NAA & a Coalition Submit Comments to the FCC Regarding Improving Competitive Broadband Access to Multiple Tenant Environments (Letter 4 of 4)

NAA, with a coalition of real estate associations submitted comments to the Federal Communications Commission regarding a notice of inquiry which sought to improve competitive broadband access to multiple tenant environments. The letter urges the commission to refrain from adopting any further regulation affecting broadband deployment. 

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

FURTHER JOINT REPLY COMMENTS OF THE NATIONAL MULTIFAMILY HOUSING COUNCIL, THE NATIONAL APARTMENT ASSOCIATION,  THE COUNCIL FOR AFFORDABLE AND RURAL HOUSING, ICSC,  THE INSTITUTE OF REAL ESTATE MANAGEMENT, NAREIT,  THE NATIONAL LEASED HOUSING ASSOCIATION, AND  THE REAL ESTATE ROUNDTABLE (the “Real Estate Associations”)

Matthew C. Ames
Marci L. Frischkorn
HUBACHER AMES & TAYLOR, P.L.L.C.
11350 Random Hills Road
Suite 800 Fairfax, Virginia  22030
(703) 279-6526
Counsel for the Real Estate Associations 

November 19, 2021 

SUMMARY

The National Multifamily Housing Council, the National Apartment Association, the Council for Affordable and Rural Housing, ICSC, the Institute of Real Estate Management, Nareit, the National Leased Housing Association, and The Real Estate Roundtable (the “Real Estate Associations”) submit these Further Reply Comments in response to the comments of other parties filed pursuant to the Public Notice released on September 7, 2021 (the “2021 Notice”).  

After three rounds of comments, in response to the Notice of Inquiry,1 the Notice of Proposed Rulemaking,2 and now the 2021 Notice, the proponents of regulation have yet to make their case.  They have modified their positions in certain respects, but have never been able to draw any causal connections between the problems they allege and the contractual terms under review in this proceeding.  For example, Public Knowledge’s principal evidence consists of five social media posts.  Other commenters do not do much better.  There is no foundation for regulation in the record as it stands today.  

The Real Estate Associations, on the other hand, have submitted a large quantity of factual information:  two industry surveys and 26 sworn declarations. But this is not just a matter of the weight or quantity of evidence. What this evidence shows is that the types of contract terms under review in this proceeding are not anticompetitive. Furthermore, after taking into account the latest round of comments, the record as a whole confirms that Commission regulation is not necessary. Indeed, the kinds of rules that have been proposed would hinder further deployment and competition and do nothing to improve access to broadband service in the low-income communities where it is needed most.    

There is ample competition in the multitenant market. Not only does the NMHC/NAA 2021 Broadband Survey3 show that apartment residents have a choice of at least two providers in 79% of properties owned by the average respondent, but the record reflects that apartment owners are expanding competition to include three, four, and sometimes more providers.  In fact, the data suggests that the number of properties with more than two providers has nearly doubled since 2019, and there is every reason to believe that growth will accelerate, as it has for other kinds of communications applications and services.  Regulation of contract terms is not necessary because the free market is working, as competitive broadband providers demonstrate the value of their services and build their reputations.  

Provider business plans, not contract terms, impede deployment to underserved Americans. Many parties have noted that low-income Americans too often lack access to adequate broadband service, or even to any broadband capability at all.  The Real Estate Associations are committed to addressing this concern, but it is fundamentally a problem of provider economics.  Providers either lack infrastructure capable of serving these properties or existing infrastructure is substandard.  More needs to be done to deploy or upgrade in those areas. The Real Estate Associations support the significant funding allocated to broadband deployment in the recently enacted bipartisan infrastructure package and believe that the efforts of the Biden Administration, the Commission, and other federal partners are critical to closing the digital divide once and for all.

Regrettably, some parties continue to argue that the kinds of contracts used in properties at the upper end of the market are impeding access in housing supported by the Department of Housing and Urban Development (“HUD”) and other affordable and low-income communities. This is not true.  HUD rules allow public housing and affordable housing properties to enter into different types of exclusive agreements, as a way of earning revenue to support other activities, but in general the real problem is the failure of providers to extend their infrastructure.  

To address this issue effectively, the Commission must recognize that any housing subject to HUD regulations is a special case. Furthermore, provider economics and resident demographics require that conditions in affordable housing communities not governed by HUD rules also be evaluated differently. There are approximately 21.9 million apartment units in the United States, of which 2.8 million are in HUD-assisted apartment properties and another 2.4 million are in other low-income apartment communities.  The apartment industry is ready and willing to work with the Commission and providers to solve this problem – but the Commission will need to understand the true nature and scope of the problem before that can be done.    

Exclusive use of wiring must be permitted because sharing of wiring is largely infeasible. The Real Estate Associations demonstrated in the Further Comments that sharing of wiring presents so many obstacles to the provision of reliable, good quality service that owners have learned to avoid it all costs.  So have many competitive providers.

In fact, the reason that owners enter into exclusive wiring agreements is that experienced providers of all types – the cable operators, the incumbent local exchange carriers, and many competitive providers – all prefer to have control over their wiring.  In fact, they demand it, because it is essential to quality control.  A provider cannot be assured of delivering high quality service to its customers if it cannot control a fundamental component of the facilities needed to deliver that service.  In fact, even the provider representatives arguing that competitors should have the right to use the property of others at no cost do not call for the sharing of all wiring. INCOMPAS demands access to copper wiring installed by others but goes on to say that “the cable inside wiring rules do not apply and should not be applied to fiber.”4 This kind of hypocrisy permeates this proceeding.  

Regulation of fees on any basis is unjustified. Proponents of regulation also continue to argue for either banning fees paid to property owners entirely or limiting fees to cost. The Real Estate Associations explained in the Further Comments that the Fifth Amendment prevents the Commission from requiring property owners to make wiring they own available to providers without charge.  We also demonstrated the complexity of attempting to regulate so-called “above-cost” agreements. And finally, we have shown that the amounts paid to property owners typically do cover only a small portion of the owner’s costs.  Providers, on the other hand, have made no attempt to demonstrate that payment of fees to owners is actually a significant burden to them.  They say they cannot afford to pay, but they don’t show their work.  In every other industry, if a person wishes to use the property of another, that person is expected to pay a fair market rate.  The right to enter and use privately-owned buildings to reach potential broadband subscribers is no different. 

Mandatory access is not a lawful option. Public Knowledge and AARP call for the Commission to adopt a federal mandatory access rule, but fail to explain how the Commission might avoid violating the Takings Clause of the Fifth Amendment.  Several other parties seem to have recognized that the Commission has no such power; they merely ask the Commission to urge the states to expand the scope of existing mandatory access statutes, or enact new ones. The Commission should take no action at all in this area, any more than it should act on any other proposal raised in this docket.

Disclosure of contract terms must be carefully crafted. The parties are divided on the need for disclosure of the terms of agreements between providers and property owners.  Six commenters oppose disclosure, either expressly or by implication.  Five parties call for disclosure of the terms of wiring agreements or marketing agreements or both.  WISPA asks for a total ban on marketing agreements because disclosure would be ineffective.  Public Knowledge agrees with WISPA’s position, but also seems willing to accept a disclosure of compensation terms as an alternative.  The Real Estate Associations are not necessarily opposed to properly tailored disclosure requirements, but we do question their utility.  Furthermore, any such requirement would have to pass the Supreme Court’s commercial speech test, meaning that the Commission would have to establish that the information to be disclosed would have a substantial relation to a governmental interest.  Disclosure of contract terms between broadband providers and property owners to apartment residents or office or retail tenants would be unlikely to pass that test.  

Regulation of in-building wireless facilities or rooftops would hinder deployment. Various parties call for Commission regulation of wireless facilities inside buildings, and for regulation of access to rooftops.  Neither would be a sound policy. Property owners are currently spending large sums on in-building wireless facilities, because ensuring effective coverage inside buildings is essential, and large mobile carriers will not pay for it. Those expenditures effectively subsidize the wireless industry, and the Commission should do nothing that might discourage deployment inside buildings.

Broadband industry representatives also have not justified regulation of access to rooftops.  For one thing, they have not explained clearly what they want the Commission to do, because many refer vaguely to exclusivity without acknowledging that exclusivity is an essential term of any rooftop lease.  Furthermore, they have not explained how the Commission could justify intervening in this market, which is fundamentally a market for access to physical space and therefore not within the Commission’s jurisdiction.

The OTARD rule does not authorize the per se taking of real property. Finally, the Commission lacks statutory authority to adopt many if not all of the proposals under consideration.  The Real Estate Associations have addressed those issues in earlier stages of the proceeding.  INCOMPAS, however, introduces a new argument, asserting that under the Commission’s most recent expansion of the Over-the-Air Reception Devices rule, 47 C.F.R. § 1.4000, the Commission could also grant tenants the right to require property owners to allow any broadband provider selected by a resident or tenant to install its facilities at the property.  This would clearly constitute a taking under the Supreme Court’s holding in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).  In fact, the Commission’s latest OTARD order acknowledges that Loretto would preclude granting a third party the right to enter a building over the owner’s objections.5   

For all the foregoing reasons, the Commission should refrain from adopting any further regulation affecting broadband deployment in the multiple tenant environment market. 

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 

Introduction The Real Estate Associations respectfully submit these Reply Comments to address issues raised by other parties in response to the Commission’s Public Notice (the “2021 Notice”).6   The Real Estate Associations oppose any further regulation of agreements between property owners and broadband providers because there is ample competition for broadband services inside buildings.  Furthermore, the rate of competition is growing.  None of the comments submitted by proponents of regulation contradicts those facts.   The Real Estate Associations urge the Commission to see through the smoke screen thrown up by the proponents of regulation.  Throughout this proceeding their claims have been exaggerated, overbroad, and one might think calculated to confuse.  To take just one example, the residential, office, and retail markets are all very different:  the physical configurations of the 

Introduction

The Real Estate Associations respectfully submit these Reply Comments to address issues raised by other parties in response to the Commission’s Public Notice (the “2021 Notice”).6 The Real Estate Associations oppose any further regulation of agreements between property owners and broadband providers because there is ample competition for broadband services inside buildings.  Furthermore, the rate of competition is growing.  None of the comments submitted by proponents of regulation contradicts those facts.

The Real Estate Associations urge the Commission to see through the smoke screen thrown up by the proponents of regulation. Throughout this proceeding their claims have been exaggerated, overbroad, and one might think calculated to confuse. To take just one example, the residential, office, and retail markets are all very different:  the physical configurations of the buildings, the activities conducted by residents, tenants and visitors, including their use of broadband services, and the very nature of the occupancies of apartment residents, office tenants, and retail stores are all distinct. Because of those differences, each industry sector has developed its own practices in dealing with broadband providers. Yet, in this proceeding, providers and their trade associations have routinely conflated all three classes of property as if they were identical and the types of agreements used to grant access to broadband providers were identical. Only Lumen, in its most recent filing, has clearly acknowledged the differences.7 This failure to recognize facts of which the providers must be fully aware is, to say the least, unfortunate, and difficult to understand.

In the same fashion, proponents of regulation have obscured the level of competition in all three industries, especially in the apartment industry, which has been their main target. Only now is it becoming clear that they are seeking what we have argued all along:  easier access to become the third provider in apartment properties where there is already competition. But better late than never.

The Real Estate Associations strongly believe that the true challenge facing the apartment and broadband industries is how to extend service and competition to lower-income communities.  The limiting factor in addressing that challenge, however, is not the sort of agreements that are common in other sectors of the multifamily industry and that have been the focus of this docket, but the economics of extending infrastructure to and within those communities.  That goal will not be reached in this proceeding, because it has been focused in the wrong direction and on the wrong issues.  We would welcome the opportunity to work with the broadband industry and the Commission on ways to address that one big, central problem.8 Consequently, we again urge the Commission to terminate this proceeding without further action.  We stand ready to assist in finding ways to address the digital divide by closing the infrastructure gap that has been limiting access to broadband in underserved communities. 

I. AFTER THREE ROUNDS OF COMMENTS, THE PROPONENTS OF REGULATION RELY ON THE SAME BASELESS CLAIMS AND HAVE FAILED TO REFRESH THE RECORD.  

This proceeding was formally opened on June 1, 2017. Since that day, the Commission has requested three rounds of comments.9 The principal proponents of regulation in this docket – by which we mean INCOMPAS, the Fiber Broadband Association (“FBA”), Public Knowledge and Consumer Reports (“Public Knowledge”), Starry, and WISPA – have submitted almost no factual support for their position at any time.  INCOMPAS has submitted one supporting declaration. FBA submitted results from a survey in 2019, but as we discussed in the 2019 Reply10, none of that information was actually germane to the issues raised in the NPRM. WISPA also submitted the results of a survey, but as we also established in the 2019 Reply, that survey is of little use. Respondents were not asked about the level of competition in buildings they serve, and the questions were deeply flawed. The result was that when the 2021 Notice was issued, these organizations had stated and restated their positions, but offered very little in the way of factual support.  Their filings have been full of speculation, assumption, and innuendo, but devoid of anything one could call meaningful evidence. 

And now, given another chance to support their positions, they have again restated those positions, with some modifications, but still without substantive support.  In its latest comments, FBA submits no new information at all.  INCOMPAS raises a few new claims regarding business practices, but it introduces no new factual evidence to support either the claim of a lack of competition or the connection between the contract provisions under review and any actual harm to consumers.  Public Knowledge offers as evidence five social media posts that it claims demonstrate the harms of “de facto exclusive agreements,” but offers no analysis that connects those complaints to exclusive wiring, exclusive marketing, or compensation agreements.11 At one point, Public Knowledge asserts that “[o]ne reason for [an] outrageously high price could be a revenue sharing agreement (emphasis added).”12 The combination of “could” and “be” is always a good indicator that a writer is speculating.  Starry reviews some facts related to the rental market and the effects of the pandemic, but in restating its position on contract terms introduces no facts that support the conclusion it wishes the Commission to reach.  Finally, WISPA begins with a general description of market conditions but, like the others, has little new to say after that, and WISPA’s discussion of exclusive wiring agreements and compensation remains disconnected from any factual basis.  WISPA and INCOMPAS appear to have conducted new surveys of their members, but these surveys seem to have yielded only anecdotes, not quantitative information or anything that would connect their allegations with their proposed remedies. 

In sharp contrast, the real estate industry has submitted a substantial volume of detailed factual information to assist the Commission in understanding the complexity of the rental real estate market and relationships between different types of property owners and broadband providers.  In response to the NPRM, the National Multifamily Housing Council (“NMHC”) and the National Apartment Association (“NAA”) conducted a survey of apartment owners, which asked numerous questions directly relevant to the issues raised in this docket.13 When the 2021 Notice was released, NMHC and NAA conducted a second survey,14 the key results of which were reported in our Further Comments.  This survey resulted in updated information regarding competition in the residential market, as well as information regarding wiring sharing, and the types of costs borne by apartment owners.  

Furthermore, our filings in each round have been supported by detailed declarations proposed by apartment owners and respected industry consultants, submitted under penalty of perjury.  We have submitted a total of 26 declarations,15 including two16 with these Further Reply Comments.  Seven of the 11 declarations submitted in response to the 2021 Notice were prepared by individuals or organizations that had submitted earlier declarations, because they were asked to update their information.  

In short, the proponents of regulation have failed to make their case.  Their claims are vague, overbroad, and based almost entirely on speculation.  

II. REGULATION IS NOT JUSTIFIED BECAUSE THERE IS AMPLE AND EFFECTIVE COMPETITION IN RESIDENTIAL, OFFICE, AND RETAIL MULTITENANT PROPERTIES. 

Throughout this proceeding, the proponents of regulation have argued that Commission regulation is required because there is insufficient competition in all classes of rental properties, yet they have made no attempt to define either a desired level of competition, or the actual level.  The Real Estate Associations, on the other hand, have demonstrated that the level of competition is quite high.  The NMHC/NAA 2021 Broadband Survey shows that apartment residents have a choice of at least two providers in 79% of properties owned by the average respondent. 

That level of competition in the apartment market was reached in an environment in which exclusive wiring and exclusive marketing agreements, pursuant to which providers typically pay owners for certain rights, have been common for many years.  Indeed, all categories of provider, not just the cable operators and the incumbent local exchange carriers (the “ILECs”), rely on these types of agreements in one way or another.  Certain individual companies and trade associations are attempting to gain a competitive advantage by having the Commission intervene, but their claims should not be allowed to obscure the fact that other competitors – small providers that have been serving the multitenant market for years – have proven that it is possible to compete successfully without the Commission’s help.    

Furthermore, there has been ample competition in office and retail properties for decades.  

A. Broadband Competition in the Apartment Market.

In the most recent round of comments, several parties seem to have acknowledged that the position regarding competition set forth by the Real Estate Associations in response to the NPRM and in the Further Comments is fundamentally correct.  Lumen has stated that “most [residential] MTEs are served by at least two wireline providers.”17 INCOMPAS says “[w]hile most Americans have one or two high-speed providers . . . very few actually have a third, competitive high speed or fiber option.”18 The emphasis on a third provider is the key here:  although they have obscured the issue until now, often leaving the impression that a sizeable proportion of buildings have only a single provider, and never acknowledging that provider economics has anything to do with the problem, it seems clear now that what WISPA, INCOMPAS, FBA, and others want for their members is exactly what we have been asserting:  to be, in most cases, the third or even fourth provider.   

There is little doubt that the cable MSOs are currently serving nearly all apartment communities in the country in some fashion, or that the ILECs are also a strong presence in a large majority of buildings.19 Despite the protestations of some, the Commission’s rules are not being circumvented; indeed, they have succeeded, because fifteen years ago the ILECs entered the residential broadband market and ever since have been competing directly and strongly with the cable operators.  In that environment, competitive providers in most buildings are likely to be the third entrants most of the time. But even when a third competitor is not present, outside of the lower income communities that we discuss in Part III,20 apartment residents have a choice roughly three-quarters of the time or more. 

NCTA has confirmed our position, noting that one of its members reports that in its service area “80% of residential MTEs with 50 or more units have at least two-facilities-based broadband providers . . . .”21 ACA Connects agrees in more general terms: “MTEs in general are as competitive as other segments of the broadband marketplace, if not more so.”22 William Dodd, the CEO of GigaMonster  Networks, LLC, states that his company “serves hundreds of communities that have multiple competitive service providers.”23 DC Access reports that “all of the MTEs that we have a relationship with have multiple Internet Service Providers (ISPs) available to residents and business within the MTE.”24 

We agree with NCTA on a second very important point, as well. The level of competition is increasing, without Commission intervention. NCTA reports that the cable operator referred to above has stated that “between 4Q2019 and 2Q2021, buildings with three or more facilities-based broadband providers increased by 106%.”25 Although the NMHC/NAA 2021 Broadband Survey did not gather data on three-provider competition, we can see the same trend in the information submitted by property owners in declarations in 2019 and 2021.  The table below shows that the proportion of properties served by three providers is increasing at about the same rate reported by NCTA: 

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1 Improving Competitive Broadband Access to Multiple Tenant Environments, Notice of Inquiry, 32 FCC Rcd 5383 (2017) (the “2017 NOI”).

2 In the Matter of Improving Competitive Broadband Access to Multiple Tenant Environments, GN Docket No. 17-142, Notice of Proposed Rulemaking, 34 FCC Rcd 5702 (2019) (the “NPRM”). 

3 The National Multifamily Housing Council and the National Apartment Association conducted a joint online survey of their members, titled “2021 Apartment Industry Survey on Broadband Choice, Competition, and Infrastructure” (“NMHC/NAA 2021 Broadband Survey”).  See Further Joint Comments of the National Multifamily Housing Council, the National Apartment Association, the Council for Affordable and Rural Housing, ICSC, the Institute of Real Estate Management, Nareit, the National Leased Housing Association, and The Real Estate Roundtable (the “Real Estate Associations”), GN Docket No. 17-142 (filed Oct. 20, 2021) at 5, n. 10. 

4 Comments of INCOMPAS, GN Docket No. 17-142 (filed Oct. 20, 2021) (“INCOMPAS Comments”), at 17. 

5 Updating the Commission’s Rule for Over-the-Air Reception Devices, WT Docket No. 19-71, Report and Order, 36 FCC Rcd 537 (rel. Jan 7, 2021) (“2021 OTARD Order”), at ¶ 32. 

6 In the Matter of Improving Competitive Broadband Access to Multiple Tenant Environments, GN Docket No. 17-142, Public Notice (rel. Sep. 7, 2021). 

7 Comments of Lumen, GN Docket No. 17-142 (filed Oct. 20, 2021) (“Lumen Comments”), at 6.  Lumen states that it sometimes pays fees in residential buildings, but other times does not, and adds that it usually pays no fees to obtain access to commercial buildings.  Id. 

Roundtable (the “Real Estate Associations”), GN Docket No. 17-142 (filed September 30, 2019) ( “2019 Reply”). 

11 Comments of Public Knowledge and Consumer Reports, GN Docket No. 17-142 (filed Oct. 20, 2021) (“Public Knowledge Comments”), at 3-4.  Public Knowledge also cites a number of publications, none of which addresses the actual level of competition inside multitenant buildings or set forth the kind of analysis needed to support the claim that certain contract terms are in fact impeding competition.  Id. at notes 12, 14, 18, 20, 29, 39.

12 Public Knowledge Comments at 6

13 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”), GN Docket No. 17-142 (filed Aug. 30, 2019) (“2019 Comments”), at 65-67. 

14 2021 Apartment Industry Survey on Broadband Choice, Competition, and Infrastructure (“NMHC/NAA 2021 Broadband Survey”). After the filing of the Further Comments, additional property owners responded to the NMHC/NAA 2021 Broadband Survey.  Consequently, some figures reported in the Further Comments have changed.  The responding firms collectively own 1,213,199 units (up from 978,963) and manage 901,896 units (up from 770,640).  The average respondent (or firm in the survey) indicated that apartment residents have a choice of provider in 79.3% of its portfolio's properties, up slightly from 78.5%.  The property portfolio sizes represented by the survey ranged from 200 units to over 100,000 units.  

In addition to updating those figures, the Real Estate Associations would like to introduce several other figures into the record.  Because of the diversity and constant change in the apartment market, it can be difficult to find consistent statistics.  For example, duplexes and quadruplexes may be included in some figures, whereas the apartment industry generally considers only properties with five or more units to be “apartment buildings.”  Various parties cited figures for different characteristics of the apartment industry, some of which are inaccurate.  Consequently, we offer a comprehensive list of useful key data points at Exhibit A. 

15 See Reply Comments of the National Multifamily Housing Council, GN Docket No. 17-142 (filed Aug. 22, 2017) at Declaration of Alaine Walsh (“2017 NMHC Reply Comments”); 2019 Comments at Exhibits B, D - J; Joint Reply 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”), GN Docket No. 17-142 (filed September 30, 2019) at Exhibit A ( “2019 Reply”); Further Comments, Exhibits B - J.  This includes six declarations that were submitted with the NMHC’s comments filed in MB Docket No 17-91,  Media Bureau Seeks Comment on Petition for Preemption of Article 52 of the San Francisco Police Code Filed by the Multifamily Broadband Council, MB Docket No 17-91, Public Notice, DA 17-318 (rel. Apr. 4, 2017) (the “MBC Petition”) and were incorporated in the record of this docket by reference in the Comments of the National Multifamily Housing Council, GN Docket No. 17-142 (filed June 9, 2017) (“2017 NMHC Comments”).  

16 Declaration of William K. Dodd, attached as Exhibit B (“Dodd Decl.”); and Declaration of Charlie Walker attached as Exhibit C (“Walker Decl.”).

17 Lumen Comments at 4.

18 INCOMPAS Comments at 6.

19 Further Comments at 10-14, 18-19.  AARP argues that incumbent providers and property owners engage in “parallel exclusion.”  Comments of AARP, GN Docket No. 17-142 (filed Oct. 20, 2021) (“AARP Comments”), at 7-8.  The trouble with this theory is that there is actually a great deal of competition, so there is little, if any, exclusion of the sort AARP alleges. 

20 The analysis in Part III suggests that two-provider competition is ubiquitous in apartment communities above an average annual household income threshold of somewhere between $20,000 and $35,000, and that apartment communities that lack competition or adequate broadband are heavily concentrated in communities below that income level.  

21 Comments of NCTA, GN Docket No. 17-142 (filed Oct. 20, 2021) (“NCTA Comments”), at 10.

22 Comments of ACA Connects, GN Docket No. 17-142 (filed Oct. 20, 2021) (“ACA Connects Comments”), at 6.

23 Dodd Decl. at ¶ 16. 24 Comments of DC Access, GN Docket No. 17-142 (filed Oct. 20, 2021) (“DC Access Comments”), at 1.