Open Access for Apartment Buildings

San Francisco recently passed an interesting ordinance that requires that landlords of apartments and multi-tenant business buildings allow access to multiple ISPs to bring broadband. This ordinance raises all sorts of regulatory and legal questions. At the most recent FCC monthly meeting the FCC jumped into the fray and voted on language that is intended to kill or weaken the ordinance.

The FCC’s ruling says that a new ISP can’t share wiring that is already being used by an existing broadband provider. I call this an odd ruling because there are very few technologies that share wires between competitors – with most fast broadband technologies a new ISP must rewire the building or beam broadband wirelessly. This means the FCC’s prohibition might not make much of a difference in terms of overturning the San Francisco ordinance. The only competitive broadband technology that routinely uses an existing wire is G.Fast, and even that can only be used by one broadband provider at a time and not shared. I can’t think of any examples of a practical impact of the FCC ruling.

The FCC’s ruling is odd for a number of other reasons. It’s certainly out of the ordinary for a federal agency to react directly to a local ordinance. My guess is that the FCC knows that many other cities are likely to jump onto the open access bandwagon. Cities are getting a lot of complaints from apartment tenants who don’t have access to the same broadband options as single family homes.

The FCC ruling is also unusual because it violates the FCC’s overall directive from Congress to be pro-competition. The FCC order clearly falls on the side of being anti-competitive.

What I find most striking about this decision is that this FCC gave up authority to regulate broadband when they killed Title II regulation last year. I guess what they meant was that they are giving up regulating broadband except when it suits them to regulate anyway. It’s an interesting question if the agency still has the authority to make this kind of ruling. It’s likely this lack of regulatory authority that forced the FCC to make such a narrow ruling instead of just overturning the San Francisco ordinance. I always knew it wouldn’t be long before the FCC selectively wanted back some of their former Title II authority.

The MDU market has an interesting history. Historically the large apartment buildings were served by the incumbent providers. The incumbents often stealthily gave themselves exclusive rights to serve apartments through deceptive contractual practices, and the FCC prohibited some of the most egregious abuses.

For many years competitors largely weren’t interested in apartments because the cost of rewiring most building was prohibitive. In the last few years the MDU market has changed significantly. There are now wiring and wireless technologies that make it more affordable to serve many large apartment buildings. There are now numerous competitors operating in the space. Many of them bring a suite of services far beyond the triple play and also bring security, smart camera solutions to make tenants feel safe, smart sensors of various kinds, and WiFi in places like hallways, stairwells, parking garages and outside. These new competitors often require an exclusive contract with a landlord as a way to help cover the cost of bringing the many ancillary services.

There is another regulatory issue to consider. There have been several laws from Congress that have been tested in the courts that give building owners the right to keep ISPs off their premise – this applies to single family homes as well as the largest apartment buildings. It won’t be surprising to see building owners suing the City for violating their property rights.

Yet another issue that muddies the water is that landlords often elect to act as the ISP and to build broadband and other services into the rent. Does the San Francisco ordinance prohibit this practice since it’s hard for any ISP to compete with ‘free’ service.

Another area affected by the ordinance might best be described as aesthetics. Landlords often have stringent rules like requiring that ISPs hide wiring, electronics boxes, and outdoor enclosures or huts. It’s a bit ironic that the City of San Francisco would force building owners to allow in multiple ISPs and the myriad wires and boxes that come with open access. San Francisco recently got a positive court ruling saying that aesthetics can be considered for small cell deployments and it seems odd in MDUs that the City is favoring competition over aesthetics.

At the end of the day I think the City might be sorry that they insinuated themselves into an extremely complicated environment. There are likely dozens of different relationships today between landlords and ISPs and it seems like a slippery slope to try to force all apartment owners to offer open access.

I know cities have been struggling with the open access issue. They receive complaints from apartment tenants who want different broadband options. It’s not hard to understand why a city with a lot of apartment dwellers might feel compelled to tackle this issue. I know other cities that have considered ordinances like the San Francisco one and abandoned the issue once they understood the complexity.

The City made an interesting choice with the ordinance. The City elected to require open access to help foster consumer choice. However, it’s possible that the long-term results might not be what the City expected and the ruling could drive away the creative ISPs who elect not to compete in an open access environment.

It seemed almost inevitable that the City ordinance will be challenged by somebody – but the courts were a more logical place to fight this battle than at the FCC. If anything, the FCC has just clouded the issue by layering on a toothless prohibition against the sharing of wires.

Delivering Fiber to Apartments

Bellevue_Apartment_BuildingOne of the biggest issues that’s not talked about much with fiber deployment is getting fiber to older apartment buildings. According to the US Census there are around 19 million housing units in buildings with 5 or more rental units. Statistics from several apartment industry sources estimate that over half of those units were built before 1980 and over 80% were built before 2000. This means that a large percentage of apartment buildings are not pre-wired for broadband. There are both network and business issues associated with serving apartments that makes this part of the fiber business a real challenge.

The network issues are of two types. First is the issue of access to buildings. Building owners have the right to allow or not allow access to service providers. Many business owners will already have some sort of contractual or financial arrangement with the incumbent cable company. A few years ago the FCC outlawed a lot of specific kinds of onerous contracts between the two parties. The cable companies had used deceptive tactics to lock cable owners to only allowing them into buildings. But there are still numerous ways for an apartment owner and cable company to agree to keep other providers out of apartments.

But even should an apartment owner allow a fiber builder in, the cost of wiring older apartment buildings can be prohibitive. When a fiber builder comes to a single family home they generally are free to use the existing coaxial and telephone wiring in the home if they want access to it. But unless an apartment owner is going to grant exclusive access to a fiber builder the existing wires are still going to be used by the incumbent cable and telephone company.

And that means a total rewiring of the building. That can be a nightmare for older buildings. It might mean dealing with asbestos in ceilings and walls. It often means trying to somehow snake fiber through concrete floors and walls or else having to somehow run wiring through open hallways. And it often means disturbing tenants, and coordinating gaining entrance to multiple apartments or condos can be a challenge.

There are also business issues to deal with in apartments. Probably the number one issue is dealing with tenant churn. Almost by definition apartments have a much higher percentage of turnover than single family homes and it can be a real challenge to get and keep a decent penetration rate in apartments. Companies have tried different ideas, such as getting referrals from apartment owners, but the turnover generally is seen as a problem by most overbuilders.

One way to deal with the churn is to make a financial arrangement with the building owner rather than with each tenant. That generally involves paying some sort of commission. That is not a big problem with selling broadband, but the commissions expected on cable TV could easily push under the cost of providing the service. There was a time when seeking wholesale cable arrangements was a good business plan, but the rising cost of programming has made it far less attractive.

There are companies that are concentrating on serving apartment units in metropolitan areas. They bring a fiber to a complex and then serve data and cable to every tenant, often built into the rent. One would have to think that most of these deals are being done with newer apartments that have been built with telecom expansion in mind – lots of empty conduit throughout the building or even fiber already in the walls.

But for the normal fiber overbuilder who mostly serves single family homes and small businesses, apartments are mostly seen as an obstacle more than an opportunity. I have numerous clients who have built whole towns except for the apartments and they have yet to find an affordable and profitable business case for doing so. There are some new and interesting ways to more easily wire older buildings, such as running fiber along the ceilings in hallways – but a lot of my clients are not yet convinced there is a long-term profitable option for serving apartments.