The Department of Housing and Urban Development (HUD) is proposing rules requiring the installation of broadband infrastructure during construction of HUD-financed multi-family rentals, or apartments, recognizing the cost-savings when incorporated into the initial planning stages.  Building on its ConnectHome initiative to extend affordable broadband access to families living in HUD-assisted housing in 28 communities nationwide, HUD is seeking comments on a proposed rule that will require the installation of broadband infrastructure at the time of new construction or substantial rehabilitation of multi-family rental housing that is funded or supported by HUD.  The release of this proposed rule also follows more than a year of work since President Obama released the presidential memorandum, Expanding Broadband Deployment and Adoption by Addressing Regulatory Barriers and Encouraging Investment and Training, highlighting that “access to high-speed broadband is no longer a luxury, but it is a necessity for American families, businesses and consumers.”

The proposed rule defines broadband infrastructure as cables, fiber optics, wiring or other permanent infrastructure, including wireless, as long as the installation results in broadband infrastructure in each dwelling unit meeting the current Federal Communications Commission (FCC or Commission) definition of 25 Mbps down and 3 Mbps up, regardless of whether any Internet Service Provider offers such access in a given area.  HUD also specifies that when the FCC updates its speed definitions, the HUD rule would update to reflect the Commission’s new rules.  While the rules seeks to provide flexibility and technology neutrality to maximize what these housing developments can include in their units, companies should consider in their plans what technologies will accommodate increasing speeds over time.

HUD’s proposed rule would require the installation of broadband infrastructure at the time of new construction or substantial rehabilitation for the following programs: Choice Neighborhoods, Community Development Block Grant, Continuum of Care, HOME Investment Partnerships, Housing Opportunities for Persons with AIDs, Housing Trust Fund, Project-Based Voucher, Public Housing Capital Fund, Section 8, and Supportive Housing for Elderly and Persons with Disabilities. This excludes rental housing that only has a mortgage insured by HUD’s Federal Housing Administration or those operating under a HUD loan guarantee program.  While the rules also will not require that the housing properties provide a regular subscription to broadband service to current and future residents, entities may want to think about how to promote broadband adoption among residents living in HUD-financed units who may not be a traditional broadband user, aligning with the ConnectHome and Presidential initiative to connect more Americans to high-speed broadband.  Alternatively, both K-12 and adult education students will need robust enough access to be able to do their homework at home and access distance learning programs.  Again, companies will need to consider what technologies and speeds are appropriate for bandwidth-heavy use.

According to the Federal Register notice, HUD considers the installation of broadband infrastructure to be common practice and is simply proposing to codify the industry standard of including broadband infrastructure into new builds and retrofits.  However, HUD acknowledges there may be instances where installation of broadband infrastructure is infeasible due to cost, location or structural concerns and will require program recipients to maintain documentation justifying the recipient’s determination of infeasibility.  Acknowledging that not all construction is created equal, some projects, whether new or an upgrade, may not be conducive for a single solution.  There may also be environmental considerations on retrofitting older buildings.

As discussed above, HUD is seeking public comment on applying this proposed rule to other HUD programs including single family housing, the proposed definition of substantial rehabilitation, the cost to add the installation of broadband to pre-planned new construction or rehabilitation projects, the most cost-effective way to install broadband infrastructure during new construction or a rehabilitation project, and the infeasibility exception.   With broadband technology advancing rapidly and 5G on the horizon, companies may want consider how to plan for these new rules and to share their experiences with HUD so HUD can adopt rules which account for such a dynamic landscape and ensure residents will have the seamless connections needed to reap the benefits of broadband.

Comments are due on July 18.