NAA and a Coalition of Real Estate Associations Submit Joint Comments to FCC Regarding Improving Competitive Broadband Access to Multiple Tenant Environments (Letter 1 of 4)

SUMMARY 

The National Multifamily Housing Council, the National Apartment Association, the International Council of Shopping Centers, the Institute of Real Estate Management, Nareit, the National Real Estate Investors Association, and the Real Estate Roundtable (the “Real Estate Associations”) respectfully urge the Commission to refrain from any regulation of agreements between property owners and broadband providers. As our comments demonstrate in detail, the free market is working, and the various proposals raised in the Notice of Proposed Rulemaking (the “NPRM”) are unnecessary.  

The Commission’s current inside wiring regulatory scheme is inconsistent and inequitable. None of the issues raised by the proponents of regulation can be addressed in a sensible fashion so long as wiring owned by cable multiple system operators (“cable MSOs”) is treated differently from that owned by local exchange carriers (“LECs”) and competitive fiber broadband (“CFB”) providers. Under the Commission’s 20031 Sheetrock Order, cable MSOs lost control of essentially all cable inside wiring. With no incentive to own wiring, in all construction since 2003, in general the MSOs simply have agreed that the building owner holds title to the wiring or transferred any title for a nominal sum. At the same time, the LECs and CFB providers claim to be exempt from the Part 76 rules that govern the cable MSOs, under the Commission’s early fiber deregulation orders. They remain free to hold title to wiring inside buildings without fear of having to share it, and so they do. Allegations that providers pay building owners to circumvent the Part 76 rules are thus entirely false.  Cable MSOs and apartment owners have merely developed a type of transaction that meets their needs, within the law.   

The Commission’s current inside wiring rules were created out of a series of unrelated statutes and orders intended for other purposes and cannot be extended further. The Commission has addressed a series of concerns on a piecemeal basis, using whatever tools it had at hand. This proceeding demonstrates that further regulation will only stretch the Commission’s authority to the breaking point.  If the Commission believes that agreements governing the use of wiring inside buildings must be regulated, it should seek specific authority from Congress, as it did in 1977, with respect to attachment of cable television wiring to poles owned by utility companies. Indeed, the background to the current proceeding is an example of the “regulatory creep” decried by the Commission’s Internet Freedom Order.2    

Neither of the specific statutes proposed by the NPRM as a source of authority – Section 201(b) or Section 628 -- is of any help.  One need only read them to see that they do not cover compensation paid to building owners, wiring exclusivity, or marketing exclusivity.  

Setting aside the legal issues, if the goal is to ensure that apartment residents and commercial tenants have access to competitive broadband service, then the market has achieved that goal, under the current regulatory structure. The Real Estate Associations have gathered evidence showing that in 76% of apartment properties (and roughly 80% - 90% of new construction), the property owner has arranged for at least two broadband providers to serve the property.  At least one of those providers – and sometimes more than one – is routinely paying some form of compensation to the property owner and has the benefit of exclusive marketing or exclusive wiring rights.

In other words, the kinds of contracts that are allegedly barring competitive entry are actually and clearly not preventing such entry.  In addition, satellite-based private cable operators (“PCOs”) are still permitted to enter into exclusive access agreements, but they have not increased their market share over the past decade, which is strong evidence that property owners prefer to offer residents a choice. If individual providers are having trouble in particular cases, the reasons may very well have to do with their own business plans:  Perhaps they should focus on different market sectors, where there is currently less competition.

There is a lack of competition in the market today, but it is in the smaller, less lucrative buildings that competitive providers choose not to serve.  All providers prefer large properties with high income residents or commercial tenants who will spend on premium services.  This means that many properties – especially smaller buildings or those in mid- to lower-income areas – are underserved.  Furthermore, if a provider does request access to such a building, the provider can get it on very favorable terms. The Commission can best pursue its stated goal of extending the benefits of broadband service competition to more Americans by encouraging broadband deployment in underserved communities, including mid- to lower-income and rural areas and addressing the affordability of such service.  Helping new companies carve up the customer base on existing higher-end properties into smaller pieces does not address the root challenges to expanded broadband access.

There is no problem with competitive access to commercial or retail properties. Commercial and retail property owners may adopt various strategies regarding the management of inside wiring, but they all serve the purpose of providing tenants with access to multiple providers.  The agreements with providers are typically right of access or license agreements that grant the provider the right to install its facilities or use owner-installed infrastructure for the purpose of serving one or more tenants at the property.  Any fees charged are modest and are not tied to any form of exclusivity.  

Proposals for restricting in any way the compensation some providers pay to some owners in some cases completely miss the point.  Property owners are driven by resident and tenant demand, and residents and tenants demand access to a choice of competitive broadband services.  Property owners do not see broadband providers as a profit center, because they are in the business of serving residents and tenants.  All they seek from providers is modest compensation to help offset development and infrastructure deployment costs.  Simply put, the revenue owners receive from providers is not sufficient to overcome the strong pressure from residents and tenants for competitive choices.  This becomes clear when comparing the fees an owner might receive from a provider to the lost revenue from a single apartment, commercial or retail space vacancy.

In addition, whether under a complete or partial ban on compensation, basic economic principles suggest that any new regulation could have the effect of discouraging owner investment in facilities.  From an economic perspective, this is a straightforward conclusion.  If owners are unable to earn any compensation for investments in broadband infrastructure, they will spend less on that infrastructure.  This will only hinder deployment.  Where it doesn’t, the costs of any infrastructure will lead to an increase in rents at a time of serious affordability challenges across the country.  In fact, when one considers both the direct expenditures made by property owners on broadband infrastructure inside their buildings, which reduce the costs of providers, and the enormous sums invested to develop and acquire apartment communities and commercial venues of all kinds, it is the real estate industry that is ultimately paying to support the broadband industry, not the other way around.  

The proposed transparency requirements do not seem to be aimed at the actual problem they claim to address.  The Real Estate Associations oppose proposals for the disclosure of revenue sharing and exclusive marketing arrangements because:  (i) the purported harm does not exist; (ii) the NPRM is vague, in that it offers no specific language that would allow commenters to fairly evaluate the content, extent, or likely effects of any disclosure; and (iii) poorly-designed disclosure requirements could discourage providers from entering otherwise lawful and useful agreements.  For example, the NPRM proposes to require providers to disclose to apartment residents the existence of any exclusive marketing arrangements because property owner representatives allegedly show “confusion about the impact of exclusive marketing arrangements.”  It is difficult to see how disclosing marketing arrangements to consumers would eliminate any claimed confusion on the part of on-site management.   

Distributed antenna system (“DAS”) and rooftop leases do not need to be regulated.  As far as the Real Estate Associations can determine, the only issue here is that property owners are paying one million dollars or more per DAS installation to ensure adequate wireless service, but the wireless carriers are not contributing to that cost. 

The Real Estate Associations strongly believe that mandatory access laws are antiquated, unnecessary, and carry the risk of harming other essential infrastructure.  By taking control away from the entity that knows the property and its infrastructure best, mandatory access laws hinder investment in broadband deployment, and even threaten environmental and historical preservation efforts. Finally, all such laws raise Constitutional concerns because they override private property rights.   

Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C.  20554 

In the Matter of
Improving Competitive Broadband Access to
Multiple Tenant Environments 

GN Docket No. 17-142 

JOINT COMMENTS OF  THE NATIONAL MULTIFAMILY HOUSING COUNCIL, THE NATIONAL APARTMENT ASSOCIATION THE INTERNATIONAL COUNCIL OF SHOPPING CENTERS, THE INSTITUTE OF REAL ESTATE MANAGEMENT, NAREIT, THE NATIONAL REAL ESTATE INVESTORS ASSOCIATION AND THE REAL ESTATE ROUNDTABLE   (the “Real Estate Associations”) 

Introduction 

The National Multifamily Housing Council, the National Apartment Association, the International Council of Shopping Centers, the Institute of Real Estate Management, Nareit, the National Real Estate Investors Association, and the Real Estate Roundtable respectfully submit these Comments in response to the Commission’s Notice of Proposed Rulemaking dated July 12, 2019 (the “NPRM”).3  The Real Estate Associations represent a broad array of real estate industry sectors, including residential, retail and commercial property owners and managers, and developers, investors, and lenders.4  

The Real Estate Associations strongly oppose the proposals set forth in the NPRM.  They are unnecessary and unwise.  As these comments will demonstrate, the real estate industry is actively promoting both the deployment of broadband services within apartment communities ,commercial and retail developments, and competition for those services.5 In fact, the real estate industry is underwriting the expense of infrastructure deployment at a cost of billions of dollars, simply because property owners operate in a competitive market economy and must make competitive broadband service available.  Furthermore, every time a new apartment community, office building, retail property or other commercial venue opens its doors, a new market for broadband service also opens.  Rather than further regulate agreements between property owners and broadband providers, we respectfully urge the Commission to acknowledge the contributions of the real estate sector, step aside, and allow the existing competitive market to continue to operate.  

I. BUILDING OWNERS VIGOROUSLY SUPPORT THE DEPLOYMENT OF BROADBAND COMPETITION EVERYWHERE IN AMERICA.  

Before the Commission pursues further regulation that may affect owners of leased property, the Real Estate Associations urge the Commission to examine the current state of broadband deployment in the United States and the role property owners have taken in promoting deployment.  The real estate industry supports the Commission’s efforts to bolster broadband deployment across the nation. With the rise of e-commerce, changes in how consumers access media, and our ever-increasing reliance on the internet for basic functions, broadband connectivity is a top priority for the apartment industry.

Property owners place a very high priority on superior broadband deployment in their communities, buildings and developments. Owners look for solutions that deliver reliable, high speed connectivity.  The Real Estate Associations believe strongly that the marketplace is working, and so we urge the Commission to avoid measures that could prove counterproductive, and thereby harm investment, constrain competition, and limit consumer access to broadband service.  We are also concerned that inopportune regulation could raise the cost of developing real estate and, in particular, multifamily housing at a time when the apartment industry is working hard to increase supply and make housing more affordable for residents.  

A. Atoms Engineering is Harder than Bits Engineering.

It goes without saying that broadband providers of all kinds benefit from the work of the real estate industry in creating and maintaining communities for Americans to live, work and shop.  As the record in response to the Notice of Inquiry (“NOI”) in this docket shows, there are many broadband providers who understand the importance of the real estate industry to their own success. Nevertheless, in light of some of the claims of some commenters cited in the NPRM as possibly justifying regulation, the Real Estate Associations believe it is important for the Commission to understand the realities of multifamily, commercial and retail property development and the cost of regulation.

Developing real estate, whether multifamily, single-family, retail or other commercial properties, is difficult. Production of any kind has its natural barriers.  Those are for the most part objective barriers that can, and often do, fluctuate, but are predictable enough to still meet a pro forma.  That said, commercial, retail and multifamily development face significant regulatory barriers and challenges that make development a cumbersome and costly process. These barriers and the costly development pipeline can threaten the economic contributions that commercial, retail and multifamily real estate make to the U.S. economy every year. Commercial development and operations alone -- office, warehouse, and industrial -- supported 8.3 million American jobs in 2018, contributed $1.0 trillion to U.S. GDP and generated $325.9 billion in salaries and wages.6  Multifamily residential operation and development supports growth with an economic contribution of $1.3 trillion and supports 12.3 million jobs annually.7 The retail real estate industry’s total GDP impact is $3.9 trillion, supporting 34.8 million jobs.8 Understanding the macro-level impact of real estate development and operation and the potential negative impacts of well-intentioned but counter-productive regulation must be taken seriously by policy makers of all kinds and at all levels of government.  

The following summary illustrates the development pipeline faced by commercial, retail and multifamily real estate developers and the many cost drivers they face in getting a project operational. The typical steps real estate developers must confront are:  

• Site selection, evaluation and research: This often includes costly site investigation reports that assess the viability of a site and accompanying land use, zoning, permitting and other requirements as well as any existing or necessary utility infrastructure, including communications infrastructure.   

• Local government and lender required evaluations: Environmental, geotechnical and property surveys must be undertaken which can be costly and time consuming.

• Local government review and approval: This can include zoning, site plan and design reviews as well as a lengthy process to secure all necessary entitlement approvals such as rezoning, transportation infrastructure and utility permits.  In addition, political involvement and approval can include public hearings as well as consideration by a planning board/commission and potentially the municipalities governing body.  

• Construction: This can include soil testing/work, laying the foundation, utility work/connections and ultimately physical building construction and interior work.  

• Final inspections/Occupancy: To ensure compliance with local regulation a variety of inspections are performed before a Certificate of Occupancy can be issued/the property can be operational. 

As the above outline shows, development of commercial, retail and multifamily property is an arduous and costly process that requires significant capital outlays, strict regulatory compliance, land use/construction expertise and an abundance of time.  Regulation at all levels of government, while often well-intentioned, can have unintended consequences, serve as a significant cost driver and ultimately affect the rent that commercial, retail and residential tenants face.  

It is important to note that multifamily development, in particular, often brings with it a level of entitlement subjectivity and regulation layered on top of these common barriers and processes and is much more difficult to predict.  Plainly stated, many localities have a development preference that works against multifamily housing production and ultimately worsens the country’s affordability challenges.  Multifamily development often faces stiff community resistance, competes with other forms of real estate that produce sales tax revenue desired by municipalities and is subject to increasing regulatory barriers at all levels of government.

In a speech before the Urban Institute in November 2015, Jason Furman, former chairman of The White House Council of Economic Advisers, said that the U.S. could build a lot more apartments but noted “multifamily housing units are the form of housing supply that is most often the target of regulation.”  In fact, a recent study by NMHC and the National Association of Home Builders (“NAHB”) based on responses from a variety of multifamily developers throughout the country found that on average, 32 percent of multifamily development costs are attributable to the costs associated with complying with local, state, and federal regulations.9  In a quarter of cases, that number can reach as high as 42.6 percent.  This comes at a time when all regions of our nation are confronting a housing affordability challenge and the reality that we must dramatically increase the supply of housing to lessen the tight constraints on the housing market we currently feel. 

To make the narrative above more concrete, we include two examples here.  First, we will describe the experience of a large apartment developer, Continental Properties Company, Inc. (“Continental”), which specializes in developing garden-style communities in markets such as including Memphis, Louisville, Fort Myers, Minneapolis metro, Dallas metro, Denver metro and Chicago metro, among others.  The second example is the redevelopment of the mixed-use O Street Market in the historic Shaw neighborhood of Washington, D.C.    

Continental is a national developer, owner and operator of high-quality apartment homes across the United States, which was listed in 2018 as the eighth largest developer of apartment homes by the NMHC and reported to be the largest garden style, suburban apartment developer in the United States.  Continental typically commences construction on approximately 3,000 new apartment homes per year; the company has developed over 23,000 apartment homes and is currently managing approximately 15,000 apartment homes with another 4,600 apartment homes under construction.   

The Declaration of Kimberly Grimm, Executive Vice President for Continental, is attached as Exhibit B (“Grimm Decl.”).  Ms. Grimm describes in detail the complexity of the development process for garden-style apartments in typical markets outside of urban core areas. She states, among other things, that it takes Continental an average of 3.5 years from land identification to  fully-occupied community, and that Continental’s project costs range between $35,000,000 to $68,000,000 per project, without including Continental’s labor or other overhead costs.10 Continental invests roughly $50,000 to $150,000 in building out communications networks at its properties; these communities range in size from 200 to 340 apartment units.11 Continental reports that any door fees or other incentives it receives from providers are used to offset these costs.12    

The O Street Market project is an example of the cost and the complexity of redevelopment in a typical urban environment.  Any project in a densely built-up area will take years to complete, and total development costs will routinely be in the hundreds of millions of dollars.  The overall cost of the project was $315 million, in a combination of private equity, private debt, HUD loans and District of Columbia bond financing.  The entire project took over a decade to complete.  The result was a mixed-use community that today includes 546 market-rate apartments in three buildings, 90 affordable apartments in a fourth building, 90,000 square feet of retail space, a hotel, and a Giant grocery store inside the historic market building.  Residents, retail and other commercial tenants of the four buildings have access to broadband internet access service.  

For more detail on the O Street project, see “A Snapshot of Multifamily Development,” attached as Exhibit C. That summary was prepared as part of testimony on the challenges faced by multifamily developers before the U.S. House of Representatives Committee on Financial Services, presented by NMHC Chair Sue Ansel, President and Chief Executive Officer of Gables Residential.13  

Three-and-a-half years and $35 to $68 million for one development in the middle of the country.  Over ten years and $315 million for another just across town from the Commission’s offices.  What our members do is not cheap and is not easy. 

B. Broadband Service in Apartment Communities, Commercial Buildings and Retail Real Estate Is Ubiquitous.

According to the Commission’s 2018 Broadband Report, as of the end of 2016, 92.3% of the population of the United States had access to fixed terrestrial broadband service at speeds of 25 Mbps downstream and 3 Mbps upstream.14 The same report states that 99.6% of the population had access to 5Mbps/1Mbps mobile service.15 When satellite service is included, the percentage of Americans with access to fixed 25 Mbps/3Mbps service rises to 95.6%, “with deployment to 81.7 percent of Americans in rural areas and 99 percent in urban areas.”16 Deployment of fixed terrestrial service in the most sparsely populated parts of the country therefore remains a concern, but as a practical matter some form of broadband service is nearly ubiquitous in multiple tenant environments (“MTEs”). Very few apartment residents or businesses lack access to broadband service.  See Part V.B. for more on this point.  

These existing rates of deployment and service speeds were achieved only with the cooperation of the real estate industry.  Regulatory measures that reflect the economic and business conditions that promote cooperation will promote deployment.  Conversely, regulation that reduces incentives for cooperation is likely to slow future deployment.  

With over 99% of urban Americans already having access to broadband networks and services, the Real Estate Associations believe that overbroad or unduly aggressive regulation raises the prospect of unintended consequences that may harm the existing market, which is successfully providing broadband infrastructure and services.  

C. Property Owners Actively Promote Deployment of Competitive Services at Their Properties and in their Communities Because Residents, Tenants, and Consumers Demand It.

The real estate industry has a long history of promoting competition and access to communications services by creating densely populated markets for the economically efficient deployment of new services and new providers. Their economies of scale have made apartment properties in particular very attractive to the cable MSOs, the SMATV providers and PCOs, the LECs, and now the CFB providers. Every time a new rental apartment, commercial or retail property is built, the market for communications services expands.  

In fact, the goals of the Commission and of property owners are closely aligned. In the past, owners wanted communications services because their residents, tenants or consumers demanded it.  Today, owners want multiple broadband providers for the same reason:  resident, tenant and consumer demand. 

1. The State of Competition in the Residential Apartment Industry.  

The real estate industry is highly competitive, with thousands of companies of all sizes seeking to attract and retain residents.17 Their business is to provide residents with attractive places to live.  Rental apartment owners must address the particular needs and concerns of every resident, and every interaction between on-site staff and a resident is part of a personal, human relationship.  Apartment owners strive not just to satisfy, but to anticipate, resident desires and expectations in order to attract and retain them.  Clearly there are exceptions, but it is very rare for residents not to have some sort of choice of where to live:  There are always other apartment owners who are trying to attract the same individuals and families to their properties.  

Owners must offer high quality, reliable broadband service if they are to succeed in competing with those other owners.  This competition, in which property managers are engaged in every single day, is central to the apartment business and it is competition that has driven property owners to ensure that broadband infrastructure is available in their communities.  This deployment has taken place without government mandates, and the Real Estate Associations strongly believe that government intervention is not needed. Owners of apartment properties are keenly aware of the importance of ensuring that residents have access both to broadband internet access service and to a competitive choice of providers.18 The option to choose their vendor is very important to residents. Younger residents tend to want the high bandwidth data packages, while older residents still prefer video, data and voice bundle options.19 But all residents demand access and expect a choice.  Furthermore, residents generally have other options in deciding where to live.  On a national basis, almost half (46.8%) of apartment residents move every year,20 and limiting resident turnover is a major concern for property managers.  If property management cannot meet resident needs, residents can and will move; this turnover reduces occupancy rates, which in turn reduces the income the owner receives from a property.21  In short, owners have a very strong incentive to ensure that each of their properties is served by multiple providers that provide reliable, high quality, and high speed broadband service.        

In fact, the typical apartment community today has at least two broadband vendors available to residents, in markets where such competition exists.22 These vendors typically include the local cable MSO, the LEC broadband product, and often one or more CFB providers.23 In fact, many apartment communities have more than three broadband vendors available.24 

Read More and Download a PDF of this Letter 

1 Telecommunications Services Inside Wiring, Customer Premises Equipment and Implementation of the Cable Television Consumer Protection and Competition Act of 1992: Cable Home Wiring, CS Docket No. 95-184, MM Docket No. 92-260, First Order on Reconsideration and Second Report and Order, 18 FCC Rcd 1342 (2003). 

2 In the Matter of Restoring Internet Freedom, Declaratory Ruling, Report and Order, and Order, WC Docket No. 17-108, 33 FCC Rcd 311 (2018) at ¶ 101 (“The record confirms that concern about ‘regulatory creep’--whereby a regulator slowly increases its reach and the scope of its regulations -- has exacerbated the regulatory uncertainty created by the Title II Order”). 

3 In the Matter of Updating the Commission’s Rule for Over-the-Air Reception Devices, WT Docket No. 19-71, Notice of Proposed Rulemaking (rel. Apr 12, 2019) (the “NPRM”).

4 The individual associations are further described in Exhibit A.  

5 These Comments will concentrate on the issues presented in the NPRM as they pertain to the apartment industry, with references to the commercial and retail real estate industry where appropriate.  This is because exclusive marketing agreements do not exist in the commercial context.  Exclusive wiring agreements, as the term is used in the NPRM, also do not exist, although in fact most providers own the facilities used to serve their tenants from the minimum point of entry to the building to the tenant’s premises and those facilities are not shared with any other provider.  Similarly, although providers may pay a negotiated license fee for the right to occupy space and serve the building, door fees and revenue share fees as described in the NPRM do not exist in the commercial market.  Distributed antenna system (“DAS”), on the other hand, are increasingly common in all sectors of the industry

6 Dr. Stephen J. Fuller, Economic Impacts of Commercial Real Estate, 2019 Edition, NAIOP COMMERCIAL REAL ESTATE ASSOCIATION, (released January 2019).

7 We Are Apartments 

8 ICSC, How Does Real Estate Ompact the U.S. Economy (last visited August 30, 2019). 

9 Paul Emrath and Caitlin Walter, Regulation: Over 30 Percent of the Cost of a Multifamily Development, NATIONAL MULTIFAMILY HOUSING COUNCIL, (June 2018). 

10 Grimm Decl. at ¶6.

11 Grimm Decl. at ¶12.

12 Grimm Decl. at ¶13. 

13 Sue Ansel’s full testimony 

14 In the Matter of Inquiry Concerning Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, GN Docket No. 17-199, 2018 Broadband Deployment Report, 33 FCC Rcd 1660, 1681 at ¶ 50 (2018) (“2018 Broadband Report”).  

15 Id. at ¶ 52, Table 2a.

16 Id. at ¶ 51. 

17 Indeed, the Federal Trade Commission has ruled that the real estate industry is exempt from pre-merger antitrust review precisely because it is so competitive.  Premerger Notification, Reporting and Waiting Period Requirements, 61 Fed. Reg. 13666, 13674 (Mar. 28, 1996) (finding no single entity is likely to have enough market concentration to trigger antitrust concerns).  

18 Grimm Decl.” at ¶14; see also, Declaration of Steve Sadler and Henry Pye, attached as Exhibit D (“Sadler/Pye Decl.”) at ¶¶7-8; Exhibit E, Declaration of Art Hubacher (“Hubacher Decl.”) at ¶7; Exhibit F, Declaration of Jason Knutsen (“Knutsen Decl.”) at ¶5; Exhibit G, Declaration of Andrew Smith (“A. Smith Decl.”) at ¶5; Exhibit H, Declaration of Kimberly Smith (“K. Smith Decl.”) at ¶5; Exhibit I, Declaration of Lisa Yeh (“Yeh Decl.”) at ¶5; Exhibit J, Declaration of Kathleen Austin (“Austin Decl.”) at ¶3.

19 Yeh Decl. at ¶5; Knutsen Decl. at ¶5; Austin Decl. at ¶3.

20 National Apartment Association, Survey of Operating Expenses and Income in Rental Apartment Communities (2018), (last visited June 3, 2019).

21 A. Smith Decl. at ¶5; K. Smith Decl. at ¶5; Yeh Decl. at ¶5; Knutsen Decl. at ¶5; Austin Decl. at ¶3.

22 A. Smith Decl. at ¶6; K. Smith Decl. at ¶6; Yeh Decl. at ¶6; Knutsen Decl. at ¶6; Austin Decl. at ¶4.  

23 Grimm Decl. at ¶13; A. Smith Decl. at ¶6; K. Smith Decl. at ¶6; Yeh Decl. at ¶6; Knutsen Decl. at ¶6; Austin Decl. at ¶4.

24 Hubacher Decl. at ¶7; A. Smith Decl. at ¶6; K. Smith Decl. at ¶6; Knutsen Decl. at ¶6; Austin Decl. at ¶4.