BULK BILLING:
DECADES OF CONSUMER BENEFITS, SUPPORTED BY GOOD GOVERNANCE AND PUBLIC SUPPORT

Bulk billing arrangements have existed for over 50 years, providing low-priced, high-quality services to residents of multi-dwelling units (MDUs), without being subject to significant government regulation.  Originally, MDUs adopted bulk television arrangements to secure infrastructure investments and lower service prices.  In the early 2000s, as demand for broadband access grew, these arrangements expanded to include internet services, while continuing to remain independent of government oversight.  Today, while television services remain part of these agreements, they are primarily driven by the demand for internet access.  Bulk agreements not only drive price savings and infrastructure investment but also play a crucial role in bridging the digital divide by delivering affordable broadband access to underserved communities.

Regulatory History: A Policy of Measured Non-Intervention

The Federal Communications Commission (FCC) has examined these arrangements several times over its history, opting not to regulate them due to their pro-consumer benefits.  In 2010, under Democratic control, the FCC issued an Order concluding that bulk billing arrangements, on balance, benefit consumers. The Commission found that these arrangements promote reduced rates, operational efficiencies, and broadband deployment.

In 2017, under Republican control, the FCC issued a Notice of Inquiry seeking further comments on the effects of bulk billing arrangements, specifically requesting comment on its 2010 decision not to prohibit or restrict MVPDs’ bulk billing arrangements.  Despite that inquiry, and despite subsequently adopting new rules addressing other MDU issues, the Commission took no further action to regulate bulk billing arrangements.

While the FCC has prohibited telecommunications and cable TV providers from entering exclusive access agreements—agreements that bar competitive entry on a property—it has distinguished bulk deals from exclusive ones.  As the Commission explained in its 2010 Order, bulk deals “predominantly benefit consumers through reduced rates.”  In contrast, the consumer benefits of exclusive agreements, which lack such pricing assurances, are unclear.  Therefore, it makes sense for the FCC to permit bulk deals, which offer clear and tangible consumer benefits, while prohibiting exclusive agreements that lack such evident advantages.

The FCC’s 2024 Push to Regulate Bulk Billing: A Misguided, Fundamentally Flawed, and Unpopular Effort

On March 4, 2024, FCC Chairwoman Jessica Rosenworcel announced her intent to seek support for a Notice of Proposed Rulemaking (NPRM) to ban bulk billing agreements or mandate that residents subjected to such agreements be permitted to opt-out of them. This rule, if adopted, would have reversed the Commission’s 2010 finding.

The announcement sparked widespread opposition, with a broad coalition of stakeholders expressing strong support for bulk billing and calls for the proposal’s withdrawal.  Concerned parties included dozens of members of Congress, over 50 mayors, and other elected state and local leaders from across the political spectrum, as well as housing organizations, internet service providers, broadband adoption advocates, and free-market groups.  Notable developments since the announcement that stymied the proposals’ forward progress included:

  • April 3: 11 bi-partisan members of Congress wrote to the Chairwoman and the other FCC Commissioners, raising concerns that her proposal “would harm seniors, fixed-income individuals, and students who reside on the premises of these arrangements.”
  • May 20: Congresswoman Sheila Cherfilus-McCormick sent a similar letter to the Chairwoman urging the FCC “to carefully consider the potential adverse effects [its] proposal may have on the most vulnerable segments across the country.”
  • April 5-July 10: 12 state and local elected officials from states across the country wrote op-eds highlighting their concerns with the FCC’s proposal:
  • July 9: FCC Commissioner Carr told members of the House Communications and Technology Subcommittee in his written testimony that the FCC should withdraw its bulk billing NPRM.  He explained, “the FCC has been considering a White House-backed proposal to ban so-called “bulk billing” arrangements.  These are plans that, as the FCC has previously determined, benefit families living in apartments, condos, public housing, and other multi-tenant buildings because they allow them to take advantage of lower cost broadband services by enabling building owners to leverage their purchasing power.  Why would the FCC want to raise prices for Americans living in apartments, condos, and public housing?  The FCC’s record certainly does not support the Commission moving forward with this proposal.  So the FCC should abandon its bulk billing proposal.”
  • July 15: The National Association of Counties (NACo) passed a resolution, “Opposing the Ban on Bulk Billing Practices in Multi-Dwelling Units on the Basis of Broadband Affordability and Access.”
  • July 16: Five Hispanic Members of Congress wrote to the Chairwoman of the FCC and the other Commissioners, expressing deep concern about the proposed rulemaking to regulate bulk billing arrangements, arguing that it would hinder broadband access, particularly for Latino communities, and urging the FCC to withdraw the proposal.
  • July 23: The Bulk Broadband Alliance (BBA) was launched, consisting of the EducationSuperHighway, the Community Associations Institute (CAI), the National Multifamily Housing Council (NMHC), the National Apartment Association (NAA), and America’s Communications Association (ACA Connects) as initial members.  This Alliance was dedicated to educating the public and policymakers on the important benefits of bulk billing arrangements for broadband and cable TV services and ensuring these benefits remain available to and undiminished for consumers.  In just six months, the BBA successfully engaged the public, generating over 12,800 consumer letters to the FCC and Congress in support of bulk billing.
  • August 1: The Sixth Circuit stayed the Commission’s Order classifying broadband internet access services (“BIAS”) as a telecommunications service, temporarily depriving the Commission of Title II authority over BIAS providers and thereby eliminating its statutory authority to regulate bulk billing arrangements for those services.
  • August 30: 51 bi-partisan mayors wrote to the Chairwoman and the other FCC Commissioners to say they “strongly oppose any FCC action to ban, limit, or otherwise regulate bulk billing arrangements in apartments and community-governed properties.  Furthermore, we urge you to withdraw your draft further notice of proposed rulemaking from consideration, as such regulation would harm these arrangements. Bulk deals serve the public interest and directly benefit countless individuals within our communities.
  • October 25: The Bulk Broadband Alliance submitted a comprehensive letter to the FCC, delivering a thorough rebuttal to the arguments made by a small group of proponents advocating for the regulation of bulk billing. In their letter, the Bulk Broadband Alliance directly addressed key allegations put forward by these proponents, emphasizing the economic benefits of bulk billing, outlining the potential harms of an opt-out requirement, and highlighting the legal and administrative challenges associated with regulating such arrangements.
  • January 2: Having considered the merits of the challenges to the FCC’s order following the August 1st stay, the Sixth Circuit ruled that the FCC had exceeded its statutory authority in issuing the order, permanently removing the Commission’s regulatory authority over BIAS providers and, by extension, its authority to regulate bulk billing arrangements. On March 11, the Sixth Circuit denied a petition for rehearing en banc filed by parties seeking to overturn the January 2 decision.

In November, Donald Trump was elected President of the United States. Shortly after his election, he designated Brendan Carr to lead the Federal Communications Commission. Carr formally took over as Chairman on January 20.

On January 24, FCC Chairman Brendan Carr withdrew from circulation Chairwoman Rosenworcel’s proposal to regulate bulk billing arrangements, formally ending the Commission’s consideration of the item.  Chairman Carr issued a statement noting that the proposal “could have raised the price of Internet service for Americans living in apartments by as a much as 50 percent… and would have hit families right in their pocketbooks.”  He also emphasized, “the broad and bipartisan coalition of groups opposing the plan.”

Three Reviews, One Conclusion: Bulk Billing Benefits Consumers, But Requires Ongoing Vigilance

Chairman Carr’s action marks the third time in 15 years—following 2010 and 2017—that the FCC, under both Democratic and Republican leadership, has not moved to regulate bulk billing arrangements after evaluating their pros and cons in the record.  This recent 15-year period of scrutiny is part of the broader 50-year history of bulk billing’s successful operation without significant government intervention.  It’s undisputed that consumers benefit most when these arrangements remain free from government interference and are left to the market.

Even though bulk billing arrangements face no immediate federal or state threats, the BBA will remain an active educational resource and advocate for their preservation.