15 Years Late, The FCC Cracks Down On Broadband Apartment Monopolies

from the do-not-pass-go,-do-not-collect-$200 dept

A major trick dominant broadband providers use to limit competition is exclusive broadband arrangements with landlords. Often an ISP will strike an exclusive deal with the owner of a building, apartment complex, or development that effectively locks in a block by block monopoly. And while the FCC passed rules in 2007 to purportedly stop this from happening, they contained too many loopholes to be of use.

Susan Crawford wrote pretty much the definitive story on this at Wired a while back, noting that the rules are so terrible, ISPs and landlords can tap dance around them by simply calling what they're doing... something else:

"...The Commission has been completely out-maneuvered by the incumbents. Sure, a landlord can’t enter into an exclusive agreement granting just one ISP the right to provide Internet access service to an MDU, but a landlord can refuse to sign agreements with anyone other than Big Company X, in exchange for payments labeled in any one of a zillion ways. Exclusivity by any other name still feels just as abusive."

Fifteen years later and the FCC is finally doing something about it. After being nudged toward the action via Biden's executive order on competition, the FCC has finally voted to update its rules on this front, tightening rules banning outright building by building monopolies.

There's still some wiggle room for ISPs though, even under the new rules that should be formally adopted later this year. One thing ISPs enjoy doing is striking a financial partnership with a landlord, then signing a deal that bans anybody but the primary ISP from advertising in the building. Under the updated rules ISPs and landlords can still do this, they just have to be transparent about it.

The updated rules do tighten up the rules to clearly prohibit other shady tactics, however. For example the FCC's original 2007 rules prohibited ISPs from blocking any competitors from using in-building wiring (which in many cases was installed by a regional monopoly years ago). So to get around this, cable and phone monopoly lawyers came up with a workaround: the ISP would deed ownership of the in-building wires to the landlord, who would turn around and grant exclusive access to those wires to their favored ISP (read: whichever ISP gave them the most money or had the best lawyers).

According to a statement by FCC boss Jessica Rosenworcel, the rule update specifically prohibits this practice:

"We clarify that sale-and-leaseback arrangements violate our existing rules that regulate cable wiring inside buildings. Since the 1990s, we have had rules that allow buildings and tenants to exercise choice about how to use the wiring in the building when they are switching cable providers, but some companies have circumvented these rules by selling the wiring to the building and leasing it back on an exclusive basis. We put an end to that practice today."

Again, it's fairly inexcusable that it took the FCC literally the better part of a generation to outlaw these kinds of practices to help boost building-by building competition. But it's fairly representative of a U.S. regulatory apparatus that's consistently handcuffed, under-funded, and lobbied into apathy by regional monopolies who very much prefer the profitable status quo (cable providers, as you'd expect, fought against these latest rule updates). And while it's great news the FCC still did something about it, enforcement and actual tough penalties (not the FCC's strong suit) will be key. As will acting more swiftly and competently when they find telecom monopoly lawyers have crafted entirely new convoluted legal workarounds.

Filed Under: apartments, broadband, competition, exclusive deals, fcc, monopolies

Tired Of Federal Apathy, Oakland Moves To Ban Anticompetitive Broadband Landlord Deals

from the this-stuff-can-be-fixed-if-you-care-enough dept

We've noted for years how corruption and apathy have resulted in the U.S. broadband sector being heavily monopolized, resulting in 83 million Americans having the choice of just one ISP. Tens of millions more Americans only have the choice of their local cable company or an apathetic local phone company that hasn't meaningfully upgraded their aging DSL lines in twenty years. On top of that problem is another problem: ISPs routinely bribe or bully apartment, condo, and other real estate owners into providing them cozy exclusivity arrangements that block broadband competition on a block by block level as well.

While the FCC tried to ban such landlord/monopoly ISP shenanigans back in 2006, the rules were poorly crafted. As a result, this stuff still routinely happens, it's just called...something else (Susan Crawford wrote the definitive piece on this for Wired a few years back).

For example ISPs will still strike deals with landlords banning any other ISP from advertising in the building. Sometimes landlords will still block competitor access to buildings entirely. Or they'll charge building access fees that unfairly penalize smaller competitors that may not be able to afford them. Or, because the rules prohibit ISPs from blocking access to an ISP's in building wiring, they'll just lease these building lines to the landlord, who'll then block access to competitors on behalf of the monopoly ISP (because technically the landlord now owns them). It's just noxious, weedy bullshit, and it's been going on for decades.

While the FCC has recently made a little noise about revisiting the subject, any policymaking there could take years to sluggishly materialize. Like most broadband reform, feckless federal leadership has driven reform to take place at a faster cadence on the local level. In Oakland, for example, the city council just voted to effectively eliminate all landlord/ISP anticompetitive shenanigans to encourage broadband competition:

"Oakland residents shared the stories of their personal experience; a broad coalition of advocates, civil society organizations, and local internet service providers (ISPs) lifted their voices; and now the Oakland City Council has unanimously passed Oakland’s Communications Service Provider Choice Ordinance. The newly minted law frees Oakland renters from being constrained to their landlord's preferred ISP by prohibiting owners of multiple occupancy buildings from interfering with an occupant's ability to receive service from the communications provider of their choice."

The ordinance closely mirrors a similar law passed in San Francisco aimed at ending anticompetitive ISP/landlord schemes. The ordinance kills all kinds of payola nonsense that occurs on this front. If a competitor needs to access the building because a tenant has ordered service, landlords can't block it (within reason, you still couldn't install your own giant tower on the rooftop).

Again it wasn't particularly hard to craft such effective provisions if the willpower is there. But the political influence telecom giants like AT&T and Comcast have on state and federal lawmakers means such willpower is pretty hard to come by. It's an example of how government regulation in telecom isn't inherently evil (a telecom industry propped up bogeyman that has informed conventional wisdom for a generation), especially if it's actively encouraging competition in a heavily monopolized sector where cronyism and corruption are commonplace.

Filed Under: apartments, broadband, california, competition, landlord deals, landlords, oakland

Supreme Court Has The Chance To Extend Fourth Amendment Protections To Apartment Residents

from the let's-hope-they-do dept

If all goes well, we may end up with a little more Fourth Amendment here in the USA. The Supreme Court is currently considering reviewing a case that will more clearly define what Fourth Amendment implications cops' four-legged friends bring to the (search) party.

A Minnesota state supreme court case (Edstrom v. Minnesota [PDF]) dealing with a K-9's door sniff in an apartment hallway is up for review by the nation's highest court. The state court found in favor of the government, stating that a K-9 sniff only needs reasonable suspicion to comply with the Fourth Amendment and state's own Constitution.

Should we expect a higher standard for dog sniffs? One would think so, considering cops already refer to K-9s as "probable cause on four legs." The Supreme Court recognized in the Rodriguez decision that artificially prolonging pretextual traffic stops solely for the purpose of developing probable cause -- in many cases waiting for a drug dog to arrive at the stop -- violated the Fourth Amendment.

More captive audiences -- residents in their own homes -- shouldn't be treated to a lower standard just because they're never technically "free to go." An apartment resident can't demand officers leave publicly-accessible areas and they certainly can't just pack up their place and leave just because law enforcement doesn't have probable cause to perform a search. But officers can troll hallways with drug dogs based on only the hunch that something illegal may be occurring out of sight.

Drug dogs are trained to do only one thing: detect the odor of drugs. When they alert, officers then have probable cause to effect a search of residence. Limited searches then can be performed without a warrant under the theory that evidence may be destroyed if the residence is not secured while a warrant is obtained.

The home is supposed to be afforded the utmost in Fourth Amendment protections. But when a drug dog is involved, much of that heightened protection dissipates, replaced with non-verbal statements from an animal that can easily be triggered by nothing more than the dog's desire to please its handler. You can't cross-examine a dog to determine its trustworthiness or state of mind. All you can do is hope there's enough failure on the record to call into question the sniff's veracity and that sort of evidence is almost impossible to obtain.

Whether or not the Supreme Court decides to take this case largely depends on how the justices feel about the Jardines decision. In 2013, the Court ruled that taking a drug dog onto a person's porch to sniff for drugs was a search under the Fourth Amendment. But a lot of that reasoning relies on the definition of curtilage. For distinct homes, the privacy begins at the end of the driveway -- something further defined in 2018's Collins decision. In that case, the court held that the Fourth Amendment was violated when the officer entered an open carport to look at an allegedly stolen motorcycle.

But curtilage isn't so easily defined in shared spaces like apartment buildings. Officers can traverse halls just like residents can, provided the common spaces aren't otherwise secured with keypads or card entry. And if they can be in the hall, they can certainly take their dogs in with them. This is gray area the court hasn't directly addressed, and if it refuses to do so in this case, it allows the Fourth Amendment to be applied unequally. Zero protection for common areas that provide access to residents' doors (and their residences beyond) makes the Fourth Amendment a rich (or richer) man's protection, leaving those unable to purchase or rent their own home subject to the whims of police officers and their dogs.

Filed Under: 4th amendment, apartments, edstrom, renters, supreme court