"It's crazy": FCC kills some of San Francisco's broadband competition law

The Federal Communications Commission today voted in favor of removing part of the San Francisco ordinance to promote broadband competition in apartment buildings and other structures with several tenants. But it's unclear what effect preemption will have, as San Francisco said the FCC's Republican majority misconstrued what the law was doing.

The FCC president's plan, Ajit Pai, partially reverses San Francisco's Article 52, which allows Internet service providers to use existing wiring inside multi-unit buildings, even if another Internet provider already serves the building. The FCC has declared preempt the law "to the extent that it requires sharing of wiring in use". However, Pai's proposal admits that the FCC does not know if the San Francisco law actually requires sharing of in-use cabling, which makes it difficult to understand if pre-emption of the FCC will change anything. In practice.

San Francisco itself has told the FCC that its law does not apply to cabling in use and that its text never used the phrase "in the process". ;use". Instead, it applies to "any existing cabling", which, according to the FCC, could be interpreted to include cabling actively used by another ISP.

The purpose of the City Act is clearly to give residents the opportunity to switch from one ISP to another and to allow the resident's ISP to use the cable leading to their apartment. ISP statements indicate that each ISP still has to install its own wiring in a building to connect it to the ISP's network, but that any ISP can use the wires going directly to each apartment.

While it is unlikely that a cable entering an apartment will be literally used by two Internet Service Providers at the same time, Pai's proposal baderts this ambiguity as to whether the law Is allow the simultaneous use of wires is reason enough to preempt the law.

As we have previously reported, the municipal ordinance applies when the inside wiring belongs to the owner. Under the rule, homeowners who equip their Internet cabling buildings can not deny access to ISPs, which makes it more difficult for them to enter into exclusive agreements with Internet providers.

Pai said the city's by-law "deters broadband deployment" and violates FCC wiring regulations. The Republican majority led by Pai ensured that pre-emption was voted by 3 votes to 2, while the two FCC democrats voted against. The FCC's decision to depart from the rule was made in response to a February 2017 request by the Multifamily Broadband Council (MBC), a group of Internet service providers that serve multi-tenant buildings.

Vote "crazy" to prevent competition

The FCC decision of today "stops"[s] The efforts in California are intended to encourage competition in multi-tenant environments, "said FCC Commissioner Jessica Rosenworcel at Thursday's meeting," more specifically, we are telling the City of San Francisco, where more than half of the population rents its housing, often in multi-tenant units – that they can not encourage broadband competition. It's crazy. "

Rosenworcel noted that the FCC had abandoned its own regulatory power under Title II on broadband when it had repealed the rules of net neutrality, while claiming authority to terminate broadband regulation local.

"We claim in one way or another that we have unlimited authority with respect to broadband in buildings, but that we have waived our general authority as part of our neutrality procedure. of the network, where we said that broadband is beyond the scope of this agency, "said Rosenworcel.

At today's meeting, Pai stated that San Francisco "has had every opportunity to substantially defend a wire-sharing mandate in use and that it "absolutely failed to do it".

An announcement from Pai's office stated that "[r]the required sharing of in-service cabling discourages broadband deployment and compromises the Commission's rules for the control of cable cabling in residential MSPs [multi-tenant environments] and threatens the Commission's framework to protect the technical integrity of cable systems for the benefit of viewers. "

San Francisco could appeal pre-emption in court. The city could also argue that the FCC's pre-emption does not change anything, as city officials say the law does not apply to cabling in use.

Pelosi and the mayor of SF opposed

The US House of Representatives had already voted on June 26 to block Pai's proposal. But the Senate and President Trump must also give their approval to prevent the FCC from preempting the San Francisco law.

London Mayor London Breed voiced his opposition in a letter to House Speaker Nancy Pelosi (D-Calif.), As well as to the five FCC Commissioners. San Francisco has filed this letter for the FCC's role.

The city applies its wire-sharing rule to "buildings where the owner has not allowed multiple vendors," wrote Breed.

"San Francisco has adopted section 52 because it is unprofitable and, in the case of many older buildings, impossible for multiple operators to install their own wiring to reach each occupant," she said. written. "As a result, rather than fostering competition, the draft decree would deprive many MTE occupants in San Francisco of a significant choice of communications providers."

Pelosi wrote a letter to Pai asking him to suspend the vote.

"This proposal is deeply flawed and would undermine freedom of choice, increase costs and reduce the quality of service provided to residents, as it would deter long-awaited competition in the telecommunications sector," Pelosi told Pai.

The FCC misinterpreted Article 52, falsely claiming that it gave ISPs free access to the wires, Breed wrote:

the [FCC’s] The draft decree also suggests that this "forced sharing of facilities in service … encourages providers to [get a] make free use of the existing infrastructure rather than build their own. "In making this statement, the draft decree ignores the clear wording of Article 52 according to which" the owner of a property is entitled to fair and reasonable compensation from a supplier of communication services. "Reduces the cost for a competitive provider to get access to an MTE, it does not provide a so-called" free ride. "Article 52 was developed with the active participation of 39, AT & T, Comcast, the Chamber of Commerce, building owners and management, the Association, Electronic Frontier Foundation, regional Internet service providers and other entities to achieve a balanced approach.

Litigation on the wording of the SF law

While the FCC has declared preempt the San Francisco law "insofar as it requires sharing of in-use cabling", Breed's letter to Pelosi and the FCC stated that "the article 52 does not require sharing of wiring "in use". "

Sonic, an Internet service provider quoted by the FCC in San Francisco, said that it was "technically impossible for two service providers to literally share the inside wiring without significantly degrading their two services." Section 52 precludes this possibility by allowing homeowners to deny requests to share existing wiring when this would impair the ability of existing Internet service providers, San Francisco said.

Monkeybrains, an Internet service provider that relied on the law to serve buildings that previously had only one ISP, gave an explanation that seems to clarify the question of whether cables are "under way". use "are shared. Monkeybrains told the FCC the following:

Naturally, Monkeybrains and other ISPs are still building their own infrastructure, including cabling and switching to each Intermediate Splitter ("IDF") of a building, and then can use an existing cable ranging from IDF to closer to the unit. In any case, we use this existing thread only when it is no longer used or actively subscribed by an end user. Once the end user has confirmed his intention to terminate the service with his previous provider, we will connect this existing wire to our own switch in the nearest IDF.

The FCC has "bypbaded" the San Francisco law into a "whimsical non-existent, suggesting that the ordinance requires the sharing of wiring already in use," Rosenworcel said. "This is simply not true.In fact, San Francisco has told us publicly that this is not what the law does.But even if it was true, the agency We can not determine here if such a sharing would be even technically possible.All The question is why does the FCC do that.Why are we preempting an imaginary possibility in a municipal ordinance in San Francisco? "

Pai has accused San Francisco of playing word games, claiming at the meeting today that it is difficult to understand how anyone can be harmed by a decision to anticipate. a city mandate that, according to the city, does not exist. " Pai said that if the city was right in saying that its law did not apply to cabling in use, there was no reason for it to go wrong. worried about preemption.

"All of this suggests that the opposition here is not motivated by the facts, nor by the law, but by this rude political impulse," he is for, I am against, "he said. Pai.

Pai's proposal indicated that the FCC did not need to fully understand the San Francisco law to preempt it.

"We do not need to definitively determine whether section 52 requires property owners to allow sharing of wiring while in use … the record shows that mere appearance is sufficient to have a significant deterrent effect on investment "and that Article 52 requires that in-use connection sharing has had a deterrent effect on broadband and video investments. ", said Pai's proposal.

Democrat Geoffrey Starks, a member of the commission, said the San Francisco law's interpretation by the Republican majority was unreasonable. Starks says:

[I]It is a fundamental canon of construction that a law should not be interpreted adversely where other interpretations do not pose a problem. The Commission seemed too eager to consider a potential interpretation of the San Francisco law that would require pre-emption. But there is a more reasonable and less problematic interpretation that the Commission has not fully examined. The San Francisco law prohibits homeowners from refusing to allow new suppliers to use "any existing wiring" in a building. As the badysis of the majority acknowledges, this language is at worst simply ambiguous and can be interpreted in a reasonable way not to include cabling in use. In addition, the law then expressly authorizes homeowners to refuse access to cabling in cases where this would have an "adverse" effect on the service. This is precisely the problem that, according to the majority, would result from a requirement for wire sharing in use. Therefore, since wiring sharing in use is technically problematic, the San Francisco law can and must be interpreted in a way that does not require it.