San Francisco MTE Open Access Rule Pre-Emption Gets 3-2 Split at FCC
The FCC voted along party lines Wednesday for partial pre-emption of San Francisco's Article 52 open-access rule, with dissenting Democratic commissioners complaining of regulatory overreach. Geoffrey Starks called the declaratory ruling “not sound law and not good policy." Jessica Rosenworcel said it's "an affront to our long history" of local control. The Republicans and Starks, meanwhile, backed the related NPRM asking about other ways the FCC could boost broadband deployment in multi-tenant environments (MTE), though Mike O'Rielly said he did so with reservations.
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Chairman Ajit Pai said Article 52 is rife with ambiguity and chilled broadband investment in San Francisco. He said if the city's correct that Article 52 doesn't require sharing of in-use wiring (see 1907030059), there's no reason to object to the agency's narrow ruling banning such required sharing. Commissioner Brendan Carr echoed that. Pai said opposition to the partial pre-emption seemed to be "driven by that crassest impulse in politics -- if he's for it, I'm against it." San Francisco ISP interests disagreed whether Article 52 was boosting or cooling competition (see 1907010023).
Wireline Bureau Chief Kris Monteith said pre-emption doesn't involve any FCC notification to San Francisco, and it becomes effective on the ruling's release. Mayor London Breed (D) didn't comment.
With broadband deployment inherently interstate commerce, O'Rielly said after the meeting he anticipates the agency taking further pre-emptive steps regarding other state or local broadband deployment regulations. "I'm sorry they feel upset about that or their authority is being restricted -- it's our authority," he said. "Sorry, not sorry." When we asked directly, none of the regular commissioners pointed to other state or local regimes that could be an agency target.
Starks said the FCC had options besides pre-emption, such as clarifying its policies via the rulemaking proceeding, or waiting to see how the market or possibly courts respond to Article 52. He said the potential ambiguity could be reasonably read to not include in-use wiring, and property owners are able to refuse access to wiring if it would adversely affect service.
Rosenworcel said pre-emption was "stunningly weak," arguing the agency can't say it has authority over broadband in buildings and then argue it lacks authority over broadband in the net neutrality proceeding. She said the agency should have even determined if sharing of in-use wiring were possible before pre-empting what could be a "nonexistent boogeyman."
This makes clear “that for many tenants, access to competitive providers will remain a purely theoretical right,” Public Knowledge said. Cities like San Francisco are working to close the digital divide and the FCC should be working with them, but instead has continued along the same pre-emption route it followed on states enacting their own net neutrality rules and state and local authority over small cell permitting, it said.
O'Rielly said he didn't like the NPRM language about the agency encouraging state and local experimentation, since a patchwork of rules would undermine investment. He's concerned about the legal basis for disclosing revenue-sharing agreements and the agency could end up imposing asymmetrical regulation on competitors in the same MTE. He said the NPRM ended up including language about legal authority due to his advocacy.
"Free[ing] apartment and condo residents from the clutches of broadband monopolies will lower prices, increase speeds and move the deployment agenda for new fiber forward," Incompas said, applauding the NPRM. It said landlords too often "are slamming the door in the face of competition" and MTE revision "represents another critical element of the agency’s broadband deployment agenda." Incompas was critical of the partial pre-emption (see 1907020031).