FCC Considers New Digital Discrimination Rule That Could Affect Multifamily

The Federal Communications Commission is starting a new rule-making process, required by the Infrastructure Investment and Jobs Act of 2021, to “combat digital discrimination” that would negatively affect “equal access to broadband for all people of the United States,” according to documents from the commission. 

According to the National Multifamily Housing Council, “While the proceeding is largely aimed at broadband providers, the FCC has used this as an opportunity to raise questions about whether multifamily property owners have a role to play in digital discrimination and whether the FCC should revisit rules governing agreements and relationships between broadband providers and property owners.”

Last year, the FCC created a rule to increase broadband service competition at multifamily locations. The rule stated, “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.”

“[Some] commenters argue that we should extend our definition broadly beyond broadband providers to include entities working on a provider’s behalf; those involved in any of the logistical steps to provide broadband, such as local and state governments and those who maintain network infrastructure; and generally to ‘any entity that can affect’ an individual’s ability to access or afford broadband, such as a business owner or landlord,” the new material says.

“These commenters note that actions by a variety of entities can differentially impact consumers’ access to broadband and thus, to address digital discrimination as directed by Congress, we should include these types of entities within the scope of the rules we adopt.

“By contrast, the National Multifamily Housing Council and the National Apartment Association assert that the statutory language limits our focus to broadband providers.”

Further, the FCC is asking about what implications there might be on multiple tenant environments (MTEs) and to what degree a new rule should address such topics as “access to inside wiring; insufficient infrastructure for high-speed broadband; lack of economic incentives for providers in low-income communities; and exclusive rooftop access agreements as areas in which the Commission could act to address digital discrimination of access.”

The NMHC says that it plans to “file a new round of comments at the FCC on the proposed rules in early 2023 and push back against any attempt to further regulate the multifamily broadband market, which ultimately will be counterproductive in driving investment in broadband services and increasing adoption.”