**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| Texas and Kansas City Cable      | *  | File No. EB-04-MD-013        |
| Partners, L.P., d/b/a Time       | *) |                              |
| Warner Cable,                    | ** |                              |
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| Complainant,                     | *  |                              |
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| Southwestern Bell Telephone      | *  |                              |
| Company,                         | *) |                              |
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| Defendant.                       |    |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: February 17, 2005 Released: February 17, 2005**

By the Deputy Chief, Market Disputes Resolution Division, Enforcement
Bureau:

1.  On December 3, 2004, Texas and Kansas City Cable Partners, L.P.,
    d/b/a Time Warner Cable ("Time Warner") filed a complaint[^1]
    against Southwestern Bell Telephone Company ("Southwestern Bell")
    pursuant to section 224 of the Communications Act of 1934, as
    amended ("Act"),[^2] and sections 1.1403(a) and 1.404 of the
    Commission's rules.[^3]

2.  Time Warner owns and operates a cable television system in
    Texas.[^4] Southwestern Bell, a subsidiary of SBC Communications,
    Inc., provides telecommunications and other services in Texas.[^5]
    Southwestern Bell owns or controls conduit along the Queen Isabella
    Causeway ("Causeway") in Texas, which it uses for wire
    communications.[^6] The Causeway provides the only bridge to South
    Padre Island in Texas,[^7] where Time Warner provides cable
    television, broadband, and information services to South Padre
    Island through its microwave facilities.[^8] In its Complaint, Time
    Warner alleges that it wishes to deploy fiber in order to provide
    better quality service and additional service offerings.[^9] Time
    Warner contends that it must access Southwestern Bell's conduit
    along the Causeway in order to deploy fiber, but that Southwestern
    Bell has refused to provide Time Warner access, in violation of
    section 224 of the Act and sections 1.1403(a) of the Commission's
    rules (47 C.F.R. § 1.1403(a)).[^10]

3.  Shortly after Time Warner filed its Complaint, the parties jointly
    advised the Commission that they wished to attempt to settle their
    dispute, and requested that the Commission suspend its consideration
    of the Complaint and stay Southwestern Bell's obligation to respond
    to the Complaint.[^11] Commission staff granted that request on
    December 30, 2004. Since that time, the parties have engaged in a
    continuing effort to reach a negotiated resolution of this dispute.
    On January 21, 2005, the parties filed a Joint Status Report, which
    states that they have entered into an agreement that they
    "anticipate will resolve the principal issue" raised in the
    Complaint, *i.e.*, access to Southwestern Bell's conduit along the
    Causeway.[^12] The Joint Status Report requests that the Commission
    hold the Complaint "in abeyance" until "certain milestones" have
    transpired, after which Time Warner anticipates withdrawing its
    Complaint.[^13] The parties believe that these "milestones" will
    occur by April 2005.[^14]

4.  We believe that Time Warner and Southwestern Bell have made
    significant progress in their efforts to resolve this dispute, and
    that these settlement efforts should continue. We conclude that the
    Complaint should be transferred to the inactive case docket in order
    to allow the parties to devote their full attention to resolving
    this dispute by agreement, without having to expend time and
    resources on the preparation of further pleadings in this case.

5.  Accordingly, we hereby direct that the Complaint be converted to an
    inactive complaint with a new file number of EB-05-MDIC-0011,
    maintaining its original filing date of December 3, 2004. Commission
    staff will continue to monitor closely the parties' efforts to
    settle this dispute, and to offer their assistance in mediating the
    dispute, as needed. This conversion to inactive status is for
    administrative purposes only, and in no way will affect the rights
    of the parties, or any legal or factual issue in this proceeding.

6.  At any time, either party, upon a showing of good cause, may move to
    re-convert the inactive complaint back to an active complaint. Upon
    the grant of such a motion, Southwestern Bell will be required to
    file a Response to the Complaint pursuant to section 1.1407 of the
    Commission's rules,[^15] within 30 days following the issuance of an
    order re-converting the Complaint back to active status.

7.  Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), and 224
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    154(j), and 224, and sections 1.1401-1418 of the Commission's rules,
    47 C.F.R. § 1.1401-1.1418, and the authority delegated in sections
    0.111 and 0.311 of the Commission's rules, 47 C.F.R. §§ 0.111,
    0.311, that Texas and Kansas City Cable Partners, L.P., d/b/a Time
    Warner Cable's Complaint be converted to an inactive complaint with
    a file number of EB-05-MDIC-0011 and a filing date of December 3,
    2004.

8.  IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), and 224 of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    154(j), and 224, and sections 1.1401-1.1418 of the Commission's
    rules, 47 C.F.R. § 1.1401-1.1418, and the authority delegated in
    sections 0.111 and 0.311 of the Commission's rules, 47 C.F.R. §§
    0.111, 0.311, that the docket established in the above-captioned
    Complaint proceeding shall be transferred in its entirety to the
    inactive complaint docket.

9.  IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), and 224 of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    154(j), and 224, and sections 1.1401-1.1418 of the Commission's
    rules, 47 C.F.R. § 1.1401-1.1418, and the authority delegated in
    sections 0.111 and 0.311 of the Commission's rules, 47 C.F.R. §§
    0.111, 0.311, that either party, upon a showing of good cause, may
    move to re-convert the inactive complaint back to an active
    complaint.

10. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), and 224 of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    154(j), and 224, and sections 1.1401-1.1418 of the Commission's
    rules, 47 C.F.R. § 1.1401-1.1418, and the authority delegated in
    sections 0.111 and 0.311 of the Commission's rules, 47 C.F.R. §§
    0.111, 0.311, that within 30 DAYS following the issuance of an order
    granting a request to re-convert this proceeding back to active
    status, Southwestern Bell Telephone Company shall file a Response to
    the Complaint pursuant to section 1.1407 of the Commission's rules,
    47 C.F.R. § 1.1407.

11. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), and 224 of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    154(j), and 224, and sections 1.1401-1.1418 of the Commission's
    rules, 47 C.F.R. § 1.1401-1.1418, and the authority

delegated in sections 0.111 and 0.311 of the Commission's rules, 47
C.F.R. §§ 0.111, 0.311, that the parties shall participate in a status
telephone call with Commission staff on **Thursday, March 17, 2005 at
10:00 a.m.**

> FEDERAL COMMUNICATIONS COMMISSION

Lisa B. Griffin

> Deputy Chief, Market Disputes Resolution Division

Enforcement Bureau

[^1]: Complaint, File No. EB-04-MD-013 (filed Dec. 3, 2004)
    ("Complaint").

[^2]: 47 U.S.C. § 224.

[^3]: 47 C.F.R. §§ 1.1403(a), 1.1404.

[^4]: Complaint at 7, ¶ 12.

[^5]: Complaint at 7, ¶ 13.

[^6]: Complaint at 7, ¶ 15.

[^7]: Complaint at 1, ¶ 2; 7, ¶ 15.

[^8]: Complaint at 1-2, ¶ 2.

[^9]: Complaint at 1-2, ¶ 2.

[^10]: Complaint at 3-4, ¶¶ 5-6.

[^11]: Letter from Gardner F. Gillespie, counsel for Time Warner, and
    Jennifer Byrd, counsel for SBC Telecommunications, Inc., to Marlene
    H. Dortch, Secretary, Federal Communications Commission, File No.
    EB-04-MD-013 (filed Dec. 28, 2004). The parties later renewed their
    request to the Commission to suspend consideration of the Complaint
    and to stay Southwestern Bell's obligation to respond to the
    Complaint, in light of the parties' on-going mediation efforts.
    Letter from Gardner F. Gillespie, counsel for Time Warner, and
    Jennifer Byrd, counsel for SBC Telecommunications, Inc., to Marlene
    H. Dortch, Secretary, Federal Communications Commission, File No.
    EB-04-MD-013 (filed Jan. 21, 2005). Commission staff also granted
    this renewed request.

[^12]: Joint Status Report, File No. EB-04-MD-013 (Feb. 9, 2005) ("Joint
    Status Report").

[^13]: Joint Status Report at 2.

[^14]: Joint Status Report at 2.

[^15]: 47 C.F.R. § 1.1407.