 

to assess its reliability or general 

applicability—for example, whether all 

or just some units in a building have 

access to the alternative providers 

present. Third, even taken at face value, 

the figures provided by the Real Estate 

Associations comparing broadband 

deployment in MTEs to that in other 

forms of housing do not compare 

favorably given that one would expect 

broadband deployment to be 

significantly higher in MTEs due to 

their density. The record reflects that 

exclusivity practices in an MTE can 

have ripple effects in the community 

around it, including for non-MTEs, as 

providers demonstrate hesitancy to 

make capital investments in markets 

where they may be denied entry to 

MTEs. Our actions in this document 

will promote competition and 

deployment in urban areas generally, as 

they reduce barriers to new entrants. 

Finally, we reject the Real Estate 

Associations’ assertion that unless 

competition in MTEs is worse than it is 

elsewhere in the U.S., the Commission 

cannot act. We take these steps in this 

document to target anti-competitive 

practices in MTEs pursuant to the 

Commission’s longstanding goal of 

promoting competition in these 

buildings. 

B. Scope of Rules 

13. The rules we adopt in this 

document address practices that have 

emerged that undermine the goals of our 

rules prohibiting exclusive access 

contracts. We thus apply these 

obligations only to those entities and in 

those contexts where our exclusive 

access contract prohibitions already 

apply. To that end, our rules addressing 

certain types of revenue sharing 

agreements and exclusive marketing 

arrangements apply to communications 

services provided by (1) 

telecommunications carriers in both 

commercial and residential MTEs, and 

(2) MVPDs subject to section 628(b) in 

residential MTEs. (MVPDs covered by 

section 628(b) include a ‘‘cable operator, 

a satellite cable programming vendor in 

which a cable operator has an 

attributable interest, or a satellite 

broadcast programming vendor.’’) 

14. We decline to alter the scope of 

these rules at this time. Commenters 

argue we should subject broadband-only 

providers to our rules governing MTE 

access, citing the potential benefits of 

doing so and the potential harms that 

could result from regulatory asymmetry 

if we did not. Relatedly, some 

commenters argue we should consider 

differences between residential and 

commercial MTEs in assessing the types 

of practices we address in this 

document. However, our actions in this 

document reflect an incremental 

approach to the problems identified. In 

tackling these issues in our 2007 

Exclusive Service Contracts and 2008 

Competitive Networks Orders (73 FR 

1080, January 7, 2008; 73 FR 28049, 

May 15, 2008), we did not extend our 

decisions to broadband-only providers, 

and we applied rules differently to 

commercial and residential MTEs. This 

action builds on those previous 

determinations and so we adopt the 

approach taken in those prior orders. 

We proceed incrementally, and will 

continue to monitor competition in 

MTEs to determine whether we should 

alter the scope of our rules to cover 

other providers or differently 

distinguish between commercial and 

residential MTEs in response to any 

new information that comes to light. 

Even though we decline to alter the 

scope of our rules at this time to the full 

extent some commenters advocate, we 

believe that our actions in this 

document will reap substantial benefits 

for consumers by promoting choice in 

MTEs. 

15. To that end, we limit our rules 

regarding certain revenue sharing 

agreements and exclusive marketing 

arrangements to telecommunications 

carriers and covered MVPDs, and the 

specific MTE contexts described. 

References to ‘‘providers,’’ ‘‘MTEs,’’ and 

‘‘MTE owners’’ in this document should 

be read to apply only to these entities 

and in these contexts. We further 

underscore that, when we refer to 

revenue sharing agreements and 

exclusive marketing arrangements, we 

do not refer only to standalone contracts 

but also clauses in contracts that 

include other terms. Where a revenue 

sharing agreement or exclusive 

marketing arrangement is part of a larger 

contract, the remainder of that contract 

is unaffected by these rules. 

C. Prohibition of Certain Revenue 

Sharing Agreements 

16. To promote broadband 

competition and deployment in MTEs, 

we adopt rules prohibiting providers 

from entering into or enforcing two 

types of revenue sharing agreements 

with MTE owners that are particularly 

harmful and which amount to de facto 

exclusive access agreements. First, we 

prohibit providers from entering into 

exclusive revenue sharing agreements 

with an MTE owner. Second, we 

prohibit providers from entering into 

graduated revenue sharing agreements 

with an MTE owner. In the 2019 MTE 

NPRM, the Commission sought 

comment on whether it should restrict 

provider use of revenue sharing 

agreements. Upon review of the record, 

we now take this incremental step and 

adopt targeted rules addressing two 

specific types of agreements that we 

find by their structure and effect to be 

anti-competitive. 

17. In the 2019 MTE NPRM, the 

Commission defined a revenue sharing 

agreement as an agreement whereby 

‘‘the building owner receives 

consideration from the communications 

provider in return for giving the 

provider access to the building and its 

tenants.’’ The Commission further 

explained that this ‘‘consideration can 

take many forms, ranging from a pro 

rata share of the revenue generated from 

tenants’ subscription service fees, to a 

one-time payment calculated on a perunit basis (sometimes called a door fee), 

to provider contributions to building 

infrastructure, such as WiFi service for 

common areas.’’ The Commission 

acknowledged explanations from MTE 

owners that they enter into these 

agreements because they ‘‘enable MTE 

owners to use the consideration they 

receive from communications providers 

to offset infrastructure costs associated 

with providing broadband service to 

tenants.’’ And it similarly acknowledged 

concerns from competitive providers 

and others that they ‘‘reduce incentives 

for [MTE] owners to grant access to 

competitive providers when any 

subscriber gained by such a provider 

means reduced income to the building 

owner.’’ 

18. In light of the record developed 

since the Commission first sought 

comment on revenue sharing 

agreements in 2017, we prohibit 

providers from entering into or 

enforcing two particularly problematic 


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types of revenue sharing agreements— 

exclusive and graduated—that 

undermine tenant choice and 

competition in MTEs and are at odds 

with our long-existing bans on exclusive 

access. We will continue to monitor the 

impact of revenue sharing agreements 

on competition in MTEs, including 

those not specifically covered by the 

prohibitions we adopt in this document. 

We disagree with commenters that argue 

we should not act because the payments 

at issue are not significant enough to 

drive MTE owner behavior, and because 

revenue sharing is passed through from 

MTE owners to their tenants. The record 

contains substantial evidence of the 

anti-competitive effects of these 

agreements on prospective competitors 

and tenant choice. Regardless of the 

motivation of MTE owners, the practices 

we address concern provider 

agreements with third parties that limit 

their competitors’ ability to provide 

service. Further, no commenter 

effectively supports the argument that 

prohibitions of these two types of 

revenue sharing agreements undermine 

an MTE owner’s incentive for deploying 

communications infrastructure, 

especially in light of the importance of 

communications service to attracting 

tenants. And as we explain below, no 

commenter effectively rebuts the 

argument that these two types of 

revenue sharing agreements impede the 

ability of competitive providers to 

provide service in the MTEs where 

present, and thus impede those tenants’ 

choice of providers. 

19. We adopt this approach over 

alternatives suggested in the record. We 

find this targeted prohibition is 

preferable to a disclosure requirement, 

in light of commenters who argue that 

simply informing tenants or competitors 

about anti-competitive revenue sharing 

agreements may not address their anticompetitive effects. And we decline to 

style this rule as a rebuttable 

presumption and allow a provider to 

show an agreement is related to MTE 

owner costs and therefore permitted; 

our decision in this document turns on 

the anti-competitive nature of the types 

of agreements identified. 

1. Exclusive Revenue Sharing 

Agreements 

20. We prohibit a provider from 

entering into or enforcing an exclusive 

revenue sharing agreement with an MTE 

owner. In an exclusive revenue sharing 

agreement, the communications 

provider offers the MTE owner 

consideration in return for the provider 

obtaining access to the building and its 

tenants, and prohibits the MTE owner 

from accepting similar consideration 

from any other provider. Thus, an 

exclusive revenue sharing agreement 

allows a communications provider to 

prevent other providers from sharing 

payments with the MTE owner. 

21. We find that exclusive revenue 

sharing agreements are anti-competitive 

and amount to de facto exclusive access 

agreements. We agree with Starry that 

‘‘exclusive revenue shar[ing] serves no 

legitimate purpose other than to inhibit 

new entry in an MTE . . . .’’ Similar to 

the graduated revenue sharing 

agreements discussed below, the 

structure of an exclusive revenue 

sharing agreement financially 

disincentivizes the MTE owner from 

allowing competing providers access to 

the building and its tenants. When an 

exclusive revenue sharing agreement is 

in place, a new provider is unable to 

provide compensation to the MTE 

owner akin to that offered by the 

incumbent. Because each subscriber that 

switches from the incumbent to a 

competitive provider decreases the 

compensation the MTE owner receives, 

the owner has an incentive to block 

alternative providers’ access to the 

building. As INCOMPAS explains, these 

agreements effectively ‘‘eliminate 

consumer choice while simultaneously 

benefiting the property owner and their 

preferred provider.’’ No commenter 

expresses support for these agreements. 

Accordingly, we prohibit providers from 

entering into or enforcing exclusive 

revenue sharing agreements. 

22. We find that the competitive 

benefits of our prohibition on exclusive 

revenue sharing agreements, in the form 

of increased subscriber choice and more 

competitive pricing and service, 

substantially outweigh the minimal 

compliance costs associated with this 

rule. 

2. Graduated Revenue Sharing 

Agreements 

23. We also prohibit providers from 

entering into or enforcing graduated 

revenue sharing agreements with MTE 

owners. In a graduated revenue sharing 

agreement, sometimes known as 

‘‘tiered’’ or ‘‘success-based’’ agreements, 

a provider pays an MTE owner a greater 

percentage of revenue as its penetration 

in the building increases. Under such an 

agreement, as a provider serves more 

tenants in an MTE, the MTE owner 

receives a greater level of compensation 

for each tenant. (In one example, a 

provider offered a five percent revenue 

share when it served 51–55 percent of 

the building with video service; a seven 

percent revenue share when it served 

56–60 percent; an eight percent revenue 

share when it served 61–65 percent; a 

nine percent revenue share when it 

served 66–71 percent of the building, 

and a ten precent revenue share when 

it served greater than 72 percent of the 

building.) Therefore, the more tenants in 

an MTE that a provider furnishes 

service to, the more compensation the 

MTE owner receives on a pro rata basis. 

24. We find that graduated revenue 

sharing agreements are anti-competitive 

and amount to de facto exclusive access 

agreements. We agree with INCOMPAS 

that, because graduated revenue sharing 

agreements ‘‘discourage competitive 

entry to MTEs and . . . circumvent the 

prohibition on exclusive access 

agreements,’’ we should ‘‘ban graduated 

revenue sharing agreements.’’ As the 

Small Business Administration Office of 

Advocacy explains, these types of 

agreements ‘‘provide an MTE owner 

with an incentive to exclude 

competitors so that they can achieve 

maximum returns under the 

agreement.’’ (Although Commission 

rules prohibit providers from entering 

into exclusive access agreements, even 

where a building owner and provider do 

not have an exclusive access agreement, 

a competitor will be unable to serve the 

building if the MTE owner unilaterally 

elects to exclude other providers in 

order to profit from a graduated revenue 

sharing arrangement.) We agree with 

Starry that this type of structure is 

‘‘specifically designed to (1) incentivize 

the building to help the incumbent 

provider maximize the number of 

subscribers in the building; and (2) act 

as an economic penalty if the building 

allows in a new entrant.’’ The record 

convinces us they do ‘‘not serve any 

other legitimate purpose—the revenue 

share increase is not associated with any 

increased cost for the provider or the 

building.’’ Accordingly, we prohibit 

providers from entering into or 

enforcing graduated revenue sharing 

agreements. 

25. We disagree with the few 

commenters who express support for 

graduated revenue sharing agreements. 

Honest Networks claims that they are a 

‘‘powerful inducement for MTE owners 

to work with [competitive providers],’’ 

because the agreements enable 

providers to ‘‘demonstrate value for 

MTE owners.’’ But Honest Networks 

does not address the argument that 

these agreements discourage 

competitive entry once at least one 

provider is in the building. Like those 

who argue that revenue sharing 

agreements generally can ensure return 

on investment, we understand Honest 

Networks’ claim to be that it relies on 

the exclusivity provided by a graduated 

revenue sharing agreement to compete 

and that this exclusivity can benefit 

competitive providers. We agree with 


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the City of San Francisco, which argues 

that the fact ‘‘[t]hat some market 

participants might benefit from barriers 

to entry imposed on potential 

competitors is not a compelling reason 

to allow for them.’’ And contrary to 

Honest Networks’ claim that graduated 

revenue sharing agreements are good for 

competitive providers, INCOMPAS 

provides examples of competitive 

providers that were prevented from 

offering service to one or more MTEs 

due to graduated revenue sharing 

agreements. As we have explained, in 

the 2019 MTE NPRM, the Commission 

defined a revenue sharing agreement as 

an agreement in which a provider 

compensates an MTE owner in 

exchange for access to a building and its 

tenants. This definition hinges on the 

MTE owner’s provision of building 

access in exchange for payment, but 

graduated payments discourage MTE 

owners from allowing competitive entry 

in the manner we have described 

regardless of what they are in exchange 

for. We therefore extend this prohibition 

to include graduated compensation that 

is in exchange for anything between an 

MTE owner and covered provider that 

relates to providing communications 

service to tenants. We do so to eliminate 

the ability of providers to easily 

circumvent this prohibition: A provider 

could simply provide graduated 

payment in exchange for a practice such 

as exclusive marketing and achieve the 

same anti-competitive effects. To this 

end, we disagree with those that argue 

we should condition our ban on 

graduated revenue sharing agreements 

to ones used as a condition of access, 

because this limitation would allow 

providers to easily evade our 

prohibition. 

26. The record indicates that the 

benefits of our new rule substantially 

outweigh its costs. By our action in this 

document, we remove MTE owners’ 

disincentive to permit service by 

competing providers, and subscribers 

will benefit from increased choice as a 

result of entrance by competing 

providers, as well as more competitive 

pricing and service. By contrast, no 

commenter in the record indicates that 

this prohibition will be costly. 

3. Prohibition of Enforcing Existing 

Graduated or Exclusive Revenue 

Sharing Agreements 

27. Our prohibition on graduated and 

exclusive revenue sharing agreements 

applies both to agreements entered into 

after the effective date of these rules and 

those already in existence when these 

rules become effective. The rules we 

adopt thus prohibit providers from (1) 

executing new graduated or exclusive 

revenue sharing agreements, and (2) 

enforcing existing graduated or 

exclusive revenue sharing agreements 

on a going forward basis. Applying this 

prohibition to future enforcement of 

existing agreements will promote 

competitive entry to MTEs where these 

agreements are already in effect—to the 

benefit of MTE tenants—and is 

consistent with the Commission’s 

approach when it prohibited exclusive 

access agreements in residential MTEs. 

28. When the Commission prohibited 

exclusive access agreements in 

residential MTEs—for both 

telecommunications carriers and 

covered MVPDs—it applied that 

prohibition to agreements already in 

effect. In the 2008 Competitive Networks 

Order, it found that ‘‘leav[ing] existing 

exclusivity contracts in effect would 

allow the competitive harms we have 

identified to continue for some time, 

even years,’’ and that it was ‘‘in the 

public interest to prohibit such 

contracts from being enforced.’’ The 

Commission further concluded that 

‘‘immediately prohibiting the 

enforcement of such provisions is more 

appropriate than phasing them out or 

waiting until contracts expire and are 

replaced by contracts without 

exclusivity provisions . . . [because] 

such approaches would only serve to 

further delay the entry of competition to 

customers in the buildings at issue.’’ In 

the 2007 Exclusive Service Contracts 

Order, the Commission similarly 

reasoned that both existing and new 

exclusivity clauses had the ‘‘same 

competition- and broadband-deterring 

effect that harms consumers.’’ Because a 

prohibition that did not cover the 

exclusivity agreements currently in 

effect would ‘‘allow the vast majority of 

the harms caused by such clauses to 

continue for years . . . [or] indefinitely 

in the cases of exclusivity clauses that 

last perpetually or contemplate 

automatic renewal,’’ it found that it was 

‘‘strongly in the public interest to 

prohibit such clauses from being 

enforced.’’ In both orders, the 

Commission found that affected parties 

were on notice that the Commission 

could adopt such a prohibition because 

‘‘the validity of exclusivity provisions 

. . . ha[d] been subject to question for 

some time.’’ 

29. On review, the United States 

Court of Appeals for the D.C. Circuit 

upheld the Commission’s prohibition 

enforcing existing exclusive access 

contracts adopted in the 2007 Exclusive 

Service Contracts Order. The Court 

found that the Commission’s rule was 

not retroactive, because it had 

‘‘impaired the future value of past 

bargains but ha[d] not rendered past 

actions illegal or otherwise 

sanctionable.’’ It further concluded the 

Commission satisfied its obligation to 

balance the effect of ‘‘upsetting prior 

expectations or existing investments 

against the benefits of applying their 

rules to those preexisting interests.’’ 

30. We undertake that same balancing 

and find that the benefits of the 

prohibition we adopt in this document 

on enforcing existing graduated and 

exclusive revenue sharing agreements 

substantially outweigh the costs. The 

record reflects that these types of 

revenue sharing agreements already 

exist and already cause the anticompetitive harms we have identified. 

To leave existing contracts unaddressed 

would allow these harms to continue for 

a period of years or even indefinitely. 

Indeed, the record reflects that these 

agreements may last perpetually. 

Prohibiting existing contracts from 

being enforced will serve the public 

interest by preventing such anticompetitive conduct from being 

grandfathered in indefinitely, and by 

allowing tenants of impacted MTEs to 

realize the benefits of competition and 

consumer choice. 

31. We find that our prohibition does 

not disturb legitimate expectations of 

MTE and provider investors affected by 

this rule. First, the anti-competitive 

structure of the two types of revenue 

sharing agreements we prohibit in this 

document conflict with the 

Commission’s long-existing rules 

designed to promote broadband 

deployment and competition in MTEs. 

Second, this rule does not prevent 

providers from offering service to those 

MTE tenants who wish to continue to 

subscribe to their service. Third, the 

lawfulness of revenue sharing 

agreements has been under the 

Commission’s scrutiny for nearly five 

years. In the 2017 MTE NOI, the 

Commission sought ‘‘comment on how 

to best address revenue sharing 

agreements’’; in the 2019 MTE NPRM it 

asked whether it should ‘‘restrict the use 

of revenue sharing agreements’’; and in 

2021 the Wireline Competition Bureau 

refreshed the record and asked if the 

Commission should ‘‘restrict the use of 

revenue sharing agreements’’ and 

‘‘address specific types of revenue 

sharing agreements.’’ Finally, the record 

gives us no reason to uniquely 

differentiate between commercial and 

residential MTEs for purposes of this 

rule, and accordingly we apply the 

prohibition on enforcing existing, 

covered revenue-sharing contracts to all 

MTE contexts covered by this 

document. Our analysis is not changed 

by record claims that existing revenue 

sharing agreements—particularly 


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graduated revenue sharing agreements— 

are numerous. We find that this only 

underscores the importance of reaching 

these existing agreements to protect 

MTE tenants from their harmful effects. 

32. Compliance Dates. For existing 

contracts with exclusive and graduated 

revenue sharing agreements, compliance 

with the prohibition on enforcing such 

agreements will be required 180 days 

after publication of the Report and 

Order in the Federal Register. We direct 

the Wireline Competition Bureau to 

release a Public Notice announcing the 

compliance date of the rules for existing 

contracts. We agree with Altice that 

adopting a delayed compliance date for 

existing contracts ‘‘would allow time for 

providers to conduct the extensive 

contract renegotiations that would be 

required if existing graduated revenue 

sharing provisions are rendered void by 

the Commission’s decision.’’ While 

Altice suggests the need for a one-year 

transition period for providers to 

comply with the new prohibition on 

enforcing existing graduated and 

exclusive revenue sharing arrangements, 

we find that 180 days strikes the right 

balance between giving providers 

sufficient time to bring their existing 

arrangements into compliance and 

ensuring that MTE tenants promptly 

benefit from the rules we adopt in this 

document. For new contracts, the 

prohibition on entering into exclusive 

and graduated revenue sharing 

arrangements will take effect 30 days 

after publication of the Report and 

Order in the Federal Register and will 

bar such arrangements in new contracts 

from that point forward. 

D. Required Disclosure of Exclusive 

Marketing Arrangements 

33. We require providers to disclose 

the existence of exclusive marketing 

arrangements that they have with MTE 

owners. Such disclosure must be 

included on all written marketing 

material directed at tenants or 

prospective tenants of an MTE subject to 

the arrangement and must explain in 

clear, conspicuous, legible, and visible 

language that the provider has the right 

to exclusively market its 

communications services to tenants in 

the MTE, that such a right does not 

suggest that the provider is the only 

entity that can provide communications 

services to tenants in the MTE, and that 

service from an alternative provider may 

be available. We sought comment on 

whether to require this type of 

disclosure in the 2019 MTE NPRM 

because of the potential for exclusive 

marketing arrangements to be used to 

impede MTE entrance by competitive 

providers, frustrating the goals and 

intent of our exclusive access 

prohibition. The record reflects that the 

nature of exclusive marketing 

arrangements has changed since the 

Commission last addressed them in 

2010, and we find that this limited 

disclosure requirement will alleviate 

tenant confusion identified in the 

record, prevent the evasion of our 

exclusive access rules, and, in turn, 

promote competition in MTEs. 

34. As the Commission explained in 

the 2019 MTE NPRM, an exclusive 

marketing arrangement is ‘‘an 

arrangement, either written or in 

practice, between an MTE owner and a 

service provider that gives the service 

provider, usually in exchange for some 

consideration, the exclusive right to 

certain means of marketing its service to 

tenants of the MTE.’’ As Consolidated 

Communications and Ziply Fiber 

explain, exclusive marketing 

arrangements ‘‘give only one broadband 

provider the right to send sales 

representatives into an MTE or 

distribute marketing materials, such as 

door hangers, in the property.’’ They 

further state that ‘‘[u]nder exclusive 

marketing arrangements, MTE owners 

will often identify that single company 

as the ‘preferred’ provider and steer 

tenants toward that provider’s service.’’ 

35. The record reflects that tenants in 

MTEs with exclusive marketing 

arrangements are confused about the 

availability of competitive service in the 

MTE and that this confusion dampens 

competition. Honest Networks states 

that ‘‘exclusive marketing arrangements 

create confusion and lower choice for 

tenants,’’ and Consolidated 

Communications and Ziply Fiber 

explain that they do so by ‘‘creating 

confusion as to whether it is even 

possible to obtain service from another 

company.’’ Crown Castle asserts that 

‘‘exclusive marketing arrangements 

between a MTE and a common carrier 

providing service directly to tenants 

often confuses MTE tenants . . . [who] 

may believe the carriers’ exclusive 

marketing [arrangement] with the MTE 

means that a carrier has an exclusive 

right to provide services within the 

building.’’ This confusion has the 

cascading effect of artificially limiting 

competition for communications 

services for MTE tenants because when 

tenants lack awareness of competitive 

options, their choice is narrowed to the 

entity with the exclusive arrangement. 

Some commenters contend that even 

MTE owners and their agents are 

confused about the specific nature of an 

exclusive marketing arrangement, 

believing it to be an exclusive access 

agreement fully barring competition in 

the MTE. Competitive providers explain 

that in MTEs with exclusive marketing 

arrangements they achieve lower 

penetration and less revenue, and that, 

consequently, competition in these 

MTEs is dampened and tenants cannot 

realize the benefits of competitive 

choice. 

36. We are persuaded by this record 

to adopt a disclosure requirement to 

alleviate confusion and, in turn, 

promote competition. In 2010, the 

Commission determined that the record 

at the time did not ‘‘support prohibiting 

or regulating exclusive marketing 

arrangements in order to protect 

competition or consumers.’’ The 

Commission found that, at the time, 

‘‘[t]he balance of consumer harms and 

benefits for marketing exclusivity is 

thus significantly pro-consumer.’’ 

However, over a decade later, the 

evidence in the record paints a different 

picture. Based on the record now before 

us, we agree with commenters such as 

INCOMPAS and ACA Connects that a 

disclosure requirement for exclusive 

marketing arrangements will help level 

the playing field by increasing 

transparency for consumers about 

provider options and reducing 

confusion among MTE tenants about the 

availability of competitive 

communications services in an MTE, 

thus promoting competition for such 

services in the MTE. Indeed, we find 

that when an exclusive marketing 

arrangement causes tenant confusion it 

can lead to de facto exclusive access— 

frustrating the goals of our exclusive 

access prohibition—by impeding 

entrance by third parties. The disclosure 

requirement we adopt addresses this 

issue at its source by alleviating this 

confusion. And we agree with Lumen 

that tenants ‘‘deserve to know when this 

is occurring.’’ 

37. We disagree with commenters 

who assert that a disclosure requirement 

would not be beneficial because it 

would not provide tenants with useful 

information or because tenants see 

advertisements for competitors 

elsewhere. We find that, based on the 

compelling evidence in the current 

record, when only one company has the 

ability to market its communications 

services to MTE tenants, tenants often 

are not aware that other providers can 

serve the MTE or are given incorrect 

information that effectively limits their 

choice of providers—thus negatively 

impacting competition. We further 

disagree with commenters who assert 

that exclusive marketing arrangements 

do not preclude competition and so 

action is unnecessary; we find more 

persuasive the detailed record evidence 

of de facto exclusivity faced by 

competitive providers confronting an 


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exclusive marketing arrangement in an 

MTE. While some commenters argue we 

should prohibit exclusive marketing 

arrangements entirely, in this document 

we take this incremental step in light of 

record developments since the 

Commission last considered exclusive 

marketing arrangements in 2010, and we 

will continue to monitor the impact of 

exclusive marketing arrangements on 

competition in MTEs. 

38. We require that the disclosure 

meet the following three requirements: 

It must (1) be included on all written 

marketing material from the provider 

directed at tenants or prospective 

tenants of the affected MTE; (2) identify 

the existence of the exclusive marketing 

arrangement and include a plainlanguage description of the arrangement 

and what it means; and (3) be made in 

a manner that it is clear, conspicuous, 

and legible. The term ‘‘written 

marketing material’’ includes electronic 

or print material. Written marketing 

material is ‘‘directed at’’ a tenant or 

prospective tenant of an MTE if it (1) 

contains specific mention of the MTE; 

(2) is provided directly to the tenant or 

prospective tenant because of its 

relationship (or prospective 

relationship) to the MTE, regardless of 

the means by which it is provided 

(including, but not limited to, being sent 

via email, regular mail, mailbox insert, 

or door hanger); or (3) given to a third 

party, including the MTE owner, with 

the understanding it will be directed at 

tenants or prospective tenants of the 

MTE. It does not, however, include 

general-purpose marketing material that 

incidentally reaches tenants or 

prospective tenants of the MTE (e.g., 

general area media or online 

advertising, website promotions). We 

disagree that this disclosure needs to be 

made to other parties such as 

competitors or the Commission, as some 

commenters suggest, because these 

commenters do not explain how a 

broader disclosure would resolve 

confusion on the part of MTE tenants 

(and prospective tenants). 

39. In terms of the language of the 

disclosure, we require the provider to 

disclose that it has the right to 

exclusively market its communications 

services to tenants in the MTE, that such 

a right does not mean that the provider 

is the only entity that can provide such 

services to tenants in the MTE, and that 

service from an alternative provider may 

be available. The wording we expect for 

this requirement differs slightly from 

the wording proposed by INCOMPAS 

that would have providers notify MTE 

tenants that they ‘‘may select the 

broadband provider of their choice.’’ We 

believe that the INCOMPAS wording is 

overly broad, and instead require only 

communication that service from 

another provider may be available. The 

latter disclosure is vital because this 

requirement is intended to alleviate the 

confusion caused to MTE tenants by the 

existence of an exclusive marketing 

arrangement and whether such an 

arrangement precludes competitive 

providers in the MTE. To this end, we 

agree with commenters who argue that 

the disclosure need not include the 

business terms and conditions of the 

arrangements because they are not 

necessary to counteract any confusion 

and, in turn, promote competition. 

40. In terms of the disclosure being 

clear, conspicuous, and legible, we 

require that the disclosure be in plain 

language, easy to read, and as visible as 

any other business or legal terms in the 

marketing material being directed to the 

MTE tenants. We find that a disclosure 

is clear, conspicuous, and legible, and 

therefore is effectively communicated, 

‘‘when it is displayed in a manner that 

is readily noticeable, readable . . . and 

understandable to the audience to 

whom it is disseminated.’’ While we do 

not specify the precise fashion or 

formatting in which the required 

disclosure must be made, indicia of 

effective disclosures include ‘‘us[ing] 

clear and unambiguous language, 

avoid[ing] small type, plac[ing] any 

qualifying information close to the 

claim being qualified, and avoid[ing] 

making inconsistent statements or using 

distracting elements that could undercut 

or contradict the disclosure.’’ With 

regard to formatting, a simple typeface, 

legible font size, and ample white space 

would also be indicia of an effective 

disclosure. 

41. This obligation applies to all 

exclusive marketing arrangements— 

both those that are already in place and 

those that are agreed to after the 

effective date of these rules. For new 

arrangements, we will enforce 

compliance with the disclosure 

requirement after the Office of 

Management and Budget completes its 

review of the new requirement pursuant 

to the Paperwork Reduction Act. To the 

extent a provider is operating under an 

exclusive marketing arrangement that is 

already in place, its disclosure 

obligation extends to marketing material 

produced after the compliance date 

applicable to existing marketing 

arrangements. We will not enforce 

compliance with the disclosure 

requirement for existing exclusive 

marketing arrangements until the later 

of (1) the Office of Management and 

Budget completing its review of the new 

requirements pursuant to the Paperwork 

Reduction Act, or (2) 180 days after 

publication of the Report and Order in 

the Federal Register. We adopt a 

delayed compliance date for the 

disclosure requirement for existing 

exclusive marketing arrangements in 

order to give providers adequate time to 

bring their marketing materials into 

compliance with our new rules and to 

meet existing expectations regarding 

their production. To promote 

compliance, we direct the Wireline 

Competition Bureau to announce by 

Public Notice the compliance dates for 

new and existing exclusive marketing 

arrangements. 

42. We find that the costs to providers 

for implementing this disclosure 

requirement will be outweighed by the 

benefits to consumers and MTEs of 

having accurate knowledge of exclusive 

marketing arrangements and the 

corresponding impact of such 

arrangements. We believe complying 

with the written disclosure requirement 

should present minimal cost, given that 

the provider simply needs to include a 

brief, legible disclosure on marketing 

material it is otherwise planning to 

design, print (where appropriate), and 

send to tenants and prospective tenants 

of an MTE where it has an exclusive 

marketing arrangement. We do not 

believe a more onerous disclosure 

requirement—such as an affirmative, 

recurring disclosure—is necessary to 

achieve this end. Rather, we find these 

minimal requirements for disclosure 

will alleviate confusion by making MTE 

tenants aware of the existence of an 

exclusive marketing arrangement and 

helping them understand that it does 

not preclude competition for individual 

customers in an MTE. And, to the extent 

MTE owners and their agents are 

confused by exclusive marketing 

arrangements, these disclosures should 

alleviate that confusion because they are 

likely to see the marketing material. 

E. Legal Authority 

43. We conclude that sections 201(b) 

and 628(b) of the Act provide us with 

authority for the rules we adopt in this 

document. We find authority over 

telecommunications carriers under 

section 201(b), which provides that 

‘‘[a]ll charges, practices, classifications, 

and regulations for and in connection 

with such communication service, shall 

be just and reasonable, and any such 

charge, practice, classification, or 

regulation that is unjust or unreasonable 

is declared to be unlawful.’’ Further, it 

provides that ‘‘[t]he Commission may 

prescribe such rules and regulations as 

may be necessary in the public interest 

to carry out the provisions of this 

chapter.’’ We find that the revenue 

sharing agreements identified above and 


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a provider’s failure to disclose exclusive 

marketing arrangements fall under our 

explicit statutory authority to address 

‘‘unreasonable practice[s].’’ Section 

201(b) served as the basis for the 

Commission’s prohibition on exclusive 

access contracts between 

telecommunications carriers and MTE 

owners. The conduct we address in this 

document serves to undermine that 

prohibition by enabling 

telecommunications carriers to restrict 

access by alternative providers to MTEs; 

accordingly, we find authority under 

section 201(b) to prohibit certain 

revenue sharing agreements and to 

require limited disclosure of exclusive 

marketing arrangements by 

telecommunications carriers. 

44. We find authority over covered 

MVPDs under section 628(b), which 

makes unlawful ‘‘unfair methods of 

competition or unfair or deceptive acts 

or practices, the purpose or effect of 

which is to hinder significantly or to 

prevent any [MVPD] from providing 

satellite cable programming or satellite 

broadcast programming to subscribers or 

consumers.’’ This is the same statutory 

provision that provided ample authority 

for the Commission’s prohibition on 

exclusive access contracts between 

covered MVPDs and residential MTE 

owners—there, the Commission found 

that ‘‘the use of an exclusivity clause by 

a cable operator to ‘lock up’ a 

[residential MTE] owner is an unfair 

method of competition or unfair act or 

practice because it can be used to 

impede the entry of competitors into the 

market and foreclose competition based 

on the quality and price of competing 

service offerings.’’ We conclude that the 

same reasoning applies here. We find 

that the practices discussed above—the 

identified revenue sharing agreements 

and failure to disclose exclusive 

marketing arrangements—are ‘‘unfair 

methods of competition’’ that 

significantly hinder and in some cases 

prevent competing MVPDs from serving 

MTEs. As detailed above, graduated 

revenue sharing and exclusive revenue 

sharing agreements amount to de facto 

exclusive access agreements— 

effectively preventing competitors, 

including those providing satellite cable 

and broadcast programming, from 

serving MTE tenants—by incentivizing 

MTE owners to favor one provider to the 

exclusion of others. Exclusive marketing 

arrangements lacking appropriate 

disclaimers to tenants significantly 

hinder and, in some cases, prevent 

competing providers from gaining 

access to MTEs where MTE tenants, and 

even MTE owners and their agents, 

erroneously believe the agreements 

preclude competitive access, and from 

competing for business in MTEs when 

they gain access. This confusion leads 

tenants to believe they have no choice 

in providers and prevents competing 

providers who have access to the 

building from advertising their service, 

resulting in de facto exclusive access. 

45. We disagree with the Real Estate 

Associations that our actions in this 

document effectively regulate MTE 

owners rather than providers, and 

consequently that we lack authority to 

take them. We also reject the Real Estate 

Associations’ argument that regulation 

of revenue sharing agreements is 

tantamount to ‘‘utility-style regulation’’ 

of payments to landlords. As we explain 

above, our prohibition on graduated and 

exclusive revenue sharing agreements 

stems from the exclusionary, anticompetitive effects these practices have, 

and we do not herein regulate the 

amount of payment MTE owners may 

receive. The rules we adopt in this 

document address practices by 

telecommunications carriers and 

covered MVPDs that serve as an 

impediment to competition for the 

services they offer in MTEs. The fact 

that these practices involve agreements 

with a third party does not eliminate 

our ability to address them. The U.S. 

Court of Appeals for the D.C. Circuit 

rejected just such an argument when it 

upheld the Commission’s MVPD 

exclusive access regulations. As TMobile explains, ‘‘[t]he Commission’s 

authority is not diminished’’ even 

where our actions ‘‘may also affect 

property owners.’’ We agree that ‘‘the 

Commission has the power to prevent 

carriers from restricting other carriers 

from deploying equipment and serving 

customers through participation in 

restrictive transactions’’ and that ‘‘[t]he 

Commission routinely adopts rules 

based on its clear regulatory authority 

that may have an impact on unregulated 

parties.’’ Indeed, the Commission has 

previously found we possess ‘‘ample 

authority to prohibit exclusivity 

provisions in agreements for the 

provision of telecommunications service 

to . . . MTEs.’’ This authority extends 

to ‘‘contractual or other arrangements 

between common carriers and other 

entities, even those entities that are 

generally not subject to Commission 

regulation.’’ We therefore conclude that 

our actions in this document are 

authorized pursuant to sections 201(b) 

and 628(b). 

46. We also disagree with the Real 

Estate Associations’ argument that a 

disclosure requirement of the type 

mandated in this document may violate 

the First Amendment. As an initial 

matter, inasmuch as the Real Estate 

Associations argue that the disclosure 

requirement would violate the First 

Amendment rights of MTE owners, we 

do not in this document place any 

disclosure obligations on MTE owners. 

To the extent they argue this 

requirement violates the First 

Amendment rights of service providers, 

we find that this requirement does not 

unconstitutionally burden commercial 

speech. The Supreme Court has 

explained that the commercial speaker’s 

‘‘constitutionally protected interest in 

not providing any particular factual 

information . . . is minimal.’’ The Court 

explained further that disclosure 

requirements are consistent with the 

First Amendment provided they are 

‘‘reasonably related to the 

[government’s] interest in preventing 

deception of consumers.’’ Here, through 

a purely factual statement, the 

disclosure requirement will address the 

deception created by exclusive 

marketing arrangements that 

competitive communications services 

are unavailable. Thus, the disclosure 

requirement is ‘‘reasonably related to 

the [governmental] interest’’ of 

alleviating tenant confusion about their 

competitive communications options 

and thus allowing them to enjoy the 

benefits of competition for services in 

MTEs. This finding is consistent with 

past Commission decisions regarding 

pro-consumer disclosure requirements 

on entities under our jurisdiction. And 

while we do not, in this document, rely 

on the authority recently provided by 

Congress to address digital 

discrimination, we will explore the use 

of that authority if we determine further 

action is needed to address 

discrimination and promote access to 

broadband internet access service in 

MTEs. 

IV. Procedural Matters 

47. Final Regulatory Flexibility 

Analysis. Pursuant to the Regulatory 

Flexibility Act of 1980 (RFA), as 

amended, the Commission’s Final 

Regulatory Flexibility Analysis is set 

forth in Appendix B. The Commission’s 

Consumer and Governmental Affairs 

Bureau, Reference Information Center, 

will send a copy of the Report and 

Order and Declaratory Ruling, including 

the FRFA, to the Chief Counsel for 

Advocacy of the Small Business 

Administration (SBA). 

48. As required by the Regulatory 

Flexibility Act of 1980, as amended, an 

Initial Regulatory Flexibility Analysis 

(IRFA) was incorporated into the 2019 

MTE NPRM. The Commission sought 

written public comments on the 

proposals in the 2019 MTE NPRM, 

including comments on the IRFA. No 


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comments were filed addressing the 

IRFA. This present Final Regulatory 

Flexibility Analysis (FRFA) conforms to 

the RFA. 

A. Need for, and Objectives of, the Rules 

49. This document takes action to 

promote competition in multiple tenant 

environments (MTEs) by addressing two 

practices that impede competition for 

communications service in MTEs. First, 

this document adopts rules prohibiting 

providers from entering into two types 

of revenue sharing agreements which 

discourage competition and have no 

connection to costs borne by MTE 

owners: Exclusive and graduated 

revenue sharing agreements. Second, it 

adopts rules requiring providers to 

disclose the existence of exclusive 

marketing arrangements in simple, easyto-understand language. Both of these 

practices undercut the goals of the 

Commission’s longstanding rules 

prohibiting exclusive access contracts in 

MTEs, and by adopting these rules we 

promote competition and tenant choice 

in MTEs. 

B. Summary of Significant Issues Raised 

by Public Comments in Response to the 

IRFA 

50. There were no comments filed 

that specifically addressed the proposed 

rules and policies presented in the 

IRFA. 

C. Response to Comments by the Chief 

Counsel for Advocacy of the SBA 

51. Pursuant to the Small Business 

Jobs Act of 2010, which amended the 

RFA, the Commission is required to 

respond to any comments filed by the 

Chief Counsel for Advocacy of the Small 

Business Administration (SBA), and to 

provide a detailed statement of any 

change made to the proposed rules as a 

result of those comments. However, the 

Chief Counsel did not file any 

comments in response to the proposed 

rules in this proceeding. 

D. Description and Estimate of the 

Number of Small Entities to Which the 

Rules Will Apply 

52. The RFA directs agencies to 

provide a description of and, where 

feasible, an estimate of the number of 

small entities that may be affected by 

the proposed rules and by the rule 

revisions on which the 2019 MTE NPRM 

seeks comment, if adopted. The RFA 

generally defines the term ‘‘small 

entity’’ as having the same meaning as 

the terms ‘‘small business,’’ ‘‘small 

organization,’’ and ‘‘small governmental 

jurisdiction.’’ In addition, the term 

‘‘small business’’ has the same meaning 

as the term ‘‘small-business concern’’ 

under the Small Business Act. A ‘‘smallbusiness concern’’ is one which: (1) Is 

independently owned and operated; (2) 

is not dominant in its field of operation; 

and (3) satisfies any additional criteria 

established by the SBA. 

53. Small Businesses, Small 

Organizations, Small Governmental 

Jurisdictions. Our actions, over time, 

may affect small entities that are not 

easily categorized at present. We 

therefore describe here, at the outset, 

three broad groups of small entities that 

could be directly affected herein. First, 

while there are industry specific size 

standards for small businesses that are 

used in the regulatory flexibility 

analysis, according to data from the 

Small Business Administration’s (SBA) 

Office of Advocacy, in general a small 

business is an independent business 

having fewer than 500 employees. These 

types of small businesses represent 

99.9% of all businesses in the United 

States, which translates to 32.5 million 

businesses. 

54. Next, the type of small entity 

described as a ‘‘small organization’’ is 

generally ‘‘any not-for-profit enterprise 

which is independently owned and 

operated and is not dominant in its 

field.’’ The Internal Revenue Service 

(IRS) uses a revenue benchmark of 

$50,000 or less to delineate its annual 

electronic filing requirements for small 

exempt organizations. Nationwide, for 

tax year 2018, there were approximately 

571,709 small exempt organizations in 

the U.S. reporting revenues of $50,000 

or less according to the registration and 

tax data for exempt organizations 

available from the IRS. 

55. Finally, the small entity described 

as a ‘‘small governmental jurisdiction’’ 

is defined generally as ‘‘governments of 

cities, counties, towns, townships, 

villages, school districts, or special 

districts, with a population of less than 

fifty thousand.’’ U.S. Census Bureau 

data from the 2017 Census of 

Governments indicates that there were 

90,075 local governmental jurisdictions 

consisting of general purpose 

governments and special purpose 

governments in the United States. Of 

this number there were 36,931 general 

purpose governments (county, 

municipal and town or township) with 

populations of less than 50,000 and 

12,040 special purpose governments— 

independent school districts with 

enrollment populations of less than 

50,000. Accordingly, based on the 2017 

U.S. Census of Governments data, we 

estimate that at least 48,971 entities fall 

into the category of ‘‘small 

governmental jurisdictions.’’ 

1. Wireline Carriers 

56. Wired Telecommunications 

Carriers. The U.S. Census Bureau 

defines this industry as ‘‘establishments 

primarily engaged in operating and/or 

providing access to transmission 

facilities and infrastructure that they 

own and/or lease for the transmission of 

voice, data, text, sound, and video using 

wired communications networks. 

Transmission facilities may be based on 

a single technology or a combination of 

technologies. Establishments in this 

industry use the wired 

telecommunications network facilities 

that they operate to provide a variety of 

services, such as wired telephony 

services, including voice over internet 

protocol (VoIP) services, wired (cable) 

audio and video programming 

distribution, and wired broadband 

internet services. By exception, 

establishments providing satellite 

television distribution services using 

facilities and infrastructure that they 

operate are included in this industry.’’ 

The SBA has developed a small 

business size standard for Wired 

Telecommunications Carriers, which 

consists of all such companies having 

1,500 or fewer employees. U.S. Census 

Bureau data for 2012 shows that there 

were 3,117 firms that operated that year. 

Of this total, 3,083 operated with fewer 

than 1,000 employees. Thus, under this 

size standard, the majority of firms in 

this industry can be considered small. 

57. Local Exchange Carriers (LECs). 

Neither the Commission nor the SBA 

has developed a size standard for small 

businesses specifically applicable to 

local exchange services. The closest 

applicable North American Industry 

Classification System (NAICS) Code 

category is Wired Telecommunications 

Carriers. Under the applicable SBA size 

standard, such a business is small if it 

has 1,500 or fewer employees. U.S. 

Census Bureau data for 2012 shows that 

there were 3,117 firms that operated for 

the entire year. Of that total, 3,083 

operated with fewer than 1,000 

employees. Thus under this category 

and the associated size standard, the 

Commission estimates that the majority 

of local exchange carriers are small 

entities. 

58. Incumbent LECs. Neither the 

Commission nor the SBA has developed 

a small business size standard 

specifically for incumbent local 

exchange services. The closest 

applicable NAICS Code category is 

Wired Telecommunications Carriers. 

Under the applicable SBA size standard, 

such a business is small if it has 1,500 

or fewer employees. U.S. Census Bureau 

data for 2012 indicates that 3,117 firms 


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operated the entire year. Of this total, 

3,083 operated with fewer than 1,000 

employees. Consequently, the 

Commission estimates that most 

providers of incumbent local exchange 

service are small businesses that may be 

affected by our actions. According to 

Commission data, one thousand three 

hundred and seven (1,307) Incumbent 

Local Exchange Carriers reported that 

they were incumbent local exchange 

service providers. Of this total, an 

estimated 1,006 have 1,500 or fewer 

employees. Thus, using the SBA’s size 

standard the majority of incumbent 

LECs can be considered small entities. 

59. Competitive Local Exchange 

Carriers (Competitive LECs), 

Competitive Access Providers (CAPs), 

Shared-Tenant Service Providers, and 

Other Local Service Providers. Neither 

the Commission nor the SBA has 

developed a small business size 

standard specifically for these service 

providers. The appropriate NAICS Code 

category is Wired Telecommunications 

Carriers. Under the applicable SBA size 

standard, such a business is small if it 

has 1,500 or fewer employees. U.S. 

Census Bureau data for 2012 indicates 

that 3,117 firms operated for the entire 

year. Of that number, 3,083 operated 

with fewer than 1,000 employees. Based 

on these data, the Commission 

concludes that the majority of 

Competitive LECs, CAPs, Shared-Tenant 

Service Providers, and Other Local 

Service Providers, are small entities. 

According to Commission data, 1,442 

carriers reported that they were engaged 

in the provision of either competitive 

local exchange services or competitive 

access provider services. Of these 1,442 

carriers, an estimated 1,256 have 1,500 

or fewer employees. In addition, 17 

carriers have reported that they are 

Shared-Tenant Service Providers, and 

all 17 are estimated to have 1,500 or 

fewer employees. Also, 72 carriers have 

reported that they are Other Local 

Service Providers. Of this total, 70 have 

1,500 or fewer employees. 

Consequently, based on internally 

researched FCC data, the Commission 

estimates that most providers of 

competitive local exchange service, 

competitive access providers, SharedTenant Service Providers, and Other 

Local Service Providers are small 

entities. 

60. Interexchange Carriers (IXCs). 

Neither the Commission nor the SBA 

has developed a small business size 

standard specifically for Interexchange 

Carriers. The closest applicable NAICS 

Code category is Wired 

Telecommunications Carriers. The 

applicable size standard under SBA 

rules is that such a business is small if 

it has 1,500 or fewer employees. U.S. 

Census Bureau data for 2012 indicates 

that 3,117 firms operated for the entire 

year. Of that number, 3,083 operated 

with fewer than 1,000 employees. 

According to internally developed 

Commission data, 359 companies 

reported that their primary 

telecommunications service activity was 

the provision of interexchange services. 

Of this total, an estimated 317 have 

1,500 or fewer employees. 

Consequently, the Commission 

estimates that the majority of 

interexchange service providers are 

small entities. 

61. Cable System Operators (Telecom 

Act Standard). The Communications 

Act of 1934, as amended, also contains 

a size standard for small cable system 

operators, which is ‘‘a cable operator 

that, directly or through an affiliate, 

serves in the aggregate fewer than one 

percent of all subscribers in the United 

States and is not affiliated with any 

entity or entities whose gross annual 

revenues in the aggregate exceed 

$250,000,000.’’ As of 2019, there were 

approximately 48,646,056 basic cable 

video subscribers in the United States. 

Accordingly, an operator serving fewer 

than 486,460 subscribers shall be 

deemed a small operator if its annual 

revenues, when combined with the total 

annual revenues of all its affiliates, do 

not exceed $250 million in the 

aggregate. Based on available data, we 

find that all but five cable operators are 

small entities under this size standard. 

We note that the Commission neither 

requests nor collects information on 

whether cable system operators are 

affiliated with entities whose gross 

annual revenues exceed $250 million. 

Therefore we are unable at this time to 

estimate with greater precision the 

number of cable system operators that 

would qualify as small cable operators 

under the definition in the 

Communications Act. 

2. Wireless Carriers 

62. Wireless Telecommunications 

Carriers (except Satellite). This industry 

comprises establishments engaged in 

operating and maintaining switching 

and transmission facilities to provide 

communications via the airwaves. 

Establishments in this industry have 

spectrum licenses and provide services 

using that spectrum, such as cellular 

services, paging services, wireless 

internet access, and wireless video 

services. The appropriate size standard 

under SBA rules is that such a business 

is small if it has 1,500 or fewer 

employees. For this industry, U.S. 

Census Bureau data for 2012 shows that 

there were 967 firms that operated for 

the entire year. Of this total, 955 firms 

employed fewer than 1,000 employees 

and 12 firms employed of 1000 

employees or more. Thus under this 

category and the associated size 

standard, the Commission estimates that 

the majority of wireless 

telecommunications carriers (except 

satellite) are small entities. 

63. The Commission’s own data— 

available in its Universal Licensing 

System—indicate that, as of August 31, 

2018, there are 265 Cellular licensees 

that will be affected by our actions. The 

Commission does not know how many 

of these licensees are small, as the 

Commission does not collect that 

information for these types of entities. 

Similarly, according to internally 

developed Commission data, 413 

carriers reported that they were engaged 

in the provision of wireless telephony, 

including cellular service, Personal 

Communications Service (PCS), and 

Specialized Mobile Radio (SMR) 

Telephony services. Of this total, an 

estimated 261 have 1,500 or fewer 

employees, and 152 have more than 

1,500 employees. Thus, using available 

data, we estimate that the majority of 

wireless firms can be considered small. 

64. Satellite Telecommunications. 

This category comprises firms 

‘‘primarily engaged in providing 

telecommunications services to other 

establishments in the 

telecommunications and broadcasting 

industries by forwarding and receiving 

communications signals via a system of 

satellites or reselling satellite 

telecommunications.’’ Satellite 

telecommunications service providers 

include satellite and earth station 

operators. The category has a small 

business size standard of $35 million or 

less in average annual receipts, under 

SBA rules. For this category, U.S. 

Census Bureau data for 2012 shows that 

there were a total of 333 firms that 

operated for the entire year. Of this 

total, 299 firms had annual receipts of 

less than $25 million. Consequently, we 

estimate that the majority of satellite 

telecommunications providers are small 

entities. 

3. Resellers 

65. Local Resellers. The SBA has not 

developed a small business size 

standard specifically for Local Resellers. 

The SBA category of 

Telecommunications Resellers is the 

closest NAICS code category for local 

resellers. The Telecommunications 

Resellers industry comprises 

establishments engaged in purchasing 

access and network capacity from 

owners and operators of 

telecommunications networks and 


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reselling wired and wireless 

telecommunications services (except 

satellite) to businesses and households. 

Establishments in this industry resell 

telecommunications. They do not 

operate transmission facilities and 

infrastructure. Mobile virtual network 

operators (MVNOs) are included in this 

industry. Under the SBA’s size 

standard, such a business is small if it 

has 1,500 or fewer employees. U.S. 

Census Bureau data from 2012 shows 

that 1,341 firms provided resale services 

for the entire year. Of that number, all 

of the firms operated with fewer than 

1,000 employees. Thus, under this 

category and the associated SBA small 

business size standard, the majority of 

these resellers can be considered small 

entities. According to Commission data, 

213 carriers have reported that they are 

engaged in the provision of local resale 

services. Of these, an estimated 211 

have 1,500 or fewer employees and two 

have more than 1,500 employees. 

Consequently, the Commission 

estimates that the majority of local 

resellers are small entities. 

66. Toll Resellers. The closest NAICS 

Code category is Telecommunications 

Resellers. The Telecommunications 

Resellers industry comprises 

establishments engaged in purchasing 

access and network capacity from 

owners and operators of 

telecommunications networks and 

reselling wired and wireless 

telecommunications services (except 

satellite) to businesses and households. 

Establishments in this industry resell 

telecommunications; they do not 

operate transmission facilities and 

infrastructure. MVNOs are included in 

this industry. The SBA small business 

size standard for Telecommunications 

Resellers classifies a business as small if 

it has 1,500 or fewer employees. U.S. 

Census Bureau data from 2012 shows 

that 1,341 firms provided resale services 

for the entire year. Of that number, 

1,341 operated with fewer than 1,000 

employees. Thus, under this category 

and the associated SBA small business 

size standard, the majority of these 

resellers can be considered small 

entities. According to Commission data, 

881 carriers have reported that they are 

engaged in the provision of toll resale 

services. Of this total, an estimated 857 

have 1,500 or fewer employees. 

Consequently, the Commission 

estimates that the majority of toll 

resellers are small entities. 

67. Prepaid Calling Card Providers. 

The most appropriate NAICS codebased category for defining prepaid 

calling card providers is 

Telecommunications Resellers. This 

industry comprises establishments 

engaged in purchasing access and 

network capacity from owners and 

operators of telecommunications 

networks and reselling wired and 

wireless telecommunications services 

(except satellite) to businesses and 

households. Establishments in this 

industry resell telecommunications; 

they do not operate transmission 

facilities and infrastructure. MVNOs are 

included in this industry. Under the 

applicable SBA size standard, such a 

business is small if it has 1,500 or fewer 

employees. U.S. Census Bureau data for 

2012 shows that 1,341 firms provided 

resale services during that year. Of that 

number, 1,341 operated with fewer than 

1,000 employees. Thus, under this 

category and the associated small 

business size standard, the majority of 

these prepaid calling card providers can 

be considered small entities. According 

to the Commission’s Form 499 Filer 

Database, 86 active companies reported 

that they were engaged in the provision 

of prepaid calling cards. The 

Commission does not have data 

regarding how many of these companies 

have 1,500 or fewer employees, 

however, the Commission estimates that 

the majority of the 86 active prepaid 

calling card providers that may be 

affected by these rules are likely small 

entities. 

4. Other Entities 

68. All Other Telecommunications. 

The ‘‘All Other Telecommunications’’ 

category is comprised of establishments 

primarily engaged in providing 

specialized telecommunications 

services, such as satellite tracking, 

communications telemetry, and radar 

station operation. This industry also 

includes establishments primarily 

engaged in providing satellite terminal 

stations and associated facilities 

connected with one or more terrestrial 

systems and capable of transmitting 

telecommunications to, and receiving 

telecommunications from, satellite 

systems. Establishments providing 

internet services or VoIP services via 

client-supplied telecommunications 

connections are also included in this 

industry. The SBA has developed a 

small business size standard for ‘‘All 

Other Telecommunications,’’ which 

consists of all such firms with annual 

receipts of $35 million or less. For this 

category, U.S. Census Bureau data for 

2012 shows that there were 1,442 firms 

that operated for the entire year. Of 

those firms, a total of 1,400 had annual 

receipts less than $25 million and 15 

firms had annual receipts of $25 million 

to $49,999,999. Thus, the Commission 

estimates that the majority of ‘‘All Other 

Telecommunications’’ firms potentially 

affected by our action can be considered 

small. 

E. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements for Small Entities 

69. This document adopts new rules 

requiring telecommunications carriers 

and covered MVPDs to include a 

disclosure on all written marketing 

material directed at tenants or 

prospective tenants of an MTE subject to 

an exclusive marketing arrangement that 

explains in plain language that the 

provider has the right to exclusively 

market its communication services to 

tenants in the MTE. Some 

telecommunications carriers and 

covered MVPDs required to make these 

disclosures may be small. 

F. Steps Taken To Minimize the 

Significant Economic Impact on Small 

Entities, and Significant Alternatives 

Considered 

70. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in reaching its 

proposed approach, which may include 

the following four alternatives (among 

others): (1) The establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance and reporting requirements 

under the rules for such small entities; 

(3) the use of performance rather than 

design standards; and (4) an exemption 

from coverage of the rule, or any part 

thereof, for such small entities. 

71. This document declined to adopt 

potentially more onerous disclosure 

requirements on providers, such as an 

affirmative annual disclosure to MTE 

residents or disclosure to third parties 

such as competitive providers and the 

Commission. The Commission found 

that this more limited disclosure 

requirement adequately addressed 

record concerns regarding exclusive 

marketing arrangements while 

minimizing the burden on affected 

providers. This determination will 

minimize the burden of the disclosure 

requirement on small providers. The 

Commission further adopted these rules 

to promote competition in MTEs, 

including competition by small 

providers. 

G. Report to Congress 

72. The Commission will send a copy 

of the Report and Order, including the 

FRFA, in a report to be sent to Congress 

pursuant to the Congressional Review 

Act. In addition, the Commission will 

send a copy of the Report and Order, 


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including the FRFA, to the Chief 

Counsel for Advocacy of the SBA. A 

copy of the Report and Order and FRFA 

(or summaries thereof) will also be 

published in the Federal Register. 

73. Paperwork Reduction Act. This 

document contains new or modified 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995 (PRA), Public Law 104–13. It 

will be submitted to the Office of 

Management and Budget (OMB) for 

review under section 3507(d) of the 

PRA. OMB, the general public, and 

other Federal agencies will be invited to 

comment on the new or modified 

information collection requirements 

contained in this proceeding. In 

addition, we note that pursuant to the 

Small Business Paperwork Relief Act of 

2002, Public Law 107–198, we 

previously sought comment on how the 

Commission might further reduce the 

information collection burden for small 

business concerns with fewer than 25 

employees. 

74. Congressional Review Act. The 

Commission has determined, and the 

Administrator of the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, 

concurs, that this rule is ‘‘non-major’’ 

under the Congressional Review Act, 5 

U.S.C. 804(2). The Commission will 

send a copy of the Report and Order and 

Declaratory Ruling to Congress and the 

Government Accountability Office 

pursuant to 5 U.S.C. 801(a)(1)(A). 

75. People with Disabilities. To 

request materials in accessible formats 

for people with disabilities (Braille, 

large print, electronic files, audio 

format), send an email to fcc504@fcc.gov 

or call the Consumer & Governmental 

Affairs Bureau at 202–418–0530 (voice). 

V. Ordering Clauses 

76. It is ordered that pursuant to the 

authority contained in sections 1 

through 4, 201(b), 303(r), 601(4), 601(6), 

624(i), and 628 of the Communications 

Act of 1934, as amended, 47 U.S.C. 151 

through 154, 201(b), 303(r), 521(4), 

521(6), 544(i), and 548, and §§ 1.4(b)(1) 

and 1.103(a) of the Commission’s rules, 

47 CFR 1.4(b)(1), 1.103(a), the Report 

and Order is adopted. 

77. It is further ordered that parts 64 

and 76 of the Commission’s rules are 

amended and such amendments shall 

be effective 30 days after publication in 

the Federal Register, except that 

compliance with §§ 64.2500(c)(2)(ii) and 

(d)(2) and 76.2000(b)(2)(ii) and (c)(2) of 

the Commission’s rules, 47 CFR 

64.2500(c)(2)(ii), (d)(2), 76.2000(b)(2)(ii), 

(c)(2), will not be required until 180 

days after publication in the Federal 

Register; compliance with §§ 64.2500(e) 

and 76.2000(d) of the Commission’s 

rules, 47 CFR 64.2500(e), 76.2000(d), 

will not be required until the Office of 

Management and Budget completes its 

review under the Paperwork Reduction 

Act; and compliance with 

§§ 64.2500(e)(2)(ii) and 76.2000(d)(2)(ii) 

of the Commission’s rules, 47 CFR 

64.2500(e)(2)(ii), 76.2000(d)(2)(ii), will 

not be required until the later of 180 

days after publication in the Federal 

Register or the date that the Office of 

Management and Budget completes its 

review of the requirements in 

§§ 64.2500(e) and 76.2000(d) pursuant 

to the Paperwork Reduction Act. The 

Commission directs the Wireline 

Competition Bureau to announce 

compliance dates for §§ 64.2500(e) and 

76.2000(d) by subsequent notification in 

the Federal Register and to cause 47 

CFR 64.2500(e) and 76.2000(d) to be 

revised accordingly. 

78. It is further ordered that, pursuant 

to 47 CFR 1.4(b)(1), the period for filing 

petitions for reconsideration or petitions 

for judicial review with respect to all 

aspects of the Report and Order and 

Declaratory Ruling will commence on 

the date that a summary of the Report 

and Order and Declaratory Ruling is 

published in the Federal Register. 

79. It is further ordered that the 

Commission shall send a copy of the 

Report and Order and Declaratory 

Ruling to Congress and to the 

Government Accountability Office 

pursuant to the Congressional Review 

Act, see 5 U.S.C. 801(a)(1)(A). 

80. It is further ordered that the 

Commission’s Consumer & 

Governmental Affairs Bureau, Reference 

Information Center shall send a copy of 

the Report and Order and Declaratory 

Ruling, including the Final Regulatory 

Flexibility Analysis, to the Chief 

Counsel for Advocacy of the Small 

Business Administration. 

List of Subjects in 47 CFR Parts 64 and 

76 

Communications, Communications 

common carriers, Communications 

equipment, Internet, 

Telecommunications. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. 

Final Rules 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR parts 64 

and 76 as follows: 

PART 64—MISCELLANEOUS RULES 

RELATING TO COMMON CARRIERS 

■ 1. The authority citation for part 64 

continues to read as follows: 

Authority: 47 U.S.C. 151, 152, 154, 201, 

202, 217, 218, 220, 222, 225, 226, 227, 227b, 

228, 251(a), 251(e), 254(k), 255, 262, 276, 

403(b)(2)(B), (c), 616, 620, 716, 1401–1473, 

unless otherwise noted; Pub. L. 115–141, Div. 

P, sec. 503, 132 Stat. 348, 1091. 

■ 2. Amend § 64.2500 by revising the 

section heading and adding paragraphs 

(c) through (e) to read as follows: 

§ 64.2500 Prohibited agreements and 

required disclosures. 

* * * * * 

(c) No common carrier shall enter into 

or enforce any contract regarding the 

provision of communications service in 

a multiunit premise, written or oral, in 

which it gives the multiunit premise 

owner compensation on a graduated 

basis. 

(1) Definition. For purposes of this 

paragraph (c), a ‘‘graduated basis’’ 

means that the compensation a common 

carrier pays to a multiunit premise 

owner for each tenant served increases 

as the total number of tenants served by 

the common carrier in the multiunit 

premise increases. 

(2) Compliance dates—(i) Compliance 

date for new contracts. After April 27, 

2022, no common carrier shall enter 

into any contract regarding the 

provision of communications service in 

a multiunit premise, written or oral, in 

which it gives the multiunit premise 

owner compensation on a graduated 

basis. 

(ii) Compliance date for existing 

contracts. After September 26, 2022, no 

common carrier shall enforce any 

contract regarding the provision of 

communications service in a multiunit 

premise, written or oral, in existence as 

of April 27, 2022, in which it gives the 

multiunit premise owner compensation 

on a graduated basis. 

(d) No common carrier shall enter into 

or enforce any contract regarding the 

provision of communications service in 

a multiunit premise, written or oral, in 

which it receives the exclusive right to 

provide the multiunit premise owner 

compensation in return for access to the 

multiunit premise and its tenants. 

(1) Compliance date for new 

contracts. After April 27, 2022, no 

common carrier shall enter into any 

contract, written or oral, in which it 

receives the exclusive right to provide 

the multiunit premise owner 

compensation in return for access to the 

multiunit premise and its tenants. 

(2) Compliance date for existing 

contracts. After September 26, 2022, no 


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17194 Federal Register / Vol. 87, No. 59 / Monday, March 28, 2022 / Rules and Regulations 

common carrier shall enforce any 

contract regarding the provision of 

communications service in a multiunit 

premise written or oral, in existence as 

of April 27, 2022, in which it receives 

the exclusive right to provide the 

multiunit premise owner compensation 

in return for access to the multiunit 

premise and its tenants. 

(e) A common carrier shall disclose 

the existence of any contract regarding 

the provision of communications 

service in a multiunit premise, written 

or oral, in which it receives the 

exclusive right to market its service to 

tenants of a multiunit premise. 

(1) Such disclosure must: 

(i) Be included on all written 

marketing material, whether electronic 

or in print, that is directed at tenants or 

prospective tenants of the affected 

multiunit premise; 

(ii) Identify the existence of the 

contract and include a plain-language 

description of the arrangement, 

including that the provider has the right 

to exclusively market its 

communications services to tenants in 

the multiunit premise, that such a right 

does not mean that the provider is the 

only entity that can provide such 

services to tenants in the multiunit 

premise, and that service from an 

alternative provider may be available; 

and 

(iii) Be made in a manner that it is 

clear, conspicuous, and legible. 

(2)(i) Compliance date for new 

contracts. Paragraph (e) of this section 

contains an information-collection and/ 

or recordkeeping requirement. 

Compliance with paragraph (e) will not 

be required for new contracts until this 

paragraph (e)(2)(i) is removed or 

contains a compliance date for new 

contracts, which will not occur until 

after the Office of Management and 

Budget completes its review of such 

requirements pursuant to the Paperwork 

Reduction Act. 

(ii) Compliance date for existing 

contracts. For contracts in existence as 

of the compliance date for new contracts 

in paragraph (e)(2)(i) of this section, 

compliance with paragraph (e) of this 

section will not be required until the 

later of September 26, 2022 or the date 

that the Office of Management and 

Budget completes its review of the 

requirements in paragraph (e) pursuant 

to the Paperwork Reduction Act. 

PART 76—MULTICHANNEL VIDEO 

AND CABLE TELEVISION SERVICE 

■ 3. The authority citation for part 76 

continues to read as follows: 

Authority: 47 U.S.C. 151, 152, 153, 154, 

301, 302, 302a, 303, 303a, 307, 308, 309, 312, 

315, 317, 325, 338, 339, 340, 341, 503, 521, 

522, 531, 532, 534, 535, 536, 537, 543, 544, 

544a, 545, 548, 549, 552, 554, 556, 558, 560, 

561, 571, 572, 573. 

■ 4. Amend § 76.2000 by redesignating 

paragraph (b) as paragraph (e) and 

adding paragraphs (b) through (d) to 

read as follows: 

§ 76.2000 Exclusive access to multiple 

dwelling units generally. 

* * * * * 

(b) Prohibition of graduated revenue 

sharing agreements. No cable operator 

or other provider of MVPD service 

subject to 47 U.S.C. 548 shall enter into 

or enforce any contract regarding the 

provision of communications service in 

a MDU, written or oral, in which it gives 

the MDU owner compensation on a 

graduated basis. 

(1) Definition. For purposes of this 

paragraph (b), a ‘‘graduated basis’’ 

means that the compensation a cable 

operator or other provider of MVPD 

service subject to 47 U.S.C. 548 pays to 

a MDU owner for each tenant served 

increases as the total number of tenants 

served by the cable operator or other 

provider of MVPD service subject to 47 

U.S.C. 548 in the MDU increases. 

(2) Compliance dates—(i) Compliance 

date for new contracts. After April 27, 

2022, no cable operator or other 

provider of MVPD service subject to 47 

U.S.C. 548 shall enter into any contract 

regarding the provision of 

communications service in a MDU, 

written or oral, in which it gives the 

MDU owner compensation on a 

graduated basis. 

(ii) Compliance date for existing 

contracts. After September 26, 2022, no 

cable operator or other provider of 

MVPD service subject to 47 U.S.C. 548 

shall enforce any contract regarding the 

provision of communications service in 

an MDU, written or oral, in existence as 

of April 27, 2022, in which it gives the 

MDU owner compensation on a 

graduated basis. 

(c) Prohibition of exclusive revenue 

sharing agreements. No cable operator 

or other provider of MVPD service 

subject to 47 U.S.C. 548 shall enter into 

or enforce any contract regarding the 

provision of communications service in 

a MDU, written or oral, in which it 

receives the exclusive right to provide 

the MDU owner compensation in return 

for access to the MDU and its tenants. 

(1) Compliance date for new 

contracts. After April 27, 2022, no cable 

operator or other provider of MVPD 

service subject to 47 U.S.C. 548 shall 

enter into any contract, written or oral, 

in which it receives the exclusive right 

to provide the MDU owner 

compensation in return for access to the 

MDU and its tenants. 

(2) Compliance date for existing 

contracts. After September 26, 2022, no 

cable operator or other provider of 

MVPD service subject to 47 U.S.C. 548 

shall enforce any contract regarding the 

provision of communications service in 

a MDU, written or oral, in existence as 

of April 27, 2022, in which it receives 

the exclusive right to provide the MDU 

owner compensation in return for access 

to the MDU and its tenants. 

(d) Required disclosure of exclusive 

marketing arrangements. A cable 

operator or other provider of MVPD 

service subject to 47 U.S.C. 548 shall 

disclose the existence of any contract 

regarding the provision of 

communications service in a MDU, 

written or oral, in which it receives the 

exclusive right to market its service to 

tenants of a MDU. 

(1) Such disclosure must: 

(i) Be included on all written marketing 

material, whether electronic or in print, that 

is directed at tenants or prospective tenants 

of the affected MDU; 

(ii) Identify the existence of the contract 

and include a plain-language description of 

the arrangement, including that the provider 

has the right to exclusively market its 

communications services to tenants in the 

MDU, that such a right does not mean that 

the provider is the only entity that can 

provide such services to tenants in the MDU, 

and that service from an alternative provider 

may be available; and 

(iii) Be made in a manner that it is clear, 

conspicuous, and legible. 

(2)(i) Compliance date for new 

contracts. Paragraph (d) of this section 

contains an information-collection and/ 

or recordkeeping requirement. 

Compliance with paragraph (d) will not 

be required until this paragraph (d)(2)(i) 

is removed or contains a compliance 

date, for new contracts, which will 

occur after the Office of Management 

and Budget completes its review of such 

requirements pursuant to the Paperwork 

Reduction Act. 

(ii) Compliance date for existing 

contracts. For contracts in existence as 

of the compliance date for new contracts 

in paragraph (d)(2)(i) of this section, 

compliance with paragraph (d) of this 

section will not be required until the 

later of September 26, 2022 or the date 

that the Office of Management and 

Budget completes its review of the 

requirements in paragraph (d) pursuant 

to the Paperwork Reduction Act. 

* * * * * 

[FR Doc. 2022–05862 Filed 3–25–22; 8:45 am] 

BILLING CODE 6712–01–P 


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