In 2007 the FCC banned certain kinds of exclusivity arrangements between ISPs and owners of multi-tenant buildings. At the time of the order, the big cable companies had signed contracts with apartment owners giving them exclusive access to buildings. The FCC order in 2007 got rid of the most egregious types of contracts – in many cases, cable company contracts were so convoluted that building owners didn’t even understand the agreements were exclusive.

However, the FCC order was still a far cry away from ordering open access for ISPs to buildings and there are many landlords still today who won’t allow in competitors. The most common arrangements liked by landlords are revenue share arrangements where the building owner makes money from an arrangement with an ISP. While such arrangements aren’t legally exclusive, they can be lucrative enough to make landlords favor an ISP and give them exclusive access.

WISPA, the industry association for wireless ISPs has asked the FCC to force apartment owners to allow access to multiple ISPs. WISPA conducted a survey of its members and found that wireless companies are routinely denied access to apartment buildings. Some of the reasons for denying access include:

• Existing arrangements with ISPs that make the landlord not want to grant access to an additional ISP.
• Apartment owners often deny access because wireless ISPs (WISPs) are often not considered to be telephone or cable companies – many WISPs offer only broadband and have no official regulatory status.
• Building owners often say that an existing ISP serving the building has exclusive rights to the existing wiring, including conduits that might be used to string new wiring to reach units. This is often the case if the original cable or telephone company paid for the inside wiring when the building was first constructed.
• Many landlords say that they already have an existing marketing arrangement with an ISP, meaning they get rewarded for sending tenants to that ISP.
• Many landlords will only consider revenue sharing arrangements since that’s what they have with an existing ISP. Some landlords have even insisted on a WISP signing a revenue-sharing arrangement even before negotiating and talking pricing and logistics.

These objections by landlords fall into two categories. One is compensation-based where a landlord is happy with the financial status quo relationship with an existing ISP. The other primary reason is some contractual relationship with an existing ISP that is hard or impossible for a landlord to preempt.

The concerns of WISPs are all valid, and in fact, the same list can be made by companies that want to build fiber to apartment buildings. However, landlords seem more open to fiber-based ISPs since saying that their building has fiber adds cachet and is valued by many tenants.

WISPs sometimes have unusual issues not faced by other ISP overbuilders. For example, one common wireless model is to beam broadband to a roof of an apartment building. That presents a challenge for gaining access to apartments since inside wiring generally begins in a communications space at the base of a building.

The issue is further clouded by the long history of FCC regulation of inside wiring. The topic of ownership and rights for inside wiring has been debated in various dockets since the 1990s and there are regulatory rulings that can give ammunition to both sides of wiring arguments.

The WISPs are facing an antagonistic FCC on this issue. The agency recently preempted a San Francisco ordinance that would have made all apartment buildings open access – meaning available to any ISP. This FCC has been siding with large incumbent cable and telephone companies on most issues and is not likely to go against them by allowing open access to all apartment buildings.