52120 Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Proposed Rules 

After receiving and reviewing 

comments, the FAA anticipates 

subsequently providing notice of its 

final decision. 

Issued in Washington, DC, on September 

16, 2021. 

Lorelei Dinges Peter, 

Assistant Chief Counsel for Regulations. 

Virginia T. Boyle, 

Vice President, System Operations Services. 

[FR Doc. 2021–20400 Filed 9–16–21; 4:15 pm] 

BILLING CODE 4910–13–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 8, 64, 76 

[GN Docket No. 17–142; DA 21–1114; FR 

ID 48290] 

Improving Competitive Broadband 

Access to Multiple Tenant 

Environments 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the 

Wireline Competition Bureau (WCB) 

refreshes the record in Improving 

Competitive Broadband Access to 

Multiple Tenant Environments 

Proceeding. 

DATES: Comments are due on or before 

October 20, 2021, and reply comments 

are due on or before November 4, 2021. 

ADDRESSES: You may submit comments, 

identified by GN Docket No. 17–142, by 

any of the following methods: 

• Electronic Filers: Comments may be 

filed electronically using the internet by 

accessing ECFS: https://www.fcc.gov/ 

ecfs/. 

• Paper Filers: Parties who choose to 

file by paper must file an original and 

one copy of each filing. 

Filings can be sent by commercial 

overnight courier, or by first-class or 

overnight U.S-. Postal Service mail. All 

filings must be addressed to the 

Commission’s Secretary, Office of the 

Secretary, Federal Communications 

Commission. 

• Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9050 

Junction Drive, Annapolis Junction, MD 

20701. 

• U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 45 L Street NE, 

Washington, DC 20554. 

• Effective March 19, 2020, and until 

further notice, the Commission no 

longer accepts any hand or messenger 

delivered filings. This is a temporary 

measure taken to help protect the health 

and safety of individuals, and to 

mitigate the transmission of COVID–19. 

See FCC Announces Closure of FCC 

Headquarters Open Window and 

Change in Hand-Delivery Policy, Public 

Notice, 35 FCC Rcd 2788 (Mar. 19, 

2020), https://www.fcc.gov/document/ 

fcc-closes-headquarters-open-windowand-changes-hand-delivery-policy. 

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 & Government Affairs 

Bureau at (202) 418–0530. 

Ex Parte Rules. This proceeding shall 

be treated as a ‘‘permit-but-disclose’’ 

proceeding in accordance with the 

Commission’s ex parte rules. See 47 

CFR 1.1200 et seq. Persons making ex 

parte presentations must file a copy of 

any written presentation or a 

memorandum summarizing any oral 

presentation within two business days 

after the presentation (unless a different 

deadline applicable to the Sunshine 

period applies). Persons making oral ex 

parte presentations are reminded that 

memoranda summarizing the 

presentation must: (1) List all persons 

attending or otherwise participating in 

the meeting at which the ex parte 

presentation was made; and (2) 

summarize all data presented and 

arguments made during the 

presentation. If the presentation 

consisted in whole or in part of the 

presentation of data or arguments 

already reflected in the presenters 

written comments, memoranda, or other 

filings in the proceeding, the presenter 

may provide citations to such data or 

arguments in his or her prior comments, 

memoranda, or other filings (specifying 

the relevant page and/or paragraph 

numbers where such data or arguments 

can be found) in lieu of summarizing 

them in the memorandum. Documents 

shown or given to Commission staff 

during ex parte meetings are deemed to 

be written ex parte presentations and 

must be filed consistent with § 1.1206(b) 

of the Commission’s rules. In 

proceedings governed by § 1.49(f) of the 

rules or for which the Commission has 

made available a method of electronic 

filing, written ex parte presentations 

and memoranda summarizing oral ex 

parte presentations, and all attachments 

thereto, must be filed through the 

electronic comment filing system 

available for that proceeding, and must 

be filed in their native format (e.g., .doc, 

.xml., .ppt, searchable .pdf). See 47 CFR 

1.1206(b). Participants in this 

proceeding should familiarize 

themselves with the Commission’s ex 

parte rules. 

FOR FURTHER INFORMATION CONTACT: 

Jesse Goodwin, Attorney Advisor, 

Competition Policy Division, Wireline 

Competition Bureau, at (202) 418–0958, 

or email: Benjamin.Goodwin@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s 

document, Public Notice, in GN Docket 

No. 17–142, DA 21–1114; released on 

September 7, 2021. The complete text of 

this document is available for download 

at https://docs.fcc.gov/public/ 

attachments/DA-21-1114A1.pdf. 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 and Governmental 

Affairs Bureau at (202) 418–0530 

(voice), (202) 418–0432 (TTY). 

Synopsis 

By this document, the Wireline 

Competition Bureau (Bureau) invites 

parties to update the record on issues 

raised in the 2019 Improving 

Competitive Broadband Access to 

Multiple Tenant Environments Notice of 

Proposed Rulemaking (NPRM), 

including but not limited to (1) revenue 

sharing agreements; (2) exclusive wiring 

arrangements, including sale-andleaseback arrangements; and (3) 

exclusive marketing arrangements. 

Americans living and working in 

multiple tenant environments (MTEs) 

face various obstacles to obtaining the 

benefits of competitive choice of fixed 

broadband, voice, and video services. 

Telecommunications carriers and 

multichannel video programming 

distributors (together, ‘‘service 

providers’’) need to access building 

conduits, install wiring to individual 

units or premises, and make repairs 

once wiring has been installed. 

Complicating these tasks is the fact that 

providing service to MTEs involves not 

just the service provider and the enduser tenant, but a third party: The 

premises owner or controlling party 

(MTE owner). As a result, deploying 

facilities-based fixed services to the 

millions of Americans living and 

working in MTEs can be uniquely 

challenging. The Commission has 

endeavored to increase competition 

among service providers and reduce 

potential barriers to broadband 

deployment in MTEs. Beginning in 

2000, the Commission, through a series 

of orders, prohibited service providers 

from entering into contracts with MTE 

owners that give a service provider 

exclusive access to the building to offer 

its services. In the NPRM, the 

Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Proposed Rules 52121 

Commission sought comment on a range 

of common practices in MTEs that could 

have the effect of dampening 

competition or deployment. We seek to 

refresh the record to better understand 

how the Commission can best ‘‘facilitate 

enhanced deployment and greater 

consumer choice for Americans living 

and working in’’ MTEs. (The 

Commission has defined MTEs as 

‘‘commercial or residential premises 

such as apartment buildings, 

condominium buildings, shopping 

malls, or cooperatives that are occupied 

by multiple entities.’’) 

Revenue Sharing Agreements. We 

seek to refresh the record on the impact 

revenue sharing agreements have on 

competition and deployment of 

facilities in MTEs. In the NPRM, the 

Commission explained that revenue 

sharing agreements are contracts 

between MTE owners and service 

providers where the owner ‘‘receives 

consideration from the communications 

provider in return for giving the 

provider access to the building and its 

tenants.’’ The Commission recognized 

that revenue sharing agreements can 

take various forms. For example, they 

can be simple one-time payments 

calculated on a per-unit basis 

(sometimes referred to as door fees); or 

they can be pro rata, calculated as a 

portion of revenue generated from 

tenants’ subscription service fees. These 

pro rata agreements may also be 

graduated, where the building owner 

receives more revenue as the proportion 

of tenants in a building choose that 

service provider. And some revenue 

sharing agreements may be considered 

‘‘above cost’’—that is, they may give 

MTE owners compensation beyond 

actual costs associated with the 

installation and maintenance of wiring. 

The Commission sought comment on 

the impact revenue sharing agreements 

have on competition and deployment, 

as well as whether they reduce 

incentives for building owners to grant 

access to competitive providers given 

that a lower number of subscribers for 

the incumbent provider means reduced 

income to the building owner. It also 

asked whether revenue sharing 

agreements were being used to 

circumvent Commission rules 

prohibiting exclusive access agreements, 

whether alone or in combination with 

other contractual provisions. 

We seek to refresh the record on 

whether the Commission should restrict 

some or all of these types of revenue 

sharing agreements. Have there been 

changes over the last two years as to 

how frequently these agreements are 

used in MTEs? How do these 

agreements affect the ability of tenants 

to choose their service provider? How 

do they affect the prices that tenants 

ultimately pay for service? What are the 

effects of these agreements on 

competition among service providers? 

Do these agreements promote or inhibit 

entry by competitive providers? In what 

ways do revenue sharing agreements 

affect how service providers compete for 

customers? Do they encourage or 

discourage service providers to compete 

on the basis of price or service quality? 

Do service providers attempt to 

negotiate agreements that work to 

exclude competitors? If revenue sharing 

agreements function to prevent 

competing providers from deploying, 

does the MTE in effect become a 

locational monopoly? What legitimate 

reasons might a competitive provider 

and building owner have to enter into 

such agreements? For example, do these 

agreements affect competitive providers’ 

ability to offer services in MTEs, such as 

by enabling providers to secure 

financing to deploy facilities? Do the 

drawbacks of such agreements outweigh 

any benefits? Should the Commission 

restrict the use of revenue sharing 

agreements? Alternatively, should the 

Commission require the disclosure of 

such agreements? 

We seek comment on whether the 

Commission should address specific 

types of revenue sharing agreements. 

For example, should it restrict abovecost revenue sharing agreements? If so, 

how should the Commission define 

costs? How would any such restrictions 

impact tenants? How could the 

Commission best and most effectively 

monitor compliance? Additionally, we 

seek comment on whether the 

Commission should take action to 

address graduated revenue sharing 

agreements. To what extent do such 

agreements lead building owners to 

favor one provider over others and to 

exclude competitors? Similarly, we seek 

comment on revenue sharing 

agreements containing exclusivity 

provisions that may prevent building 

owners from offering equal terms to 

other providers. Do such provisions 

negatively affect competition and 

deployment in MTEs? Should the 

Commission restrict or prohibit such 

agreements, or require their disclosure? 

Are there any other provisions in such 

agreements that may serve to hinder 

competitive access? 

Exclusive Wiring Arrangements. 

Second, we seek to refresh the record on 

the effect of exclusive wiring 

arrangements on competition and 

deployment of facilities in MTEs. In the 

NPRM, the Commission explained that 

under an exclusive wiring arrangement, 

service providers ‘‘enter into agreements 

with MTE owners under which they 

obtain the exclusive right to use the 

wiring in the building.’’ The 

Commission sought comment on 

whether it remained true that, as it had 

previously concluded in 2007, 

‘‘exclusive wiring arrangements do not 

preclude competitive providers’ access 

to buildings.’’ It also asked whether 

such arrangements differ in states and 

localities where mandatory access laws 

have been introduced. 

We seek to refresh the record in light 

of possible developments since the 

NPRM. Should the Commission revisit 

its conclusion that exclusive wiring 

arrangements generally do not preclude 

access to new entrants, and thus do not 

violate its rules? What are the practical 

effects of exclusive wiring agreements in 

today’s communications marketplace? 

Can exclusive wiring arrangements 

otherwise circumvent Commission 

rules? What anti-competitive effects or 

adverse impacts on deployment, if any, 

do exclusive wiring arrangements have? 

What benefits, if any, do exclusive 

wiring arrangements have, and do the 

benefits outweigh any drawbacks, 

particularly to tenants? Do exclusive 

wiring arrangements affect tenants’ 

choice in providers? Do they inhibit 

entry by competing service providers? 

Do they encourage or discourage service 

providers to compete on the basis of 

price or service quality? Are there 

specific varieties of exclusive wiring 

arrangements, such as those containing 

provisions for exclusive use of MTEowned wiring, that the Commission 

should study? What are the benefits and 

drawbacks of shared access to wiring 

and other facilities, in contrast to 

exclusive wiring arrangements? Does 

shared access promote competitive 

entry and tenant choice? 

We seek to refresh the record on saleand-leaseback arrangements, a subset of 

exclusive wiring arrangements. In the 

NPRM, the Commission explained that 

sale-and-leaseback arrangements ‘‘occur 

when a service provider sells its wiring 

to the MTE owner and then leases back 

the wiring on an exclusive basis.’’ The 

Commission has in place rules that 

facilitate competitive choice by making 

the previous provider’s inside wiring 

available to MTE owners and tenants for 

other service providers to use after it has 

terminated service. Do sale-andleaseback arrangements act as an end 

run around these rules by putting wiring 

ownership in the hands of the building 

owner, which is not subject to the 

Commission’s rules? Regardless of 

whether they in effect act as a loophole, 

should the Commission prohibit such 

arrangements generally or in limited 

circumstances? The Commission also 

52122 Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Proposed Rules 

sought comment on whether ‘‘the policy 

considerations around sale-andleaseback and other exclusive wiring 

arrangements differ.’’ Are there reasons 

to distinguish sale-and-leaseback 

arrangements from other kinds of 

exclusive wiring arrangements? 

Exclusive Marketing Arrangements. 

Third, we seek to refresh the record on 

exclusive marketing arrangements. In 

the NPRM, the Commission explained 

that an exclusive marketing arrangement 

is ‘‘an arrangement, either written or in 

practice, between an MTE owner and 

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.’’ 

The Commission asked whether 

specific circumstances might lead to 

such arrangements resulting in de facto 

exclusive access. For example, do these 

arrangements create confusion on the 

part of tenants or building owners as to 

whether only one provider can or does 

offer service to the building? We also 

seek to update the record on the 

Commission’s question regarding ‘‘what 

might be done to correct’’ possible 

consumer confusion. Additionally, the 

Commission asked whether disclosure 

or disclaimer requirements would 

alleviate these problems, and when they 

might be warranted. Commenters have 

addressed the impact and costs of such 

requirements. We seek updated 

information on these issues, as well as 

on the benefits of exclusive marketing 

arrangements, particularly with respect 

to small competitive carriers. Do the 

benefits of such arrangements outweigh 

the costs? Do disclosure requirements 

affect tenant choice in providers, or the 

ability of competitors to deploy? And do 

they affect how service providers 

compete, such as in terms of price or 

service quality? What impact does this 

have on tenants? Have there been 

developments over the last few years 

that should impact the Commission’s 

analysis on this issue? 

Other Issues. In addition to refreshing 

the record on the issues outlined above, 

we also seek to refresh the record on 

other issues outlined in the NPRM and 

raised in the record. For example, in 

evaluating these issues, does the 

calculus differ based on the size of the 

MTE and, if so, should the Commission 

approach small MTEs differently than 

others for purposes of any rules it 

adopts? How should it define small 

MTEs for these purposes? 

We also seek comment on whether 

there are other types of contractual 

provisions and non-contractual 

practices that affect competition, limit 

tenant choice, or lead to increased 

prices or decreased service quality. Are 

there benefits and drawbacks to shared 

access to facilities in MTEs, including 

telecom closets, conduit, and wiring? 

Can the sharing of facilities increase 

competition and tenant choice in MTEs? 

We also seek to refresh the record on 

mandatory access laws and other efforts 

to increase competitive access to MTEs 

and the infrastructure within them. 

What are the effects of these laws on 

competition, choice, and price in MTEs? 

Finally, we seek to refresh the record 

on the Commission’s jurisdiction and 

statutory authority to address the issues 

and practices raised above. 

Federal Communications Commission. 

Pamela Arluk, 

Division Chief, Wireline Competition Bureau. 

[FR Doc. 2021–20147 Filed 9–17–21; 8:45 am] 

BILLING CODE 6712–01–P