**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | WT Docket No. 99-217         |
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| Promotion of Competitive         | ) | CC Docket No. 96-98          |
| Networks in Local                | * |                              |
| Telecommunications Markets       | * | CC Docket No. 88-57          |
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| Wireless Communications          | * |                              |
| Association International, Inc.  | * |                              |
| Petition for Rulemaking to Amend | ) |                              |
| Section 1.4000 of the            | * |                              |
| Commission's Rules to Preempt    | * |                              |
| Restrictions on Subscriber       |   |                              |
| Premises Reception or            | * |                              |
| Transmission Antennas Designed   | * |                              |
| to Provide Fixed Wireless        | ) |                              |
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| Implementation of the Local      |   |                              |
| Competition Provisions in the    | * |                              |
| Telecommunications Act of 1996   | * |                              |
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| Review of Sections 68.104, and   | * |                              |
| 68.213 of                        | * |                              |
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| the Commission's Rules           | * |                              |
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| of Simple Inside Wiring to the   | * |                              |
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+----------------------------------+---+------------------------------+

**FIRST REPORT AND ORDER AND FURTHER NOTICE OF PROPOSED RULEMAKING in WT
Docket No. 99-217, Fifth REPORT AND ORDER AND MEMORANDUM OPINION AND
ORDER in CC Docket No. 96-98, and fourth report and order and MEMORANDUM
OPINION AND ORDER in CC Docket No. 88-57**

**Adopted:** October 12, 2000 **Released:** October 25, 2000

Comment Date: December 22, 2000

Reply Comment Date: January 22, 2001

Comments and reply comments to be filed only in WT Docket No. 99-217

By the Commission: Commissioner Furchtgott-Roth dissenting and issuing a
statement.

**TABLE OF CONTENTS**

Paragraph Numbers

I. INTRODUCTION 1

II\. SUMMARY 3

III\. BACKGROUND 10

IV\. REPORT AND ORDER / MEMORANDUM OPINION AND ORDER 14

A. State of The Market 14

B. Exclusive Contracts 25

1\. Background 25

2\. Discussion 27

C. Access to Wiring 41

1\. Background 42

2\. Discussion 49

3\. Single Definition of Inside Wiring 60

4\. Safety Concerns Regarding the Placement of the Demarcation Point
Away from the Building 62

5\. Prospective Effect of 1997 Demarcation Point Order 66

D. Access to Conduits and Rights-of-Way 70

1\. Background 70

2\. Discussion 76

E. Areas Under Tenant Control 94

1\. Background 94

2\. Discussion 97

V. FURTHER NOTICE OF PROPOSED RULEMAKING 125

A. Non-discriminatory Access Requirement 125

1\. Update on the State of the Market 128

2\. Legal Issues 131

3\. Potential Scope of Application 151

4\. Potential Implementation Issues 156

B. Exclusive Contracts 160

1\. Residential Exclusive Contracts 161

2\. Exclusive Access Provisions in Existing Contracts 163

C. Preferential Marketing Agreements and Other Preferential Arrangements
165

D. Definition of Right-of-Way in MTEs 169

E. Extension of Cable Inside Wiring Rules. 171

VI\. Conclusion 1[78](#conclusion)

VII\. Procedural matters 177

VIII\. Ordering clauses 186

**APPENDIX A: List of Commenters**

**APPENDIX B: Final Rules**

**APPENDIX C: Final Regulatory Flexibility Analysis**

**APPENDIX D: Initial Regulatory Flexibility Analysis**

# INTRODUCTION

1.  In this item, we further our ongoing efforts under the
    Telecommunications Act of 1996[^1] to foster competition in local
    communications markets by implementing measures to ensure that
    competing telecommunications providers are able to provide services
    to customers in multiple tenant environments (MTEs). In the
    *Competitive Networks NPRM*, we requested comment on the state of
    access to MTEs and on a variety of potential measures to improve
    such access.[^2] Based on the extensive record compiled in response
    to that Notice, we adopt several measures to remove obstacles to
    competitive access in this important portion of the
    telecommunications market. Specifically, we: (1) prohibit carriers
    from entering into contracts that restrict or effectively restrict
    owners and managers of commercial MTEs from permitting access by
    competing carriers; (2) clarify our rules governing control of
    in-building wiring and facilitate exercise of building owner options
    regarding that wiring; (3) conclude that the access mandated by
    Section 224 of the Communications Act (the "Pole Attachments
    Act")[^3] includes access to conduits or rights-of-way that are
    owned or controlled by a utility within MTEs; and (4) conclude that
    parties with a direct or indirect ownership or leasehold interest in
    property, including tenants in MTEs, should have the ability to
    place antennas one meter or less in diameter used to receive or
    transmit any fixed wireless service in areas within their exclusive
    use or control, and prohibit most restrictions on their ability to
    do so.

2.  We also note that, while these measures will help significantly to
    advance competition and customer choice, they may well be
    insufficient in themselves to secure a full measure of choice for
    businesses and individuals located in MTEs. We recognize that the
    real estate industry has taken some positive steps to facilitate
    tenant choice of telecommunications providers by working towards the
    development of best practices and model agreements.[^4] We will
    closely monitor these industry efforts and, if such efforts
    ultimately do not resolve our concerns regarding the ability of
    premises owners to unreasonably deny competing telecommunications
    service providers access to customers in MTEs, we are prepared to
    consider taking additional action, including adopting rules to
    assure that MTE owners offer competing telecommunications service
    providers access to their premises. In order to be prepared to take
    further action, if necessary, we request comment in a Further Notice
    of Proposed Rulemaking on the current state of the evolving market
    for the provision of telecommunications services in MTEs. We also
    note that a strong case can be made that we have authority to impose
    obligations on carriers to ensure nondiscriminatory access to MTEs.
    We seek comment on this legal argument, whether it would be prudent
    to exercise such authority, the potential scope of such
    requirements, and how such requirements could be implemented, if
    adopted. In addition, we seek further comment on several other
    potential Commission actions that may be necessary in the event that
    competition in the MTE market does not develop sufficiently.

# SUMMARY

3.  In the 1996 Act, Congress sought "to provide for a pro-competitive,
    de-regulatory national policy framework designed to accelerate
    rapidly private sector deployment of advanced telecommunications and
    information technologies and services to all Americans by opening
    all telecommunications markets to competition."[^5] One of the most
    important goals of the 1996 Act was to bring competition to the
    traditionally monopolistic market for local telecommunications
    services.[^6] In order to bring competition to this market, Congress
    contemplated competitive entry by three means -- use of a
    competitor's own facilities, use of unbundled elements of the
    incumbent local exchange carrier's (LEC's) network, and resale of
    the incumbent's service -- and it included provisions to prevent
    incumbent LECs from blocking competitive entry by any of these
    means.[^7] Congress also extended the scope of the Pole Attachments
    Act to grant access to telecommunications service providers in
    addition to cable service providers.[^8]

4.  We remain committed to removing obstacles to competitive entry into
    local telecommunications markets by any of the avenues contemplated
    in the 1996 Act.[^9] Nonetheless, we have recognized that the
    greatest long-term benefits to consumers will arise out of
    competition by entities using their own facilities.[^10] Because
    facilities-based competitors are less dependent than other new
    entrants on the incumbents' networks, they have the greatest ability
    and incentive to offer innovative technologies and service options
    to consumers. Moreover, facilities-based competition offers the best
    promise of ultimately creating a comprehensive system of competitive
    networks, in which today's incumbent LECs no longer will exert
    bottleneck control over essential inputs, but will compete on a more
    equal basis with their rivals.[^11]

5.  One particular benefit that we hope will arise from the growth of
    facilities-based competition is increased availability of advanced
    services. In the 1996 Act, Congress directed the Commission to
    encourage the deployment on a reasonable and timely basis of
    advanced telecommunications capability to all Americans.[^12] We
    have recently found that advanced telecommunications capability is
    being deployed in a reasonable and timely fashion, although certain
    groups of consumers may be particularly vulnerable to untimely
    access.[^13] We believe that competitive providers will continue to
    play a vital role in the growth and ubiquitous availability of
    advanced services, both by innovating themselves and by placing
    competitive pressure on the incumbents to offer more advanced
    services at attractive prices.[^14] At the same time, we expect that
    the ability to offer advanced capabilities that benefit consumers
    will be an important factor in many competitors' marketplace
    success.[^15]

6.  In this item, we take targeted actions to promote the continued
    deployment of competitive and advanced telecommunications services
    and reduce the substantial barriers that remain to deployment of
    these services in MTEs,[^16] and we request comment on potential
    additional actions. The actions we take here are as follows:

-   First, we forbid telecommunications carriers from entering into
    contracts to serve commercial properties that restrict or
    effectively restrict the property owner's ability to permit entry by
    other carriers.[^17]

-   Second, in order to reduce competitive carriers' dependence on the
    incumbent LECs to gain access to on-premises wiring, while at the
    same time recognizing the varied needs of carriers and building
    owners, we establish procedures to facilitate moving the demarcation
    point to the minimum point of entry (MPOE) at the building owner's
    request, and we require incumbent LECs to timely disclose the
    location of existing demarcation points where they are not located
    at the MPOE.[^18]

-   Third, we determine that under Section 224 of the Communications
    Act, utilities, including LECs, must afford telecommunications
    carriers and cable service providers reasonable and
    nondiscriminatory access to conduits and rights-of-way located in
    customer buildings and campuses, to the extent such conduits and
    rights-of-way are owned or controlled by the utility.[^19]

-   Fourth, we extend to antennas that receive and transmit
    telecommunications and other fixed wireless signals our existing
    prohibition of restrictions that impair the installation,
    maintenance or use of certain video antennas on property within the
    exclusive use or control of the antenna user, where the user has a
    direct or indirect ownership or leasehold interest in the
    property.[^20]

7.  The specific actions that we take in today's Report and Order will
    reduce the likelihood that incumbent LECs can obstruct their
    competitors' access to MTEs, as well as address particular
    potentially anticompetitive actions by premises owners and other
    third parties. We remain concerned, though, that, based on the
    record, unreasonable discrimination among competing
    telecommunications service providers by some premises owners remains
    an obstacle to competition and consumer choice.

8.  We recognize the recent efforts of the real estate industry to
    develop model contracts and best practices aimed at improving MTE
    owners' processing of tenant requests for service from alternative
    telecommunications carriers or carrier requests for access to MTEs
    to serve tenants.[^21] In particular, a coalition of 11 trade
    associations representing over 1 million property owners and
    operators has committed to a best practices implementation plan
    including: (1) adopting a firm policy not to enter into any
    exclusive contracts for building access in the future; (2)
    responding within 30 days to written tenant requests for a
    particular telecommunications provider, and accommodating such
    requests in good faith, where appropriate space is available and the
    provider intends to execute an access agreement that is
    substantially in the form of a model contract to be developed by the
    industry; (3) informing tenants of existing alternatives in
    buildings that are already served by multiple competitive providers,
    and encouraging a dialogue with tenants regarding the advantages of
    additional providers; (4) incorporating these processing guidelines
    in new leases and notices to existing leaseholders; (5) committing
    to a clearer and more predictable process for responding to requests
    from carriers to access the MTE to serve customers, including
    provision of clear guidance regarding the MTE owner's policies
    within 30 days, where the carrier agrees that its access to the MTE
    is conditioned on deploying equipment and/or providing service to
    tenants by a date certain; (6) establishing an independent
    clearinghouse to which interested parties could submit allegations
    of behavior that is inconsistent with either the model contracts or
    "best practices" developed as part of this initiative; and (7)
    supporting a periodic, quantitative study of the market for building
    access, to be conducted under the auspices of the Commission.[^22]
    At least 12 building owners who collectively own or operate over 250
    million square feet of office space have committed to these best
    practices.[^23]

9.  We are encouraged by those efforts and will closely monitor their
    progress. At the same time, we are aware of concerns that these
    voluntary commitments may fall short of protecting tenants' ability
    to choose among competing carriers.[^24] Therefore, if such efforts
    ultimately do not resolve our concerns regarding the ability of
    premises owners to discriminate unreasonably among competing
    telecommunications service providers, we are prepared to consider
    taking additional action. Accordingly, in a Further Notice of
    Proposed Rulemaking, we seek comment in several areas:

-   First, we seek to refresh the record on the status of the market for
    the provision of telecommunications services in MTEs in order to
    evaluate the necessity of a nondiscriminatory access requirement.

-   Second, we seek additional comment on the legal argument that we
    have authority to impose requirements on carriers in order to ensure
    nondiscriminatory MTE access, and on whether we should exercise such
    authority.

-   Third, we seek comment on the circumstances under which the benefits
    would exceed the costs of such requirements, and on how any
    nondiscriminatory access requirement could be implemented.[^25]

-   Fourth, we ask whether today's prohibition on exclusive access
    contracts in commercial MTEs should be extended to residential
    settings, either in addition to or in lieu of a nondiscriminatory
    access requirement applicable to these premises, and whether we
    should prohibit carriers from enforcing exclusive access provisions
    in existing contracts in either commercial or residential MTEs.[^26]

-   Fifth, we seek comment on whether we should proscribe carriers from
    entering into contracts that grant them preferences other than
    exclusive access, such as exclusive marketing or landlord bonuses to
    tenants that use their services, in some or all situations.[^27]

-   Sixth, we seek additional comment on the definition of
    "rights-of-way" in MTEs to which a utility must allow access under
    Section 224.[^28]

-   Finally, we seek additional comment on whether we should extend our
    cable inside wiring rules to facilitate the use of home run wiring
    by telecommunications service providers where an incumbent cable
    provider no longer has a legal right to maintain its home run wiring
    in the building.[^29]

# BACKGROUND

10. The Commission has taken many actions both before and since the 1996
    Act to remove obstacles to facilities-based competition in local
    telecommunications markets. For example, among other things, we have
    implemented Section 251 of the Communications Act, forborne from
    enforcing statutory provisions and regulations that could inhibit
    the ability of new entrants to compete, made additional spectrum
    available to competitors using wireless technology, and increased
    the flexibility of use of previously allocated spectrum.[^30] These
    efforts have continued during the past year.[^31]

11. In the *Competitive Networks NPRM*, we discussed our thoughts
    regarding the development of facilities-based competition
    generally,[^32] and in a companion Notice of Inquiry we sought
    comment generally regarding factors that may be impeding the growth
    of competitive networks and what actions we should take to
    ameliorate such impediments.[^33] The principal focus of the NPRM,
    however, was on promoting competitive access to MTEs, such as
    apartment buildings (rental, condominium, or co-op), office
    buildings, office parks, shopping centers, and manufactured housing
    communities. This important segment of the market poses special
    challenges to facilities-based entry. In order to offer service in
    an MTE, a facilities-based competitor must either gain access to
    existing on-premises wiring or obtain access to conduit and other
    suitable areas in order to install its own equipment. In addition,
    providers using wireless technology must obtain access to rooftops
    or other suitable locations to place their antennas. Access to these
    facilities and areas is typically controlled by the building owner,
    the incumbent LEC, or both. Thus, unlike in the case of a
    stand-alone residence or commercial enterprise, a competitive
    facilities-based carrier cannot supply service simply by dealing
    with the end user.[^34]

12. Attention to the unique issues and challenges affecting access to
    MTEs is important because a substantial proportion of both
    residential and business customers nationwide are located in such
    environments.[^35] Thus, an absence of widespread competition in
    MTEs would insulate incumbent LECs from competitive pressures and
    deny facilities-based competitive carriers the ability to offer
    their services in a sizable portion of local markets, thereby
    jeopardizing full achievement of the benefits of competition.
    Moreover, such a situation would directly undermine the express
    Congressional goal of bringing competition and advanced services to
    "all Americans."[^36] Finally, because MTEs frequently offer a
    relatively large revenue opportunity in a limited space, they can be
    the most efficient environments for many competitive LECs initially
    to serve. Thus, inability to compete in those environments in the
    short term may jeopardize the business plans and viability of some
    potentially powerful competitors that could in the long term offer
    ubiquitous competition throughout an incumbent LEC's service area.
    Indeed, even if competitive access is available in some MTEs,
    competitive carriers may be unable to succeed economically, and thus
    offer competitive choices to any customers, without broad access to
    MTE markets. For these reasons, we requested comment in the
    *Competitive Networks NPRM* on the practical concerns involved in
    serving MTEs, on the state of the market, and on several potential
    actions that we could take to promote competitive access.

13. The *Competitive Networks NPRM* generated extensive interest among
    incumbent and competitive LECs, building owners and managers,
    electric and gas utilities, cable service providers, local
    governments, and others. We received 438 formal comments and 252
    reply comments.[^37] In addition, the Commission's Local and State
    Government Advisory Committee (LSGAC) filed two
    recommendations.[^38] We have also received numerous *ex parte*
    filings from parties representing a variety of interests, including
    several members of Congress. Although we do not list these *ex
    parte* filings individually, we have incorporated them in the record
    and we have fully considered them in reaching the conclusions set
    forth herein.[^39]

# REPORT AND ORDER / MEMORANDUM OPINION AND ORDER

## State of The Market 

14. Based on the record compiled in response to the *Competitive
    Networks NPRM*, we conclude that meaningful progress has been made
    in the competitive development of the market for facilities-based
    telecommunications services in MTEs, but some obstacles to full
    competitive choice remain. We are concerned that, at least in
    certain cases, both building owners and incumbent LECs retain the
    ability and incentive to discriminate among and impose unreasonable
    terms on new entrants. As a result, end users have likely been
    forced to pay unnecessarily high rates for local telecommunications
    services, and have been denied the benefits of advanced and
    innovative service options. At the same time, we are mindful that
    there has been progress in the market, and we are hopeful that this
    trend will continue to yield more competitive options for increasing
    numbers of consumers. Indeed, some recent developments indicate that
    this may be the case.

15. MTEs constitute a substantial portion of both residential and
    commercial units in the United States. An MTE is any contiguous
    premises under common ownership or control that contains two or more
    distinct units occupied by different tenants. Thus, MTEs include,
    for example, apartment buildings (rental, condominium, or co-op),
    office buildings, office parks, shopping centers, and manufactured
    housing communities. There are over 750,000 office buildings and
    over one million residential multiple dwelling units in this
    nation.[^40] As of 1990, approximately 28 percent of all housing
    units nationwide were located in multiple dwelling units, and that
    percentage is likely growing.[^41]

16. There is evidence in the record that both wireless and wireline
    competitive LECs have made progress in obtaining access to MTEs,
    especially in commercial markets.[^42] For example, WinStar
    currently provides broadband communications services to over 15,000
    small and medium-sized business customers in 31 domestic
    markets.[^43] Virtually all of these customers are located in MTEs.
    Competitive LECs continue to contract for access to an increasingly
    large number of commercial buildings. Indeed, there is evidence that
    the availability of alternative providers for local
    telecommunications services is often a selling point in leasing
    negotiations between building owners and prospective tenants and,
    thus, building owners may have incentives to enter into agreements
    with competitive LECs for building access.[^44] Moreover, in
    response to the issues raised and developed in this proceeding, some
    of the leading companies in the real estate industry have recently
    made a commitment to the Commission to undertake to develop and
    promote the use of sample contracts for building access, as well as
    "best practices" to facilitate negotiations for building
    access.[^45] These best practices will include a firm policy not to
    enter into exclusive contracts for building access; procedures and
    expedited time frames for processing tenant requests for service
    from a particular telecommunications provider, where appropriate
    space is available and the provider intends to substantially accept
    a model access agreement; a clearer and more predictable process for
    responding to requests for access generated by carriers;
    establishment of an independent clearinghouse for complaints by
    tenants, real estate companies, and service providers; and support
    for periodic studies of the market under the auspices of the
    Commission.[^46] This initiative represents a positive step in the
    development of the market for building access.

17. Notwithstanding this progress, however, there is also meaningful
    evidence that competitive LECs have in many instances encountered
    unreasonable demands and significant delay in their efforts to
    obtain access to buildings.[^47] Competitive LECs complain that they
    are being impeded by incumbent LECs and building owners.[^48] In
    some instances, competitive LECs state that they have been denied
    access to buildings completely, or have been charged exorbitant
    rates for access or been subjected to unreasonable conditions. And,
    in others, contract negotiations have reportedly spanned upwards of
    eighteen months -- a timeframe that is particularly problematic for
    a service provider in a competitive market.[^49]

18. Although the record does not contain statistical evidence regarding
    the prevalence of such activities, competitive LECs cite to specific
    incidents of unreasonably restrictive behavior on the part of
    incumbent LECs and building owners that, they assert, are hurting
    competition and consumers. These include the MTE in New York City
    that has been through three different owners since 1998, all of whom
    have denied access to a competitive LEC, despite the fact that
    tenants in the MTE have sent letters to the owners requesting access
    for the competitive LEC.[^50] Another incident involves the manager
    of a large office building in Florida who has demanded a rooftop
    access fee of \$1,000 per month and a fee of \$100 per month for
    each in-building hook-up from a competitive LEC.[^51] The
    competitive LEC estimates that this fee structure would cost it
    about \$300,000 per year to service this one building.[^52] Yet
    another incident involves a competitive LEC that has been
    negotiating for over 18 months with several Boston, Massachusetts
    MTE owners who claim that they are still examining the
    telecommunications issues, while their tenants remain without choice
    of telecommunications service providers.[^53]

19. The record further indicates that incumbent LECs are using their
    control over on-premises wiring to frustrate competitive access to
    multitenant buildings. Competitive LECs report that they have
    encountered difficulties with incumbents when attempting to arrange
    for interconnection or lease unbundled network elements. For
    example, competitive LECs report that incumbents may fail to timely
    provide non-proprietary information in their possession, require the
    presence of their own technicians to supervise competitive LEC
    wiring, and take unreasonable amounts of time in scheduling such
    visits.[^54] In addition, competitive LECs contend that incumbent
    LECs often require network configurations which may be
    disadvantageous for competitors.[^55]

20. Building owners argue, however, that competitive LECs have yet to
    provide service in many of the buildings to which they have obtained
    rights of access. For example, according to one press account,
    WinStar has wired 4,000 of the approximately 8,000 buildings for
    which it has obtained access, while Teligent has wired 3,000 of the
    approximately 7,500 buildings for which it has obtained access.[^56]
    Building owners argue that these numbers suggest that competitive
    LECs are not even able to serve the buildings they have rights to
    access now, and thus are not constrained by any alleged lack of
    nondiscriminatory access to all buildings.

21. Economic theory supports the idea that building owners may, at least
    under some circumstances, be able to exert market power over
    telecommunications access. There is no question that building owners
    control access to any individual building. Whether that control
    translates into the ability or incentive to unreasonably restrict
    access to competitive LECs depends on the circumstances in
    particular real estate markets, as well as the time frame one is
    considering. For example, over the long term, tenants may have the
    ability to neutralize building owners' control by choosing not to
    occupy buildings that do not offer attractive telecommunications
    service options. The extent to which tenants may have effective
    choice in the near term depends on several factors, including the
    availability of alternative spaces, the typical length of leases,
    the costs of relocation, and the relative importance of
    telecommunications among the factors a tenant considers when
    choosing a space. The extent of tenant power may vary from market to
    market, including between residential and commercial tenants as well
    as in different geographic areas and market cycles.

22. A noteworthy development is the emergence of a new type of
    telecommunications service provider. These service providers, often
    referred to as "building LECs" or "B-LECs," exclusively serve MTEs.
    In many instances, these companies own telecommunications facilities
    only within the buildings they serve, and must interconnect with
    other carriers to transmit signals outside these buildings. Many of
    these ventures have been created by, or with the active
    participation of, the real estate industry. Also, some of the
    companies partner with major real estate companies in order to serve
    their buildings. One such company, Broadband Office, Inc., has
    reportedly partnered with 50 major real estate owners across the
    country.[^57]

23. We are encouraged by the progress we have seen in the development of
    the competitive market for facilities-based telecommunications
    services. Competitive LECs have made gains in the overall number of
    buildings to which they have access. In addition, we believe that
    the recent effort by representatives of the real estate industry to
    begin to develop and promote the use of both model contracts and
    best practices is a positive step. At the same time, however, we are
    concerned that the overall pace of the development of the market is
    sluggish. Based on information in the record, there are over 1.75
    million MTEs and, more than four years after the passage of the 1996
    Act, facilities-based competitive LECs have access to only a small
    percentage of these locations. As a result, all too often consumers
    are left without any choices with regard to the provision of local
    telecommunications service. Indeed, the record demonstrates that
    there are at least some circumstances in which building owners have
    both the ability and incentive to extract excessive profits from the
    provision of telecommunications services by unreasonably restricting
    competitive LECs' access to their buildings. While building owners
    have introduced evidence that tenant mobility constrains their
    exercise of market power, and that the maximum amount of revenue a
    building owner could obtain from telecommunications is small
    compared to the revenues that would be put at risk if tenants were
    denied the services they want,[^58] competitive LECs have provided
    countervailing evidence suggesting that the costs of relocation and
    the length of leases often prevent tenants from exerting their
    will.[^59] As a result, we find that the evidence supports the
    conclusion that, at least in some instances, building owners
    exercise market power over telecommunications access.

24. In addition to the market power exerted by building owners, we also
    find that incumbent LECs possess market power to the extent their
    facilities are important to the provision of local
    telecommunications services in MTEs. Although competitive LECs are
    rapidly building customer base and gaining market share, they still
    account for less than six percent of local market revenues.[^60]
    Even within their relatively small share of the local market, the
    revenues of competitive LECs come primarily from special access and
    local private line services rather than from switched service to end
    users.[^61] Thus, because incumbent LECs still serve the vast
    majority of customers, they continue to control most facilities
    useful to the provision of telecommunications service to MTEs that
    are not controlled by the MTE owners. In the absence of effective
    regulation, they therefore have the ability and incentive to deny
    reasonable access to these facilities to competing carriers.

## Exclusive Contracts

### Background

25. In the *Competitive Networks NPRM*, we requested comment on whether
    we should forbid telecommunications service providers, under some or
    all circumstances, from entering into exclusive contracts with
    building owners.[^62] Further, we sought comment on whether we have
    the authority to forbid common carriers from entering into exclusive
    contracts with building owners or managers under Section 201 of the
    Communications Act, which prohibits unjust and unreasonable
    practices. In addition, we sought comment on the appropriate scope
    of any rule against exclusive contracts, and how such a rule should
    be implemented. We asked commenters to address whether a ban on
    exclusive contracts would be an effective means of securing
    nondiscriminatory access, and whether such a rule should apply to
    all telecommunications carriers and contracts or only in some
    situations, such as unreasonably long contracts or contracts
    involving carriers with market power.[^63] Finally, we requested
    comment on the legal and policy issues and practical implications of
    either abrogating existing exclusive contracts or allowing them to
    remain in force, including any constitutional issues.[^64] We noted
    that the Nebraska Public Service Commission has already prohibited
    exclusive contracts and marketing agreements between
    telecommunications companies and property owners, except for
    contracts and agreements involving condominiums, cooperatives, and
    homeowners' associations.[^65]

26. By and large, most commenters on this issue, including both
    incumbent LECs and competitive LECs, support a ban on exclusive
    access contracts.[^66] Commenters argue that exclusive access
    contracts remove choice from the consumer and eventually adversely
    affect service quality, rates, and innovation since an exclusive
    carrier lacks the threat of competition within the MTE, thereby
    removing the incentive to provide quality service.[^67] AT&T asserts
    that the Commission should prohibit incumbent LECs from entering
    into or enforcing exclusive service agreements with building owners
    because such agreements allow the incumbent LECs to "lock up"
    multiple tenant buildings before competition has had an opportunity
    to develop.[^68] A few parties, however, argue that exclusive
    contracts are necessary under some circumstances in order for
    competitive carriers to achieve a sufficient return on their
    investment in serving a building.[^69] If exclusive contracts are
    not permitted, those parties argue, competitive providers simply
    will not take the risk of entering many buildings, and tenants of
    those buildings will experience none of the benefits of competition
    at all. In a recent *ex parte* filing, Real Access Alliance
    distinguished between residential and commercial markets, arguing
    that exclusive contracts should be forbidden in commercial buildings
    but permitted in the residential context.[^70]

### Discussion

27. Based on our review of the record, we will prohibit carriers, in
    commercial settings, from entering into contracts that effectively
    restrict premises owners or their agents from permitting access to
    other telecommunications service providers.[^71] The use of
    exclusive contracts in commercial settings poses a risk of limiting
    the choices of tenants in MTEs in purchasing telecommunications
    services, and of increasing the prices paid by tenants for
    telecommunications services.[^72] In addition, the record provides
    no evidence that in commercial settings the ability to enter into
    exclusive contracts would have efficiency enhancing or
    pro-competitive effects.[^73] Because the record is inconclusive
    about the likely competitive effects of exclusive contracts for the
    provision of telecommunications services in residential MTEs,
    however, we are seeking further information in the *Further Notice
    of Proposed Rulemaking* below. Moreover, we seek comment in the
    *Further Notice of Proposed Rulemaking* on whether we should
    prohibit carriers from enforcing exclusive access provisions in
    existing contracts in either commercial or residential MTEs.

28. An exclusive contract between a building owner and a
    telecommunications service provider can be viewed as a type of
    vertical restraint, or restraint affecting firms in two different
    markets. The economic analysis of such vertical
    controls---including, in the extreme, mergers of upstream and
    downstream firms---is complex. In general, such arrangements can be
    either beneficial or harmful to the public interest, depending on
    the precise environment in which they occur. Whether a particular
    restraint in a specific situation increases or decreases consumer
    welfare is often a widely debated subject among economic
    scholars.[^74] One finding of the economic literature, however, is
    that vertically related firms may enter into long term or exclusive
    contracts that inefficiently deter or foreclose entry to a market
    and thus harm consumers.[^75] We believe that exclusive contracts
    between building owners and telecommunications providers fit this
    model. Building owners and service providers may both find it
    advantageous to enter into such arrangements, yet those arrangements
    may nonetheless be harmful to MTE tenants.

29. For incumbent LECs, an exclusive contract may essentially constitute
    a device to preserve existing market power. First, an exclusive
    contract erects a barrier preventing other telecommunications firms
    from offering service to tenants in the building(s) covered by the
    contract. Second, where new entrants face fixed costs or otherwise
    have costs characterized by increasing returns to scale, the
    existence of incumbent LEC exclusive contracts covering some
    buildings actually would make it more difficult for the entrants to
    serve other buildings economically. Thus, exclusive contracts
    between incumbent LECs and building owners may impede the
    development of competition in the market for local
    telecommunications service.

30. Although competitive LECs currently hold only a relatively small
    share of the local telecommunications market as compared to
    incumbent LECs, we believe that it is necessary to prohibit both
    competitive and incumbent telecommunications service providers from
    entering into exclusive access contracts in commercial settings, in
    order to ensure competitive neutrality in the market. Competitive
    providers are growing in this market, and new entrants are actively
    seeking to win customers, especially customers in commercial office
    buildings, that are now served by the incumbent LEC. In this
    environment, applying an exclusive contract prohibition only to the
    incumbent LEC could distort competitive outcomes and ill serve end
    user interests. Moreover, in the case of competitive LECs, an
    exclusive contract may essentially constitute a device to create
    market power. That is, such a contract could entrench a competitive
    LEC as the sole provider in a building---or as one of two providers,
    along with the incumbent LEC---and foreclose any further
    competition. We note that competitive LECs support a ban on
    exclusive access contracts for all telecommunications providers, as
    discussed below.

31. An exclusive contract may benefit a building owner when it possesses
    some market power over tenants, such as where tenants are already
    committed to long-term leases and moving costs are prohibitive.
    Where that is the case, building owners may have the ability and
    incentive to engage in behavior that does not maximize tenant
    welfare, including the possible use of exclusive contracts. The
    interests of tenants would not be accounted for in the arrangement
    between the building owner and the telecommunications provider. We
    find the assumption that building owners may possess such market
    power reasonable, at least as a short run matter. Although a tenant
    has the apparent option to express dissatisfaction with the building
    owner's choice of local telecommunications service provider by
    moving to a new building, this choice, as a practical matter, is
    often not available. The long duration of commercial leases,
    spanning from five to fifteen years,[^76] and typically significant
    relocation costs may preclude or limit the feasibility of relocation
    (or the threat of relocation) as a remedy. In addition, zoning laws,
    environmental regulations, and similar constraints can impede the
    construction of new office space, resulting in persistent shortages
    in some local markets and conferring market power on existing
    owners.

32. We recognize that economic literature shows there are also
    circumstances in which exclusive contracts may be socially efficient
    and beneficial. For example, with an exclusive contract, a buyer may
    be able to obtain advantageous sales arrangements from sellers of
    goods or services, the benefit of which is then passed on to
    consumers.[^77] In addition, where new, sophisticated services
    become available, as in telecommunications today, an exclusive
    contract may be needed in order to give the service provider the
    incentive to spend adequate resources educating and informing
    potential customers. We emphasize, though, that no party in this
    proceeding has argued that these potential benefits are present in
    the provision of telecommunications service in commercial MTEs.
    Indeed, the record lacks any evidence of benefits to competition or
    consumer welfare from the use of exclusive contracts in commercial
    settings, and commenters that would be subject to the prohibition on
    such contracts support it.[^78] Unlike in the residential context,
    parties do not allege that exclusive contracts are necessary to give
    competitive providers incentives to provide options to tenants in
    commercial MTEs. For example, Real Access Alliance has argued that
    in the commercial context, a typical building generates enough
    revenue to support multiple providers.[^79] Given the apparent lack
    of benefits in this context, we find that we should not allow
    exclusive contracts to restrict competitive access and consumer
    choice. Further, under these circumstances, we see no value in
    distinguishing among exclusive access arrangements based on the
    length of the contract or the market position of the carrier.

33. In residential markets, by contrast, we do not have enough
    information in this record to determine whether we should forbid
    exclusive contracts under some or all circumstances. Some parties
    argue that in the residential context, potential revenue streams
    from any one building are typically not enough to attract
    competitive entry without exclusive contracts.[^80] These parties
    also argue that forbidding exclusive contracts would undermine our
    cable inside wiring rules by giving former cable providers rights to
    remain in the building.[^81] Other parties argue that we should
    forbid exclusive contracts without distinction.[^82] The record as a
    whole, however, lacks specific relevant information regarding
    residential MTEs.[^83] We therefore are requesting further comment
    on whether to forbid or limit residential exclusive contracts, as
    well as on certain other specific issues relating to practices akin
    to exclusive contracts, in a *Further Notice of Proposed
    Rulemaking*.[^84]

34. In sum, the record before us indicates that exclusive contracts for
    telecommunications services in commercial settings hold the
    potential for limiting tenants' choices, without any countervailing
    benefits. As noted earlier, an exclusive contract has the immediate
    and direct effect of limiting telecommunications choices to tenants
    in an affected building. Only by incurring the time, resources, and
    expense of actually relocating to another building (possibly even
    breaking a long-term lease) can a tenant obtain the access to
    choices we believe was contemplated by the 1996 Telecommunications
    Act. We note, however, that we view the need for a prohibition of
    exclusive contracts as primarily a temporary one designed to address
    a transitional problem. Two aspects of the current situation should
    change over time. First, competition in the provision of local
    telephony services will continue to grow, and once competition is
    well established in commercial markets, it is unlikely that
    contracts with building owners that are harmful to tenants would be
    sustainable. Second, over time the market power that building owners
    may take advantage of today will diminish, as tenants' existing
    lease arrangements expire and they are increasingly able to take
    advantage of opportunities to relocate to other existing or new
    office space offering preferable telecommunications services.

35. We conclude that we have authority to prohibit telecommunications
    carriers from entering into exclusive contracts with commercial
    building owners or their agents for the provision of service that
    necessarily and inseparably includes interstate exchange access
    service.[^85] We agree with AT&T that exclusive contracts perpetuate
    the very "barriers to facilities-based competition" that the 1996
    Act was designed to eliminate.[^86] Similarly, WinStar argues that
    exclusive access contracts completely contradict the competitive
    mandate of the 1996 Act and, therefore, should be banned.[^87]
    WinStar in particular contends that the Commission has jurisdiction
    to adopt rules prohibiting the incumbent LECs from entering into
    such arrangements since an exclusive access arrangement would render
    the Commission's decision to require incumbent LECs to provide
    access to in-building wiring as an unbundled network element
    meaningless.[^88] Given that, in today's marketplace, exclusive
    contracts for telecommunications service in commercial settings
    impede the pro-competitive purposes of the 1996 Act and appear to
    confer no substantial countervailing public benefits, we find that a
    carrier's agreement to such a contract is an unreasonable practice.
    Therefore, these contracts implicate our authority under Section
    201(b) of the Act to prohibit unreasonable practices.

36. We note that existing exclusive contracts, in addition to new
    exclusive contracts, may be a barrier preventing customers from
    obtaining the benefits of the more competitive access environment
    envisioned in the 1996 Act, and that the Commission has previously
    exercised its authority to modify provisions of private contracts
    when necessary to serve the public interest.[^89] We recognize,
    though, that the modification of existing exclusive contracts by the
    Commission would have a significant effect on the investment
    interests of those building owners and carriers that have entered
    into such contracts. Thus, we are inclined to proceed cautiously in
    this area, and seek further comment in the *Further Notice of
    Proposed Rulemaking* on whether we should prohibit carriers from
    enforcing exclusive access provisions in existing contracts in
    either commercial or residential MTEs.

37. We emphasize that the prohibition on future exclusive contracts that
    we adopt today applies to all common carrier contracts in commercial
    settings that effectively restrict a building owner or its agent
    from providing access to any other telecommunications service
    provider. Thus, by "exclusive contract" we do not mean only a
    contract that gives the contracting provider the sole right to serve
    a building. Rather, we also proscribe, for instance, a contract with
    a competitive LEC that could permit access to that party and the
    incumbent, but deny access to any other competitor.[^90] Similarly,
    we forbid any contract that would limit access to providers using a
    particular technology. In addition, we emphasize that contracts
    between building owners and local carriers that do not explicitly
    deny access to competing carriers, but nonetheless establish such
    onerous prerequisites to the approval of access that they
    effectively deny access, are also prohibited. Finally, we note that
    contracts may be oral in nature. For the reasons discussed above, we
    find that all these types of contracts in the commercial context
    only hold the potential to restrict customer choice, and not to
    promote choice and competition. Thus, all fall within the rule we
    adopt today. Parties that allege that a carrier has entered into a
    contract in violation of the prohibition we adopt today may file a
    complaint with the Commission under Section 208 of the Act.[^91]

38. We recognize that some premises are used for both commercial and
    residential purposes. First, we define "commercial" for purposes of
    this rule to encompass all non-residential uses, including, for
    example, government and non-profit offices.[^92] Second, we address
    instances where a single premises includes both commercial and
    residential uses. In these cases, a building owner may choose to
    offer separate access agreements to the residential and commercial
    portions of the premises, in which case a carrier may enter into an
    exclusive contract to serve the residential area but not the
    commercial area. Where, however, a single access agreement covers
    the entire premises, we find it most consistent with the purposes of
    our rule to determine its status as residential or commercial by
    predominant use. Thus, for example, an apartment building that
    includes retail or professional establishments on the ground floor
    would be considered residential, whereas an office building that
    includes one or a few residential users would be considered
    commercial. We believe that in most instances the predominantly
    residential or commercial character of a property will be clear on
    the facts. To the extent there is a question whether a particular
    property is predominantly residential or commercial in use, we will
    decide such disputes on a case-by-case basis.

39. We believe that today's action will have little effect, if any, on
    existing state statutes and regulations governing exclusive
    telecommunications contracts. First, to the extent any state law
    prohibits exclusive contracts more broadly than our rule, that
    prohibition would not conflict with our rule and would remain
    enforceable. Thus, for example, states may continue to forbid
    exclusive contracts in residential as well as commercial
    settings.[^93] Second, based on the record, it appears that states
    which have enacted exclusive contract regulations either have been
    more rigorous than our rules or have paralleled the principles of
    our regulation in important respects.[^94] Thus, while state
    regulation that conflicted with our rules on exclusive contracts
    would potentially be subject to preemption, we do not believe as a
    practical matter this situation will arise very often. However, to
    the extent any state's law is alleged to directly conflict with our
    rules, we will consider the alleged conflict if necessary on a
    case-by-case basis.

40. Also, we note that our rule is not intended to prevent a premises
    owner from entering into an exclusive contract when it is acting as
    a purchaser of telecommunications service on behalf of its
    affiliated entities, such as subsidiary units, or employees. For
    example, we recognize that certain state governments develop and
    administer exclusive contracts for the public agencies or offices
    under their jurisdiction. Similarly, a college or university may
    enter into an exclusive contract on behalf of its affiliated
    schools, departments, faculty, and staff.[^95] Given that the
    purpose of our prohibition on exclusive contracts is to ensure
    consumer choice, it would not be consistent with this purpose to
    restrict exclusive arrangements with property owners that are
    affiliated in this manner with their tenant consumers, and we
    therefore do not reach such arrangements.

## Access to Wiring

41. In this section, we take the following actions regarding the
    demarcation point that marks the division between telecommunications
    network wiring under LEC control and wiring under building owner/end
    user control: (1) clarify that the Commission's demarcation point
    rules, including the revisions adopted in this section, govern the
    control of inside wiring and related facilities for purposes of
    competitive access, as well as the control of these facilities for
    purposes of installation and maintenance; (2) establish procedures
    to facilitate the relocation of the demarcation point to the MPOE at
    the building owner's request in MTEs; (3) require LECs to disclose
    the location of the demarcation point where it is not located at the
    MPOE; and (4) resolve pending issues in the Commission's demarcation
    point proceeding in CC Docket 88-57. We believe that these actions
    will facilitate access to telecommunications inside wiring by
    competitive providers of local telecommunications services.[^96] In
    addition, we decline to require a uniform relocation of the
    demarcation point to the MPOE for the reasons discussed below.

### Background

42. In the *Competitive Networks NPRM*, we requested comment on how our
    rules governing the location of the demarcation point between
    facilities controlled by the local telephone carrier and the
    property owner in multiple unit premises impact competitive provider
    access and whether modification of those rules is appropriate to
    promote competitive access.[^97]

43. At the time the current telecommunications inside wiring rules were
    established, there existed essentially no competition in the market
    for the provision of local telephone services. In the time since the
    enactment of the Telecommunications Act of 1996, many competitive
    LECs have begun providing services that were once the exclusive
    domain of the incumbents. There is evidence, however, that continued
    incumbent control over much of the wiring in some MTEs has hindered
    the development of facilities-based competitive LECs as viable
    competitors by unnecessarily requiring them to deal with their
    competitors in order to serve these locations.[^98] On the other
    hand, other parties argue that building owner control over inside
    wiring obstructs the growth of competitors that use unbundled local
    loops, because they would often not otherwise need to deal with the
    building owner.[^99] In addition, some argue that the Commission's
    rules create confusion regarding the location of the demarcation
    point and have permitted demarcation points to be located at
    inaccessible places.

44. The Commission adopted its demarcation point rules in 1984, in order
    to foster competition in the market for installation and maintenance
    of telecommunications inside wiring -- the wiring that connects
    customer premises equipment (CPE) to the public switched telephone
    network (PSTN) and to other CPE.[^100] The new rules established a
    "demarcation point" that marks the end of wiring under control of
    the LEC and the beginning of wiring under the control of the
    property owner or subscriber.[^101] Thus, the new rules permitted
    telecommunications subscribers and premises owners to assume or
    assign responsibility for installation and maintenance of inside
    wiring, which previously had been managed solely by the LECs under
    tariff.[^102]

45. In 1990, the Commission revised the demarcation point definition to
    increase the amount of wiring that may come under the control of the
    property owner or subscriber.[^103] At the same time, in the case of
    MTEs, the Commission sought to make the definition flexible enough
    to accommodate existing buildings. Therefore, in multi-tenant
    buildings existing as of August 13, 1990, the demarcation point is
    determined in accordance with the carrier's reasonable and
    nondiscriminatory practices. For new installations, or major
    renovations, subsequent to August 13, 1990, the carrier may
    establish a practice of placing the demarcation point at the
    MPOE.[^104] Where the carrier chooses not to do so, the premises
    owner may determine the location or locations of the demarcation
    point.[^105]

46. In 1997, the Commission again revisited the issue of the demarcation
    point on reconsideration of the *1990* *Demarcation Point Order and
    Further NPRM*.[^106] The Commission clarified that the relocation of
    the demarcation point to the MPOE cannot be undertaken unilaterally
    by the incumbent LEC without the property owner's consent, except in
    the case of major modifications, renovations, or
    rearrangements.[^107] The Commission further stated that, for the
    purposes of Section 68.3, a request for relocation by the property
    owner would be considered a major modification or rearrangement of
    the wiring.[^108] The *1997 Demarcation Point Order* also included a
    Further Notice of Proposed Rulemaking that requested comment on,
    among other issues, proposed modifications to the demarcation point
    rule.[^109] Two petitions for clarification and reconsideration were
    filed in response to issues discussed on reconsideration in the
    *1997 Demarcation Point Order*. [^110] In January, 2000, the
    Commission released an order that addressed issues regarding the
    enhanced wire quality standards raised in petitions relating to the
    *1997 Demarcation Point Order.*[^111] However, the order deferred
    consideration of the remaining demarcation point issues raised in
    the two petitions for clarification and reconsideration to the
    *Competitive Networks* proceeding.

47. As noted above, the current inside wiring rules do not specifically
    contemplate the new and complex issues involved with competition in
    the market for local telecommunications services. To this end, in
    the context of promoting competition for the provision of
    telecommunications service in MTEs, the *Competitive Networks NPRM*
    requested comment on how the Commission's existing rules governing
    the location of the demarcation point impact competitive provider
    access to inside wiring in MTEs.[^112] In particular, the
    *Competitive Networks NPRM* asked commenters to consider whether the
    Commission should adopt a uniform demarcation point for purposes of
    competitive access, either at the MPOE or at some other point, for
    all or some class of multiple-unit premises owners. In addition, the
    *Competitive Networks NPRM* asked commenters to consider whether the
    person who controls wire and related facilities for purposes of
    installation and maintenance must necessarily be the same person who
    exercises control for purposes of competitive access, and, if not,
    whether we should apply different standards for each of these
    purposes.

48. The *Competitive Networks NPRM* also sought comment on the potential
    treatment of inside wiring owned or controlled by an incumbent LEC
    as an unbundled network element under Section 251(c)(3) of the
    Communications Act.[^113] In November, 1999, the Commission issued
    the *UNE Remand Order*,[^114] which established as an unbundled
    network element the "inside wire" sub-loop. That order defined the
    loop element as terminating at the demarcation point and required
    incumbents to make available on an unbundled basis any portion of
    the local loop as a subloop element, including that portion between
    the property line and the demarcation point. The *UNE Remand Order*
    further required incumbent LECs to allow interconnection at any
    accessible terminal, and to establish a single point of
    interconnection (SPOI) upon a request from a competitive provider
    where such a point does not already exist.

### Discussion

#### Application of Demarcation Point Rules to the Provision of Competitive Telecommunications Service 

49. As discussed above, the Commission's Part 68 demarcation point rules
    were designed to enable the creation of a competitive market in the
    installation and maintenance of inside wiring, and did not
    contemplate the use of that wiring to provide competitive local
    telecommunications service. In light of the developing competition
    spawned by the 1996 Act, and the subsequent need for competitive
    providers to gain access to inside wiring, we will apply our
    demarcation point rules to facilitate access to inside wiring for
    the purpose of providing competitive local telecommunications
    service. Thus, we clarify that the Commission's demarcation point
    rules, including the revisions adopted below, govern the control of
    inside wiring and related facilities for purposes of competitive
    access, as well as the control of these facilities for purposes of
    installation and maintenance. In the sections below, we adopt
    several revisions to our demarcation point rules that we believe
    will foster competition in the local telecommunications market in
    MTEs, while maintaining the competitive framework for the
    installation and maintenance of inside wiring.

#### Location of the Demarcation Point

50. A number of commenters contend that uniformly establishing the
    demarcation point at the minimum point of entry would promote
    facilities-based competitive access to MTEs.[^115] As discussed
    above, there is evidence in the record that incumbent LECs in many
    instances are using their control over on-premises wiring to
    obstruct or delay competitive access.[^116] Placing the demarcation
    point at the MPOE would eliminate the potential for such abuses by
    permitting competitive carriers to obtain access to inside wire by
    dealing solely with the premises owner. While our unbundling rules
    adopted in the *UNE Remand Order* provide requesting carriers with a
    right of non-discriminatory access to inside wire owned or
    controlled by incumbent LECs, requesting carriers claim they
    continue to face difficulty gaining access to MTEs due to incumbent
    obstruction. Moving the demarcation point, they state, would allow
    all facilities-based carriers to interconnect with the inside
    wiring, which would be controlled by the premises owner, at the same
    point and on the same terms.[^117]

51. The record indicates, however, that establishing the demarcation
    point at the MPOE would disadvantage those competitive LECs that
    rely on leasing unbundled loops, including most DSL[^118] providers,
    by limiting the availability of the inside wire as part of the loop
    element.[^119] Currently, where the demarcation point is at or near
    the customer's unit, competitive LECs may obtain access to the
    incumbent LEC's existing wiring inside the building as part of the
    unbundled loop (or as a separate subloop element). Relocation of the
    demarcation point to the MPOE, however, would result in a decrease
    in the amount of wiring within the building that is available to
    competitive LECs as part of the loop, which by definition ends at
    the demarcation point.[^120] Thus, competitive LECs that rely on
    unbundled loops would have to negotiate with both the incumbent LEC
    and the building owner for each building they seek to serve, thus
    increasing their costs significantly. Those commenters also raise
    the possibility that certain building owners would refuse to allow
    access at all or impose terms which would make the provision of
    service infeasible. Moreover, commenters allege, their problems are
    exacerbated by the practice of some incumbent LECs of leaving wires
    unconnected at the demarcation point, when it is located at the
    MPOE. This practice not only requires competitive LECs to incur the
    expense of dispatching their own technicians to the building, but
    draws the attention of the premises owner to the possibility of
    extracting concessions from carriers for access to the wiring.[^121]

52. Further, several commenters argue that uniformly moving the
    demarcation point would give rise to legal and practical
    difficulties, especially in existing buildings.[^122] These
    arguments are not without merit. It is indisputable that the
    incumbent LECs have made considerable investments over the years in
    network facilities, and while much of that investment has likely
    been depreciated or recouped in the rate base,[^123] the facilities
    remain of some value to the incumbents. We agree with GTE that
    requiring a uniform relocation in existing buildings would be an
    enormous undertaking.[^124]

53. In light of these concerns, we decline to mandate a uniform
    demarcation point at the MPOE. The record shows that although moving
    the demarcation point to the MPOE would reduce costs and facilitate
    deployment for competitive LECs that rely on their own facilities to
    reach MTEs, it would increase costs and hinder deployment for
    carriers that rely on unbundled local loops. In the absence of
    convincing evidence that the benefits to one group of competitors
    would significantly outweigh the harms to the other, we find the
    best course is to continue the leave the choice in the first
    instance to the building owner.

54. At the same time, we take several actions to clarify the building
    owner's options and facilitate its exercise of its options for the
    benefit of competition.[^125] First, we clarify that in all
    multiunit premises, the incumbent carrier must move the demarcation
    point to the MPOE upon the premises owner's request. Section
    68.3(b)(2) specifies that in multiunit premises in which inside
    wiring is installed or subject to a major modification after August
    13, 1990, if the carrier does not elect to place the demarcation
    point at the MPOE, the premises owner shall determine the number and
    location of the demarcation point or points (*e.g.*, a single point
    at the MPOE).[^126] In the *1997 Demarcation Point Order*, the
    Commission found that a multiunit premises owner\'s request to move
    the demarcation point to the MPOE constitutes a major modification
    for the purposes of Section 68.3(b)(2).[^127] Thus, even in
    multiunit premises in which the original wiring was installed prior
    to August 13, 1990, the premises owner may require the carrier to
    move the demarcation point to the MPOE. We disagree with BellSouth's
    assertion in its petition for clarification and reconsideration of
    the *1997 Demarcation Point* that the premises owner should be
    required to negotiate changes in the demarcation point location with
    the carrier serving the building.[^128] We believe that it would
    impede the development of facilities-based competition if a carrier
    could refuse a premises owner\'s request to move the demarcation
    point to the property line in order to prevent the connection of
    inside wiring to a competitive carrier. Thus, we affirm that under
    Section 68.3 of the Commission's rules, a carrier must move the
    demarcation point to the MPOE upon the request of a multiunit
    premises owner, and we deny BellSouth's petition.

55. Second, although we have previously required incumbent LECs to move
    the demarcation point to the MPOE at the premises owner's request,
    we have left the terms of relocation and the procedures for
    negotiating those terms up to the parties involved. The comments of
    building owners are generally favorable to these rules giving the
    owner the right to request a that the demarcation point be placed at
    the MPOE.[^129] However, the record indicates that the lack of any
    guidelines for such terms may provide a disincentive for the parties
    to negotiate effectively. We hold that in order to further
    competition, a request by a property owner to relocate the
    demarcation point to the MPOE must be dealt with in a reasonably
    timely and fair manner, so as not to unduly delay or hinder
    competitive LEC access. We therefore direct incumbent LECs to
    conclude negotiations with requesting building owners in good faith
    and within 45 days of the initial request. Building owners may file
    complaints with the Commission for resolution of allegations of bad
    faith bargaining by LECs.[^130] As each situation will vary greatly
    depending on such characteristics as the age and complexity of the
    inside wiring, and any previous agreements and practices, we find
    that this approach will facilitate competition, while protecting the
    valid property interests of the parties.[^131] These rules will
    apply as well to competitive LECs where they have installed or have
    had control of the inside wiring.

56. The record further indicates that uncertainty as to the actual
    location of the demarcation point leads to confusion on the part of
    both building owners and competitive LECs.[^132] This confusion can
    lead to additional expense and delay in the provision of service.
    Competitive LECs need this information in order to know with which
    party to negotiate interconnection to the inside wiring. The record
    contains instances where neither or both the incumbent LEC and
    building owner claimed ownership of the inside wire, causing delay
    in the ability of the competitive LEC to commence service to its
    customers.[^133] While our current rules require that incumbent LECs
    must make the location of the demarcation point available to
    building owners upon request by the owner, we are concerned that the
    information may not be provided in as prompt a manner as it
    reasonably should be.[^134] The incumbent LECs are generally in the
    best position to know the location of the demarcation point, and we
    believe that they should not be permitted to use their control over
    such non-proprietary information in order to frustrate competition.
    Because excessive delay may impose unnecessary costs and impede
    competition, we hold that if an incumbent LEC fails to produce this
    information within ten business days of the request, the premises
    owner may presume the demarcation point to be located at the MPOE.
    The availability of this information will facilitate fair
    negotiations, and may even negate the need for any negotiations
    where, for example, the building owner was unaware that the
    demarcation point is already at the MPOE. We further require that
    where LECs do not establish a practice of placing the demarcation
    point at the MPOE, they fully inform building owners, at the time of
    installation, of their options regarding placement.

57. Finally, we note that where the building owner chooses to locate the
    demarcation point at the MPOE, responsibility for installation and
    maintenance may be contracted out to the incumbent LEC, a
    competitive LEC or other third party,[^135] but control, including
    determining terms of access, would lie with the building owner. We
    require that where such duties are contracted to a carrier that is
    also providing service to that building, the carrier must deal with
    other LECs on nondiscriminatory terms. Similarly, we expect that
    those building owners who choose to take control of the inside
    wiring will exercise that control in a nondiscriminatory way,
    consistent with the goals of the Telecommunications Act and the
    public interest.[^136]

58. We anticipate that the measures described above will substantially
    reduce the potential for incumbent LECs to obstruct competitive
    access to MTEs. These changes will facilitate building owners'
    exercise of their option to relocate the demarcation point in
    existing buildings, and prevent incumbent LECs from abusing their
    control over information regarding the location of the demarcation
    point. Moreover, we emphasize that to the extent incumbent LECs
    continue to exercise control over on-premises wiring, they must
    afford access to that wiring as a UNE at forward-looking
    prices.[^137] In light of all these safeguards, we believe it is not
    necessary or prudent at this time to mandate a uniform move of the
    demarcation point to the MPOE. Moreover, we believe that it is
    unnecessary at this time to provide further guidance on legal or
    technical feasibility issues related to subloop unbundling.

#### Remaining Issues in CC Docket No. 88-57

59. As discussed above, several parties filed petitions for
    reconsideration of the *1997 Demarcation Point Order*. Those
    petitions that did not relate to the demarcation point and control
    over access were resolved earlier this year.[^138] However, we
    determined at that time to defer resolution of those petitions
    related to the demarcation point, as well as certain issues on which
    we sought further comment in the *1997 Demarcation Point Order*
    pending our action in this proceeding.

### Single Definition of Inside Wiring

60. In the *1990 Demarcation Point Order and Further NPRM*, the
    Commission stated that the demarcation point definition applied to
    both simple and complex wiring installations.[^139] In response,
    several petitions were filed asserting that the Commission did not
    comply with Section 5 of the Administrative Procedures Act (APA)
    because it provided insufficient notice indicating that a change in
    complex wiring rules was being considered.[^140] In the *1997
    Demarcation Point Order*, the Commission found that its revision of
    the demarcation point definition was proper under the APA because it
    was a "logical outgrowth" of the proceeding.[^141] Noting
    petitioners\' concerns about the Commission\'s decision to apply the
    revised demarcation point definition to complex wiring, however, the
    Commission inquired further into this issue in the *1997 Demarcation
    Point Order*.[^142] Specifically, the Commission requested comment
    on its proposition that the single demarcation point definition, as
    revised, avoids the confusion that could result from separate
    demarcation point definitions for simple and complex wiring,[^143]
    encourages placement of the demarcation point at the MPOE for new
    multiunit installations, and \"foster\[s\] competition in the inside
    wiring installation and maintenance markets.\"[^144]

61. We agree with commenters that support a single definition of the
    demarcation point, as it applies to both simple and complex wiring.
    We developed and have maintained a single demarcation point
    definition for both simple and complex inside wiring installations
    because it is simple, and consistent, and promotes consumer control
    over inside wiring by restricting the extent of network wiring on
    the customer\'s premises, yet is flexible enough to respond to the
    demands of complex, multiunit inside wiring facilities design.[^145]
    We agree with commenters that changing the definition at this time
    would needlessly risk disruption and confusion, and is not supported
    by the record.[^146] Consequently, we affirm the decision in the
    *1997 Demarcation Point Order* maintaining the same demarcation
    point definition for both simple and complex wiring.

### Safety Concerns Regarding the Placement of the Demarcation Point Away from the Building

62. In the *1997 Demarcation Point Order*, the Commission declined to
    modify the demarcation point definition to prohibit placement of the
    demarcation point away from the building. Some petitioners in that
    proceeding had expressed concern that locating the demarcation point
    a substantial distance from the building in which telephone wire is
    located could raise safety concerns.[^147] Noting that the National
    Electrical Code (NEC) requires the placement of surge protection at
    or near the building, these petitioners concluded that if a network
    protector is placed by the carrier at a demarcation point near the
    property line, and that demarcation point is a significant distance
    from the building, a second network protector should be installed
    where the wire enters the building.[^148] The petitioners further
    opined that improper \"coordination\" between these two network
    protectors could pose a danger to telephone company personnel,
    customers, or private property.[^149] Finally, the petitioners
    requested that the Commission modify its rules to prohibit location
    of the demarcation point away from a building, or clarify that the
    NEC precludes such placement.[^150]

63. In the *1997 Demarcation Point Order*, the Commission responded to
    the petitioners by noting that building owners are generally
    responsible for safety standards and similar concerns relating to
    their property and equipment and that the record did not bear
    evidence of specific difficulties or problems relating to improper
    protector \"coordination.\"[^151] Nonetheless, the Commission
    requested additional comment on whether it should continue to allow
    the demarcation point and network protector to be located away from
    the building, at the property line.[^152] The Commission also
    requested that commenters discuss, in the light of actual
    experiences, whether the presence and coordination of the second
    protector differs from other safety matters for which property
    owners are normally responsible.[^153] Finally, the Commission
    solicited comments on the need to require carriers to inform
    building owners of the need for a second protector and protector
    coordination for demarcation points and network protectors that are
    located at the property line.[^154]

64. All commenters on this issue in CC Docket 88-57 agree that the
    current demarcation point definition is reasonable and should not be
    modified to prohibit location of the demarcation point at the
    MPOE.[^155] Commenters specifically mention that the current
    demarcation point definition is logical, is practical, affords
    customers and telephone companies needed flexibility, avoids
    needless disruption of current practices, and supports
    facilities-based competition.[^156] While acknowledging the
    possibility of safety concerns,[^157] commenters agree that there is
    no record of \"significant safety problems\" and advise that it
    would be \"unnecessary and inappropriate\" to obligate carriers to
    notify customers of the possible need for network protector
    coordination.[^158] Commenters also agree that, where the
    demarcation point and the protector are located away from the
    building, building owners have the responsibility to ensure that the
    building is protected, just as building owners generally bear a
    variety of obligations and responsibilities regarding safety
    standards and protection of their property.[^159]

65. We find that permitting carriers to locate the demarcation point at
    or near the property line promotes a competitive telecommunications
    marketplace. We believe it would impede the development of
    facilities-based competition if a carrier could refuse a premises
    owner\'s request to move the demarcation point to the property line
    in order to prevent the connection of inside wiring to a competitive
    carrier. We further note the absence of reports that property owners
    are experiencing problems, or evidence that problems are likely to
    arise in relation to locating the demarcation point at the property
    line. Thus, we see no justification for imposing a requirement
    compelling carriers to inform property owners of the potential for
    problems, and we refrain from doing so.

### Prospective Effect of 1997 Demarcation Point Order

66. The Commission\'s rules state that the demarcation point for
    multiunit structures is to be determined \"in accordance with the
    local carrier\'s reasonable and non-discriminatory standard
    operating practices.\"[^160] In the *1997 Demarcation Point Order*
    the Commission clarified that the standard operating practices to
    which Section 68.3(b)(1) refers are those practices in effect on
    August 13, 1990.[^161] Thus the rule does not authorize changing the
    demarcation point for an existing building to the minimum point of
    entry, except pursuant to Section 68.3(b)(2), *i.e.*, if the
    building owner makes major additions, modifications, or
    rearrangements in existing wiring. Bell Atlantic/NYNEX requests that
    the Commission give its clarification in the *1997 Demarcation Point
    Order* only prospective effect so that buildings in which the
    demarcation point were improperly moved after Section 68.3(b)(1) was
    adopted, but before the rules were clarified in the *1997
    Demarcation Point Order*, would not be affected.[^162]
    Alternatively, Bell Atlantic/NYNEX asks the Commission to reconsider
    this portion of the *1997 Demarcation Point Order* to give the
    proposed interpretation only prospective effect.

67. In the *1990 Demarcation Point Order and Further NPRM* [^163] the
    Commission adopted rules to ensure that the demarcation point would
    not be located a significant distance from where wiring enters the
    customer\'s premises. In the *1997 Demarcation Point Order,* the
    Commission clarified that it did not intend in the *1990 Demarcation
    Point Order and Further NPRM* to permit carriers automatically to
    relocate demarcation points in multiunit buildings.[^164] According
    to Bell Atlantic, some carriers interpreted the rules promulgated in
    the *1990 Demarcation Point Order and Further NPRM* to permit
    relocation of the demarcation point to the minimum point of entry,
    so long as that relocation was approved by the applicable state
    commission. Accordingly, Bell Atlantic filed tariffs with state
    commissions, and in five jurisdictions, the state public utility
    commissions permitted Bell Atlantic to locate the demarcation point
    for all multiunit buildings at the MPOE.[^165]

68. Although Bell Atlantic does not challenge the demarcation point
    location rules as clarified by the Commission in the *1997
    Demarcation Point Order*, it pleads that it was not unreasonable for
    it and other carriers to have adopted a different interpretation
    in 1990. Bell Atlantic claims that it would be impossible now, seven
    years after the fact, for it to \"unscramble the egg\" and attempt
    to restore the demarcation points to the original 1990 locations in
    multiunit buildings in the five affected jurisdictions. Bell
    Atlantic also reports that the wiring in question has been fully
    amortized, control and maintenance of the wiring has been turned
    over to the building owners, and that those owners have likely
    modified, rearranged, or added to it. Bell Atlantic claims to have
    no way of knowing whether any such rearrangements or modifications
    were made, or which were \"major,\" so as to take the building out
    of the pre‑1990 category. Bell Atlantic states that it would be
    unreasonable to hold it responsible for maintaining wiring that
    building owners have controlled and maintained, properly or not, for
    several years. Furthermore, Bell Atlantic argues that moving
    demarcation points to the MPOE conforms to Commission policy.
    Finally, Bell Atlantic argues that it should not be penalized for
    actions taken in good faith and consistent with the Commission\'s
    substantive policy, even if those actions are inconsistent with the
    rule as clarified seven years after it was promulgated.

69. We grant Bell Atlantic\'s request, and clarify that the statement in
    paragraph 26 of the *1997 Demarcation Point Order* was intended to
    have only prospective effect, and does not require carriers to
    reestablish demarcation points moved under Section 68.3(b)(1) before
    clarification in the *1997 Demarcation Point Order*. Although our
    policy supports deference to building owners\' choice of location
    for demarcation points, we recognize the difficulty of determining
    which demarcation point locations were improperly moved, and note
    the state public utilities commission approval of the policies under
    which the demarcation points were moved, indicating that the public
    interest had been adequately considered before the relocation
    activity took place. Thus, we find that the public interest will be
    better served by clarifying that our statement in paragraph 26 of
    the *1997 Demarcation Point Order*, regarding moving the demarcation
    point to the MPOE, was intended to have only prospective effect.
    Reversing the relocations and moving the demarcation point away from
    the MPOE appears unjustified, would contradict the Commission\'s
    policy of supporting location of the demarcation at or near the
    MPOE, and would be difficult to implement. Finally, there is no
    indication that granting Bell Atlantic\'s request will undermine the
    Commission\'s support for a competitive telecommunications market
    and facilities-based competition.

## Access to Conduits and Rights-of-Way

### Background

70. Section 224 of the Communications Act provides that "\[a\] utility
    shall provide a cable television system or any telecommunications
    carrier with nondiscriminatory access to any pole, duct, conduit, or
    right-of-way owned or controlled by it."[^166] Congress enacted the
    original version of Section 224 in 1978 to ensure that utilities'
    control over poles and rights-of-way did not create a bottleneck
    that would stifle the growth of cable television systems that use
    poles and rights-of-way. Congress sought to prohibit utilities from
    engaging in "unfair pole attachments practices . . . and to minimize
    the effect of unjust or unreasonable pole attachments practices on
    the wider development of cable television service to the
    public."[^167] In 1978, the Commission implemented the original
    Section 224 by issuing rules governing pole attachments issues and
    establishing a basic formula for cable pole attachments rates.[^168]
    These rules have been reconsidered, amended and clarified by
    subsequent Commission orders.[^169]

71. The 1996 Act amended Section 224 in important respects. While
    previously the protections of Section 224 had applied only to cable
    operators, the 1996 Act extended those protections to
    telecommunications carriers as well.[^170] Further, the 1996 Act
    gave cable operators and telecommunications carriers a mandatory
    right of access to utility poles, in addition to maintaining a
    scheme to assure that the rates, terms and conditions governing such
    attachments are just and reasonable.[^171] Thus, in passing the 1996
    Act, Congress intended to ensure that utilities' control over poles,
    ducts, conduits, and rights-of-way did not create a bottleneck for
    the delivery of telecommunications services.

72. As amended by the 1996 Act, Section 224 defines a utility as one
    "who is a local exchange carrier or an electric, gas, water, steam,
    or other public utility and who owns or controls poles, ducts,
    conduits, or rights-of-way used, in whole or in part, for wire
    communications."[^172] Section 224, however, specifically excludes
    incumbent LECs from the definition of telecommunications carriers
    with rights as pole attachers.[^173] Because, for purposes of
    Section 224, an incumbent LEC is a utility but is not a
    telecommunications carrier, an incumbent LEC must grant other
    telecommunications carriers and cable operators access to its poles,
    ducts, conduits, and rights-of-way, even though the incumbent LEC
    has no rights under Section 224 with respect to the facilities of
    other utilities. This is consistent with Congress' intent that
    Section 224 promote competition by ensuring the availability of
    access to new telecommunications entrants.[^174]

73. Under the pole attachments provisions of the 1996 Act, we have been
    able to act effectively to promote the development of competition in
    local telecommunications markets. In the *Local Competition First
    Report and Order*, we established a program for nondiscriminatory
    access to utilities' poles, ducts, conduits and rights-of-way,
    consistent with our obligation to institute a fair, efficient and
    expeditious regulatory regime for determining just and reasonable
    attachments rates, terms and conditions with a minimum of
    administrative costs.[^175] We further held that the scope of a
    utility's ownership or control of an easement or right-of-way is a
    matter of state law, and determined that the access obligations of
    Section 224(f) apply when, as a matter of state law, the utility
    owns or controls the right-of-way to the extent necessary to permit
    such access.[^176] In the *Local Competition Pole Attachments
    Reconsideration Order*, we reiterated that the principle of
    nondiscrimination established by Section 224(f)(1) requires a
    utility to take all reasonable steps to expand capacity to
    accommodate requests for attachments just as it would expand
    capacity to meet its own needs.[^177] We concluded, however, that a
    utility is not required to exercise its powers of eminent domain, if
    any, on behalf of third parties in order to expand its existing
    rights-of-way.[^178]

74. In the *Local Competition First Report and Order*, we also held that
    Section 224 does not mandate that a utility make space available on
    the roof of its corporate offices for the installation of a
    telecommunications carrier's transmission tower, although access of
    this nature might be mandated pursuant to a request for
    interconnection or for access to unbundled network elements under
    Section 251(c)(6).[^179] WinStar petitioned for clarification or
    reconsideration of this holding, requesting a ruling that a LEC must
    allow telecommunications carriers access pursuant to Section 224 to
    rooftop facilities and related riser conduits that the LEC owns or
    controls.[^180]

75. Based on the record compiled in response to the WinStar Petition, we
    tentatively concluded in the *Competitive Networks NPRM* that
    Section 224 includes a right of access to conduits, ducts, and
    rights-of-way in MTEs.[^181] We therefore proposed in the *NPRM*
    that, under Section 224, utilities must permit access to rooftops,
    conduits, and similar rights-of-way that they "own or control" in
    MTEs, and we requested comment on issues relating to the
    implementation of this requirement, including the circumstances
    under which utility ownership or control might be found to
    exist.[^182] At the same time, we tentatively reaffirmed our
    conclusion that Section 224 does not confer a general right of
    access to utility property,[^183] but we tentatively concluded that
    Section 224 does confer a right of access where a utility uses
    property that it owns in the manner of a right-of-way as part of its
    distribution network.[^184]

### Discussion

76. Based on the record before us and our analysis of the statute, we
    conclude that the Section 224(f)(1) right of access to poles, ducts,
    conduits, and rights-of-way that a utility owns or controls is not
    limited by location or by how the utility's ownership or control was
    granted. Thus, to the extent a utility owns or controls poles,
    ducts, conduits, or rights-of-way within an MTE, the utility may not
    exercise its control in a manner inconsistent with Section 224 to
    impede competitive access. At the same time, we note that Section
    224 applies only to utilities, and was not intended to override
    whatever authority or control an MTE owner might otherwise retain
    under the terms of its agreements and state law. We interpret the
    term "rights-of-way" in the context of buildings to include, at a
    minimum, defined areas such as ducts or conduits that are being used
    or have been specifically identified for use as part of the
    utility's transportation and distribution network.[^185] We also
    clarify that a utility's ability voluntarily to provide access to an
    area and obtain compensation for doing so is a prerequisite to
    utility ownership or control under Section 224. Finally, we address
    several issues relating to the implementation of Section 224,
    including a determination that states do not have to recertify their
    regulation of pole attachments rates in response to today's
    decision. Based on these conclusions, we grant the WinStar Petition
    for Reconsideration of the *Local Competition First Report and
    Order* to the extent discussed herein, and we otherwise deny that
    petition.

#### Scope of areas covered.

77. Initially, we note that access to on-premises conduits and similar
    rights-of-way is important to the development of telecommunications
    competition in MTEs. The record compiled in response to the
    *Competitive Networks NPRM* indicates that competitive LECs often
    need access to in-building ducts, conduits, and rights-of-way used
    by incumbent LECs and other utilities in order to expand their
    networks to serve the building.[^186] To the extent that a new
    entrant is unable or does not desire to use the existing in-building
    wiring, it must obtain access to building conduit in order to
    install its own cables and wires. Moreover, even if a competitive
    LEC utilizes existing wiring for some of its in-building
    distribution, it may need access to conduits and rights-of-way in
    order to reach that wiring. For example, a provider using wireless
    technology, in addition to needing a rooftop or similar location to
    place its antenna, must have access to conduit in order to connect
    its antenna to the building system.

78. To the extent that poles, ducts, conduits, and rights-of-way in MTEs
    are controlled by incumbent LECs, the incumbent LECs would have an
    incentive in the absence of regulation to deny access to their
    competitors. Section 251(c) of the Act requires incumbent LECs to
    grant other carriers access to their facilities under just,
    reasonable, and nondiscriminatory rates, terms, and conditions under
    many circumstances.[^187] Nothing in Section 251(c), however,
    appears to address the situation where a building owner has granted
    a carrier access in order to serve customers in that building, but
    an incumbent LEC or other utility refuses to allow its competitor
    reasonable and nondiscriminatory access to conduits or similar
    pathways that the utility owns or controls. An incumbent LEC's power
    to deny competitors access to in-building conduits thus could impose
    a serious impediment to telecommunications choices for affected MTE
    residents. Our consideration of the effect of Section 224 within
    MTEs is intended to address this situation.

79. In the *Competitive Networks NPRM*, we tentatively concluded that
    the plain meaning of Section 224(f)(1) includes a right of access to
    ducts, conduits, and rights-of-way owned or controlled by a utility
    that are located in MTEs. In particular, we tentatively concluded
    that the definition of "right-of-way" as including a publicly or
    privately granted right to place telecommunications distribution
    facilities on public or private premises is consistent with the
    common usage of the term, and we sought comment on this
    analysis.[^188] We also tentatively concluded more specifically that
    in-building conduit, such as riser conduit, used by a utility and
    owned or controlled by that utility falls within the scope of
    Section 224(f)(1) as either "conduit" or a "right-of-way."[^189]
    Competitive LECs generally agree with these tentative
    conclusions.[^190] They state that by not qualifying the terms
    "right-of-way" or "conduit" in the statute, Congress intended to
    give a broad scope to the terms such that they encompass rights of
    access to conduits on private property as well as public
    rights-of-way.[^191] Incumbent LECs and premises owners generally
    disagree with our tentative conclusions and argue for a narrow
    interpretation of \"right-of-way."[^192] For example, Bell Atlantic
    argues that Section 224 was intended to provide cable companies
    access to structures in public rights-of-way, rather than structures
    on private property, and therefore does not apply within
    buildings.[^193] Cincinnati Bell contends that the legislative
    history of Section 224 suggests that the intended meaning of
    "conduit" is "underground reinforced passages."[^194] Real Access
    Alliance argues that rights-of-way do not exist inside buildings,
    but rather that building access rights take the form of leases,
    licenses, and easements.[^195]

80. We conclude that the obligations of utilities under Section 224
    encompass in-building facilities, such as riser conduits, that are
    owned or controlled by a utility.[^196] This interpretation is
    consistent with the plain meaning of Section 224(f)(1), which
    requires "non-discriminatory access to *any* pole, duct, conduit, or
    right-of-way owned or controlled"[^197] by a utility, without
    qualification. Our interpretation of Section 224 is also consistent
    with industry practice, in which the terms duct and conduit are used
    to refer to a variety of enclosed tubes and pathways, regardless of
    whether they are located underground or aboveground. Indeed, as AT&T
    points out, the commonly used term "riser conduit" itself
    demonstrates that conduit is not generally understood to refer only
    to underground facilities.[^198] Moreover, we recently amended
    Section 1.1402(i) of our Rules in another proceeding to clarify that
    "conduits" are not limited to underground facilities.[^199]

81. In the *Competitive Networks NPRM,* we noted that the 1977 Pole
    Attachments Act Senate Report described duct or conduit systems as
    consisting of underground facilities.[^200] We conclude that this
    legislative history does not circumscribe our authority to apply
    Section 224 to in-building ducts, conduits, or rights-of-way. The
    text of the statute, as well as the legislative history relating to
    its amendment in 1996, in no way limits the terms duct or conduit to
    underground facilities.[^201] Moreover, even where there may be
    "contrary indications in the statute's legislative history," we are
    not required to "resort to legislative history to cloud a statutory
    text that is clear."[^202] This is especially true where, as here,
    the statute is unambiguous on its face.

82. We also conclude that "rights-of-way" in buildings means, at a
    minimum, defined pathways that are being used or have been
    specifically identified for use as part of a utility's transmission
    and distribution network. The Real Access Alliance argues that there
    are no "rights-of-way" in buildings, but that utilities' building
    access rights take the form of leases, licenses, and
    easements.[^203] We note, however, that the term "right-of-way" can
    have a variety of meanings, including, for example, the equivalent
    of an easement.[^204] As commenters point out, the arrangements
    under which utilities have obtained and retain access to buildings,
    as well as the nomenclature used to describe those arrangements and
    the attendant rights and responsibilities, vary from building to
    building and from state to state.[^205] We believe, consistent with
    Congressional intent to ensure that utilities do not exercise their
    control over structures and areas to which providers seek access in
    a manner that impedes telecommunications competition or cable
    service, that a "right-of-way" should be read to include, at a
    minimum, any defined pathway in an MTE that a utility is actually
    using or has specifically identified for its future use, regardless
    of how its right of access is denominated by the parties or under
    state law. We do not believe that state concerns with definitions of
    property interests, including public rights-of-way, will be harmed
    or affected by the nomenclature we use here solely with reference to
    Section 224. We therefore conclude that the nature of a right of
    access, and not the nomenclature applied, governs for these
    purposes. Consistent with Congressional intent to ensure that
    utilities do not exercise their control over structures and areas to
    which providers seek access in a manner that impedes
    telecommunications competition or cable service, we conclude that a
    right-of-way exists within the meaning of Section 224, at a minimum,
    where (1) a pathway is actually used or has been specifically
    designated for use by a utility as part of its transmission and
    distribution network and (2) the boundaries of that pathway are
    clearly defined, either by written specification or by an
    unambiguous physical demarcation.[^206] In the Further Notice of
    Proposed Rulemaking, we request comment on other situations in which
    an in-building right-of-way may be established.[^207]

83. We further conclude that a "right-of-way" under Section 224 includes
    property owned by a utility that the utility uses in the manner of a
    right-of-way as part of its transmission or distribution network. We
    tentatively concluded in the *Competitive Networks NPRM* that
    Section 224 does not encompass a general right of access to utility
    property.[^208] No party has advanced any arguments against this
    proposition, and we therefore reaffirm our earlier conclusion on
    this record. Thus, for example, the roof of a utility's corporate
    office is not, in and of itself, subject to access under
    Section 224. We also tentatively concluded, however, that "Section
    224 encompasses a utility's obligation to provide cable television
    systems and telecommunications service providers with access to
    property that it owns which it uses as part of its distribution
    network."[^209] GTE argues that the traditional definition of
    right-of-way and the underlying purpose of Section 224 require that
    property owned by a utility in fee simple absolute can never be
    subject to Section 224.[^210] We disagree, and find that our
    tentative conclusion is consistent with both the language and
    purpose of Section 224.[^211] We believe our tentative conclusion is
    consistent with the use of the term "right-of-way" to denote not
    only the right to pass over the land of another, but also the land
    itself.[^212] We also believe this definition is consistent with the
    inclusion in Section 224 of rights-of-way that a utility "owns" as
    well as "controls." We agree with AT&T that the test for determining
    when a utility is using its own property in a manner equivalent to a
    right-of-way should "be broad enough to encompass the wide range of
    activities that constitute use of property in a manner equivalent to
    a right-of-way."[^213] Thus, where a utility uses its own property
    in connection with its transmission or distribution network in a
    manner that would trigger the obligations of Section 224 if it had
    obtained a right-of-way from a private landowner, we conclude that
    it should be considered to own or control a right-of-way within the
    meaning of Section 224.

84. The National League of Cities has expressed concern that application
    of Section 224 within buildings may preempt implementation or
    enforcement of state safety-related codes.[^214] We emphasize that
    our actions taken today are not intended to preempt, or impede, in
    any way the implementation or enforcement of state safety-related
    codes. We also note that under Section 224(f)(2) utilities may
    impose conditions on access to transmission facilities, if necessary
    for reasons of safety or reliability.[^215]

#### Ownership or control.

85. In order for a right of access to be triggered under Section 224,
    the property to which access is sought not only must be a utility
    pole, duct, conduit, or right-of-way, but it must be "owned or
    controlled" by the utility.[^216] In this regard, we have previously
    held that "\[t\]he scope of a utility's ownership or control of an
    easement or right-of-way is a matter of state law."[^217]
    Specifically, "the access obligations of Section 224(f) apply when,
    as a matter of state law, the utility owns or controls the
    right-of-way to the extent necessary to permit such access."[^218]
    In the *NPRM*, we asked whether we should federally define the
    circumstances under which utility ownership or control exists, or
    whether we should continue to defer to the rights created under
    state law.[^219] Ameritech believes that the Commission should
    refrain from interpreting when utility ownership or control exists
    and continue to defer to state law.[^220] The Real Access Alliance
    argues that the Commission must continue to defer to state law
    because any attempt to alter the property rights of either utilities
    or property owners would amount to an unconstitutional taking in
    violation of the Fifth Amendment.[^221] AT&T argues that Commission
    guidance is necessary in determining the existence and scope of
    ownership or control in particular circumstances, such as where a
    utility has secured building access rights through a private
    agreement with a property owner.[^222] WinStar argues that federal
    law should govern in this matter in order to ensure a national
    policy for access to rights-of-way.[^223] WinStar states that it has
    suffered in states that have not taken action to promote building
    access, often because building owners with a national presence
    penalize carriers in states without building access laws for access
    gained in states that have such laws.[^224]

86. In the *Local Competition First Report and Order*, we considered
    arguments that certain private consent agreements, when interpreted
    under the applicable state property laws, deprive the utilities of
    the ownership or control that triggers their obligation to
    accommodate a request for access.[^225] Some commenters in that
    proceeding argued that under such circumstances, Section 224 does
    not provide a right of access.[^226] Other commenters argued that
    the statute does not draw distinctions between situations where a
    private consent agreement exists and situations where one does not
    exist, and thus provides access regardless of the terms of an
    agreement or state law.[^227] We concluded that the scope of utility
    ownership or control is a matter of state law. Thus, obligations
    apply when, as a matter of state law, the utility owns or controls
    the right-of-way to the extent necessary to permit such access.

87. We conclude that our analysis in the *Local Competition First Report
    and Order* remains valid, and applies to ducts, conduits, and
    rights-of-way in buildings as well as to those in other locations.
    We therefore reject arguments that we should define utility access
    to a building as in itself establishing utility control over
    conduits or rights-of-way or establish presumptions in this regard.
    We emphasize that the right of access granted under Section 224 lies
    only against utilities, and that Section 224 is not intended to
    override whatever authority or control MTE owners may otherwise
    retain under state law.[^228] We therefore conclude that, consistent
    with the purposes of Section 224, utility ownership or control of
    rights-of-way and other covered facilities exists only if the
    utility could voluntarily provide access to a third party and would
    be entitled to compensation for doing so. As the Real Access
    Alliance points out, the forms of access arrangements between
    utilities and building owners, and the resulting rights and
    responsibilities of each party, can vary greatly depending on the
    means by which access was originally achieved and on state
    law.[^229] Thus, state law determines whether, and the extent to
    which, utility ownership or control of a right-of-way exists in any
    factual situation within the meaning of Section 224.

88. We note that existing utility rights-of-way in MTEs, whether created
    by force of law, by written agreement between the parties, or by
    tacit consent, generally originated in an era of monopoly utility
    service. Thus, the purpose behind these rights of access was to
    ensure that end users could receive service from the single entity
    capable of providing, or legally authorized to provide, such
    service. The parties that established the terms of these rights of
    access would rarely, if ever, have considered the effect their
    actions might have on hypothetical future competition. Section 224
    addresses the ability of utilities to act anticompetitively with
    respect to telecommunications competitors as a result of these
    developments. Our concerns about anticompetitive exclusion by
    building owners are addressed elsewhere in this item.

89. This approach avoids any constitutional concerns that may arise
    under the Fifth Amendment. Because we interpret Section 224 to apply
    only against utilities, there is no taking from premises owners. The
    only taking under Section 224 is from utilities, who are deprived of
    the power to exclude others from conduits or rights-of-way to the
    extent of their ownership or control. This taking, however, is
    compensated under statute and our rules, and thus is fully
    consistent with constitutional requirements.[^230] We note that the
    extent of a utility's ownership or control of a duct, conduit, or
    right-of way under state law must be resolved prior to a complaint
    being filed with the Commission regarding whether the rates, terms
    or conditions of access are reasonable.

90. This approach also will not affect the operation of our rules
    governing the disposition of cable inside wiring. Section 76.804(a)
    of our rules sets forth the procedures for disposition of "home run
    wiring" owned by a multichannel video programming distributor (MVPD)
    in a multiple dwelling unit (MDU) when the MVPD "does not . . . have
    a legally enforceable right to remain on the premises against the
    wishes of the MDU owner."[^231] As explained above, Section 224
    grants a right of access only to the extent a utility owns or
    controls poles, ducts, conduits, or rights-of-way. It does not grant
    a legally enforceable right to remain on the premises against the
    wishes of the MDU owner. Therefore, it does not interfere with the
    disposition of cable home run wiring under our rules.

#### Implementation issues.

91. Section 224 not only requires utilities to provide nondiscriminatory
    access to poles, ducts, conduits, and rights-of-way, but mandates
    that they do so at rates, terms and conditions that are just and
    reasonable.[^232] Section 224 further specifies principles for
    determining whether a rate is just and reasonable in the context
    both of cable providers' and telecommunications carriers'
    attachments, all of which are based on the utility's costs in
    connection with the pole, duct, conduit, or right-of-way.[^233] In
    order to implement these provisions, we have promulgated formulas to
    determine just and reasonable rates for access to poles, ducts, and
    conduits.[^234] These formulas do not appear to be directly
    transferable to the inside the building context and the parties to
    this proceeding have not suggested how they might be adjusted for
    use here. Therefore, to the extent the existing formulas do not
    apply, we will determine reasonable and just compensation consistent
    with the statute and Fifth Amendment on a case-by-case basis.[^235]
    We will consider initiating a rulemaking proceeding to establish
    rate formulas for in-building attachments in the future if it proves
    necessary or efficient to do so. We anticipate, however, that in
    most instances the existing rules will encourage the parties to
    agree to reasonable rates through negotiation.

92. Section 224 further provides that the Commission has no jurisdiction
    with respect to rates, terms, and conditions, or access to poles,
    ducts, conduits, and rights-of-way for pole attachments in instances
    where a state has certified to the Commission that it regulates such
    matters.[^236] Consistent with the statute, 19 states have made such
    certification to the Commission. In those states that do not
    regulate such matters, we will continue to apply the formula
    presumptions outlined in the *Telecommunications Pole Attachments
    Pricing Report and Order* and the *Cable Pole Attachments Pricing
    Report and Order.*[^237]

93. Several commenters argue that we should require states to recertify
    that they are regulating pole attachments within buildings, and that
    we should look behind state certifications to ensure that they are
    in fact regulating consistent with Section 224.[^238] Consistent
    with our past practice in similar circumstances, we decline to do
    so. Rather, we will continue to apply our existing regime of
    presumptions and burden of proof regarding certification. We
    emphasize, moreover, that federal regulation of access, rates,
    terms, or conditions for pole attachments is preempted only to the
    extent a state is actually regulating attachments. Should a state
    fail to resolve a complaint within specified time limits, the
    Commission's rules provide that we assume jurisdiction over the
    complaint.[^239]

## Areas Under Tenant Control

### Background

94. Section 1.4000 of our rules prohibits, with limited exceptions, any
    state or local law or regulation, private covenant, contract
    provision, lease provision, homeowners' association rule, or similar
    restriction that impairs the installation, maintenance, or use of
    certain antennas designed to receive video programming services on
    property within the exclusive use or control of the antenna user
    where the user has a direct or indirect ownership or leasehold
    interest in the property.[^240] We adopted Section 1.4000 pursuant
    to Section 303 of the Communications Act as directed by Section 207
    of the 1996 Act, which applies to the placement of over-the-air
    reception devices (OTARDs) in order to receive television broadcast
    signals, direct broadcast satellite services, and multichannel
    multipoint distribution services.[^241] In May, 1999, the Wireless
    Communications Association International, Inc. (WCA) filed a
    Petition for Rulemaking asking us to extend the principles embodied
    in Section 1.4000 to the placement of antennas used for any fixed
    wireless service.[^242] In the *Competitive Networks NPRM*, we
    requested comment on whether we should adopt rules similar to those
    adopted in the video context that would protect the ability to place
    similar antennas to transmit and receive telecommunications signals
    and other fixed wireless signals that are not covered by Section
    207.[^243]

95. As currently constituted, Section 1.4000 prohibits restrictions that
    impair the installation, maintenance or use of: (1) any antenna
    designed to receive direct broadcast satellite service, including
    direct-to-home satellite services, that is one meter or less in
    diameter or is located in Alaska; (2) any antenna designed to
    receive video programming services via multipoint distribution
    services, including multichannel multipoint distribution services,
    instructional television fixed services, and local multipoint
    distribution services, and that is one meter or less in
    diameter; (3) any antenna designed to receive television broadcast
    signals; or (4) any mast supporting an antenna receiving any video
    programming described in the Section. For the purposes of Section
    1.4000, a law, regulation, or restriction impairs installation,
    maintenance, or use of an antenna if it: unreasonably delays or
    prevents installation, maintenance, or use; unreasonably increases
    the cost of installation, maintenance, or use; or precludes
    reception of an acceptable quality signal. Section 1.4000 also sets
    forth principles governing fees or costs that may be imposed for
    placement of covered antennas and enforcement of covered
    regulations. Restrictions that would otherwise be forbidden are
    permitted if they are necessary for certain safety or historic
    preservation purposes, are no more burdensome than necessary to
    achieve their purpose, and meet certain other conditions set forth
    in the rule. Finally, Section 1.4000 includes provisions for waiver
    and declaratory ruling proceedings.

96. Many parties support an extension of the principles of the OTARD
    rules to include all fixed wireless devices.[^244] For example, PCIA
    contends that extending the antenna exemption rule to include all
    fixed wireless devices is essential to the Commission meeting its
    obligation to promote the deployment of advanced telecommunications
    capability under Section 706(a) of the 1996 Act.[^245] On the other
    hand, Real Access Alliance argues that, in extending the OTARD rules
    to leased property, the Commission has already exceeded its
    authority and violated the Fifth Amendment. Real Access Alliance
    contends that further extending the rules to include new services
    such as telecommunications services would compound the
    violation.[^246] Real Access Alliance argues that the statutory
    language of Section 207 "refers explicitly to video programming, and
    to three types of antennas used primarily (and at the time of the
    enactment of the law, solely) to deliver video services."[^247] Real
    Access Alliance concludes that the statutory language is very clear
    and cannot possibly be construed to permit the Commission to go any
    further than it already has, under any circumstances.[^248]

### Discussion

#### Extension of OTARD Rules

97. We conclude that we should extend the OTARD rules by amending
    Section 1.4000 to include customer-end antennas used for
    transmitting or receiving fixed wireless signals, as well as
    multichannel video programming signals that are currently covered by
    the rules.[^249] For the purpose of the OTARD rules, "fixed wireless
    signals" are any commercial non-broadcast[^250] communications
    signals transmitted via wireless technology to and/or from a fixed
    customer location.[^251] As discussed above, Congress intended in
    the 1996 Act to promote telecommunications competition and the
    deployment of advanced telecommunications capability.[^252] Indeed,
    Congress included several provisions to limit restrictions on the
    deployment of facilities used for these purposes.[^253] To the
    extent a restriction unreasonably limits a customer's ability to
    place antennas to receive telecommunications or other services,
    whether imposed by government, homeowner associations, building
    owners, or other third parties, that restriction impedes the
    development of advanced, competitive services. In the *OTARD First
    Report and Order*,[^254] the Commission determined that restrictions
    on the placement of antennas one meter in diameter or smaller
    unreasonably limit a video programming customer while restrictions
    on larger C-band reception antennas might be reasonable. We find
    that the same types of restrictions on the same types of antennas
    unreasonably restrict deployment regardless of the services
    provided.

98. Moreover, distinguishing in the protection afforded based on the
    services provided through an antenna produces irrational results.
    Precisely the same antennas may be used for video services,
    telecommunications, and internet access. Indeed, sometimes a single
    company offers different packages of services using the same type of
    antennas. Under our current rules, a customer ordering a
    telecommunications/video package would enjoy protection that a
    customer ordering a telecommunications-only package from the same
    company using the same antenna would not. Thus, we conclude that the
    current rules potentially distort markets by creating incentives to
    include video programming service in many service offerings even if
    it is not efficient or desired by the consumer.

99. In extending the OTARD rules to encompass fixed wireless devices, we
    mean to include all customer-end antennas and supporting structures
    of the physical type currently covered by the rule, regardless of
    the nature of the services provided through the antenna (*i.e.*,
    voice, data, or video). Similarly, the amended rules apply both to
    satellite and terrestrial services. In addition, the rules apply to
    antennas that transmit and receive signals, only transmit signals,
    or only receive signals.[^255] We make clear, however, that the
    protection of Section 1.4000 applies only to antennas at the
    customer end of a wireless transmission, *i.e.*, to antennas placed
    at a customer location for the purpose of providing fixed wireless
    service (including satellite service) to one or more customers at
    that location. We do not intend these rules to cover hub or relay
    antennas used to transmit signals to and/or receive signals from
    multiple customer locations.[^256]

100. We emphasize that the restrictions we adopt today are limited by
     the expressed limitations of Section 1.4000.[^257] Thus, our
     extension of the OTARD rules applies only to areas within the
     exclusive use or control of the antenna user and in which the
     antenna user has a direct or indirect ownership or leasehold
     interest. Similarly, the extension of the rules applies only to
     antennas one meter or less in diameter or diagonal measurement, or
     larger antennas located in Alaska used to receive satellite
     service, and to masts used to support such antennas.[^258] In
     addition, the exceptions permitting certain restrictions for safety
     and historic preservation purposes continue to apply.[^259]

#### Legal Authority

101. One of the principal goals of the 1996 Act was "to promote
     competition and reduce regulation in order to secure lower prices
     and higher quality services for American telecommunications
     consumers and encourage the rapid deployment of new
     telecommunications technologies."[^260] As noted above, these
     objectives are effectively hindered by restricting OTARD
     protections to devices that receive video programming services.
     Federal courts have long established that the Commission has the
     authority to promulgate regulations to effectuate the goals and
     accompanying provisions of the Act in the absence of explicit
     regulatory authority, if the regulations are reasonably ancillary
     to existing Commission statutory authority.[^261] Thus, in light of
     our finding that the existing OTARD regulatory regime effectively
     hinders one of the principal goals of the 1996 Act, and because
     Commission action is reasonably ancillary to several explicit
     statutory provisions, we conclude that the Commission has the
     statutory authority to extend the OTARD protections to antennas
     used to transmit or receive fixed wireless signals. We also
     conclude that preemption of state and local regulation created by
     the extension of OTARD protections is justified in these
     circumstances. Finally, we find that Section 332(c)(7) of the Act,
     which addresses regulation of \"personal wireless service
     facilities,\" does not apply to customer-end antennas.

102. Section 1 of the Act provides that the Commission was created "for
     the purpose of regulating interstate and foreign commerce in
     communications by wire and radio so as to make available, so far as
     possible, to all people of the United States, . . . a rapid,
     efficient, Nation-wide, and world-wide, wire and radio
     communications service with adequate facilities at reasonable
     charges\[.\] . . . "[^262] Section 1 also directs the Commission to
     "execute and enforce the provisions of \[the\] Act."[^263] In
     promulgating the extension of OTARD protections to antennas used
     for the transmission or reception of fixed wireless signals, the
     Commission is furthering the express objectives of Section 1 of the
     Act because, as noted above, we are facilitating efficient
     deployment of competitive communications services.

103. Moreover, we believe that Section 706 of the 1996 Act, which
     addresses advanced telecommunications incentives, also supports our
     extension of the OTARD principles. Section 706 directs the
     Commission to "encourage the deployment on a reasonable and timely
     basis of advanced telecommunications capability to all Americans .
     . . by utilizing, in a manner consistent with the public interest,
     convenience, and necessity . . . measures that promote competition
     in the local telecommunications market, and other regulating
     methods that remove barriers to infrastructure investment."[^264]
     We believe that the extension of OTARD protections to antennas used
     for the transmission or reception of fixed wireless signals will
     foster the deployment of advanced telecommunications services.

104. Our action also is necessary to further the consumer protection
     purposes of Sections 201(b), 202(a), and 205(a) of the Act. These
     statutory provisions are intended to ensure that the rates, terms,
     and conditions for the provision of common carrier service are
     just, fair, and reasonable, and that there is no unjust or
     unreasonable discrimination in the provision of such service.
     [^265] Further, Section 201(b) grants us express authority to
     "prescribe such rules and regulations as may be necessary in the
     public interest to carry out the provisions of th\[e\] Act."[^266]
     To the extent devices used for multichannel video programming
     services are protected from unreasonable restrictions under the
     OTARD rules and the same devices when used only for fixed wireless
     services are not, consumers who want only fixed wireless service
     may inexorably be forced to pay unjust and unreasonable charges in
     connection with unwanted video programming. Thus, if we failed to
     extend the OTARD principles, we would effectively undermine the
     policies against unreasonable charges and discriminatory policies
     that are codified in Sections 201(b), 202(a), and 205(a).

105. Because our extension of the OTARD rules is necessary to realize
     these statutory goals, Sections 303(r) and 4(i) provide the basis
     for our exercise of ancillary jurisdiction. Section 303 prescribes
     the general powers of the Commission with respect to radio
     transmissions.[^267] Specifically, it authorizes us to "\[m\]ake
     such rules . . . as may be necessary to carry out the provisions of
     this the Act."[^268] Section 4(i) provides that "\[t\]he Commission
     may perform any and all acts, make such rules and regulations, and
     issue such orders, not inconsistent with this Act, as may be
     necessary in the execution of its functions."[^269] Federal courts
     have consistently recognized that these provisions give the
     Commission broad authority to take actions that are not
     specifically encompassed within any statutory provision but that
     are reasonably necessary to advance the purposes of the Act.[^270]

106. Indeed, when Congress enacted Section 207, it recognized that
     Section 303 is a source of authority to promulgate regulations like
     the ones that we are adopting today. Section 207 directs the
     Commission to promulgate regulations prohibiting restrictions
     affecting devices used to receive the specified video programming
     services "pursuant to Section 303 of the Communications Act."[^271]
     This statutory language reflects Congress' recognition that,
     pursuant to Section 303, the Commission has always possessed
     authority to promulgate rules addressing OTARDs. Section 207
     *required* us to promulgate rules within 180 days after enactment,
     effectively removing our discretion on both the timing and the
     determination of the need for such regulation. Although Section 207
     *directed* us to take action in the context of devices designed to
     receive the named services, nothing in Section 207 precludes us
     from exercising our power under Section 303 and other provisions to
     protect the placement of similar antennas that receive or transmit
     other signals. Indeed, to the extent our action today applies to
     state and local governments, we previously imposed similar limits
     on state and local regulation of the placement of antennas both
     before and subsequent to the 1996 Act.[^272] We therefore conclude
     that the scope of the Section 207 directive to exercise our
     authority under Section 303 does not limit our independent exercise
     of the same authority under Section 303 and other provisions in a
     broader context and, in fact, affirmatively supports our use of
     Section 303 to extend the OTARD rules to fixed wireless devices.

107. As applied to restrictions imposed by state and local governments,
     our extension of the OTARD rules also falls well within the bounds
     of established preemption principles. The Commission may preempt
     state law when, among other reasons, it "stands as an obstacle to
     the accomplishment and execution of the full objectives of
     Congress."[^273] Moreover, "\[p\]re-emption may result not only
     from action taken by Congress itself; a federal agency acting
     within the scope of its congressionally delegated authority may
     pre-empt state regulation."[^274] In addition, to the extent our
     regulation affects both interstate and intrastate services,
     preemption may be upheld "where it \[is\] not possible to separate
     the interstate and the intrastate components" of the
     regulation.[^275] As discussed above, state or local regulations
     that unreasonably restrict a customer's ability to place antennas
     used for the transmission or reception of fixed wireless signals
     impede the full achievement of important federal objectives,
     including the promotion of telecommunications competition and
     customer choice and the ubiquitous deployment of advanced
     telecommunications capability. Moreover, it is infeasible to use
     different antennas for interstate and foreign communications than
     for intrastate communications. Because fixed wireless antennas are
     used in interstate and foreign communications and their use in such
     communications is inseverable from their intrastate use,[^276]
     regulation of such antennas that is reasonably necessary to advance
     the purposes of the Act falls within the Commission's authority.
     Our action is therefore fully consistent with the preemption
     principles set forth in *Louisiana PSC.*

108. Several local government organizations argue that an extension of
     the Commission's OTARD rules to restrict state and local government
     regulation of customer-end antennas used for transmitting or
     receiving telecommunications signals would violate Section
     332(c)(7) of the Act.[^277] Specifically, they argue that these
     antennas are "personal wireless service facilities" within the
     meaning of Section 332(c)(7), and that Section 332(c)(7) forbids
     the Commission from limiting state and local government regulation
     of such antennas except on the basis of RF emissions safety. In
     contrast, WCA argues that Section 332(c)(7) only applies to hub
     site antennas, and not to customer-end antennas.[^278]

109. We believe that, in the context of Section 332(c)(7), the term
     "personal wireless service facilities" is best read not to include
     customer-end antennas. The Section defines "personal wireless
     service facilities" as facilities "for the provision of personal
     wireless services." Although the term taken by itself could be read
     to include customer-end facilities, a narrower reading which limits
     the term to a facility that "provides" the service, *i.e.*, the
     carrier hub site, is not only reasonable, but also, as discussed
     below, better reflects the statutory provisions and goals of the
     1996 Act in general and those of Section 332(c)(7) in particular.
     Thus, we find that Section 332(c)(7) does not prevent the
     Commission from restricting state and local government regulation
     of these antennas. We note, though, that nothing in this decision
     affects the well-established rights of state and local governments
     under Section 332(c)(7) to regulate the placement, construction,
     and modification of carrier hub sites**.** [^279]

110. Read in context with other provisions of the 1996 Act, Section
     332(c)(7) is best construed to apply only to hub sites. In
     particular, reading Section 332(c)(7) so as not to reach
     customer-end antennas is more consistent with the simultaneous
     enactment of Section 207. The amendment of Section 332(c)(7) to
     preserve local zoning authority over personal wireless service
     facilities was enacted at the same time that Congress circumscribed
     local zoning authority over customer-end antennas used for video
     services. Given that precisely the same customer-end antennas may
     be used for telecommunications services as are used for video
     services, it is unlikely that Congress would preserve local zoning
     authority over the one at the same time it limited local zoning
     authority over the other.

111. In addition, reading Section 332(c)(7) so as not to reach
     customer-end antennas is more consistent with Congress' use of the
     term "customer premises equipment" throughout the 1996 Act. In the
     1996 Act, Congress defined "customer premises equipment" (CPE) as
     "equipment employed on the premises of a person (other than a
     carrier) to originate, route, or terminate
     telecommunications."[^280] Congress thus did not include such
     equipment within the category of facilities used by carriers to
     provide telecommunications services. As a consequence, when
     Congress sought, in the 1996 Act, to cover CPE along with
     telecommunications equipment, it specified both CPE and
     telecommunications equipment.[^281] Given Congress' express
     recognition in the 1996 Act of the Commission's longstanding
     deregulation of CPE and thus its fundamentally different
     character,[^282] we find it particularly likely that Congress would
     have specifically referenced this equipment in Section 332(c)(7) if
     it had intended for this section to apply to that equipment.

112. Moreover, nothing in the legislative history indicates that
     Congress' preservation of local zoning authority was intended to
     extend to customer-end antennas. To the extent that the Conference
     Report gives examples of personal wireless service facilities, it
     references towers: "conferees do not intend that if a state or
     local government grants a permit in a commercial district, it must
     also grant a permit for a competitor's '50-foot tower' in a
     residential district."[^283]

113. A narrower interpretation of "personal wireless service facilities"
     also best promotes the goals of the 1996 Act and Section 332(c)(7).
     One of the primary goals of the1996 Act was to "promote competition
     and reduce regulation in order to secure lower prices and higher
     quality services for American telecommunications consumers and to
     encourage the rapid deployment of new telecommunications
     technologies."[^284] In particular, among other things, Congress
     sought to open the traditionally monopolistic local exchange and
     exchange access telecommunications markets to competitive
     entry.[^285] Section 332(c)(7) promotes this goal by imposing
     certain limitations on state and local regulation of personal
     wireless service facilities siting while preserving local zoning
     authority generally. In particular, Section 332 (c)(7) provides
     that the regulation of the siting of personal wireless service
     facilities by a state or local government "(I) shall not
     unreasonably discriminate among providers of functionally
     equivalent services; and (II) shall not prohibit or have the effect
     of prohibiting the provision of personal wireless services."[^286]
     Our action here is consistent with the spirit of this provision.

114. Fixed wireless technologies provide an alternative to the incumbent
     LECs' offering of basic and advanced services. In order for a
     customer to receive fixed wireless service at home or at the
     office, that customer must be able to place an antenna at the fixed
     site. To a much greater degree than is the case with the carrier
     hub site, there is little flexibility to place the antenna at
     another location. Thus, the inability of a customer to place an
     antenna at the customer's fixed site will result, with few
     exceptions, in the denial of fixed wireless service to that
     customer, whereas the inability of a carrier to place a hub site at
     a specific site will often not result in a denial of wireless
     service to customers in that area. Therefore, applying a blanket
     rule against most restrictions on the placement of these customer
     antennas is consistent with both the broad pro-competitive goals of
     the 1996 Act and the specific pro-competitive goals of the
     limitations on state and local regulation set forth in Section
     332(c)(7). In particular, unreasonable restrictions on the
     placement of these antennas almost by definition both effectively
     prohibit the provision of personal wireless services and
     disadvantage providers of fixed wireless services as compared to
     their wireline competitors, thus unreasonably discriminating among
     providers of functionally equivalent services. Thus, the balance of
     the pro-competitive goals of the 1996 Act against the goal of
     preserving local authority is different for these antennas than for
     hub antennas, and it is reasonable to conclude, in light of the
     overriding Congressional intent to promote competition, that
     Congress did not contemplate including these antennas in Section
     332(c)(7).

115. For similar reasons, we also think that reading Section 332(c)(7)
     to exclude customer-end antennas is more consistent with the
     judicial enforcement mechanism established for Section 332(c)(7)
     non-RF safety complaints regarding state or local government
     regulation. Requiring aggrieved parties (usually service providers)
     to seek a judicial remedy against an adverse local zoning decision
     involving a hub site was intended as an additional measure to
     preserve local authority. However, the burden on customers of
     having to litigate individual zoning decisions in court, as opposed
     to seeking an administrative remedy, would be substantially greater
     than the burden Section 332(c)(7) imposes on service providers.
     Thus, again, the balance among Congress' goals is different for
     customer-end antennas than for hub sites. For all these reasons, we
     conclude that customer-end antennas are not personal wireless
     service facilities within the meaning of Section 332(c)(7), and
     thus that Section 332(c)(7) does not preserve state and local
     authority over these antennas.

116. We also find that there is no constitutional impediment to our
     forbidding restrictions on the placement of antennas on property
     within the tenant user's exclusive use, where that user has an
     interest in the property.[^287] In the *OTARD Second Report and
     Order*, we held that such rules as applied to antennas used for the
     purposes specified in Section 207 did not effect a taking of the
     premises owner's property within the meaning of the Fifth Amendment
     because by leasing his or her property to a tenant, the property
     owner voluntarily and temporarily relinquishes the rights to
     possess and use the property and retains the right to dispose of
     the property. [^288] Thus, none of the owner's property rights are
     effectively impacted by a permanent physical occupation of his
     property, because the landlord voluntarily relinquishes two of
     those rights (possessing and using) and is free to retain the third
     right (disposing of the property) when entering into a lease.
     Therefore, we did and do not believe that it constituted a *per se*
     taking to prohibit lease restrictions that would impair a tenant's
     ability to install, maintain, or use a Section 207 reception device
     within the leasehold. Indeed, we found that prohibiting
     restrictions on the installation of a satellite dish or other
     Section 207 device was indistinguishable in a constitutional sense
     from prohibiting restrictions on the installation of "rabbit ears"
     -- a Section 207 reception device -- on the top of a television
     set. [^289] For similar reasons, we conclude that there is no
     taking here.

#### Other Issues

117. We recognize that today's revision of the OTARD rules will extend
     the benefits of that rules to fixed wireless devices that have the
     capability to transmit as well as receive signals. We emphasize
     that all FCC-regulated transmitters, including the subscriber
     terminals used in fixed wireless systems, are required to meet the
     applicable Commission guidelines regarding radiofrequency exposure
     limits.[^290] We also reiterate that the OTARD rules provide an
     exception for "a clearly defined, legitimate safety objective"
     provided the objective is articulated in the restriction or readily
     available to antenna users and is applied in a non-discriminatory
     manner and is no more burdensome than necessary to achieve the
     articulated objectives.[^291] We believe it is incumbent upon fixed
     wireless licensees, including satellite providers, to exercise
     reasonable care to protect users and the public from radiofrequency
     exposure in excess of the Commission's limits. Generally, we expect
     subscriber antennas to be installed so that neither subscribers nor
     other persons are easily able to venture into and interrupt the
     transmit beams. Such interruptions can degrade the quality of
     service to the subscriber and ultimately reduce the value of the
     carrier\'s service. Thus, providers have economic incentives to
     avoid temporary interruptions of signal quality that are likely to
     motivate them to install antennas in locations where such
     interruptions are less likely to occur.

118. In addition, as a condition of invoking protection under the OTARD
     rules from government, landlord, and association restrictions, a
     licensee must ensure that subscriber antennas are labeled to give
     notice of potential radiofrequency safety hazards of these
     antennas. We have previously adopted labeling requirements for
     LMDS, MDS, ITFS, and 24 GHz service antennas, which are types of
     transceivers that can be placed at a subscriber's premises.[^292]
     Labeling information should include minimum separation distances
     required between users and radiating antennas to meet the
     Commission\'s radiofrequency exposure guidelines. Labels should
     also include reference to the Commission's applicable
     radiofrequency exposure guidelines. In addition, the instruction
     manuals and other information accompanying subscriber transceivers
     should include a full explanation of the labels, as well as a
     reference to the applicable Commission radiofrequency exposure
     guidelines. While we will require licensees to attach labels and
     provide users with notice of potentially harmful exposure to
     radiofrequency electromagnetic fields, we will not mandate the
     specific language to be used. However, we will require use of the
     ANSI-specified warning symbol for radiofrequency exposure.[^293]

119. Moreover, it is recommended that two-way fixed wireless subscriber
     equipment be installed by professional personnel, thereby
     minimizing the possibility that the antenna will be placed in a
     location that is likely to expose subscribers or other persons to
     the transmit signal at close proximity and for an extended period
     of time.[^294] To the extent that local governments, associations,
     and property owners elect to require professional installation for
     transmitting antennas, the usual prohibition[^295] of such
     requirements under the OTARD rules will not apply.[^296]

120. We also note that the Commission plans to initiate a rulemaking
     proceeding to review and, where necessary, harmonize the
     Commission's regulations concerning transceiver equipment approval
     for radiofrequency exposure.

121. Finally, we decline to prepare an environmental impact statement on
     the extension of the Commission's OTARD rules to customer-end
     antennas used for the transmission or reception of fixed wireless
     signals, as requested in a recently-filed petition by several
     municipal organizations.[^297] With respect to the asbestos and
     other safety concerns raised by the petitioners,[^298] we find that
     the exceptions in the OTARD rules for safety, which continue to
     apply to the revisions here, adequately address those concerns.
     [^299] Specifically, Section 1.4000(b)(1) provides that any
     restriction otherwise prohibited by the OTARD rules is permitted if
     necessary to accomplish a clearly defined, legitimate safety
     objective and is no more burdensome than necessary to achieve that
     objective.[^300]

122. With respect to the concerns regarding the effect of the extension
     of our OTARD rules on several species of birds that nest on
     rooftops and ledges,[^301] we believe that the effect will be
     minimal because, as discussed above, our extension of the OTARD
     rules applies only to areas within the exclusive use or control of
     the antenna user and in which the antenna user has a direct or
     indirect ownership or leasehold interest.[^302] Generally, antenna
     users do not have the requisite exclusive use or control over
     rooftops or ledges of the type or location described, such as in
     high-rise MDUs or MTEs. Moreover, to the extent that special cases
     do arise, they can be addressed under the waiver and declaratory
     ruling provisions of the rules.[^303]

123. Regarding aesthetics concerns raised by petitioners,[^304] we
     conclude that the environmental effects of the end-user facilities
     subject to the extension of the OTARD rules would be minimal and
     not significant due to the limited size and location on the end
     user's premises, as discussed above.[^305] We note that the OTARD
     rules provide, in addition to the safety exception, an exception
     for historic preservation.[^306] As noted above, the OTARD rules
     also provide for governmental and non-governmental entities to seek
     a waiver of the application of OTARD to "address local concerns of
     a highly specialized or unusual nature."[^307] Genuine concerns
     about environmental risks, if not already within the scope of the
     safety or historic preservation exceptions, may well be appropriate
     for consideration under this waiver provision.

124. In conclusion, we find that we should extend the OTARD rules by
     amending Section 1.4000 to include customer-end antennas used for
     transmitting or receiving fixed wireless signals. We recognize that
     the extension of the OTARD rules may not give every potential
     customer of fixed wireless service an effective right to place a
     covered antenna. In particular, the action we take today does not
     confer a right as against the building owner in restricted or
     common use areas in commercial or residential buildings, like most
     rooftops. However, although our rules generally would not apply to
     rooftop space in MDUs or MTEs, which typically is not exclusively
     used or controlled by tenants, the extension of our rules may give
     building owners stronger incentives to negotiate with competitive
     LECs to provide them with rooftop access on behalf of the tenants
     served by the competitive LECs. Under our rules, the tenant would
     have the right to place an antenna on sections of the MTE under the
     tenant's exclusive use or control, such as on the tenant's balcony.
     In some cases, as an alternative to balcony antennas, the building
     owner may consent to the placement of rooftop antennas.

# FURTHER NOTICE OF PROPOSED RULEMAKING

## Non-discriminatory Access Requirement

125. In addition to requesting comment on potential actions to promote
     competitive access to areas and facilities controlled by incumbent
     LECs, other utilities, and tenants, as well as on exclusive
     contracts, the Commission in the *Competitive Networks NPRM* sought
     comment on whether it should require building owners "who allow
     access to their premises to any provider of telecommunications
     services \[to\] make comparable access available to all such
     providers under nondiscriminatory rates, terms and
     conditions."[^308] We stated our concern that premises owners may
     be unreasonably discriminating among competing telecommunications
     service providers and that such discrimination may be an obstacle
     to competition and consumer choice. The Commission also sought
     comment on whether it had the statutory authority to promulgate
     such a requirement, how such a requirement should be structured,
     whether such a requirement could be structured so that it would
     comply with the 5^th^ Amendment Takings Clause of the U.S.
     Constitution, and whether there were practical issues associated
     with implementing a nondiscriminatory access requirement.[^309] We
     received substantial comment on these issues.

126. We expect the specific actions that we take in today's Report and
     Order will reduce the likelihood that incumbent LECs can obstruct
     their competitors' access to MTEs, as well as address particular
     anticompetitive actions by premises owners and other third parties.
     We remain concerned, however, that, based on the record, the
     ability of premises owners to unilaterally and unreasonably
     discriminate among competing telecommunications service providers
     remains an obstacle to competition and consumer choice. We are
     encouraged by the real estate industry's recent initiative to
     develop and promote model contracts and best practices for
     providing building access. In particular, the industry's efforts
     have focused on the following issues: (1) adopting a firm policy
     not to enter into any exclusive contracts for building access in
     the future; (2) committing to procedures and appropriate timeframes
     for processing tenant requests for a particular telecommunications
     provider where appropriate space is available and the provider
     intends to execute an access agreement that is substantially in the
     form of a model contract to be developed by the industry; (3)
     incorporating these processing guidelines in new leases and notices
     to existing leaseholders; (4) committing to a clearer and more
     predictable process for responding to requests from carriers to
     access the MTE to serve customers, where the carrier agrees that
     its access to the MTE is conditioned on providing service to
     tenants by a date certain;[^310] (5) facilitating the establishment
     of an independent clearinghouse to which interested parties could
     submit allegations of behavior that is inconsistent with either the
     model contracts or "best practices" developed as part of this
     initiative; and (6) supporting a periodic, quantitative study of
     the market for building access, to be conducted under the auspices
     of the Commission.[^311] We believe that it is prudent to permit
     additional time for this initiative to develop, in the hope that
     the industry can address MTE access issues without further
     regulatory intervention. We will closely monitor these industry
     efforts, as well as the development of competition in the market
     for the provision of telecommunications services in MTEs. We stress
     that if such efforts ultimately do not resolve our concerns
     regarding the ability of premises owners to discriminate among
     competing telecommunications service providers, and such concerns
     are not resolved by other market forces, we will consider adopting
     a nondiscriminatory access requirement.

127. To that end, we now seek comment on several additional issues
     related to the imposition of a nondiscriminatory access
     requirement. First, because it is essential to have up-to-date
     market information when evaluating the necessity of such a
     requirement, we seek to refresh the record on the status of the
     market for the provision of telecommunications services in MTEs.
     Second, we note that our specific requests for comments in the
     *Competitive Networks NPRM* focused primarily on placing a
     nondiscriminatory access requirement directly on building owners.
     In some recent filings,[^312] a number of competitive carriers
     advocate the legal argument that, were we to impose a
     nondiscriminatory access requirement, we could instead place the
     obligations attendant with such a requirement on local
     telecommunications providers. We believe that a strong case can be
     made that the Commission has authority under this theory to impose
     a requirement on such carriers falling under the jurisdiction of
     the Commission. We seek comment on this argument as well as on
     whether it would be prudent to exercise that authority. That
     decision would be informed by the results of the updated market and
     technological information we are seeking, and must also take into
     account possible constitutional and implementation issues. Thus, we
     seek comment on those sets of issues as well.

### Update on the State of the Market

128. Although, as noted above, there has been some significant progress
     toward competition in the market for local telecommunications
     services,[^313] we remain concerned by the possibility that the
     regulatory changes that we are adopting in this order may
     ultimately prove insufficient to ensure that this progress
     continues at an adequate pace. Consequently, at some point in the
     future, it may still prove necessary to consider imposing a
     nondiscriminatory access requirement following the FNPRM
     proceeding. In that light, we encourage interested parties to
     comment on developments affecting competitive provision of
     telecommunications services in MTEs so that we can continue to
     evaluate and monitor the need for such a requirement in light of
     conditions in the marketplace. In addition, we seek to monitor
     closely the progress of the real estate industry's initiative to
     develop and promote both model contracts and "best practices" for
     acquiring building access, as discussed in paragraph 2, *supra*. We
     urge the real estate industry to provide additional information on
     the status and scope of this initiative as it is developed and
     implemented. We also seek comment from other interested parties,
     including tenants[^314] and competitive LECs, on the progress that
     has been made through this initiative.

129. In particular, we seek data regarding the state of the market
     including, but not limited to, the following: (1) the number of
     MTEs to which competitive LECs have requested access, along with
     information regarding the characteristics of those MTEs (*e.g.*,
     number of units; types of use, including commercial, residential,
     and mixed use MTEs; urban vs. suburban); (2) the number of MTEs to
     which multiple carriers have obtained access, and the
     characteristics of those MTEs; (3) the number of local
     telecommunications service providers that have obtained access to
     these MTEs and the technologies that they employ (*e.g.*, wireless
     vs. wireline); (4) among competing carriers that have obtained
     access to MTEs, the percentage of these MTEs in which they are
     actually providing services; (5) the average length of time from an
     initial request for MTE access until the successful conclusion of
     contract negotiations, along with information regarding how often,
     by how much, and for what reasons this varies; (6) the number of
     MTEs in which a request for competitive access has been denied
     either by an MTE owner or manager or by a LEC, the average length
     of time from an initial access request until a denial, and the
     asserted bases for these denials; (7) the average length of time
     from the initial access request that currently pending access
     requests have been outstanding; (8) any differences in the length
     of negotiations, the nature of the negotiations, or the frequency
     of denials based on whether a competitive LEC is seeking access in
     response to a service request from a specific tenant; (9) the
     charges imposed for different types of access to MTEs and the basis
     on which such charges are determined; (10) state laws or
     regulations requiring or encouraging nondiscriminatory access, and
     the nature of those laws or regulations; (11) the experiences of
     carriers, building owners, and end users in states that have
     promulgated nondiscriminatory access requirements, including the
     numbers and types of complaint and enforcement actions that have
     been filed; and (12) technological developments, such as free-space
     optical technology,[^315] that may obviate or reduce the need for
     carriers to obtain direct access to intrabuilding facilities.

130. We believe that any future assessment of the market would be best
     guided by information that measures the current state of the market
     and the market after a reasonable period of time has passed after
     the implementation of the Report and Order and the best practices
     proposed by the real estate industry. We authorize the Wireless
     Telecommunications Bureau to issue a public notice requesting
     information be submitted eight months from the release of the
     FNPRM. This period should provide the Commission with the
     opportunity for updating the record with relevant market
     information that will better enable us to gauge overall competitive
     market trends.

### Legal Issues

131. As discussed above, based on competitive developments in the market
     for the provision of telecommunications services in MTEs, and in
     response to the measures we adopt today, we may consider adopting a
     nondiscriminatory access requirement in the future. To that end, we
     will examine and seek further comment on issues relating to our
     legal authority.

#### Statutory Authority

132. Based upon our review of the relevant authority, we believe that
     there is a strong case that the Commission has the statutory
     authority to prohibit LECs from providing service to MTEs whose
     owners maintain a policy that unreasonably prevents competing
     carriers from gaining access to potential customers located within
     the MTE. This section sets forth the relevant legal framework for
     this theory.

133. As a preliminary matter, we observe that regulating LECs in this
     manner could encourage competition in the exchange access market, a
     market in which LECs provide customers with a segment of interstate
     telephone service.[^316] We note that, to the extent a local
     carrier provides exchange access to originate or terminate
     interstate telecommunications, the services and the facilities used
     for that purpose fall within the Commission's jurisdiction under
     its mandate for regulating interstate communications.[^317]

134. It is well established that the Commission has broad authority to
     regulate the practices of LECs in connection with their provision
     of interstate communications services. In addition to the general
     authority specified in Title I of the Communications Act,[^318]
     Title II provides a specific, substantive framework for the
     Commission's regulation of such practices. Thus, Section 201(b)
     mandates that "\[a\]ll charges, practices, classifications, and
     regulations for and in connection with such \[interstate or
     foreign\] communication \[by wire or radio\] service, shall be just
     and reasonable," and then the section gives the Commission the
     power to "prescribe such rules and regulations as may be necessary
     in the public interest to carry out the provisions of the
     Act."[^319] Similarly, Section 202(a) declares that "\[i\]t shall
     be unlawful for any common carrier to make any unjust or
     unreasonable discrimination in charges, practices, classifications,
     regulations, facilities, or services for or in connection with like
     communications service, directly or indirectly, by any means or
     device." 47 U.S.C. § 202(a). Finally, Section 205(a) authorizes the
     Commission "to determine and prescribe . . . what . . . practice is
     or will be just, fair, and reasonable" where it is of the opinion
     that a common carrier practice "is or will be in violation of any
     of the provisions of this Act."[^320]

135. When a LEC provides service to an MTE on terms that place its
     competitors at an unfair competitive disadvantage, this practice --
     which serves to insulate the LEC from competitive pressures in a
     sizable portion of its market -- may not qualify as either just or
     reasonable.[^321] We note that, in a separate context, the
     Commission's International Settlements Policy (ISP) mandates that,
     pursuant to Section 201, all charges and practices of U.S.
     international carriers be just and reasonable, including a
     requirement that U.S. carriers receive non‑discriminatory treatment
     from dominant foreign carriers.[^322] The Commission has observed
     that the exchange access market is one of the "last monopoly
     bottleneck strongholds in telecommunications," and that opening it
     up to competition will "bring new packages of services, lower
     prices and increased innovation to American consumers."[^323]
     Without reasonable access to end users for new entrants, the
     benefits of competition (*e.g.*, more advanced services, reasonable
     prices, better service to consumers, greater range of choices of
     service) will not develop fully, thus undermining the express
     Congressional goal of creating for all Americans an efficient
     communication system that provides good service at reasonable
     prices.[^324] Under these circumstances, we believe that there is a
     strong case that the Commission has the requisite authority, under
     Section 205(a) of the Act, to promulgate a regulation that bars the
     practice that contributes to this result.[^325] We seek comment on
     the Commission's potential application of Section 205(a), as well
     as the other relevant provisions of Title II, to prohibit the LEC
     practices described above that could result in competitive market
     distortions. Of course, in making the ultimate determination
     whether to adopt such a policy in this context, the Commission must
     consider relevant constitutional and marketplace issues, as
     discussed elsewhere in this item.

136. We recognize that the regulation under discussion here would have
     an indirect effect on the behavior of the owners of MTEs. While we
     have asked questions in this proceeding about our statutory
     authority to regulate MTE owners directly,[^326] it does not appear
     that the same issues would arise from a direct carrier regulation
     that has indirect effects on the MTE owners. We note that
     significant precedent might support the Commission's authority to
     proceed in this manner, and we seek comment on the potential
     application of this precedent.

137. Most recently, the Commission addressed the effects of certain
     foreign telecommunications carrier practices, which were causing
     competitive distortions in the marketplace and thus adversely
     affecting the prices for communications services ultimately paid by
     U.S. citizens. The Commission, in its *International Settlement
     Rates Order*,[^327] placed certain requirements on U.S. carriers
     that had an indirect impact on the rates charged by foreign
     carriers. Specifically, the Commission established benchmark
     settlement rates that the domestic carriers were allowed to pay
     foreign carriers for termination of international traffic
     originating in the United States, and prohibited U.S. carriers from
     entering into any agreements with foreign carriers if the fees
     charged by the foreign carriers exceeded a benchmark level.

138. In affirming the Commission, the U.S. Court of Appeals for the
     District of Columbia Circuit rejected claims that the Commission
     had exceeded its authority because its action affected the foreign
     carriers:

> To be sure, the practical effect of the Order will be to reduce
> settlement rates charged by foreign carriers. But the Commission does
> not exceed its authority simply because a regulatory action has
> extraterritorial consequences. . . . Indeed, no canon of
> administrative law requires us to view the regulatory scope of agency
> actions in terms of their practical or even foreseeable effects.

*Cable & Wireless P.L.C. v. FCC*, 166 F.3d 1224, 1230 (D.C. Cir. 1999)
(citations omitted).

139. This approach is also consistent with earlier precedent, such as
     *Radio Television S.A. de C.V. v. FCC*, 130 F.3d 1078 (D.C.
     Cir. 1997) (upholding requirement that Mexican affiliate of U.S.
     broadcast network air issue-responsive programming in order for
     U.S. network to qualify for Section 325 permit to transmit signals
     to foreign station for rebroadcast into the United States), and
     Network Television Broadcasting, *Report and Order* in Docket No.
     12782, 23 FCC 2d 382 (1970) (creating indirect limits on television
     broadcast network control by regulating the licensed network
     affiliates), *affd sub nom.* *Mt. Mansfield Television, Inc. v.
     FCC*, 442 F. 2d 470 (2d Cir. 1971).

140. Moreover, in *Ambassador*, discussed at note 316 *supra*, the
     Supreme Court upheld the Commission's exercise of jurisdiction over
     surcharges imposed by hotels, apartment houses and clubs on end
     user guests and tenants for interstate and foreign telephone calls.
     The owners of these multiple tenant environments would typically
     use a private branch exchange (PBX) system, installed and owned by
     the telephone company, to route incoming and outgoing calls for
     guests, and to connect guests to points within the hotel or
     apartment. Although the hotel owners provided their guests with
     various services in connection with this system (*e.g.*,
     secretarial services such as message taking, message routing,
     message screening) and paid the telephone company monthly charges
     for the use of the system, the surcharges at issue in this case
     were calculated on a per call basis, varying in accordance with the
     toll charge made by the telephone company for the communications
     service.

141. The Commission had concluded that the hotel owners were serving as
     agents for the telephone companies and that these surcharges must
     therefore be reflected in tariffs filed by the telephone
     companies.[^328] The telephone companies then filed tariffs stating
     that service to the hotels and apartment houses was conditioned on
     those entities not imposing any such surcharges. The hotel and
     apartment house interests appealed, and the district court
     sustained the validity of the tariff without relying on the view
     that the hotels/apartment houses were agents of the telephone
     companies. (The court termed them subscribers.) The case was
     appealed directly to the Supreme Court, which affirmed. The Court
     held that the Commission's authority permits it to oversee the
     conditions placed by telephone companies on their subscribers,
     stating:

The Communications Act of 1934 recognizes that tariffs filed by
communications companies may contain regulations binding on subscribers
as to the permissible use of the rented communications facilities. The
supervisory power of the Commission is not limited to rates and to
services, but the formula oft repeated in the Act to describe the
Commission's range of power over the regulated companies is "charges,
practices, classifications, and regulations for and in connection with
such communication service." 48 Stat. 1070 U.S.C. § 201(b), 47 U.S.C.A.
§ 201(b). It is in all of these matters that the Act requires the filed
tariffs to be "just and reasonable" and declares that otherwise they are
unlawful. By none of these devices may the companies perpetrate an
unjust or unreasonable discrimination or preference. All of these must
be filed with the Commission in the form it prescribes, may not be
changed except after due notice, and must be observed in the conduct of
its business by the company. These provisions clearly authorize the
companies to promulgate rules binding on PBX subscribers as to the terms
upon which the use of the facilities may be extended to others not
themselves subscribers.

*Ambassador*, 325 U.S. at 323 (footnotes omitted).

142. According to the Court, the main limitation on the use of
     regulation to affect the behavior of hotel owners is that the
     "telephone companies may not, in the guise of regulating the
     communications service, also regulate the hotel or apartment house
     or any other business." *Id*. The mere fact, however, that a
     regulation affects the hotel's dealings with third parties does not
     invalidate the regulation:

> But where a part of the subscriber's business consists of retailing to
> patrons a service dependent on its own contract for utility service,
> the regulation will necessarily affect, to that extent, its third
> party relationships. Such a regulation is not invalid per se merely
> because, as to the communications service and its incidents, it places
> limitation upon the subscriber as to the terms upon which he may
> invite others to communicate through such facilities.

*Id*. at 323-24.[^329]

143. Similarly, the purpose behind the regulation under discussion here
     bears directly on communications services and is focused on the
     state of the communications market;[^330] the Commission would be
     prohibiting LECs from dealing with MTEs that discriminate among
     providers of telecommunications services in order to ensure that
     the interstate communications market becomes more competitive and
     that the rates charged and services provided to the public are just
     and reasonable. We seek comment on whether a LEC's provision of
     service to MTEs is sufficiently closely related to an MTE owner's
     unreasonable discrimination that we can and should exercise
     jurisdiction over the LEC's practice. We also note that Section 411
     of the Act grants us authority to include non-carriers as parties
     in enforcement proceedings.[^331] If we decide to adopt a
     nondiscriminatory access obligation, we also seek comment on the
     application of Section 411(a) regarding joinder of MTE owners as
     parties to any Commission action enforcing such a regulation.

#### Constitutional Issues

144. In the *Competitive Networks NPRM*, we raised a series of questions
     about the constitutionality under the Fifth Amendment of imposing a
     nondiscrimination requirement directly on the owners of MTEs.[^332]
     We similarly ask here for comment on the constitutionality of
     barring the LECs from dealing with MTE owners who maintain a
     discriminatory policy against competing carriers, and on ways to
     mitigate any constitutional problems that might exist.[^333] While
     we do not perceive that there are any takings issues with respect
     to the LECs (since the proposed regulation would not involve use or
     occupation of LEC property), we acknowledge that the regulation
     would almost certainly influence MTE owners to act in a manner
     similar to that which would be required by direct regulation. To
     the extent that a direct regulation would constitute a Fifth
     Amendment *per se* taking, there is some suggestion in the case law
     that an indirect regulation that leaves the third party no choice
     but to submit to the same basic result would also constitute an
     unconstitutional taking.[^334] In evaluating a rent control
     ordinance, however, the Supreme Court, in *Yee v. City of
     Escondido*, 503 U.S. 519 (1992), drew a distinction between a
     direct requirement that a landowner submit to the physical
     occupation of his land (which, if uncompensated, would work a *per
     se* taking in violation of the Fifth Amendment), and a rental
     requirement that, *inter alia*, barred a mobile park owner from
     disapproving of the transfer of a mobile home from one tenant to
     the next (provided the purchaser has the ability to pay the rent).
     The Court stated:

> At least on the face of the regulatory scheme, neither the city nor
> the state compels petitioners, once they have rented their property to
> tenants, to continue doing so. To the contrary, the Mobile Home
> Residency Law provides that a park owner who wishes to change the use
> of his land may evict his tenants, albeit with 6 or 12 months notice.
> . . . Put bluntly, no government has required any physical invasion of
> petitioners' property.

*Id*. at 527-28 (citation omitted).[^335]

145. We ask for comment on the effect of the foregoing case law on the
     potential regulation at issue here. In particular, we are
     interested in whether, in light of this case law, an obligation
     imposed on LECs in their dealings with property owners would effect
     a taking from property owners. As indicated above, however, even if
     such a regulation in unqualified form would present constitutional
     problems, there may be ways of modifying the regulation to mitigate
     these problems. In addition to the approaches specifically
     mentioned in paragraph 60 of the *Competitive Networks NPRM*, we
     also ask whether the constitutional concerns would be answered
     completely if the Commission provided a judicially reviewable
     mechanism for ensuring that the property owners received "just
     compensation" commensurate with what the Fifth Amendment might
     require in takings situations. In *Gulf Power I*, the court
     rejected a facial challenge to the constitutionality of Section
     224(f) of the Communications Act, ruling that this provision,
     although working a taking, passed constitutional muster because the
     statute itself provided for the possibility of just compensation to
     the plaintiff utilities. Section 224(f) is a mandatory access
     provision, which states that "\[a\] utility shall provide a cable
     television system or any telecommunications carrier with
     nondiscriminatory access to any pole, duct, conduit, or
     right-of-way owned or controlled by it." 47 U.S.C. § 224(f)(1).
     Under the statutory scheme, the Commission has the authority to
     review the rates and terms of pole attachments agreements between
     utilities and cable systems or telecommunications carriers
     (provided such matters are not regulated by a state) under certain
     guidelines provided for in the statute. The Commission's
     determinations in these regards are, of course, judicially
     reviewable.

146. The court in *Gulf Power I* upheld this basic approach, ruling that
     it was not facially unconstitutional under the Fifth Amendment
     "because, at least in most cases, it ensures a utility does not
     suffer that taking without obtaining just compensation." *Id*.
     at 1338. In so ruling, the court made it clear that an agency could
     determine the amount of compensation in the first instance, so long
     as that determination was judicially reviewable on constitutional
     grounds:

> \[T\]he Supreme Court has stated that "all that is required is that a
> reasonable, certain, and adequate provision for obtaining compensation
> exist\[s\] at the time of the taking. If the government has provided
> an adequate process for obtaining compensation, and if resort to that
> process yields just compensation, then the property owner has no claim
> against the Government for a taking." Williamson County Regional
> Planning Commission v. Hamilton Bank, 473 U.S. at 194-95, 105 S.Ct. at
> 3120-21 (citation and quotation omitted). While a process in which the
> judicial branch does not make the final determination of what
> constitutes just compensation may be constitutionally inadequate, we
> see no constitutional problem with a process that employs an
> administrative body, such as the FCC, to determine just compensation
> in the first instance. Indeed, use of an administrative body with some
> technical expertise over the subject matter of the property to be
> valued likely will aid the judiciary in arriving at a more reliable
> determination of the proper level of just compensation. So long as an
> administrative body's decision concerning the level of compensation
> owed for a taking remains subject to judicial review to ensure just
> compensation, use of an administrative body can be a valid part of
> "provid\[ing\] an adequate process for obtaining compensation." *Id*.

*Gulf Power I*, 187 F.3d at 1333.

147. Given the analysis above, we request comment on whether the
     constitutional concerns regarding a nondiscrimination requirement
     (either indirect or direct) would be resolved if the Commission
     were to specify that an MTE policy is not discriminatory merely
     because it requires a competing carrier to pay "just compensation"
     to the building owner for access, and if the Commission's review of
     the policy were subject to judicial review. Similarly, we ask
     whether a similar compensation mechanism would resolve questions
     over the constitutionality of a direct regulation on the owners of
     MTEs.

148. We recognize that the regulatory framework before the court in
     *Gulf Power I* was based on a statute that specified a compensation
     mechanism, unlike the compensation approach under discussion here.
     While the absence of a statutorily mandated compensation mechanism
     led the court in *Bell Atlantic Telephone Companies v. FCC*, 24
     F.3d 1441 (D.C. Cir. 1994), to invalidate Commission orders
     requiring LECs to permit competitive access providers ("CAPs") to
     connect their facilities to the LEC network through physical
     collocation (at a rate set by tariff), the critical problem for the
     *Bell Atlantic* court was not the failure of the statute to specify
     a compensation mechanism *per se*, but that the ultimate surety for
     providing just compensation rested on Tucker Act claims that
     Congress had not specifically authorized.

149. To elaborate, in *Bell Atlantic*, the court was evaluating the
     Commission's implementation of Section 201(a) of the Communications
     Act, which creates a common carrier duty "to establish physical
     connections with other carriers" if the Commission "finds such
     action necessary or desirable in the public interest." 47 U.S.C. §
     201(a). Construing this provision, the Commission recognized a
     right on the part of competing carriers to physically co-locate
     equipment on the incumbent carrier's property. The court observed
     that the Commission's rules allowed the LECs to file new tariffs
     under which they would obtain compensation from their competitors
     for the "reasonable costs" of co-location, but not necessarily for
     the level of compensation required by the Fifth Amendment (*i.e.*,
     "just compensation"). Thus, if the compensation required by the
     tariff were lower than the Fifth Amendment "just compensation," the
     LEC would not be entitled under any Commission rule to recover the
     difference from the competitor. Instead, the government would face
     liability: "But in fact the LECs would still have a Tucker Act
     remedy for any difference between the tariffs set by the Commission
     and the level of compensation mandated by the Fifth Amendment."
     *Bell Atlantic*, 24 F.3d at 1445 n.3. It was this concern over the
     exposure of the Treasury "to liability both massive and
     unforeseen," *id*. at 1445, that led the court to voice concerns
     that the agency's interpretation of the statute would encroach on
     Congress's exclusive powers to raise revenue and appropriate funds,
     which, in turn, led to the court's narrowing construction of the
     statute under the avoidance canon.[^336]

150. In contrast, an approach toward MTE owners that specifically
     provides for the level of compensation mandated by the Fifth
     Amendment would appear to avoid these concerns; the government
     would have no liability for Tucker Act claims since the regulation
     would be structured to entitle the MTE owner to "just compensation"
     under a nondiscrimination policy, and the regime would not
     constitute a revenue raising scheme since the competing provider
     would, on a voluntary basis, pay no more than the value of the
     access it has received. With the courts having the final say in
     assessing what constitutes the constitutionally required level of
     compensation, there should be no "identifiable class of cases in
     which application of \[the\] statute will necessarily constitute a
     taking," *id*., and therefore no basis for applying the policy of
     avoidance. We seek comment on this analysis.

### Potential Scope of Application

151. As discussed above, if our concerns regarding the ability of
     premises owners to discriminate unreasonably among competing
     telecommunications service providers are not adequately resolved
     without regulatory intervention, we are prepared to consider
     adopting a nondiscriminatory access rule, in the form either of a
     direct regulation of property owners[^337] or of a regulation of
     common carrier practices. To that end, we examine and seek further
     comment below on the potential scope of such an obligation.

152. We acknowledge that there may be some entities for which the
     burdens arising out of a nondiscriminatory access rule would
     outweigh the benefits to competition and customer choice.[^338]
     There also may be situations that the Commission should exempt from
     a nondiscriminatory access rule for other reasons. For example,
     should any Commission regulations differentiate between commercial
     and residential buildings? That is, if we were to adopt a
     nondiscriminatory access rule, should we exempt residential
     buildings from whatever regulation we ultimately impose for the
     same reasons, discussed *infra* Section V.B., that we may
     distinguish between commercial and residential premises in the
     context of exclusive contracts? In addition, should a
     nondiscriminatory access provision be triggered only if a building
     meets some threshold number of square feet, number of tenants, or
     gross rental revenue? The states that have promulgated
     nondiscriminatory access requirements often exempt multitenant
     buildings that have fewer than some minimum threshold of
     units.[^339] Also, should we exempt buildings that are owned by
     state or local governments? For example, is a nondiscriminatory
     access rule appropriate in either public housing or at municipal
     airports, in which a local government often leases space to various
     commercial retail establishments? Should we exempt federal
     buildings?[^340] We seek comment on these issues.

153. For some buildings, other factors may be present that would warrant
     exempting a particular building or tenancy from a nondiscriminatory
     access rule. For example, the state of Massachusetts exempts "all
     tenancies of 12 months or less in duration and transient
     facilities, such as hotels, rooming houses, nursing homes and
     \[facilities\] serviced by payphones."[^341] We also note that the
     state of Texas has exempted "institutions of higher education" from
     its requirements, and, thus, college dorms appear to be beyond the
     scope of Texas' nondiscrimination requirement. In addition,
     representatives of federal, state, and local governments argue that
     buildings which they own or control should not be subject to any
     nondiscriminatory access requirements.[^342] We seek comment on
     what circumstances would warrant exempting a building from a
     nondiscriminatory access requirement, including whether we should
     adopt exemptions similar to those described above.

154. In addition, as we noted earlier, since the *Competitive Networks*
     *NPRM* was adopted, a new type of local telecommunications provider
     has emerged. These carriers, which are often referred to as
     "building LECs" or "BLECs,"[^343] typically own telecommunications
     facilities only within MTEs. A building LEC provides
     telecommunications services to tenants by interconnecting with
     another LEC that has facilities outside the building. The nature of
     the relationship between the building owner and the building LEC is
     often different, however, from the typical competitive LEC/building
     owner relationship in that the building LEC agrees to give the
     building owner equity, or has agreed to share a percentage of the
     telecommunications revenues received in a particular building or
     group of buildings, in exchange for building access. Indeed, in
     some instances, consortiums of real estate firms have been the
     founding members of building LECs.[^344]

155. Building LECs may promote the goals of the 1996 Act by bringing
     competition and advanced services to MTEs that otherwise might not
     see competitive providers for quite some time. At the same time, we
     are concerned that these building LEC relationships may create
     incentives for unreasonable discrimination by building owners and
     thus undermine competition in MTEs.[^345] We therefore seek to
     create a record on these new developments in order to determine
     their effect on the market and what, if any, particularized
     regulation of building owners in these contexts may be appropriate.
     Specifically, we seek comment on: (1) the types of services offered
     by building LECs; (2) the nature and scope of the relationships
     between building owners or real estate investment trusts and the
     competitive LECs in which they maintain a financial interest;
     and (3) whether and how these agreements affect competition for
     local telecommunications services.

### Potential Implementation Issues

156. If we were to adopt a nondiscriminatory access rule, a number of
     implementation issues would arise. We seek to develop a fuller
     record on these issues. Specifically, we seek comment regarding how
     the Commission would define nondiscriminatory access for all
     providers given the significant variations in the type and extent
     of access required by each provider. For example, wireless
     technologies require access to the roof or other location suitable
     for placing an antenna, whereas wireline technologies typically
     enter the building at or below ground and interconnect to the
     building wiring at a basement or ground floor equipment closet. The
     access required may also vary depending on the type of services
     required by a particular end user. In addition, we seek comment on
     how a nondiscriminatory access rule could be tailored to address
     the ramifications of requests for different types of access on
     building management. In particular, we are interested in comments
     addressing the issues of accommodating building space limitations
     and ensuring building safety and security.

157. If the Commission were to adopt a nondiscriminatory access rule, we
     seek comment on whether such an obligation should be triggered only
     if a tenant requests a particular carrier. Although we sought
     comment on this issue in the *Competitive Networks* *NPRM*,[^346]
     our current record is insufficient on this issue. We note again
     that the nondiscriminatory access regulations in states of Texas
     and Connecticut contain such provisions.[^347] In addition, if we
     adopt a rule that is triggered by a tenant request, we seek comment
     on how we would ascertain whether any particular request is a bona
     fide request for service, and not merely a sham arrangement to get
     a particular provider into an MTE.

158. We further seek comment on how any nondiscriminatory access rule
     should be enforced. For example, commenters should consider whether
     aggrieved parties should invoke the Commission's general procedures
     for complaints against common carriers,[^348] or whether we should
     implement some special complaint procedure.[^349] Parties should
     also consider the advisability of alternative dispute resolution
     procedures, as well as whether the states should have a role in the
     enforcement process. We particularly invite comment regarding the
     burdens that any enforcement scheme would impose on
     telecommunications carriers, property owners, consumers, and the
     Commission, as well as suggestions for reducing those burdens. In
     addressing enforcement issues, parties should consider the effects
     both of direct regulation of property owners and of regulation of
     carriers.

159. Finally, we seek comment on any other actions we should take to
     ensure that customers in MTEs will have access to the
     telecommunications service provider of their choice.

## Exclusive Contracts

160. In this section, we request comment on whether today's prohibition
     on exclusive access contracts in commercial MTEs should be extended
     to residential MTEs, and on whether we should prohibit carriers
     from enforcing exclusive access provisions in existing contracts in
     either commercial or residential MTEs.

### Residential Exclusive Contracts

161. We request comment on whether we should extend today's prohibition
     on exclusive access contracts in commercial buildings to
     residential buildings. We note the Real Access Alliance's argument
     that exclusive contracts should not be prohibited in residential
     MTEs because, in these settings, landlords need to offer LECs
     exclusive contracts to ensure high-quality, inexpensive
     telecommunications service for their tenants.[^350] On the other
     hand, commenters that advocate prohibiting exclusive contracts
     generally do not distinguish between commercial and residential
     markets.[^351] However, we note that there may be significant
     differences between residential and commercial buildings and the
     impact exclusive contracts may have on each.

162. We recognize that both residential and commercial tenants have
     limited recourse in addressing the lack of telecommunications
     choices offered in buildings serviced under exclusive contracts.
     Typically, the only recourse for the tenant is to accept the lack
     of choice or move. Although residential and commercial tenants
     lease space in a generally competitive market, both types of
     tenants are limited in their ability to move immediately by
     contractual leasing terms. Commercial tenants, whose lease terms
     tend to run 5 to 15 years, can be especially affected as opposed to
     residential tenants, whose lease terms are much shorter, typically
     1-year and month-to-month.[^352] Residential tenants also differ
     from commercial tenants in that commercial tenants face significant
     disincentives in the form of relocation costs when measured
     relative to the benefits they may forgo under an exclusive provider
     arrangement. Commercial tenants may have recourse in principle, but
     because of their long lease terms and other impediments they may
     face stronger incentives not to pursue their relocation options, as
     compared with residential tenants. For these reasons, we
     distinguished commercial and residential buildings and we decided
     at present to prohibit exclusive contracts only in the commercial
     context. However, given the paucity of record evidence and in light
     of our experience with the use of video programming exclusive
     contracts in residential MTEs, we request further comment on
     whether we should continue to allow telecommunications providers to
     enter into exclusive contracts with owners of residential MTEs.

### Exclusive Access Provisions in Existing Contracts 

163. We seek comment on whether we should prohibit carriers from
     enforcing exclusive access provisions in existing contracts in
     either commercial or residential MTEs. AT&T has argued that for
     local competition to thrive among telecommunications carriers in
     commercial MTEs, building owners must be permitted to terminate
     their existing exclusive contracts and seek new relationships with
     competing carriers.[^353] Moreover, AT&T argues that the Commission
     has authority to void exclusive contracts that are currently in
     effect.[^354]

164. We recognize that the Commission has previously exercised its
     authority to modify provisions of private contracts when necessary
     to serve the public interest.[^355] As the Commission explained in
     our *Expanded Interconnection Order*, the benefit of this approach
     is that it allows "an incumbent provider's established customers to
     consider taking service from a new entrant."[^356] We recognize,
     though, that the modification of existing exclusive contracts by
     the Commission would have a significant effect on the investment
     interests of those building owners and carriers that have entered
     into such contracts. Thus, we are inclined to proceed cautiously in
     this area. We seek comment on whether prohibiting carriers from
     enforcing access provisions in existing contracts in either
     commercial or residential MTEs is necessary to ensure that
     customers obtain the benefits of the more competitive access
     environment envisioned in the 1996 Act. We also seek comment on
     whether, in lieu of an immediate prohibition on the enforcement of
     exclusive access provisions in existing contracts, we should phase
     out such provisions by establishing a future termination date for
     these provisions. We seek comment on what termination date should
     be adopted if the Commission were to take such action.

## Preferential Marketing Agreements and Other Preferential Arrangements

165. As noted above, several commenters briefly address various
     preferential building owner/LEC relationships, such as exclusive
     marketing arrangements or bonuses given by landlords to tenants who
     subscribe to the services of particular competitive LECs.
     Generally, competitive LECs argue that, like exclusive contracts,
     such preferential arrangements should not be permitted.[^357] Qwest
     notes, in particular, that "\[a\]n arrangement that is not
     technically 'exclusive' may in fact have the practical effect of
     being exclusive, if the building owner refuses to make the same
     arrangement available to other carriers."[^358] In contrast, other
     commenters argue that preferential arrangements are often
     beneficial.[^359] For example, SBC asserts that, in exchange for
     exclusive marketing and advertising services, LECs may offer
     consideration, "such as the payment of commissions to . . .
     property owners and discounted or packaged services for their
     tenants,"[^360] and that the resulting packages can be beneficial
     to both building owners and tenants. Optel echoes SBC's view and
     urges that any Commission action prohibiting exclusive marketing
     agreements "may undermine concessions given to MDU residents
     (*e.g.*, lower rates) in exchange for marketing services at the
     MDU."[^361] Optel also asserts that these arrangements are not
     anticompetitive, particularly when they involve carriers that lack
     market power.[^362]

166. Notably, several states have promulgated rules either requiring
     that the terms of any preferential arrangement be disclosed to
     tenants or prohibiting preferential arrangements altogether.[^363]
     In particular, the Massachusetts Department of Telecommunications
     and Energy has noted that marketing agreements, which it defines as
     contracts in which a building owner "receives compensation from a
     service provider for allowing it to market its services to tenants
     or receive compensation for each new tenant that becomes a customer
     of the service provider" have the "potential to encourage
     discriminatory behavior."[^364] As a result, in that state, the
     existence and terms of any marketing agreements must be disclosed
     to tenants. Also, in Connecticut, contracts for building access
     between telecommunications providers and building owners cannot
     include "\[a\]ny term that discriminates in favor of any one
     telecommunications service provider with respect to the provision
     of access or compensation requested."[^365]

167. As a preliminary matter, we note that preferential arrangements
     often arise in contexts in which a building owner has a financial
     interest in a telecommunications carrier. For example, it is our
     understanding that building LECs often enter into exclusive
     marketing or other preferential arrangements with their building
     owner investors. Preferential arrangements are not, however,
     necessarily limited to this context.[^366] We seek comment on the
     types of preferential arrangements that exist and the contexts in
     which they occur.

168. To the extent any arrangement effectively restricts a premises
     owner from providing access to other telecommunications service
     providers, it is prohibited under the rules we adopt today. However
     because building LECs have only recently emerged as local
     telecommunications service providers, and because we have received
     few comments on this issue in general, we have decided not to
     address preferential arrangements generally in the Report and
     Order. Instead, we seek further comment on whether, and to what
     extent, the Commission should regulate preferential arrangements.
     Specifically, we seek comment on the market effects of such
     arrangements and whether these effects vary with the type of market
     (*e.g.*, residential vs. commercial). Are they beneficial to
     consumers because they provide additional incentives for
     competitive telecommunications carriers to serve multiunit
     buildings that would otherwise not be economically desirable? Or,
     do they effectively restrict other carriers from providing
     additional competitive alternatives? Finally, we seek comment on
     whether preferences should be viewed differently in the context of
     an equity or revenue sharing relationship between a building owner
     and a LEC than in other situations.

## Definition of Right-of-Way in MTEs

169. In the Report and Order above, we conclude that, for purposes of
     Section 224, a "right-of-way" in a building includes, at a minimum,
     a defined pathway that a utility either is actually using or has
     specifically identified and obtained the right to use in connection
     with its transmission and distribution network.[^367] Some
     commenters, however, advocate a broader interpretation of the term.
     In particular, several commenters suggest that where a utility has
     a right to install facilities anywhere in an MTE, it has a
     right-of-way over the entire property, which can then be accessed
     by any party included as a beneficiary under Section 224.[^368]

170. We seek additional comment regarding the extent of utility
     rights-of-way within MTE buildings under Section 224. On the one
     hand, we recognize that a broad ability by competitive carriers to
     access areas within MTEs would arguably speed the arrival of
     telecommunications choices and advanced services to consumers. On
     the other hand, we are concerned about the ramifications of
     potentially granting carriers an unbounded right to place
     facilities anywhere within buildings. First, as a matter of
     statutory construction, we note that the terms "pole," "duct," and
     "conduit" refer to defined spaces occupied by a utility as part of
     its network. We thus seek comment on whether "right-of-way" should
     also be read to denote only a similar type of defined space.[^369]
     Parties advocating a broader definition should also address how, in
     the absence of a defined pathway, we would comply with the
     statutory directive to determine just and reasonable rates by means
     of an allocation of space.[^370] We further seek comment on
     whether, in the absence of a mechanism for compensating underlying
     property owners, a broad definition of rights-of-way would effect
     an uncompensated taking in violation of the Fifth Amendment.[^371]
     We also request comment regarding the circumstances, if any, under
     which a utility might "own or control" a right-of-way in the
     absence of a defined space, as required to create a right of access
     under Section 224.[^372] Finally, commenters should address whether
     an expansive definition of "right-of-way" would compromise the
     operation of our rules governing the disposition of cable inside
     wire by broadly permitting cable incumbents to remain in an MDU
     against the wishes of the property owner.[^373]

## Extension of Cable Inside Wiring Rules.

171. In the *Competitive Networks* *NPRM*, we sought comment on "whether
     our rules governing access to cable inside wiring for MVPDs
     \[multichannel video program distributors\] should be extended so
     as to afford similar access to providers of telecommunications
     services."[^374] Although a number of commenters addressed
     extending the application of the cable inside wiring rules to
     include telecommunications carriers,[^375] we find that the record
     on this issue should be developed further. Accordingly, we seek
     additional comment.

172. Section 76.804(a) of the Commission's rules, enacted in 1997, sets
     forth the procedures for disposition of "home run wiring" owned by
     an MVPD in a multiple dwelling unit (MDU) when the MVPD "does not
     (or will not at the conclusion of the notice period) have a legally
     enforceable right to remain on the premises against the wishes of
     the MDU owner . . . ." [^376] Several definitions are fundamental
     to understanding the application of the home run wiring rules.
     First, an MVPD includes "a person such as, but not limited to, a
     cable operator, a multichannel multipoint distribution service, a
     direct broadcast satellite service, or a television receive-only
     satellite program distributor, who makes available for purchase, by
     subscribers or customers, multiple channels of video programming .
     . . ."[^377] Second, MDUs include residential buildings such as
     apartment buildings, condominiums and cooperatives,[^378] but do
     not include commercial office buildings. Third, home run wiring is
     "\[t\]he wiring from the \[MVPD\] demarcation point to the point at
     which the MVPD's wiring becomes devoted to an individual subscriber
     or individual loop."[^379] By contrast, cable home wiring is
     "\[t\]he internal wiring contained within the premises of a
     subscriber which begins at the demarcation point."[^380]

173. The Commission's home run wiring rules provide that when an MVPD no
     longer has a legal right to remain on the premises of an MDU,[^381]
     the MDU owner (or another MVPD at the MDU owner's discretion) may
     negotiate to purchase the home run wiring if it is not removed by
     the incumbent MVPD.[^382] If the parties cannot agree on a price,
     then the incumbent MVPD "must elect: to abandon without disabling
     the wiring; to remove the wiring and restore the MDU consistent
     with state law; or to submit the price determination to binding
     arbitration by an independent expert."[^383] In the *Competitive
     Networks NPRM*, we noted that "\[c\]ommenters in other proceedings
     have argued that this rule offers benefits to providers of video
     services that are not currently available to telecommunications
     providers, and that this distinction not only is arbitrary but
     creates uneconomic incentives for providers to incorporate video
     services into their offerings simply to take advantage of the more
     favorable rules."[^384]

174. Based upon our review of the comments on this issue in the record,
     it appears that our proposal to extend application of the home run
     wiring rules to include telecommunications carriers may not have
     been entirely clear, and therefore may have been misinterpreted by
     parties commenting on the issue. We did not intend to solicit
     comment on application of new rules to "telephone home run wiring"
     as one party suggested in response to the *Competitive Networks
     NPRM*.[^385] Rather, we intended to seek comment, and do so here,
     on whether our home run wiring rules should be amended to permit an
     MDU owner to designate a telecommunications carrier to negotiate to
     purchase cable home run wiring. The right to appoint a
     telecommunications carrier to conduct such negotiations would be in
     addition to the MDU owner's prerogative to designate an MVPD to
     conduct such negotiations. We also clarify that we are not seeking
     comment on whether Section 76.802 of the cable inside wiring rules,
     regarding the disposition of "cable home wiring" within an
     individual subscriber's unit, should be amended. Section 76.802
     already enables the subscriber to purchase cable home wiring from
     the departing MVPD and, thus, the subscriber could use this wiring
     for telecommunications service.[^386]

175. We note our agreement with CAI that extending the cable home run
     wiring rules to include telecommunications carriers would result in
     "\[a\]dditional . . . home run wiring be\[ing\] made available for
     use by alternative providers \[thereby\] promoting
     competition."[^387] We encourage parties to comment on the
     technical and policy implications of extending the cable home run
     wiring rule as proposed above. Parties should address whether there
     are any technical impediments to using coaxial cable home run
     wiring to provide telecommunications service. Parties should also
     address the potential impact on the provision of video service to
     MDUs if we extend the home run wiring rules to allow MDU owners to
     designate telecommunications carriers to acquire the wiring.

# Conclusion

176. The actions that we take today reflect both the progress that is
     being made toward competitive telecommunications access to MTEs and
     the obstacles that remain to ubiquitous consumer choice. As we have
     recognized, consumer choice among telecommunications providers and
     service offerings in MTEs is vital to the achievement of the
     procompetitive and deregulatory goals of the 1996 Act. On the one
     hand, the record shows that meaningful progress toward competition
     is taking place, and real estate industry leaders are actively
     working on voluntary measures that have the potential further to
     promote consumer choice. At the same time, the record shows a
     significant number of instances in which incumbent LECs and
     premises owners continue to obstruct competitive access. Taking
     these considerations together, we therefore undertake targeted
     actions to ameliorate many of the specific existing obstacles to
     competitive access to MTEs, while refraining at this time from any
     comprehensive regulation of the access marketplace. In addition, we
     seek further comment on the current state of the market and on
     potential further actions that may become necessary. We intend to
     actively monitor developments, including the real estate industry's
     progress on its commitment to develop model contracts and best
     practices, and we will consider taking additional action if the
     current impediments to consumer choice are not swiftly ameliorated.
     In this way, we believe that we best promote the public interest in
     achieving ubiquitous availability to consumers of competitive,
     diverse, and advanced telecommunications service offerings.

# Procedural matters

177. [Regulatory Flexibility Act Analysis]{.underline}. As required by
     Section 603 of the Regulatory Flexibility Act (RFA), 5 U.S.C. § 603
     an Initial Regulatory Flexibility Analysis (IRFA) was incorporated
     In the *Competitive Networks NPRM* in this proceeding.[^388] The
     Commission sought written public comments on the proposals set
     forth in the *NPRM*, including the IRFA. Appendix C of this *First
     Report and Order* *and Further Notice of Proposed Rulemaking, Fifth
     Report and Order and Memorandum Opinion and Order, and Fourth
     Report and Order and Memorandum Opinion and Order* contains the
     Commission's Final Regulatory Flexibility Analysis (FRFA) in
     compliance with the RFA, as amended by the Contract with America
     Advancement Act of 1996 (CWAAA), Pub. L. No. 104-121, 110 Stat. 847
     (1996). Appendix D of this *First Report and Order* *and Further
     Notice of Proposed Rulemaking, Fifth Report and Order and
     Memorandum Opinion and Order, and Fourth Report and Order and
     Memorandum Opinion and Order* contains the Commission's Initial
     Regulatory Flexibility Analysis (IRFA) regarding issues for further
     comment, in compliance with the RFA, as amended by the CWAAA).

178. [Paperwork Reduction Act Analysis]{.underline}. This First Report
     and Order and Further Notice of Proposed Rulemaking, Fifth Report
     and Order and Memorandum Opinion and Order, and Fourth Report and
     Order and Memorandum Opinion and Order contains information
     collections, as described in Section D of the Final Regulatory
     Flexibility Analysis in Appendix C infra. As part of our continuing
     effort to reduce paperwork burdens, we invite the general public
     and the Office of Management and Budget (OMB) to take this
     opportunity to comment on the information collections contained in
     this First Report and Order and Further Notice of Proposed
     Rulemaking, Fifth Report and Order and Memorandum Opinion and
     Order, and Fourth Report and Order and Memorandum Opinion and
     Order, as required by the Paperwork Reduction Act of 1995, Public
     Law 104-13. Public and agency comments are due at the same time as
     other comments on this First Report and Order and Further Notice of
     Proposed Rulemaking, Fifth Report and Order and Memorandum Opinion
     and Order, and Fourth Report and Order and Memorandum Opinion and
     Order; OMB comments are due 60 days from date of publication of
     this First Report and Order and Further Notice of Proposed
     Rulemaking, Fifth Report and Order and Memorandum Opinion and
     Order, and Fourth Report and Order and Memorandum Opinion and Order
     in the Federal Register. Comments should address: (a) whether the
     collection of information is necessary for the proper performance
     of the functions of the Commission, including whether the
     information shall have practical utility; (b) the accuracy of the
     Commission\'s burden estimates; (c) ways to enhance the quality,
     utility, and clarity of the information collected; and (d) ways to
     minimize the burden of the collection of information on the
     respondents, including the use of automated collection techniques
     or other forms of information technology.

179. [Ex Parte Rules]{.underline}. This First Report and Order and
     Further Notice of Proposed Rulemaking, Fifth Report and Order and
     Memorandum Opinion and Order, and Fourth Report and Order and
     Memorandum Opinion and Order constitute a \"permit-but-disclose\"
     proceeding in accordance with the Commission\'s ex parte
     rules.[^389] Persons making oral ex parte presentations relating to
     the First Report and Order and Further Notice of Proposed
     Rulemaking, Fifth Report and Order and Memorandum Opinion and
     Order, and Fourth Report and Order and Memorandum Opinion and Order
     are reminded that memoranda summarizing the presentations must
     contain summaries of the substance of the presentations and not
     merely a listing of the subjects discussed. More than a one or two
     sentence description of the views and arguments presented is
     generally required.[^390] Other rules pertaining to oral and
     written presentations are set forth in Section 1.1206(b) as well.
     Interested parties are to file with the Secretary, FCC, and serve
     International Transcription Services (ITS) with copies of any
     written ex parte presentations or summaries of oral ex parte
     presentations in these proceedings in the manner specified below
     for filing comments.

180. [Filing Procedures]{.underline}. Pursuant to Sections 1.415 and
     1.419 of the Commission's rules, 47 C.F.R. §§ 1.415 and 1.419,
     interested parties may file comments on or before December 22,
     2000, and reply comments on or before January 22, 2001. Comments
     may be filed using the Commission's Electronic Comment Filing
     System (ECFS) or by filing paper copies. *See Electronic Filing of
     Documents in Rulemaking Proceedings*, 63 Fed. Reg. 24,121 (1998).

181. Comments filed through the ECFS can be sent as an electronic file
     via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally,
     only one copy of an electronic submission must be filed. In
     completing the transmittal screen, commenters should include their
     full name, Postal Service mailing address, and the applicable
     docket or rulemaking number. Parties may also submit an electronic
     comment by Internet e-mail. To get filing instructions for e-mail
     comments, commenters should send an e-mail to ecfs@fcc.gov, and
     should include the following words in the body of the message, "get
     form \<your e-mail address\>." A sample form and directions will be
     sent in reply. Parties who choose to file by paper must file an
     original and four copies of each filing. All filings must be sent
     to the Commission's Secretary, Magalie Roman Salas, Office of the
     Secretary, Federal Communications Commission, 445 Twelfth Street,
     S.W., TW-A325, Washington, D.C. 20554.

182. Regardless of whether parties choose to file electronically or by
     paper, parties should also file one copy of any documents filed in
     this docket with the Commission's copy contractor, International
     Transcription Services, Inc., 445 Twelfth Street, S.W., Room
     CY-B402, Washington, D.C. 20554. Comments and reply comments will
     be available for public inspection during regular business hours in
     the FCC Reference Center, 445 12th Street, S.W., Washington, D.C.
     20554.

183. Comments and reply comments must include a short and concise
     summary of the substantive arguments raised in the pleading.
     Comments and reply comments must also comply with Section 1.49, 47
     C.F.R. § 1.49, and all other applicable sections of the
     Commission's Rules. We also direct all interested parties to
     include the name of the filing party and the date of the filing on
     each page of their comments and reply comments. All parties are
     encouraged to utilize a table of contents, regardless of the length
     of their submission.

184. Written comments by the public on the information collections are
     due on or before December 22, 2000. Written comments by the Office
     of Management and Budget (OMB) on the proposed and/or modified
     information collections must be submitted on or before 60 days
     after date of publication in the Federal Register. In addition to
     filing comments with the Secretary, a copy of any comments on the
     information collections contained herein should be submitted to
     Judy Boley, Federal Communications Commission, Room 1-C804, 445
     12th Street, SW, Washington, DC 20554, or via the Internet to
     jboley@fcc.gov and to Edward Springer, OMB Desk Officer, Room 10236
     NEOB, 725 17th Street, N.W., Washington, DC 20503 or via the
     Internet to <edward.springer@omb.eop.gov>.

185. [Further Information]{.underline}. For further information about
     this proceeding, contact Joel Taubenblatt at 202-418-1513,
     <jtaubenb@fcc.gov>, or Lauren Van Wazer at 202-418-0030,
     <lvanwaze@fcc.gov>.

# Ordering clauses

186. Accordingly, IT IS ORDERED, pursuant to Sections 1, 2(a), 4(j),
     4(i), 7, 201, 202, 205, 221, 224, 251, 303, and 405 of the
     Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 152(a),
     154(i), 154(j), 157, 201, 202, 205, 221, 224, 251, 303, and 405,
     that the amendments to the Commission's rules set forth in Appendix
     B are ADOPTED.

187. IT IS FURTHER ORDERED that new Sections 64.2300, 64.2301, and
     64.2302 of the Commission's rules, 47 C.F.R. §§ 64.2300, 64.2301,
     and 64.2302, set forth in Appendix B, and the revisions to Section
     1.4000 of the Commission's rules, 47 C.F.R. § 1.4000, set forth in
     Appendix B, SHALL BECOME EFFECTIVE 60 days after publication in the
     Federal Register.

188. IT IS FURTHER ORDERED that the revisions to Section 68.3 of the
     Commission's rules, 47 C.F.R. § 68.3, set forth in Appendix B,
     SHALL BECOME EFFECTIVE 120 days after publication in the Federal
     Register, pending OMB approval.

189. IT IS FURTHER ORDERED that the motions to submit Further Reply
     Comments filed by Concerned Communities and Organizations and the
     Wireless Communications Association International ARE GRANTED.

190. IT IS FURTHER ORDERED that the Petition for Clarification and
     Reconsideration of the *1997 Demarcation Point Order* filed by Bell
     Atlantic IS GRANTED, as discussed in Section IV.C.

191. IT IS FURTHER ORDERED that the Petition for Clarification and
     Reconsideration of the *1997 Demarcation Point Order* filed by
     BellSouth IS DENIED, as discussed in Section IV.C.

192. IT IS FURTHER ORDERED that the Petition for Reconsideration of the
     *Local Competition First Report and Order* filed by WinStar IS
     GRANTED to the extent discussed in Section IV.D and otherwise IS
     DENIED.

193. IT IS FURTHER ORDERED that the Petition for Environmental Impact
     Statement filed by the National League of Cities, the National
     Association of Counties, the Michigan Municipal League, and the
     Texas Coalition of Cities for Utility Issues IS DENIED as discussed
     in Section IV.E, except to the extent that the Petition concerns
     issues raised in the Notice of Inquiry portion of the *Competitive
     Networks NPRM*, which will be addressed separately at a later time.

194. IT IS FURTHER ORDERED that the Commission's Consumer Information
     Bureau, Reference Information Center, SHALL SEND a copy of this
     *First Report and Order* *and Further Notice of Proposed
     Rulemaking, Fifth Report and* Order *and Memorandum Opinion and
     Order, and Fourth Report and Order and Memorandum Opinion and
     Order*, including the Final Regulatory Flexibility Analysis and the
     Initial Regulatory Flexibility Analysis, to the Chief Counsel for
     Advocacy of the Small Business Administration in accordance with
     Sections 603(a) and 604(b) of the Regulatory Flexibility Act,
     Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C.A. §§ 603(a), 604(b).

> FEDERAL COMMUNICATIONS COMMISSION
>
> Magalie Roman Salas
>
> Secretary

**APPENDIX A**

**List of Commenters**

  ---------------------------------------------------- ------------------
                                                       

  **Comments**                                         **Receipt**

                                                       **Date**

                                                       

  411 Co., Ltd                                         08/27/99

  Acadiana Apartment Assn.                             08/09/99

  ACUTA (Education Parties)                            08/27/99

  Ada Township                                         08/04/99

  Adelphia Business Solutions                          08/27/99

  Adelphia Communications Corporation                  08/27/99

  AIMCO                                                08/16/99

  Allen House Apartments                               08/23/99

  Alliance Residential Management, L.L.C.              08/13/99

  Allied Riser Communications Corporation              08/27/99

  Alvarado Realty Company                              08/13/99

  Alvarado Realty Company                              08/24/99

  Amalgamated Housing Corporation                      08/27/99

  American Electric Power Service Corporation, et al.  08/27/99

  American Shelter Management Company, Inc.            08/20/99

  American Water Works Assn.                           08/27/99

  Ameritech                                            08/27/99

  AMLI Residential                                     08/19/99

  Anchor Estates                                       08/27/99

  Apartment & Office Build. Assn. of Metro.Washington  08/11/99

  Apartment Assn. California Southern Cities           08/23/99

  Apartment Assn. of greater New Orleans, Inc.         08/16/99

  Apartment Assn. of Louisiana                         08/09/99

  Apartment Investment and Management Company          08/23/99

  Apex Site Management, Inc.                           08/27/99

  Archon Group                                         08/25/99

  Arden Realty, Inc.                                   08/27/99

  Arrowhead Management Company                         08/25/99

  Artcraft Companies                                   08/09/99

  Assn. for Local Telecommunications Services (ALTS)   08/27/99

  AT&T Corp. (AT&T)                                    08/27/99

  Avista Corporation                                   08/27/99

  Ballard Companies                                    08/16/99

  Barton Farms                                         08/27/99

  Baton Rouge Apartment Association, Inc.              08/19/99

  Beacon Residential Management                        08/19/99

  Bell Atlantic                                        08/27/99

  BellSouth Corporation (BellSouth)                    08/27/99

  Benchmark Apartments                                 08/24/99

  Benicia California                                   08/17/99

  Berkshire Industrial Corporation                     08/24/99

  Berkshire Realty Company, Inc.                       08/17/99

  Berkshire Springs                                    08/24/99

  Bexley Village                                       08/27/99

  BGK Properties                                       08/23/99

  Black Rock Cable / John Kehres                       08/12/99

  Bloomfield Township                                  07/30/99

  Blue Star Communications, Inc.                       08/27/99

  BOMA Saint Paul (BOMA)                               08/13/99

  Bowen Real Estate Group                              08/16/99

  Braden Fellman Group, Ltd.                           08/19/99

  Bradford Management Company of Dallas                08/09/99

  Brandon Glen Apartment Homes                         08/12/99

  Brandywine Realty Trust                              08/16/99

  Bridgedale Terrace Apartments                        08/20/99

  Brigantine Group, Inc.                               08/04/99

  Brookfield Commercial Properties Inc.                08/12/99

  Brookmeadow                                          08/27/99

  Buckeye Real Estate                                  08/24/99

  Burton\'s Landing                                    08/27/99

  Burtonsville Office Park Limited Partnership         08/13/99

  C & G Investment Associates                          08/24/99

  CAIS, Inc.                                           08/27/99

  California Public Utilities Commission               08/12/99

  CAMCO, Inc.                                          08/20/99

  Carbon Development Corp.                             08/13/99

  CarrAmerica Realty Corporation                       08/26/99

  Cellular Telecommunications Industry Assn.           08/27/99

  Center Management Corporation                        08/16/99

  Central Management, Inc.                             08/26/99

  Central Texas Communications, Inc.                   08/27/99

  CHARLES BOPP                                         08/13/99

  Charter Properties Inc.                              08/12/99

  Charter Township of Harrison                         07/26/99

  Charter Township of Ypsilanti                        08/20/99

  Chris Pierquet                                       08/26/99

  Cincinnati Bell Telephone Company                    08/27/99

  Cinergy Corp.                                        08/27/99

  City & County of San Francisco                       08/27/99

  City Milan                                           07/28/99

  City of Alpena                                       07/30/99

  City of Antigo Housing Authority                     08/23/99

  City of Arlington Texas                              08/09/99

  City of Arvada                                       08/23/99

  City of Bakersfield                                  08/24/99

  City of Belding                                      08/02/99

  City of Bellingham Washington                        08/17/99

  City of Benicia                                      08/13/99

  City of Bremerton                                    08/02/99

  City of Burnsville                                   08/27/99

  City of Cadillac                                     07/30/99

  City of Carrollton                                   08/11/99

  City of Coconut Creek                                08/06/99

  City of Coopersville                                 08/23/99

  City of Denton                                       08/16/99

  City of Dublin                                       08/09/99

  City of Fontana                                      08/16/99

  City of Garland                                      08/16/99

  City of Grand Praire Texas                           08/02/99

  City of Irondale                                     08/11/99

  City of Ishpeming                                    08/13/99

  City of Kentwood                                     08/09/99

  City of Longview Texas                               07/26/99

  City of Loveland                                     07/28/99

  City of Malibu                                       07/30/99

  City of Marshall                                     08/06/99

  City of Medina                                       08/02/99

  City of Missouri City                                08/03/99

  City of Mont Belvieu                                 08/06/99

  City of Plano                                        08/09/99

  City of Richmond, Virginia                           08/13/99

  City of Rockwall                                     08/16/99

  City of Schertz, Texas                               08/02/99

  City of Springfield                                  08/23/99

  City of Tamarac                                      08/17/99

  City of Tecumseh, Michigan                           08/16/99

  City of Walker                                       07/26/99

  City of Waukesha                                     08/23/99

  City of Westland                                     07/28/99

  City of White Plains                                 08/13/99

  City of Wyoming                                      07/30/99

  Clark County Home Builders Assn.                     08/17/99

  Clark Whitehill                                      08/16/99

  Codina Development Corporation                       08/16/99

  Coldwell Banker Commercial Hilgenberg Realtors       08/23/99

  Colonial Properties Trust                            08/13/99

  Colony North                                         08/25/99

  Commonwealth Edison Co.                              07/26/99

  Community Associations Institute et al.              08/27/99

  Community Housing Improvement Program, Inc.          07/20/99

  Competition Policy Institute                         08/27/99

  Competitive Telecommunications Association           08/26/99

  Cornerstone Properties Inc. (Cornerstone et. al.)    08/26/99

  Cooperative Housing Coalition                        08/27/99

  Coordinating Council of Cooperatives                 08/27/99

  Cornerstone Real Estate Advisers,Inc.                08/27/99

  Corporate Office Properties                          08/13/99

  Covertry Apartments, DePere, WI                      08/26/99

  Cresent                                              08/12/99

  Cross Roads Apartments                               08/27/99

  Crown Pointe Apartments                              08/27/99

  Curtin Company                                       08/09/99

  Dallas Wireless Broadband, L.P.                      08/27/99

  Department of Defense / Army                         08/12/99

  Diamond Lake Apartment Homes                         08/27/99

  DMHA                                                 08/20/99

  Draper and Kramer                                    08/26/99

  Drucker & Flak, LLC                                  08/26/99

  Duke-Weeks Realty Corporation                        08/27/99

  Dunwoody Court Condo Assoc.                          08/09/99

  East Group Properties                                08/27/99

  Eastland Apartments                                  08/27/99

  EBMC                                                 08/20/99

  ECI Management Corporation                           08/13/99

  Edgewood Management Corporation                      08/16/99

  Electric Utilities Coalition                         08/27/99

  Ellis Erb, Inc.                                      08/04/99

  Ensemble Communications, INc.                        08/27/99

  Entergy Services, Inc.                               08/27/99

  Epoch Management Incorporated                        08/19/99

  EPT Management Company                               08/16/99

  Equity Office Properties Trust                       08/27/99

  Essex Property Trust, Inc.                           08/26/99

  Etkin & Co.                                          08/17/99

  FDC Management, Inc.                                 08/24/99

  Federation of New York Housing Cooperatives          08/26/99

  First Centrum, L.L.C.                                08/16/99

  First Housing Corporation                            08/16/99

  First Regional TeleCOM, LLC                          08/27/99

  Fixed Wireless Communications Coalition              08/27/99

  Flagstone                                            08/24/99

  Flordia Power & Light Company                        08/26/99

  Fox Lake Manor Apartments                            08/24/99

  Fox Meadow                                           08/27/99

  Foxtree Apartments                                   08/24/99

  Frye Properties                                      08/11/99

  FSC Realty, LLC                                      08/16/99

  Gene B. Glick Company Inc.                           08/13/99

  General Communications, Inc.                         08/27/99

  General Growth Properties, Inc.                      08/12/99

  Gilmour Court Apts., Inc.                            08/11/99

  Ginsburg Development, LLC                            08/18/99

  Given & Spindler Companies                           08/23/99

  Glenwood Management Corporation                      08/12/99

  Global Crossing Ltd                                  08/27/99

  Golf Side Apartments                                 08/24/99

  Great Atlantic Real Estate-Property Management       08/16/99

  Green Store Partners LLC                             08/27/99

  Greenbelt Homes, Inc.                                08/16/99

  Gross Builders                                       08/26/99

  Gryboski Rental Properties                           08/26/99

  GTE                                                  08/27/99

  Hampton Management Co.                               08/12/99

  Harbert Realty Services of Flordia, Inc.             08/26/99

  Hendersen-Webb, Inc.                                 08/18/99

  Hepfner Smith Airhart & Day, Inc.                    08/16/99

  Heritage Apartments                                  08/27/99

  HighSpeed.Com, L.L.C.                                08/27/99

  Hillcrest Apartments                                 08/24/99

  Hoppe and Harner                                     08/16/99

  Horne Companies, Inc.                                08/20/99

  Hunter\'s Glen Apartment                             08/24/99

  Huntington Brook                                     08/24/99

  Huntington Lakes                                     08/24/99

  ICG Telecom Group, Inc.                              08/27/99

  Independent Cable & Telecommunications Assn.         08/27/99

  Insignia/ESG of Colorado, Inc.                       08/17/99

  Institute of Real Estate Management                  08/26/99

  Inverness Properties, LLC                            08/16/99

  Jamestown Homes, Inc.                                08/26/99

  Jaymont Realty Incorporated                          08/16/99

  Jefferson West Apt\'s.                               08/24/99

  John M. Stone Management Corporation                 08/02/99

  JP Realty, Inc.                                      08/16/99

  Kaftan Enterprises, Inc.                             08/16/99

  Kaiserman Company Inc.                               08/16/99

  Kansas City Power & Light Company                    08/27/99

  Kessler Homes, Inc.                                  08/16/99

  Knight Company                                       08/09/99

  Koll Development Company                             08/16/99

  Kontogiannis Companies                               08/24/99

  L&B Realty Advisors, Inc.                            08/16/99

  L&C Land & Co.                                       08/27/99

  LaCrosse Apartments and Carriage House               08/16/99

  League of Oragon Cities                              08/05/99

  Leon N. Weiner & Associates, Inc.                    08/20/99

  Level 3 Communications                               08/27/99

  Liberty Heights at Northgate                         08/24/99

  Lincoln Property Company                             08/24/99

  Lincoln Springs                                      08/26/99

  Lincolnshire Townhouse Cooperative, Inc.             08/26/99

  Lincolnwood Cooperative, Inc.                        08/26/99

  Lloyd Companies                                      08/13/99

  Local and State Government Advisory Committee        08/05/99

  Manchester Village , Inc.                            08/26/99

  Manco Abbott, Inc.                                   08/11/99

  Mark III Management Corporation                      08/26/99

  Maxim Property Management                            08/24/99

  Mayor City of Jacksonville Beach                     08/05/99

  McDougal Companies                                   08/10/99

  MCI WorldCom, Inc                                    08/27/99

  McLeodUSA Advanced Telecommunication Services        08/26/99

  McNeil Real Estate Management, Inc.                  08/16/99

  Melvin Mark Companies                                08/17/99

  Metricom, Inc.                                       08/27/99

  Metromedia Fiber Network Services, Inc.              08/27/99

  Mid- America Management                              08/12/99

  Mid- Atlantic Realty Company Inc.                    08/12/99

  Mid-America Apartment Communities                    08/09/99

  Mike Tisiker                                         08/12/99

  Millpond Apartments Limited Partnership              08/24/99

  Minnesota Power, Inc.                                08/27/99

  Missouri Apartment Assn.                             08/09/99

  Mitchell Investments                                 08/16/99

  Montgomery Village Foundation                        08/25/99

  National Association of Counties, et al.             08/27/99

  New Millenium Enterprises, Inc.                      08/13/99

  NEXTLINK Communications, Inc.                        08/27/99

  North American Realty                                08/12/99

  North Shore Cable Commission                         08/23/99

  North Village Apartments                             08/16/99

  Nottingham Apartments                                08/27/99

  NY City Depart. of Info.Tech. & Telecommunications   08/13/99

  NY Department of Public Service                      08/13/99

  Olnick Organization                                  08/12/99

  Omni Properties, Inc.                                08/09/99

  OpTel, Inc. (OpTel)                                  08/27/99

  Orchard Glen Cooperative, Inc.                       08/26/99

  Palm Springs II Condominium Association, Inc.        08/09/99

  Parkway Properties                                   08/25/99

  Partners Management Company                          08/13/99

  Paul B. Whitty                                       08/16/99

  PCRM                                                 08/13/99

  Peppercorn Apartments                                08/27/99

  Personal Communications Industry Association         08/27/99

  Philard Corporation                                  08/13/99

  Philip J. McBride                                    08/17/99

  Pine Crest Apartments                                08/23/99

  Plantation Ridge                                     08/12/99

  Pleasant Woods Apartments                            08/24/99

  Polen Mortgage & Realty Co.                          08/26/99

  Polinger Shannon & Luchs Company, AMO                08/11/99

  Port O\'Call Apartments                              08/20/99

  Post Properties, Inc.                                08/17/99

  Prairie Creek Apartments                             08/22/99

  Prescott Place Apartments                            08/24/99

  Pressly Development Company, Inc.                    08/11/99

  Princeton Properties Management, Inc.                08/09/99

  Providence Apartment Homes                           08/24/99

  Pyramid Developments, LLC                            08/13/99

  Radwyn Garden Apartments                             08/27/99

  Rand Commerical Brokers                              08/19/99

  RCN Corporation                                      08/27/99

  Real Access Alliance                                 08/24/99

  Real Estate Board of New York                        08/13/99

  Realvest, R.E. Broker                                08/24/99

  Regal Crest Village/Regal Crest West                 08/16/99

  Regency Manor Apartments                             08/24/99

  RF Development, L.L.C.                               08/27/99

  RF/Max Commerical Investment                         08/12/99

  Ridgedale I Apartments                               08/23/99

  Rittenhouse Claridge                                 08/24/99

  River Park Development Co.                           08/16/99

  River Park West, Inc.                                08/16/99

  Robinson Township                                    08/02/99

  Roc-Century Associates                               08/12/99

  Royal Park Townhouses Assn.                          08/09/99

  S.L. NUSBAUM Realty Co.                              08/16/99

  Samuel L. Dolnick (condominium homeowner)            08/11/99

  San Diego County Apartment Assn.                     08/16/99

  SBC Communications Inc.                              08/27/99

  Security Capital Group Inc.                          08/27/99

  Seldin Company                                       08/25/99

  Shaker Square                                        08/27/99

  Shared Communications Services, Inc.                 08/27/99

  Signature Management Corporation                     08/12/99

  Silverwood Associates, Inc.                          08/16/99

  Sizeler Real Estates Management Co., Inc.            08/27/99

  Skyline Plaza Council of Co-Owners                   08/16/99

  Skyline Property Management, Inc.                    08/17/99

  South Central Wireless, Inc.                         08/27/99

  Southview Apartments                                 08/27/99

  Southwestern Oakland Cable Commission                07/28/99

  SpectraPoint Wireless LLC                            08/26/99

  Spectrum Properties, LC                              08/24/99

  Sprint Corporation                                   08/27/99

  St. John\'s Housing Corporation                      08/20/99

  State Wide Investors Inc.                            08/26/99

  Sterling House                                       08/27/99

  Stonefield Manor Apartments                          08/24/99

  Stross Law Firm                                      08/13/99

  Summit Management and Realty Company                 08/06/99

  Sweetwater Ranch                                     08/24/99

  T&C Management Services, Inc.                        08/20/99

  T&R Properties                                       08/11/99

  T. J. Adam & Company                                 08/12/99

  Tara Cooperative, Inc.                               08/26/99

  Teligent, Inc. (Teligent)                            08/27/99

  Texas Office of Public Utility Counsel               08/27/99

  The Altman Group of Companies                        08/12/99

  The Berkshires of Addison                            08/24/99

  The Bozzuto Group .                                  08/12/99

  The Brody Companies                                  08/17/99

  The Carter Company, Inc.                             08/23/99

  The Chateau Apartments Co.                           08/25/99

  The Education Parties                                08/27/99

  The Gipson Co.                                       08/12/99

  The Indigo On Forest                                 08/24/99

  The Mid-America Management Corporation               08/24/99

  Thompson Partners                                    08/23/99

  Thompson Thrift Development                          08/20/99

  Tidewater Builders Assn.                             08/02/99

  Tillman Real Estate                                  08/02/99

  Tomlinson & Associates, Inc.                         08/16/99

  Toonen Rental Properties                             08/26/99

  Total Service Development, LLC                       08/26/99

  Town & Country Apartments                            08/27/99

  Town of Addison                                      08/13/99

  Town of Yarmouth                                     08/26/99

  Towne Properties Asset Management Company            08/16/99

  Township of Lyons                                    08/06/99

  Township of Mullica                                  08/12/99

  Transworld Properties, Inc.                          08/20/99

  Trust Property Management                            08/23/99

  TVO Realty Partners                                  08/19/99

  U. S. Department of Defense                          08/12/99

  U.R. RealTel, Inc.                                   08/16/99

  Union Gap Village Condominium Owners\' Assn.         08/09/99

  United Dominion Realty Trust, Inc.                   08/24/99

  United States Telephone Association                  08/27/99

  United Telecom Council                               08/27/99

  Urstadt Biddle Properties, Inc.                      08/13/99

  V. K. Development Corporation                        08/24/99

  Van Buskirk Companies                                08/16/99

  VBC, Inc.                                            08/13/99

  Village at McLean Gardens                            08/24/99

  Village Green                                        08/26/99

  Village of Chelsea                                   08/16/99

  Village of Concord                                   07/30/99

  Village of Lisle                                     08/27/99

  Village of Schaumburg                                08/09/99

  Village of Wilmette                                  08/16/99

  Wallick Properties Inc.                              08/05/99

  Ward F. Hoppe                                        08/16/99

  Washington Real Estate Investment Trust              08/23/99

  Wayland Township                                     07/26/99

  Weigand- Omega Management, Inc.                      08/16/99

  Wellsford Real Properties, Inc.                      08/16/99

  Westwood Heights                                     08/23/99

  Wexenthaller Realty Management                       08/27/99

  White Birch Apartments                               08/20/99

  Wiegand- Omega Management, Inc.                      08/27/99

  Willow Park                                          08/17/99

  Wimbledon Apartments                                 08/27/99

  Windsor at Alden Pond                                08/24/99

  Windsor at Arbors                                    08/25/99

  Windsor at Asbury Square                             08/24/99

  Windsor at Ashton Woods                              08/24/99

  Windsor at Brentwood                                 08/24/99

  Windsor at Britton Woods                             08/24/99

  Windsor at Butternut Ridge                           08/23/99

  Windsor at Carolina                                  08/20/99

  Windsor at Cedarbrooke                               08/24/99

  Windsor at Chateau Knoll                             08/24/99

  Windsor at Eastborough                               08/26/99

  Windsor at Fairland Meadow                           08/26/99

  Windsor at Fieldstone                                08/23/99

  Windsor at Gaslight Square                           08/24/99

  Windsor at Hunter\'s Woods                           08/27/99

  Windsor at Kingsborough                              08/23/99

  Windsor at McAlpine Place                            08/26/99

  Windsor at Old Buckingham Station                    08/23/99

  Windsor at Park Terrace                              08/24/99

  Windsor at Pine Ridge                                08/23/99

  Windsor at Polo Run                                  08/27/99

  Windsor at Quiet Waters                              08/20/99

  Windsor at River Heights                             08/23/99

  Windsor at Rockborough                               08/24/99

  Windsor at Sterling Place                            08/23/99

  Windsor at Stonington Farm                           08/23/99

  Windsor at Union Station                             08/24/99

  Windsor at Woodgate                                  08/24/99

  Windsor Courts at Beverly                            08/24/99

  Windsor Heights at Marlborough                       08/24/99

  Windsor Meadows at Marlborough                       08/25/99

  Windsor Ridge at Westborough                         08/25/99

  Windsor Shirlington Village                          08/20/99

  Windsor Village at Hauppauge                         08/24/99

  Windsor Village at Waltham                           08/24/99

  Wingate Falls                                        08/12/99

  WinStar Communications, Inc. (WinStar)               08/27/99

  Wireless Communications Assn. International, Inc.    08/27/99

  Wisconsin Management Company Inc.                    08/16/99

  Woodberry                                            08/27/99

  Woodmont Real Estate Services                        08/10/99

  Woolson Real Estate Company, Inc.                    08/19/99

  Worthings Companies                                  08/13/99

  York Creek                                           08/27/99
  ---------------------------------------------------- ------------------

+---------------------------------------------------+------------------+
| **Reply Comments**                                | **Receipt**      |
+---------------------------------------------------+------------------+
| **(August 28, 1999 through September 27, 1999)**  | **Date**         |
+---------------------------------------------------+------------------+
|                                                   |                  |
+---------------------------------------------------+------------------+
| 1st Properties                                    | 09/03/99         |
+---------------------------------------------------+------------------+
| A.G. Spanos Companies                             | 09/03/99         |
+---------------------------------------------------+------------------+
| Acacia Park Apartments, ElPaso, TX                | 08/31/99         |
+---------------------------------------------------+------------------+
| Accidental Developement                           | 09/07/99         |
+---------------------------------------------------+------------------+
| Affordable Housing Fund I                         | 09/01/99         |
+---------------------------------------------------+------------------+
| Aitkin Housing Partners Limited Partnership       | 09/03/99         |
+---------------------------------------------------+------------------+
| Albert House Associates                           | 09/01/99         |
+---------------------------------------------------+------------------+
| Albert House Associates                           | 09/03/99         |
+---------------------------------------------------+------------------+
| Allied Riser Communications Corporation           | 09/27/99         |
+---------------------------------------------------+------------------+
| American Electric Power Service Corporation et    | 09/27/99         |
| al.                                               |                  |
+---------------------------------------------------+------------------+
| Ameritech                                         | 09/27/99         |
+---------------------------------------------------+------------------+
| AMLI Residential                                  | 09/01/99         |
+---------------------------------------------------+------------------+
| Apartment Assn. of Orange County                  | 08/31/99         |
+---------------------------------------------------+------------------+
| Apartment Investment and Management Company       | 08/30/99         |
+---------------------------------------------------+------------------+
| Apex Site Management, Inc.                        | 09/27/99         |
+---------------------------------------------------+------------------+
| Applecreek Apartments, Broken Arrow, OK           | 08/31/99         |
+---------------------------------------------------+------------------+
| Applecreek Apartments, Sand Springs, OK           | 08/31/99         |
+---------------------------------------------------+------------------+
| Arbors of Central Park                            | 09/03/99         |
+---------------------------------------------------+------------------+
| Arbors of Killeen                                 | 08/30/99         |
+---------------------------------------------------+------------------+
| Arbors Wolf Pen Creek                             | 09/07/99         |
+---------------------------------------------------+------------------+
| Arden Realty, Inc.                                | 09/27/99         |
+---------------------------------------------------+------------------+
| Aspen Circle Management                           | 09/03/99         |
+---------------------------------------------------+------------------+
| Aspen Park Apartments, Wichita, KS                | 08/31/99         |
+---------------------------------------------------+------------------+
| Assn. for Local Telecommunications Services       | 09/27/99         |
+---------------------------------------------------+------------------+
| AT&T Corp.                                        | 09/27/99         |
+---------------------------------------------------+------------------+
| Barcelona Apartments, Tulsa, OK                   | 08/31/99         |
+---------------------------------------------------+------------------+
| Bartley Manor Limited Partnership                 | 09/03/99         |
+---------------------------------------------------+------------------+
| Bell Atlantic                                     | 09/27/99         |
+---------------------------------------------------+------------------+
| Belle Meadows Apartments, Oklahoma City, OK       | 08/31/99         |
+---------------------------------------------------+------------------+
| BellSouth Corporation                             | 09/27/99         |
+---------------------------------------------------+------------------+
| Beloit Housing Partners                           | 09/01/99         |
+---------------------------------------------------+------------------+
| Berlin Housing Partners Limited Partnership       | 09/03/99         |
+---------------------------------------------------+------------------+
| BlueStar Communications, Inc.                     | 09/27/99         |
+---------------------------------------------------+------------------+
| Borgata Apartment Community                       | 08/30/99         |
+---------------------------------------------------+------------------+
| Boulder Ridge Apartments, Tulsa, OK               | 08/31/99         |
+---------------------------------------------------+------------------+
| Brandywine Apartments, Lexington, KY              | 08/31/99         |
+---------------------------------------------------+------------------+
| Brandywine Apartments, Tulsa, OK                  | 08/31/99         |
+---------------------------------------------------+------------------+
| Brookwood Village Apartments, Oklahoma City, OK   | 08/31/99         |
+---------------------------------------------------+------------------+
| CAIS, Inc.                                        | 09/27/99         |
+---------------------------------------------------+------------------+
| Capistrano Apartments                             | 08/30/99         |
+---------------------------------------------------+------------------+
| Cedar Ridge Apartments                            | 09/03/99         |
+---------------------------------------------------+------------------+
| Cellular Telecommunications Industry Assn.        | 09/02/99         |
+---------------------------------------------------+------------------+
| Cellular Telecommunications Industry Assn.        | 09/27/99         |
+---------------------------------------------------+------------------+
| Cimarron Point Apartments, Oklahoma City, OK      | 08/31/99         |
+---------------------------------------------------+------------------+
| Cimarron Trails Apartments, Norman, OK            | 08/31/99         |
+---------------------------------------------------+------------------+
| Cimmarron Apartments, Tulsa, OK                   | 08/31/99         |
+---------------------------------------------------+------------------+
| Cinergy Corp.                                     | 09/27/99         |
+---------------------------------------------------+------------------+
| City of Brea                                      | 09/07/99         |
+---------------------------------------------------+------------------+
| City of Brea                                      | 09/08/99         |
+---------------------------------------------------+------------------+
| City of Carmel                                    | 09/13/99         |
+---------------------------------------------------+------------------+
| City of Cerritos                                  | 08/30/99         |
+---------------------------------------------------+------------------+
| City of Cerritos                                  | 09/09/99         |
+---------------------------------------------------+------------------+
| City of Commerce City                             | 09/27/99         |
+---------------------------------------------------+------------------+
| City of Davison                                   | 08/30/99         |
+---------------------------------------------------+------------------+
| City of Davison                                   | 09/09/99         |
+---------------------------------------------------+------------------+
| City of Littlefield                               | 09/24/99         |
+---------------------------------------------------+------------------+
| City of Meadows Place                             | 08/30/99         |
+---------------------------------------------------+------------------+
| City of Rosenberg                                 | 08/30/99         |
+---------------------------------------------------+------------------+
| City of Springfield                               | 09/09/99         |
+---------------------------------------------------+------------------+
| City Telecommunication Consultants, Ltd.          | 09/27/99         |
+---------------------------------------------------+------------------+
| Cobblestone Apartments, Tulsa, OK                 | 08/31/99         |
+---------------------------------------------------+------------------+
| Coldwell Banker, Commercial                       | 08/30/99         |
+---------------------------------------------------+------------------+
| Colonial Manor Apartments                         | 09/03/99         |
+---------------------------------------------------+------------------+
| Commerce City                                     | 09/27/99         |
+---------------------------------------------------+------------------+
| Community Associations Institute et al.           | 09/27/99         |
+---------------------------------------------------+------------------+
| Community Programing Board                        | 09/27/99         |
+---------------------------------------------------+------------------+
| Competitive Telecommunications Association        | 09/27/99         |
+---------------------------------------------------+------------------+
| ConAM Management Corporation                      | 09/13/99         |
+---------------------------------------------------+------------------+
| Concerned Communities and Organizations           | 09/27/99         |
+---------------------------------------------------+------------------+
| Concord Management Limited, Ltd.                  | 09/13/99         |
+---------------------------------------------------+------------------+
| Copper Palms Apartment                            | 08/30/99         |
+---------------------------------------------------+------------------+
| Cornerstone Properties et. al.                    | 09/27/99         |
+---------------------------------------------------+------------------+
| Cornerstone Properties, et al.                    | 08/30/99         |
+---------------------------------------------------+------------------+
| Council Place Apartments, Oklahoma City, OK       | 08/31/99         |
+---------------------------------------------------+------------------+
| Country Hollow Apartments, Tulsa, OK              | 08/31/99         |
+---------------------------------------------------+------------------+
| Covered Bridge Apartments                         | 08/31/99         |
+---------------------------------------------------+------------------+
| Covina Court                                      | 08/30/99         |
+---------------------------------------------------+------------------+
| Crossing II Apartments                            | 08/31/99         |
+---------------------------------------------------+------------------+
| Crossings I Apartments                            | 08/31/99         |
+---------------------------------------------------+------------------+
| Crown Chase Apartments, Wichita, KS               | 08/31/99         |
+---------------------------------------------------+------------------+
| Crown Point Apartments, Oklahoma City, OK         | 08/31/99         |
+---------------------------------------------------+------------------+
| Delta County, Colorado                            | 08/30/99         |
+---------------------------------------------------+------------------+
| Delta County, Colorado                            | 09/03/99         |
+---------------------------------------------------+------------------+
| DMC Management Company                            | 08/30/99         |
+---------------------------------------------------+------------------+
| Double Tree Apartments, ElPaso, TX                | 08/31/99         |
+---------------------------------------------------+------------------+
| Drucker & Falk                                    | 08/30/99         |
+---------------------------------------------------+------------------+
| Drucker & Falk, LLC                               | 09/03/99         |
+---------------------------------------------------+------------------+
| Duckworth Company Incorporated                    | 09/01/99         |
+---------------------------------------------------+------------------+
| Eagle Point Apartments, Tulsa, OK                 | 08/31/99         |
+---------------------------------------------------+------------------+
| Edward Rose Associates                            | 09/07/99         |
+---------------------------------------------------+------------------+
| Elliot Point                                      | 08/30/99         |
+---------------------------------------------------+------------------+
| Entergy Services, Inc.                            | 09/27/99         |
+---------------------------------------------------+------------------+
| Equestrian on Eastern                             | 08/30/99         |
+---------------------------------------------------+------------------+
| First Management Services                         | 08/31/99         |
+---------------------------------------------------+------------------+
| First Worthing Company                            | 08/31/99         |
+---------------------------------------------------+------------------+
| First Worthing Company                            | 09/02/99         |
+---------------------------------------------------+------------------+
| Florida Power & Light Company                     | 09/24/99         |
+---------------------------------------------------+------------------+
| Florida Power and Light Co.                       | 09/27/99         |
+---------------------------------------------------+------------------+
| Flower Mound                                      | 09/01/99         |
+---------------------------------------------------+------------------+
| Foothill Apartment Assn.                          | 08/30/99         |
+---------------------------------------------------+------------------+
| Fox Acres Apartments                              | 08/30/99         |
+---------------------------------------------------+------------------+
| Fox Run Apartments, Wichita, KS                   | 08/31/99         |
+---------------------------------------------------+------------------+
| Great West Services, Ltd.                         | 08/31/99         |
+---------------------------------------------------+------------------+
| Grouse Run, Oklahoma City, OK                     | 08/31/99         |
+---------------------------------------------------+------------------+
| GTE Service Corporation                           | 09/27/99         |
+---------------------------------------------------+------------------+
| Hill Park Management                              | 09/03/99         |
+---------------------------------------------------+------------------+
| Howard Hughes Corporation                         | 08/30/99         |
+---------------------------------------------------+------------------+
| Hudson River Management LLC                       | 09/02/99         |
+---------------------------------------------------+------------------+
| Institute of Real Estate Management               | 09/17/99         |
+---------------------------------------------------+------------------+
| Inverness Apartments, Broken Arrow, OK            | 08/31/99         |
+---------------------------------------------------+------------------+
| Island Club                                       | 08/30/99         |
+---------------------------------------------------+------------------+
| Janesville Housing Partners Limited Partnership   | 09/01/99         |
+---------------------------------------------------+------------------+
| Kennedy Wilson Properties, Ltd                    | 09/07/99         |
+---------------------------------------------------+------------------+
| Kensington Park Apts.                             | 08/31/99         |
+---------------------------------------------------+------------------+
| Key Management Company                            | 09/14/99         |
+---------------------------------------------------+------------------+
| Kimball Tirey & St. John                          | 08/30/99         |
+---------------------------------------------------+------------------+
| KOS Management Systems                            | 08/30/99         |
+---------------------------------------------------+------------------+
| Lakeside South                                    | 08/31/99         |
+---------------------------------------------------+------------------+
| Larrymore Organization                            | 09/01/99         |
+---------------------------------------------------+------------------+
| Leisure World of Maryland Corporation             | 08/30/99         |
+---------------------------------------------------+------------------+
| Lexington Commons Apartments, Bartlesville, OK    | 08/31/99         |
+---------------------------------------------------+------------------+
| Lincoln Heights Limited Partnership               | 09/03/99         |
+---------------------------------------------------+------------------+
| Local and State Government Advisory Committee     | 09/03/99         |
+---------------------------------------------------+------------------+
| Madison Area Apartment Assn.                      | 08/31/99         |
+---------------------------------------------------+------------------+
| Maplewood Apartments                              | 08/30/99         |
+---------------------------------------------------+------------------+
| MCI WorldCom, Inc                                 | 09/27/99         |
+---------------------------------------------------+------------------+
| Meadow Green Apartments, Phoenix, AZ              | 08/31/99         |
+---------------------------------------------------+------------------+
| Medford- Gilman Housing Partners LP               | 09/03/99         |
+---------------------------------------------------+------------------+
| MediaOne Group, Inc.                              | 09/27/99         |
+---------------------------------------------------+------------------+
| Meeting House Garden Apartments and Townhouses    | 08/30/99         |
+---------------------------------------------------+------------------+
| Meridian Group, Inc.                              | 09/01/99         |
+---------------------------------------------------+------------------+
| Meridian Group, Inc.                              | 09/02/99         |
+---------------------------------------------------+------------------+
| Michigan Communities                              | 09/03/99         |
+---------------------------------------------------+------------------+
| Mid-Continent Properties                          | 08/30/99         |
+---------------------------------------------------+------------------+
| Mission Shadows                                   | 08/30/99         |
+---------------------------------------------------+------------------+
| Monarch Management & Realty, Inc.                 | 08/31/99         |
+---------------------------------------------------+------------------+
| Mountain Village Apartments, ElPaso, TX           | 08/31/99         |
+---------------------------------------------------+------------------+
| NEXTLINK Communications, Inc.                     | 09/27/99         |
+---------------------------------------------------+------------------+
| Obervation Point Apartments, Tulsa, OK            | 08/31/99         |
+---------------------------------------------------+------------------+
| Occidential Develm., LTD.                         | 09/07/99         |
+---------------------------------------------------+------------------+
| Office of Advocacy, U.S. Small Business Admin.    | 09/02/99         |
+---------------------------------------------------+------------------+
| OpTel, Inc.                                       | 09/27/99         |
+---------------------------------------------------+------------------+
| P. M. One, Ltd.                                   | 08/31/99         |
+---------------------------------------------------+------------------+
| Pacific Bay Club                                  | 08/30/99         |
+---------------------------------------------------+------------------+
| Paige East Associates, Ltd.                       | 08/31/99         |
+---------------------------------------------------+------------------+
| Paradise Foothills                                | 08/30/99         |
+---------------------------------------------------+------------------+
| Park 86 Apt. Corp.                                | 08/30/99         |
+---------------------------------------------------+------------------+
| Parkview Mobile Home Court                        | 09/02/99         |
+---------------------------------------------------+------------------+
| Peninsula Housing & Builders Assn.                | 08/30/99         |
+---------------------------------------------------+------------------+
| Personal Communications Industry Association      | 09/27/99         |
+---------------------------------------------------+------------------+
| Picerne Management                                | 08/30/99         |
+---------------------------------------------------+------------------+
| Pinehurst Apartments, Oklahoma City, OK           | 08/31/99         |
+---------------------------------------------------+------------------+
| Pinkney Dayton Apartments                         | 09/02/99         |
+---------------------------------------------------+------------------+
| Polo Club Apartments, Dallas, TX                  | 08/31/99         |
+---------------------------------------------------+------------------+
| Polo Club Apartments, Tulsa, OK                   | 08/31/99         |
+---------------------------------------------------+------------------+
| Polo Run Apartments, Tulsa, OK                    | 08/31/99         |
+---------------------------------------------------+------------------+
| Princeton Creek Apartments                        | 08/31/99         |
+---------------------------------------------------+------------------+
| Quail Hollow Apartments, Tulsa, OK                | 08/31/99         |
+---------------------------------------------------+------------------+
| Quest Comm. Corp.                                 | 09/27/99         |
+---------------------------------------------------+------------------+
| Qwest Communications Corporation                  | 09/27/99         |
+---------------------------------------------------+------------------+
| Racine Housing Partners Limited Partnership       | 09/03/99         |
+---------------------------------------------------+------------------+
| Raintree Apartment, Wichita, KS                   | 08/31/99         |
+---------------------------------------------------+------------------+
| Rance King Properties, Inc.                       | 09/08/99         |
+---------------------------------------------------+------------------+
| RCN Corporation                                   | 09/27/99         |
+---------------------------------------------------+------------------+
| Red River Apartments, Tulsa, OK                   | 08/31/99         |
+---------------------------------------------------+------------------+
| Rent Stabilization Assn.                          | 08/30/99         |
+---------------------------------------------------+------------------+
| Ridge Park Apartments, Tulsa, OK                  | 08/31/99         |
+---------------------------------------------------+------------------+
| River Ranch                                       | 08/30/99         |
+---------------------------------------------------+------------------+
| Riverchase Apartments, Tulsa, OK                  | 08/31/99         |
+---------------------------------------------------+------------------+
| Riverpark Apartments, Tulsa, OK                   | 08/31/99         |
+---------------------------------------------------+------------------+
| Rosewood Apartment                                | 08/30/99         |
+---------------------------------------------------+------------------+
| Royal Arms Apartments, Tulsa, OK                  | 08/31/99         |
+---------------------------------------------------+------------------+
| Sagewood Apartments                               | 08/30/99         |
+---------------------------------------------------+------------------+
| SBC Communications Inc.                           | 09/27/99         |
+---------------------------------------------------+------------------+
| Shadow Ridge Apartments, ElPaso, TX               | 08/31/99         |
+---------------------------------------------------+------------------+
| Shared Communications Services, Inc.              | 09/27/99         |
+---------------------------------------------------+------------------+
| Silver Creek Apartments, Tulsa, OK                | 08/31/99         |
+---------------------------------------------------+------------------+
| Silver Springs Apartments, Wichita, KS            | 08/31/99         |
+---------------------------------------------------+------------------+
| Silverstone Apartments, Tulsa, OK                 | 08/31/99         |
+---------------------------------------------------+------------------+
| South Glen Apartments, Tulsa, OK                  | 08/31/99         |
+---------------------------------------------------+------------------+
| Southridge Manor Apartments                       | 09/03/99         |
+---------------------------------------------------+------------------+
| Statewide Housing Partners Limited Partnership    | 09/02/99         |
+---------------------------------------------------+------------------+
| Sterling House of Lincoln                         | 08/30/99         |
+---------------------------------------------------+------------------+
| Sterling Point Apartments                         | 08/30/99         |
+---------------------------------------------------+------------------+
| Stillwater Housing Partners Limited Partnership   | 09/03/99         |
+---------------------------------------------------+------------------+
| Sugarberry Apartments, Tulsa, OK                  | 08/31/99         |
+---------------------------------------------------+------------------+
| Summerstone Duplexes, Tulsa, OK                   | 08/31/99         |
+---------------------------------------------------+------------------+
| Summit Apartments Homes                           | 08/30/99         |
+---------------------------------------------------+------------------+
| Sun Wood                                          | 08/30/99         |
+---------------------------------------------------+------------------+
| Sunchase Apartments, Ridgeland, MS                | 08/31/99         |
+---------------------------------------------------+------------------+
| Sunchase Apartments, Tulsa, OK                    | 08/31/99         |
+---------------------------------------------------+------------------+
| Sundance Apartments, Tulsa, OK                    | 08/31/99         |
+---------------------------------------------------+------------------+
| Sunset View Limited Partnership                   | 09/03/99         |
+---------------------------------------------------+------------------+
| Tammaron Village Apartments, Oklahoma City, OK    | 08/31/99         |
+---------------------------------------------------+------------------+
| Teligent, Inc.                                    | 09/27/99         |
+---------------------------------------------------+------------------+
| The Commons on Anniston Road                      | 08/31/99         |
+---------------------------------------------------+------------------+
| The Electric Utilities Coalition                  | 09/27/99         |
+---------------------------------------------------+------------------+
| The Franciscan of Arlington                       | 09/02/99         |
+---------------------------------------------------+------------------+
| The Greens of Bedford Apartments, Tulsa, OK       | 08/31/99         |
+---------------------------------------------------+------------------+
| The Lakes Apartments, Tulsa, OK                   | 08/31/99         |
+---------------------------------------------------+------------------+
| The Lewiston Apartments, Tulsa, OK                | 08/31/99         |
+---------------------------------------------------+------------------+
| The Links Apartments, Phoenix, AZ                 | 08/31/99         |
+---------------------------------------------------+------------------+
| The Lodge on the Lake Apts., Oklahoma City, OK    | 08/31/99         |
+---------------------------------------------------+------------------+
| The National Association of Counties , et al.     | 09/27/99         |
+---------------------------------------------------+------------------+
| The Patriot Apartments, ELPaso, TX                | 08/31/99         |
+---------------------------------------------------+------------------+
| The Phoenix Apartments, ElPaso, TX                | 08/31/99         |
+---------------------------------------------------+------------------+
| The Real Access Alliance                          | 09/27/99         |
+---------------------------------------------------+------------------+
| The Remington Apartments, Wichita, KS             | 08/31/99         |
+---------------------------------------------------+------------------+
| The Springs Apartments, Tulsa, OK                 | 08/31/99         |
+---------------------------------------------------+------------------+
| The Summit at Sunridge                            | 08/30/99         |
+---------------------------------------------------+------------------+
| The Warrington Apartments, Oklahoma City, OK      | 08/31/99         |
+---------------------------------------------------+------------------+
| Tim Pawlenty                                      | 09/07/99         |
+---------------------------------------------------+------------------+
| Time Warner Cable                                 | 09/27/99         |
+---------------------------------------------------+------------------+
| Total Service Development, L.L.C.                 | 08/31/99         |
+---------------------------------------------------+------------------+
| Town & County Apartments                          | 08/30/99         |
+---------------------------------------------------+------------------+
| Town and Country Management Company               | 08/31/99         |
+---------------------------------------------------+------------------+
| Town and Country Management Company               | 09/01/99         |
+---------------------------------------------------+------------------+
| Town and Country Management Company               | 09/02/99         |
+---------------------------------------------------+------------------+
| Town of Flower Mound                              | 09/02/99         |
+---------------------------------------------------+------------------+
| Town of Flower Mound Texas                        | 09/07/99         |
+---------------------------------------------------+------------------+
| Trails East Apartments, Mesa, AZ                  | 08/31/99         |
+---------------------------------------------------+------------------+
| Trammel Crow Residential                          | 09/07/99         |
+---------------------------------------------------+------------------+
| Two Harbors Housing Partners Limited Partnership  | 09/03/99         |
+---------------------------------------------------+------------------+
| Twyckeham Apartments                              | 08/31/99         |
+---------------------------------------------------+------------------+
| U S West , Inc.                                   | 09/27/99         |
+---------------------------------------------------+------------------+
| United States Telephone Association               | 09/27/99         |
+---------------------------------------------------+------------------+
| United Telecom Council and Edison Electric        | 09/27/99         |
| Institute                                         |                  |
+---------------------------------------------------+------------------+
| US Small Business Administration                  | 09/10/99         |
+---------------------------------------------------+------------------+
| Village Green Companies                           | 08/30/99         |
+---------------------------------------------------+------------------+
| Village Green of WI Limited Partnership           | 09/03/99         |
+---------------------------------------------------+------------------+
| Village of Paw Paw                                | 08/30/99         |
+---------------------------------------------------+------------------+
| Village of Paw Paw                                | 09/09/99         |
+---------------------------------------------------+------------------+
| Village of Roselle                                | 09/01/99         |
+---------------------------------------------------+------------------+
| Village of Roselle                                | 09/02/99         |
+---------------------------------------------------+------------------+
| Village Square Limited Partnership                | 09/03/99         |
+---------------------------------------------------+------------------+
| Walker\'s Station Apartments, Oklahoma City, OK   | 08/31/99         |
+---------------------------------------------------+------------------+
| Wampold Companies                                 | 08/31/99         |
+---------------------------------------------------+------------------+
| Washington Quarters                               | 08/30/99         |
+---------------------------------------------------+------------------+
| Waterford Apartments, Tulsa, OK                   | 08/31/99         |
+---------------------------------------------------+------------------+
| Weigand-Omega Management, Inc.                    | 08/30/99         |
+---------------------------------------------------+------------------+
| Westgate Apartments, Irving, TX                   | 08/31/99         |
+---------------------------------------------------+------------------+
| Westminster Management                            | 09/08/99         |
+---------------------------------------------------+------------------+
| Windmill Terrace Apartments, Bedford, TX          | 08/31/99         |
+---------------------------------------------------+------------------+
| Windsail Apartments, Tulsa, OK                    | 08/31/99         |
+---------------------------------------------------+------------------+
| Windsor At Lakepointe                             | 08/31/99         |
+---------------------------------------------------+------------------+
| Windsor At Windermere Place                       | 09/17/99         |
+---------------------------------------------------+------------------+
| Windsor At Wood Creek                             | 08/30/99         |
+---------------------------------------------------+------------------+
| Windsor Gardens                                   | 09/08/99         |
+---------------------------------------------------+------------------+
| WINSTAR COMMUNICATIONS, INC.                      | 09/27/99         |
+---------------------------------------------------+------------------+
| Wireless Comm. Assn., Int\'l.                     | 09/27/99         |
+---------------------------------------------------+------------------+
| Wisconsin Apartment Assn.                         | 08/31/99         |
+---------------------------------------------------+------------------+
| Yuma County, AZ.                                  | 09/17/99         |
+---------------------------------------------------+------------------+
|                                                   |                  |
+---------------------------------------------------+------------------+
| **Further Reply comments**                        | **Receipt**      |
|                                                   |                  |
|                                                   | **Date**         |
+---------------------------------------------------+------------------+
| Wireless Comm. Assn., Int\'l.                     | 10/22/99         |
+---------------------------------------------------+------------------+
| Concerned Communities and Organizations           | 10/28/99         |
+---------------------------------------------------+------------------+

**APPENDIX B**

**Final Rules**

**New Exclusive Contract Rules**

Part 64 of Title 47 of the Code of Federal Regulations is amended as
follows:

1.  A new Subpart Z is added to Part 64 of Title 47 entitled:

Prohibition on Exclusive Telecommunications Contracts

2.  New Section 64.2500 of Subpart Z, Part 64 of Title 47 provides:

> *Prohibited Agreements.* No common carrier shall enter into any
> contract, written or oral, that would in any way restrict the right of
> any commercial multiunit premises owner, or any agent or
> representative thereof, to permit any other common carrier to access
> and serve commercial tenants on that premises.

3.  New Section 64.2501 of Subpart Z, Part 64 of Title 47 provides:

> *Scope of Limitation.* For the purposes of this subpart, a multiunit
> premises is any contiguous area under common ownership or control that
> contains two or more distinct units. A commercial multiunit premises
> is any multiunit premises that is predominantly used for
> non-residential purposes, including for-profit, non-profit, and
> governmental uses. Nothing in this subpart shall be construed to
> forbid a common carrier from entering into an exclusive contract to
> serve only residential customers on any premises.

4.  New Section 64.2502 of Subpart Z, Part 64 of Title 47 provides*:*

> *Effect of State Law or Regulation*. This subpart shall not preempt
> any state law or state regulation that requires a governmental entity
> to enter into a contract or understanding with a common carrier which
> would restrict such governmental entity's right to obtain
> telecommunications service from another common carrier.
>
> **Revised OTARD Rules**

Subpart S of Part 1 of Title 47 of the Code of Federal Regulations is
amended as follows:

1.  The title of Subpart S, Part 1 of Title 47 is revised to read:

> PREEMPTION OF RESTRICTIONS THAT "IMPAIR" THE ABILITY TO RECEIVE
> TELEVISION BROADCAST SIGNALS, DIRECT BROADCAST SATELLITE SERVICES, OR
> MULTICHANNEL MULTIPOINT DISTRIBUTION SERVICES OR THE ABILITY TO
> RECEIVE OR TRANSMIT FIXED WIRELESS COMMUNICATIONS SIGNALS.

2.  The title of Section 1.4000 of Subpart S, Part 1 of Title 47 is
    revised to read:

> Restrictions impairing reception of television broadcast signals,
> direct broadcast satellite services, or multichannel multipoint
> distribution services and restrictions impairing reception or
> transmission of fixed wireless communications signals.

3.  Section 1.4000 of Subpart S, Part 1 of Title 47 is revised to read:

> (a)(1) Any restriction, including but not limited to any state or
> local law or regulation, including zoning, land-use, or building
> regulations, or any private covenant, contract provision, lease
> provision, homeowners' association rule or similar restriction, on
> property within the exclusive use or control of the antenna user where
> the user has a direct or indirect ownership or leasehold interest in
> the property that impairs the installation, maintenance, or use of:

(i) An antenna that is (1) used to receive direct broadcast satellite
    service, including direct-to-home satellite service, or to receive
    or transmit fixed wireless signals via satellite, and (2) one meter
    or less in diameter or is located in Alaska;

(ii) An antenna that is (1) used to receive video programming services
     via multipoint distribution services, including multichannel
     multipoint distribution services, instructional television fixed
     services, and local multipoint distribution services, or to receive
     or transmit fixed wireless signals other than via satellite,
     and (2) that is one meter or less in diameter or diagonal
     measurement;

(iii) An antenna that is used to receive television broadcast signals;
      or

(iv) A mast supporting an antenna described in paragraphs (a)(1)(i),
     (a)(1)(ii), or (a)(1)(iii) of this section;

> is prohibited to the extent it so impairs, subject to paragraph (b) of
> this section.
>
> (a)(2) For purposes of this section, "fixed wireless signals" means
> any commercial non-broadcast communications signals transmitted via
> wireless technology to and/or from a fixed customer location. Fixed
> wireless signals do not include, among other things, AM radio, FM
> radio, amateur (\"HAM\") radio, Citizen\'s Band (CB) radio, and
> Digital Audio Radio Service (DARS) signals.
>
> (a)(3) For purposes of this section, a law, regulation, or restriction
> impairs installation, maintenance, or use of an antenna if it:
>
> \(i\) Unreasonably delays or prevents installation, maintenance, or
> use;

(ii) Unreasonably increases the cost of installation, maintenance, or
     use; or

(iii) Precludes reception or transmission of an acceptable quality
      signal.

> (a)(4) Any fee or cost imposed on a user by a rule, law, regulation or
> restriction must be reasonable in light of the cost of the equipment
> or services and the rule, law, regulation or restriction's treatment
> of comparable devices. No civil, criminal, administrative, or other
> legal action of any kind shall be taken to enforce any restriction or
> regulation prohibited by this section except pursuant to paragraph (d)
> or (e) of this section. In addition, except with respect to
> restrictions pertaining to safety and historic preservation as
> described in paragraph (b) of this section, if a proceeding is
> initiated pursuant to paragraph (d) or (e) of this section, the entity
> seeking to enforce the antenna restrictions in question must suspend
> all enforcement efforts pending completion of review. No attorney's
> fees shall be collected or assessed and no fine or other penalties
> shall accrue against an antenna user while a proceeding is pending to
> determine the validity of any restriction. If a ruling is issued
> adverse to a user, the user shall be granted at least a 21-day grace
> period in which to comply with the adverse ruling; and neither a fine
> nor a penalty may be collected from the user if the user complies with
> the adverse ruling during this grace period, unless the proponent of
> the restriction demonstrates, in the same proceeding which resulted in
> the adverse ruling, that the user's claim in the proceeding was
> frivolous.

\(b\) Any restriction otherwise prohibited by paragraph (a) of this
section is permitted if:

\(1\) It is necessary to accomplish a clearly defined, legitimate safety
objective that is either stated in the text, preamble, or legislative
history of the restriction or described as applying to that restriction
in a document that is readily available to antenna users, and would be
applied to the extent practicable in a non-discriminatory manner to
other appurtenances, devices, or fixtures that are comparable in size
and weight and pose a similar or greater safety risk as these antennas
and to which local regulation would normally apply; or

> \(2\) It is necessary to preserve a prehistoric or historic district,
> site, building, structure or object included in, or eligible for
> inclusion on, the National Register of Historic Places, as set forth
> in the National Historic Preservation Act of 1966, as amended, 16
> U.S.C. § 470, and imposes no greater restrictions on antennas covered
> by this rule than are imposed on the installation, maintenance, or use
> of other modern appurtenances, devices, or fixtures that are
> comparable in size, weight, and appearance to these antennas; and

\(3\) It is no more burdensome to affected antenna users than is
necessary to achieve the objectives described in paragraph (b)(1) or (b)
(2) of this section.

> \(c\) In the case of an antenna that is used to transmit fixed
> wireless signals, the provisions of this section shall apply only if a
> label is affixed to the antenna that: (1) provides adequate notice
> regarding potential radiofrequency safety hazards, *e.g.*, information
> regarding the safe minimum separation distance required between users
> and transceiver antennas; and (2) references the applicable
> FCC-adopted limits for radiofrequency exposure specified in § 1.1310
> of this chapter.
>
> \(d\) Local governments or associations may apply to the Commission
> for a waiver
>
> of this section under § 1.3. Waiver requests must comply with the
> procedures in paragraphs (f) and (h) of this section and will be put
> on public notice. The Commission may grant a waiver upon a showing by
> the applicant of local concerns of a highly specialized or unusual
> nature. No petition for waiver shall be considered unless it specifies
> the restriction at issue. Waivers granted in accordance with this
> section shall not apply to restrictions amended or enacted after the
> waiver is granted. Any responsive pleadings must be served on all
> parties and filed within 30 days after release of a public notice that
> such petition has been filed. Any replies must be filed within 15 days
> thereafter.
>
> \(e\) Parties may petition the Commission for a declaratory ruling
> under § 1.2, or a court of competent jurisdiction, to determine
> whether a particular restriction is permissible or prohibited under
> this section. Petitions to the Commission must comply with the
> procedures in paragraphs (f) and (h) of this section and will be put
> on public notice. Any responsive pleadings in a Commission proceeding
> must be served on all parties and filed within 30 days after release
> of a public notice that such petition has been filed. Any replies in a
> Commission proceeding must be served on all parties and filed within
> 15 days thereafter.
>
> \(f\) Copies of petitions for declaratory rulings and waivers must be
> served on interested parties, including parties against whom the
> petitioner seeks to enforce the restriction or parties whose
> restrictions the petitioner seeks to prohibit. A certificate of
> service stating on whom the petition was served must be filed with the
> petition. In addition, in a Commission proceeding brought by an
> association or a local government, constructive notice of the
> proceeding must be given to members of the association or to the
> citizens under the local government\'s jurisdiction. In a court
> proceeding brought by an association, an association must give
> constructive notice of the proceeding to its members. Where
> constructive notice is required, the petitioner or plaintiff must file
> with the Commission or the court overseeing the proceeding a copy of
> the constructive notice with a statement explaining where the notice
> was placed and why such placement was reasonable.
>
> \(g\) In any proceeding regarding the scope or interpretation of any
> provision of this section, the burden of demonstrating that a
> particular governmental or nongovernmental restriction complies with
> this section and does not impair the installation, maintenance, or use
> of devices used for over-the-air reception of video programming
> services or devices used to receive or transmit fixed wireless signals
> shall be on the party that seeks to impose or maintain the
> restriction.

\(h\) All allegations of fact contained in petitions and related
pleadings before the Commission must be supported by affidavit of a
person or persons with actual knowledge thereof. An original and two
copies of all petitions and pleadings should be addressed to the
Secretary, Federal Communications Commission, 445 12th Street, SW,
Washington, DC 20554. Copies of the petitions and related pleadings will
be available for public inspection in the Reference Information Center,
Consumer Information Bureau, Federal Communications Commission, 445 12th
Street, SW, Washington, DC 20554. Copies will be available for purchase
from the Commission\'s contract copy center, and Commission decisions
will be available on the Internet.

**Revised Demarcation Point Rules**

Part 68 of Title 47 of the Code of Federal Regulations is amended as
follows:

The Demarcation Point definition in Section 68.3 is revised to read:

1.  Demarcation point: The point of demarcation and/or interconnection
    between telephone company communications facilities and terminal
    equipment, protective apparatus or wiring at a subscriber\'s
    premises. Carrier‑installed facilities at, or constituting, the
    demarcation point shall consist of wire or a jack conforming to
    subpart F of part 68 of the Commission\'s rules. \"Premises\" as
    used herein generally means a dwelling unit, other building or a
    legal unit of real property such as a lot on which a dwelling unit
    is located, as determined by the telephone company\'s reasonable and
    nondiscriminatory standard operating practices. The \"minimum point
    of entry\" as used herein shall be either the closest practicable
    point to where the wiring crosses a property line or the closest
    practicable point to where the wiring enters a multiunit building or
    buildings. The telephone company\'s reasonable and nondiscriminatory
    standard operating practices shall determine which shall apply. The
    telephone company is not precluded from establishing reasonable
    classifications of multiunit premises for purposes of determining
    which shall apply. Multiunit premises include, but are not limited
    to, residential, commercial, shopping center and campus situations.

> \(a\) Single unit installations. For single unit installations
> existing as of August 13, 1990, and installations installed after that
> date the demarcation point shall be a point within 30 cm (12 in) of
> the protector or, where there is no protector, within 30 cm (12 in) of
> where the telephone wire enters the customer\'s premises, or as close
> thereto as practicable.
>
> \(b\) Multiunit installations.
>
> \(1\) In multiunit premises existing as of August 13, 1990, the
> demarcation point shall be determined in accordance with the local
> carrier\'s reasonable and non‑discriminatory standard operating
> practices. Provided, however, that where there are multiple
> demarcation points within the multiunit premises, a demarcation point
> for a customer shall not be further inside the customer\'s premises
> than a point twelve inches from where the wiring enters the
> customer\'s premises, or as close thereto as practicable.
>
> \(2\) In multiunit premises in which wiring is installed, including
> major additions or rearrangements of wiring existing prior to that
> date, the telephone company may place the demarcation point at the
> minimum point of entry (MPOE). If the telephone company does not elect
> to establish a practice of placing the demarcation point at the
> minimum point of entry, the multiunit premises owner shall determine
> the location of the demarcation point or points. The multiunit
> premises owner shall determine whether there shall be a single
> demarcation point location for all customers or separate such
> locations for each customer. Provided, however, that where there are
> multiple demarcation points within the multiunit premises, a
> demarcation point for a customer shall not be further inside the
> customer\'s premises than a point 30 cm (12 in) from where the wiring
> enters the customer\'s premises, or as close thereto as practicable.
> At the time of installation, the telephone company shall fully inform
> the premises owner of its options and rights regarding the placement
> of the demarcation point or points and shall not attempt to unduly
> influence that decision for the purpose of obstructing competitive
> entry.
>
> \(3\) In any multiunit premises where the demarcation point is not
> already at the MPOE, the telephone company must comply with a request
> from the premises owner to relocate the demarcation point to the MPOE.
> The telephone company must negotiate terms in good faith and complete
> the negotiations within forty-five days from said request. Premises
> owners may file complaints with the Commission for resolution of
> allegations of bad faith bargaining by telephone companies. See 47
> U.S.C. Section 208; 47 C.F.R. Sections 1.720-1.736 (1999).
>
> \(4\) The telephone company shall make available information on the
> location of the demarcation point within ten business days of a
> request from the premises owner. If the telephone company does not
> provide the information within that time, the premises owner may
> presume the demarcation point to be at the MPOE. Notwithstanding the
> provisions of 47 U.S.C. § 68.110(c), telephone companies must make
> this information freely available to the requesting premises owner.
>
> \(5\) In multiunit premises with more than one customer, the premises
> owner may adopt a policy restricting a customer\'s access to wiring on
> the premises to only that wiring located in the customer\'s individual
> unit that serves only that particular customer.

**Appendix C**

**Final Regulatory Flexibility Analysis**

As required by the Regulatory Flexibility Act (RFA),[^391] an Initial
Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of
Proposed Rulemaking in WT Docket No. 99-217 and Third Further Notice of
Proposed Rulemaking in CC Docket No. 96-98, released July 7, 1999
(*Competitive Networks NPRM*).[^392] The Commission sought written
public comment on the proposals in the *Competitive Networks NPRM*,
including comment on the IRFA. The comments received are discussed
below. In addition, an IRFA was incorporated in the Second Further
Notice of Proposed Rulemaking in CC Docket No. 88-57 (*1997 Demarcation
Point Order on Reconsideration*).[^393] This present Final Regulatory
Flexibility Analysis (FRFA) conforms to the RFA.[^394]

A.  **Need for, and Objectives of, the Rules**

In this *Competitive Networks First Report and Order*,[^395] the
Commission furthers its ongoing efforts under the Telecommunications Act
of 1996[^396] to foster competition in local communications markets by
implementing measures to ensure that competing telecommunications
providers are able to provide services to customers in multiple tenant
environments (MTEs). MTEs include apartment buildings, office buildings,
office parks, shopping centers, and manufactured housing communities.
Based on the extensive record compiled in response to the *Competitive
Networks NPRM*, the Commission adopts several measures to remove
obstacles to competitive access in this important portion of the
telecommunications market. Specifically the Commission: (1) prohibits
carriers from entering into contracts in commercial buildings that
prevent access by competing carriers; (2) clarifies its demarcation
point rules[^397] governing control of in-building wiring and
facilitates exercise of building owner options regarding that wiring;
(3) concludes that the access mandated by Section 224 of the
Communications Act (the "Pole Attachments Act")[^398] includes access to
poles, ducts, conduits or rights-of-way that are owned or controlled by
a utility within MTEs; and (4) concludes that tenants in MTEs should
have the ability to place antennas one meter or less in diameter used to
receive or transmit any fixed wireless service in areas within their
exclusive use or control, and prohibits most restrictions on their
ability to do so by extending the Commission's rules governing
Over-the-Air Reception Devices (OTARDs).[^399]

B.  **Summary of Significant Issues Raised by Public Comments in
    Response to the IRFA**

Comments in response to the *Competitive Networks NPRM* IRFA were filed
by the Community Associations Institute, *et al.* (CAI),[^400] the
National Association of Counties, *et al.* (NACO),[^401] the Real Access
Alliance (RAA),[^402] and the Office of Advocacy of the U.S. Small
Business Administration (SBA).[^403]

CAI states that community associations (*i.e.*, condominiums,
cooperatives and planned communities) would incur undue expense and
disruptions if the Commission provides telecommunications carriers
so-called "forced access" to association property.[^404] Similarly, RAA
states that the Commission's "proposals will interfere with the ability
of landlords to insure compliance with safety codes; provide for the
safety of tenants, residents, and visitors; coordinate among tenants and
service providers; and manage limited physical space."[^405] CAI
requests that community associations be exempted from any "forced
access" rules adopted by the Commission,[^406] while RAA requests that
all affected "small businesses" be exempted.[^407] RAA also states that
the *Competitive Networks NPRM* should be withdrawn and reissued with a
revised IRFA.[^408]

The actions taken in the *Competitive Networks First Report and Order*
today do not impair the authority of property owners or managers,
including community associations, under state law to exclude
telecommunications carriers from their property.[^409] Rather, the
*Competitive Networks First Report and Order* makes clear that "the
right of access granted under Section 224 lies only against
utilities,"[^410] as defined in Section 224(a)(1) of the Act.[^411] We
also note that our authorization of small antennas for the provision of
non-video services is limited to antennas situated on property under the
control of a community association member rather than common property of
the association, and therefore will not impose undue burdens or expense
on community associations or small building owners.[^412] CAI also
states that prohibiting exclusive telecommunications contracts would
adversely impact community associations.[^413] The *Competitive Networks
First Report and Order* does not prohibit such contracts for residential
properties.[^414] Accordingly, even assuming that such a prohibition
would significantly impact community associations, no such impact will
result from the actions taken in the *Competitive Networks First Report
and Order* today.[^415]

In its comments filed August 27, 1999, NACO states that the Commission's
proposals "for building owners and managers represent the federalizing
of what is currently a growing local market in site leasing."[^416] We
have deferred to the *Competitive Networks Further Notice of Proposed
Rulemaking* (*FNPRM*) the issue of whether the Commission should impose
a nondiscriminatory access requirement on building owners and
managers.[^417] NACO also states that "\[l\]ocal communities would be .
. . deprived of a revenue stream that could reduce local tax burdens . .
. ."[^418] In later filed comments, NACO reiterates its concern over
"the impact of lost right-of-way and tax revenues and the impact on
infrastructure of loss of management control over the public right of
way."[^419] Although we sought comment on issues related to access to
public rights-of-way and franchise taxes in the *Competitive Networks
Notice of Inquiry,* we take no action in this regard today.

SBA states that the IRFA "inappropriately excludes small incumbent LECs
from the definition of small business," and requests that the Commission
reconcile its definition of small incumbent LEC with SBA's
definition.[^420] SBA states that, for RFA purposes, small incumbent
LECs are not dominant in their field of operation because any such
dominance is not \"national\" in scope.[^421] In the *Competitive
Networks NPRM* IRFA, we determined that, for the purposes of the IRFA,
we would use the term "small incumbent LECs" to refer to incumbent LECs
that might be defined by the SBA as small business concerns,[^422] and
would explicitly include small incumbent LECs in the analysis. In this
present FRFA, *infra*, we have included small incumbent LECs within the
definition of small business.

SBA and RAA separately state that the IRFA did not comply with the RFA.
NACO concurs with RAA's comments in this regard. SBA states that
"\[t\]he Commission does not adequately discuss any significant economic
impact its access proposal may have on small business nor does it
propose sufficient alternatives that might minimize this impact, as is
required by the RFA."[^423] The Commission's access proposal included
two key elements: (1) a requirement that building owners provide
reasonable and nondiscriminatory access to their premises; and (2) a
requirement, under Section 224 of the Act, that utilities provide
telecommunications carriers access to their poles, ducts, conducts, and
rights-of-way within buildings. As noted above, we are deferring to the
*Competitive Networks FNPRM* the issue of whether and, if so, the extent
to which, the Commission should impose a nondiscriminatory access
requirement on building owners.[^424] With respect to the proposed
implementation of Section 224, in the *Competitive Networks NPRM*, we
inquired:

whether an overly broad construction of utility ownership or control
would impose unreasonable burdens on building owners, *including small
building owners*, or compromise their ability to ensure the safe use of
rights-of-way or conduit, or engender other practical
difficulties.[^425]

After a thorough review and analysis of the comments filed on our
Section 224 proposal, we have determined that a broad definition of
utility ownership or control would not best serve the public interest.
Rather, in order to minimize the impact of our proposal on utilities
(and the buildings that they serve) that must provide access to
telecommunications carriers pursuant to Section 224, we find that "state
law determines whether, and the extent to which, utility ownership or
control of a right-of-way exists in any factual situation within the
meaning of Section 224."[^426] The *Competitive Networks First Report
and Order*, moreover, in no way impairs the authority under state law of
building owners, including small building owners, to exclude
telecommunications carriers from their property.[^427]

In addition, we note that in the *Competitive Networks NPRM* IRFA we
discussed certain alternatives that might have lessened the possible
economic input on small entities. We stated:

> \[W\]ith respect to our Section 224 proposal, we seek comment on
> whether an overly broad construction of utility ownership or control
> would impose unreasonable burdens on building owners, including small
> building owners, or compromise their ability to ensure the safe use of
> rights-of-way or conduit, or engender other practical difficulties. In
> addition, with respect to our inquiry into building owner obligations,
> we seek comment on whether we should limit the scope of any building
> owner obligation in order to avoid imposing unreasonable regulatory
> burden on building owners, and we suggest that a potential rule could
> exempt buildings that house fewer than a certain number of tenants or
> are under a certain size.[^428]

This discussion of alternatives included cross-references to the text of
the *Competitive Networks NPRM*, to assist the reader. We note that the
final rules that we adopt here will benefit small telecommunications
carriers by fostering facilities-based competition. We also anticipate
that our final rules will benefit small building owners and their
tenants, by ensuring that utilities cannot block access to their
rights-of-way.

SBA states that, while we suggested some alternatives to assist small
entities in the IRFA, on the whole our efforts were "inadequate." SBA
states that a broader analysis was required, directed not only toward
the alternatives described in the above paragraph but also toward
alternatives for "small LECs and the many other small businesses listed
in the IRFA."[^429] We find that we have met the requirements of the
RFA. We chose reasonable alternatives to discuss, and did not discuss
alternatives for every affected entity where it would not have seemed
reasonable or, perhaps, where it simply did not occur to us. We believe
that the RFA requires a good faith effort on our part, but it does not
require a discussion of a minimum of four alternatives[^430] for each of
the possibly affected entities. As noted above, we specifically
discussed one definitional issue and one possible exception, to assist
small entities. We also sought comment from small entities on other
issues throughout the *Competitive Networks NPRM* and IRFA. We
appreciate the comments supplied by SBA and others as a result, and have
considered them in the *Competitive Networks First Report and* Order and
this IRFA.

Finally, RAA contends that the IRFA provided inadequate notice as a
matter of law.[^431] We note that the IRFA was sufficient to generate
comments from representatives of the small business community and that
the record demonstrates that the IRFA met the objectives of the RFA.
Delaying issuance of final rules at this time would not, therefore,
advance those objectives. The IRFA provided sufficient information so
that the public could react to the Commission's proposal in the
*Competitive Networks NPRM* in an informed manner. We note that,
pursuant to the Administrative Procedure Act,[^432] the Commission must
provide ample opportunity for the public to comment on proposed rules.
In this proceeding, the Commission provided a 37-day filing period or
initial comments, followed by a 21-day period for reply comments. The
public thus had nearly two months to provide comments. In addition,
numerous parties filed *ex parte* statements with the Commission during
the course of the 13-month period after the formal comment period
closed. More than 1000 comments and other submissions were filed in this
proceeding. Many of the commenters, including small businesses,
enthusiastically endorsed the proposals in the *Competitive Networks
NPRM*.

C.  **Description and Estimate of the Number of Small Entities to which
    the Rules Will Apply**

The RFA requires that an initial regulatory flexibility analysis be
prepared for notice-and-comment rulemaking proceedings, unless the
agency certifies that \"the rule will not, if promulgated, have a
significant economic impact on a substantial number of small
entities.\"[^433] The RFA generally defines \"small entity\" as having
the same meaning as the terms \"small business,\" \"small
organization,\" and \"small governmental jurisdiction.\"[^434] In
addition, the term \"small business\" has the same meaning as the term
\"small business concern\" under the Small Business Act.[^435] A small
business concern is one which: (1) is independently owned and operated;
(2) is not dominant in its field of operation; and (3) satisfies any
additional criteria established by the Small Business Administration
(SBA).[^436] For many of the entities described below, we utilize SBA
definitions of small business categories, which are based on Standard
Industrial Classification (\"SIC\") codes.

We have included small incumbent LECs in this present RFA analysis. As
noted above, a \"small business\" under the RFA is one that, *inter
alia*, meets the pertinent small business size standard (*e.g.*, a
telephone communications business having 1,500 or fewer employees), and
\"is not dominant in its field of operation.\"[^437] The SBA contends
that, for RFA purposes, small incumbent LECs are not dominant in their
field of operation because any such dominance is not \"national\" in
scope.[^438] We have therefore included small incumbent LECs in this RFA
analysis, although we emphasize that this RFA action has no effect on
FCC analyses and determinations in other, non-RFA contexts.

This *Competitive Networks First Report and Order* adopts rule changes
that impose requirements on local exchange carriers and other utilities,
building owners and managers, neighborhood associations, and small
governmental jurisdictions, as discussed below.

a.  **Local Exchange Carriers**

The legal interpretation of Section 224 set forth today, and the rule
changes adopted today regarding exclusive contracts, demarcation point,
and an extension of the OTARD rule will affect small LECs. Neither the
Commission nor the SBA has developed a definition for small providers of
local exchange services. The closest applicable definition under the SBA
rules is for telephone communications companies other than
radiotelephone (wireless) companies.[^439] The SBA has defined
establishments engaged in providing \"Telephone Communications, Except
Radiotelephone\" to be small businesses when they have no more than
1,500 employees.[^440] According to recent *Telecommunications Industry
Revenue* data, 1,348 incumbent carriers reported that they were engaged
in the provision of local exchange services.[^441] We do not have data
specifying the number of these carriers that are either dominant in
their field of operations, are not independently owned and operated, or
have more than 1,500 employees, and thus are unable at this time to
estimate with greater precision the number of LECs that would qualify as
small business concerns under the SBA\'s definition. Consequently, we
estimate that fewer than 1,348 providers of local exchange service are
small entities or small incumbent LECs that may be affected by the rules
and policies adopted today.

b.  **Other Utilities**

The legal interpretation of Section 224 set forth today will affect
utilities other than LECs. Section 224 defines a \"utility\" as \"any
person who is a local exchange carrier or an electric, gas, water,
steam, or other public utility, and who owns or controls poles, ducts,
conduits, or rights‑of‑way used, in whole or in part, for any wire
communications. Such term does not include any railroad, any person who
is cooperatively organized, or any person owned by the Federal
Government or any state.\" The Commission anticipates that, to the
extent its legal interpretation of Section 224 affects non-LEC
utilities, the effect would be concentrated on electric utilities.

(1) **Electric Utilities (SIC 4911, 4931 & 4939)**

[Electric Services (SIC 4911)]{.underline}. The SBA has developed a
definition for small electric utility firms.[^442] The Census Bureau
reports that a total of 1,379 electric utilities were in operation for
at least one year at the end of 1992. According to SBA, a small electric
utility is an entity whose gross revenues do not exceed five million
dollars.[^443] The Census Bureau reports that 447 of the 1,379 firms
listed had total revenues below five million dollars in 1992.[^444]

[Electric and Other Services Combined (SIC 4931)]{.underline}. The SBA
has classified this entity as a utility whose business is less than 95%
electric in combination with some other type of service.[^445] The
Census Bureau reports that a total of 135 such firms were in operation
for at least one year at the end of 1992. The SBA\'s definition of a
small electric and other services combined utility is a firm whose gross
revenues do not exceed five million dollars.[^446] The Census Bureau
reported that 45 of the 135 firms listed had total revenues below five
million dollars in 1992.[^447]

[Combination Utilities, Not Elsewhere Classified (SIC
4939)]{.underline}. The SBA defines this type of utility as providing a
combination of electric, gas, and other services that are not otherwise
classified.[^448] The Census Bureau reports that a total of 79 such
utilities were in operation for at least one year at the end of 1992.
According to SBA\'s definition, a small combination utility is a firm
whose gross revenues do not exceed five million dollars.[^449] The
Census Bureau reported that 63 of the 79 firms listed had total revenues
below five million dollars in 1992.[^450]

(2) **Gas Production and Distribution (SIC 4922, 4923, 4924, 4925 &
    4932)**

[Natural Gas Transmission (SIC 4922)]{.underline}. The SBA\'s definition
of a natural gas transmitter is an entity that is engaged in the
transmission and storage of natural gas.[^451] The Census Bureau reports
that a total of 144 such firms were in operation for at least one year
at the end of 1992. According to SBA\'s definition, a small natural gas
transmitter is an entity whose gross revenues do not exceed five million
dollars.[^452] The Census Bureau reported that 70 of the 144 firms
listed had total revenues below five million dollars in 1992.[^453]

[Natural Gas Transmission and Distribution (SIC 4923)]{.underline}. The
SBA has classified this type of entity as a utility that transmits and
distributes natural gas for sale.[^454] The Census Bureau reports that a
total of 126 such entities were in operation for at least one year at
the end of 1992. The SBA\'s definition of a small natural gas
transmitter and distributor is a firm whose gross revenues do not exceed
five million dollars.[^455] The Census Bureau reported that 43 of the
126 firms listed had total revenues below five million dollars in
1992.[^456]

[Natural Gas Distribution (SIC 4924)]{.underline}. The SBA defines a
natural gas distributor as an entity that distributes natural gas for
sale.[^457] The Census Bureau reports that a total of 478 such firms
were in operation for at least one year at the end of 1992. According to
the SBA, a small natural gas distributor is an entity whose gross
revenues do not exceed five million dollars.[^458] The Census Bureau
reported that 267 of the 478 firms listed had total revenues below five
million dollars in 1992.[^459]

[Mixed, Manufactured, or Liquefied Petroleum Gas Production and/or
Distribution (SIC 4925)]{.underline}. The SBA has classified this type
of entity as a utility that engages in the manufacturing and/or
distribution of the sale of gas.[^460] These mixtures may include
natural gas. The Census Bureau reports that a total of 43 such firms
were in operation for at least one year at the end of 1992. The SBA\'s
definition of a small mixed, manufactured or liquefied petroleum gas
producer or distributor is a firm whose gross revenues do not exceed
five million dollars.[^461] The Census Bureau reported that 31 of the 43
firms listed had total revenues below five million dollars in
1992.[^462]

[Gas and Other Services Combined (SIC 4932)]{.underline}. The SBA has
classified this entity as a gas company whose business is less than 95%
gas, in combination with other services.[^463] The Census Bureau reports
that a total of 43 such firms were in operation for at least one year at
the end of 1992. According to the SBA, a small gas and other services
combined utility is a firm whose gross revenues do not exceed five
million dollars.[^464] The Census Bureau reported that 24 of the 43
firms listed had total revenues below five million dollars in
1992.[^465]

(3) **Water Supply (SIC 4941)**

The SBA defines a water utility as a firm who distributes and sells
water for domestic, commercial and industrial use.[^466] The Census
Bureau reports that a total of 3,169 water utilities were in operation
for at least one year at the end of 1992. According to SBA\'s
definition, a small water utility is a firm whose gross revenues do not
exceed five million dollars.[^467] The Census Bureau reported that 3,065
of the 3,169 firms listed had total revenues below five million dollars
in 1992.[^468]

(4) **Sanitary Systems (SIC 4952, 4953 & 4959)**

[Sewerage Systems (SIC 4952)]{.underline}. The SBA defines a sewage firm
as a utility whose business is the collection and disposal of waste
using sewage systems.[^469] The Census Bureau reports that a total of
410 such firms were in operation for at least one year at the end of
1992. According to SBA\'s definition, a small sewerage system is a firm
whose gross revenues did not exceed five million dollars.[^470] The
Census Bureau reported that 369 of the 410 firms listed had total
revenues below five million dollars in 1992.[^471]

[Refuse Systems (SIC 4953)]{.underline}. The SBA defines a firm in the
business of refuse as an establishment whose business is the collection
and disposal of refuse \"by processing or destruction or in the
operation of incinerators, waste treatment plants, landfills, or other
sites for disposal of such materials.\"[^472] The Census Bureau reports
that a total of 2,287 such firms were in operation for at least one year
at the end of 1992. According to SBA\'s definition, a small refuse
system is a firm whose gross revenues do not exceed six million
dollars.[^473] The Census Bureau reported that 1,908 of the 2,287 firms
listed had total revenues below six million dollars in 1992.[^474]

[Sanitary Services, Not Elsewhere Classified (SIC 4959)]{.underline}.
The SBA defines these firms as engaged in sanitary services.[^475] The
Census Bureau reports that a total of 1,214 such firms were in operation
for at least one year at the end of 1992. According to SBA\'s
definition, a small sanitary service firm\'s gross revenues do not
exceed five million dollars.[^476] The Census Bureau reported that 1,173
of the 1,214 firms listed had total revenues below five million dollars
in 1992.[^477]

(5) **Steam and Air Conditioning Supply (SIC 4961)**

The SBA defines a steam and air conditioning supply utility as a firm
who produces and/or sells steam and heated or cooled air.[^478] The
Census Bureau reports that a total of 55 such firms were in operation
for at least one year at the end of 1992. According to SBA\'s
definition, a steam and air conditioning supply utility is a firm whose
gross revenues do not exceed nine million dollars.[^479] The Census
Bureau reported that 30 of the 55 firms listed had total revenues below
nine million dollars in 1992.[^480]

(6) **Irrigation Systems (SIC 4971)**

The SBA defines irrigation systems as firms who operate water supply
systems for the purpose of irrigation.[^481] The Census Bureau reports
that a total of 297 firms were in operation for at least one year at the
end of 1992. According to SBA\'s definition, a small irrigation service
is a firm whose gross revenues do not exceed five million dollars.[^482]
The Census Bureau reported that 286 of the 297 firms listed had total
revenues below five million dollars in 1992.[^483]

c.  **Building Owners and Managers**

The rule changes adopted today will affect multiple dwelling unit
operators and real estate agents and managers.

(1) **Multiple Dwelling Unit Operators (SIC 6512, SIC 6513, SIC 6514)**

The SBA has developed definitions of small entities for operators of
nonresidential buildings, apartment buildings, and dwellings other than
apartment buildings, which include all such companies generating \$5
million or less in revenue annually.[^484] According to the Census
Bureau, there were 26,960 operators of nonresidential buildings
generating less than \$5 million in revenue that were in operation for
at least one year at the end of 1992.[^485] Also according to the Census
Bureau, there were 39,903 operators of apartment dwellings generating
less than \$5 million in revenue that were in operation for at least one
year at the end of 1992.[^486] The Census Bureau provides no separate
data regarding operators of dwellings other than apartment buildings,
and we are unable at this time to estimate the number of such operators
that would qualify as small entities.

(2) **Real Estate Agents and Managers (SIC 6531)**

The SBA defines real estate agents and managers as establishments
primarily engaged in renting, buying, selling, managing, and appraising
real estate for others.[^487] According to SBA\'s definition, a small
real estate agent or manager is a firm whose revenues do not exceed 1.5
million dollars.[^488]

d.  **Neighborhood Associations**

The extension of the OTARD rules adopted today will affect neighborhood
associations. The Regulatory Flexibility Act defines \"small
organization\" as \"any not‑for‑profit enterprise which is independently
owned and operated and is not dominant in its field.\" [^489] This
definition includes homeowner and condominium associations that operate
as not‑for‑profit organizations. The Community Associations Institute
estimates that there are 205,000 such associations.[^490]

e.  **Municipalities**

The extension of the OTARD rules adopted today will affect neighborhood
associations. The term \"small governmental jurisdiction\" is defined as
\"governments of . . . districts, with a population of less than
50,000.\"[^491] As of 1992, there were approximately 85,006 governmental
entities in the United States.[^492] This number includes such entities
as states, counties, cities, utility districts and school districts. Of
the 85,006 governmental entities, 38,978 are counties, cities and towns.
The remainder are primarily utility districts, school districts, and
states. Of the 38,978 counties, cities and towns, 37,566, or 96%, have
populations of fewer than 50,000.[^493] The Census Bureau estimates that
this ratio is approximately accurate for all governmental entities.
Thus, of the 85,006 governmental entities, we estimate that 81,606 (96%)
are small entities.

f.  **Cable Services or Systems**

The SBA has developed a definition of small entities for cable and other
pay television services, which includes all such companies generating
\$11 million or less in revenue annually.[^494] This definition includes
cable systems operators, closed circuit television services, direct
broadcast satellite services, multipoint distribution systems, satellite
master antenna systems and subscription television services. According
to the Census Bureau data from 1992, there were 1,788 total cable and
other pay television services and 1,423 had less than \$11 million in
revenue.[^495]

The Commission has developed its own definition of a small cable system
operator for purposes of rate regulation. Under the Commission\'s rules,
a \"small cable company\" is one serving fewer than 400,000 subscribers
nationwide*.*[^496] Based on our most recent information, we estimate
that there were 1,439 cable operators that qualified as small cable
system operators at the end of 1995.[^497] Since then, some of those
companies may have grown to serve over 400,000 subscribers, and others
may have been involved in transactions that caused them to be combined
with other cable operators. Consequently, we estimate that there are
fewer than 1,439 small entity cable system operators.

The Communications Act also contains a definition of a small cable
system operator, which is \"a cable operator that, directly or through
an affiliate, serves in the aggregate fewer than 1 percent of all
subscribers in the United States and is not affiliated with any entity
or entities whose gross annual revenues in the aggregate exceed
\$250,000,000.\"[^498] The Commission has determined that there are
66,690,000 subscribers in the United States. Therefore, we found that an
operator serving fewer than 666,900 subscribers shall be deemed a small
operator, if its annual revenues, when combined with the total annual
revenues of all of its affiliates, do not exceed \$250 million in the
aggregate.[^499] Based on available data, we find that the number of
cable operators serving 666,900 subscribers or less totals 1,450.[^500]
We do not request nor do we collect information concerning whether cable
system operators are affiliated with entities whose gross annual
revenues exceed \$250,000,000,[^501] and thus are unable at this time to
estimate with greater precision the number of cable system operators
that would qualify as small cable operators under the definition in the
Communications Act.

g.  **International Services**

The Commission has not developed a definition of small entities
applicable to licensees in the international services. Therefore, the
applicable definition of small entity is generally the definition under
the SBA rules applicable to Communications Services, Not Elsewhere
Classified (NEC).[^502] This definition provides that a small entity is
expressed as one with \$11.0 million or less in annual receipts.[^503]
According to the Census Bureau, there were a total of 848 communications
services providers, NEC, in operation in 1992, and a total of 775 had
annual receipts of less than \$9.999 million.[^504] The Census report
does not provide more precise data.

[International Broadcast Stations]{.underline}. Commission records show
that there are 20 international broadcast station licensees. We do not
request or collect annual revenue information, and thus are unable to
estimate the number of international broadcast licensees that would
constitute a small business under the SBA definition. However, the
Commission estimates that only six international broadcast stations are
subject to regulatory fee payments.

[International Public Fixed Radio (Public and Control
Stations).]{.underline} There are 3 licensees in this service subject to
payment of regulatory fees. We do not request or collect annual revenue
information, and thus are unable to estimate the number of international
broadcast licensees that would constitute a small business under the SBA
definition.

[Fixed Satellite Transmit/Receive Earth Stations.]{.underline} There are
approximately 2,679 earth station authorizations, a portion of which are
Fixed Satellite Transmit/Receive Earth Stations. We do not request or
collect annual revenue information, and thus are unable to estimate the
number of the earth stations that would constitute a small business
under the SBA definition.

[Fixed Satellite Small Transmit/Receive Earth Stations.]{.underline}
There are approximately 2,679 earth station authorizations, a portion of
which are Fixed Satellite Small Transmit/Receive Earth Stations. We do
not request or collect annual revenue information, and thus are unable
to estimate the number of fixed satellite transmit/receive earth
stations that would constitute a small business under the SBA
definition.

[Mobile Satellite Earth Stations.]{.underline} There are 11 licensees.
We do not request or collect annual revenue information, and thus are
unable to estimate the number of mobile satellite earth stations that
would constitute a small business under the SBA definition.

[Radio Determination Satellite Earth Stations]{.underline}**.** There
are four licensees. We do not request or collect annual revenue
information, and thus are unable to estimate the number of radio
determination satellite earth stations that would constitute a small
business under the SBA definition.

[Direct Broadcast Satellites.]{.underline} Because DBS provides
subscription services, DBS falls within the SBA-recognized definition of
\"Cable and Other Pay Television Services.\"[^505] This definition
provides that a small entity is one with \$11.0 million or less in
annual receipts.[^506] As of December 1996, there were eight DBS
licensees. However, the Commission does not collect annual revenue data
for DBS and, therefore, is unable to ascertain the number of small DBS
licensees that would be impacted by these proposed rules. Although DBS
service requires a great investment of capital for operation, there are
several new entrants in this field that may not yet have generated \$11
million in annual receipts, and therefore may be categorized as small
businesses, if independently owned and operated.

[Fixed Satellite Very Small Aperture Terminal (VSAT)
Systems]{.underline}**.** These stations operate on a primary basis, and
frequency coordination with terrestrial microwave systems is not
required. Thus, a single \"blanket\" application may be filed for a
specified number of small antennas and one or more hub stations. The
Commission has processed 377 applications. We do not request nor collect
annual revenue information, and thus are unable to estimate the number
of VSAT systems that would constitute a small business under the SBA
definition.

**h. Multipoint Distribution Service (MDS)**.

MDS involves a variety of transmitters, which are used to relay
programming to the home or office, similar to that provided by cable
television systems.[^507] In connection with the 1996 MDS auction, the
Commission defined small businesses as entities that had annual average
gross revenues for the three preceding years not in excess of \$40
million.[^508] This definition of a small entity in the context of MDS
auctions has been approved by the SBA.[^509] These stations were
licensed prior to implementation of Section 309(j) of the Communications
Act of 1934, as amended.[^510] Licenses for new MDS facilities are now
awarded to auction winners in Basic Trading Areas (BTAs) and BTA-like
areas.[^511] The MDS auctions resulted in 67 successful bidders
obtaining licensing opportunities for 493 BTAs. Of the 67 auction
winners, 61 meet the definition of a small business. There are 2,050 MDS
stations currently licensed. Thus, we conclude that there are 1,634 MDS
providers that are small businesses as deemed by the SBA and the
Commission\'s auction rules.

**i. Wireless Services**

[Broadband Personal Communications Service (PCS)]{.underline}. The
broadband PCS spectrum is divided into six frequency blocks designated A
through F, and the Commission has held auctions for each block. The
Commission defined "small entity" for Blocks C and F as an entity that
has average gross revenues of \$40 million or less in the three previous
calendar years. [^512] For Block F, an additional classification for
"very small business" was added and is defined as an entity that,
together with its affiliates, has average gross revenues of not more
than \$15 million for the preceding three calendar years.[^513] These
regulations defining "small entity" in the context of broadband PCS
auctions have been approved by the SBA.[^514] No small businesses within
the SBA-approved definition bid successfully for licenses in Blocks A
and B. There were 90 winning bidders that qualified as small entities in
the Block C auctions. A total of 93 small and very small business
bidders won approximately 40 percent of the 1,479 licenses for Blocks D,
E, and F.[^515] Based on this information, we conclude that the number
of small broadband PCS licensees will include the 90 winning C Block
bidders and the 93 qualifying bidders in the D, E, and F blocks, for a
total of 183 small entity PCS providers as defined by the SBA and the
Commission\'s auction rules.

[Cellular Licensees]{.underline}. Neither the Commission nor the SBA has
developed a definition of small entities applicable to cellular
licensees. Therefore, the applicable definition of a small entity is the
definition under the SBA rules applicable to radiotelephone (wireless)
companies. This provides that a small entity is a radiotelephone company
employing no more than 1,500 persons.[^516] According to the Bureau of
the Census, only twelve radiotelephone firms from a total of 1,178 such
firms that operated during 1992 had 1,000 or more employees. [^517]
Therefore, even if all twelve of these firms were cellular telephone
companies, nearly all cellular carriers were small businesses under the
SBA's definition. In addition, we note that there are 1,758 cellular
licenses; however, a cellular licensee may own several licenses. In
addition, according to the most recent Trends in Telephone Service data,
808 carriers reported that they were engaged in the provision of either
cellular service, Personal Communications Service (PCS), or Specialized
Mobile Radio Telephone (SMR) service, which are placed together in the
data.[^518] We do not have data specifying the number of these carriers
that are not independently owned and operated or have more than 1,500
employees, and thus are unable at this time to estimate with greater
precision the number of cellular service carriers that would qualify as
small business concerns under the SBA's definition. Consequently, we
estimate that there are 808 or fewer small cellular service carriers
that may be affected by any regulations adopted pursuant to this
proceeding.

[Fixed Microwave Services.]{.underline} Microwave services include
common carrier,[^519] private‑operational fixed,[^520] and broadcast
auxiliary radio services.[^521] At present, there are approximately
22,015 common carrier fixed licensees and 61,670 private
operational‑fixed licensees and broadcast auxiliary radio licensees in
the microwave services. The Commission has not yet defined a small
business with respect to microwave services. For purposes of this IRFA,
we will utilize the SBA\'s definition applicable to radiotelephone
companies \-- [i.e.]{.underline}, an entity with no more than 1,500
persons.[^522] We estimate, for this purpose, that all of the Fixed
Microwave licensees (excluding broadcast auxiliary licensees) would
qualify as small entities under the SBA definition for radiotelephone
companies.

[Rural Radiotelephone Service.]{.underline} The Commission has not
adopted a definition of small entity specific to the Rural
Radiotelephone Service.[^523] A significant subset of the Rural
Radiotelephone Service is the Basic Exchange Telephone Radio Systems
(BETRS).[^524] We will use the SBA\'s definition applicable to
radiotelephone companies, [i.e.]{.underline}, an entity employing no
more than 1,500 persons.[^525] There are approximately 1,000 licensees
in the Rural Radiotelephone Service, and we estimate that almost all of
them qualify as small entities under the SBA\'s definition.

D.  **Description of Projected Reporting, Recordkeeping, and Other
    Compliance Requirements**

The *Competitive Networks First Report and Order* requires incumbent
LECs to respond promptly to requests by building owners to identify the
location of the demarcation point. The *Competitive Networks First
Report and Order* holds that if an incumbent LEC fails to produce this
information within ten business days of the request, the premises owner
may presume the demarcation point to be located at the minimum point of
entry (MPOE).[^526] The *Competitive Networks First Report and Order*
further requires that where LECs do not establish a practice of placing
the demarcation point at the MPOE, they fully inform building owners, at
the time of installation, of their options regarding placement.

The *Competitive Networks First Report and Order* holds that in order to
further competition, a request by a property owner to relocate the
demarcation point to the MPOE must be addressed by an incumbent LEC in a
reasonably timely and fair manner, so as not to unduly delay or hinder
competitive LEC access. The *Competitive Networks First Report and
Order* therefore directs incumbent LECs to conclude negotiations with
requesting building owners within 45 days of such a request. If the
parties are unable to come to reasonably agreeable terms, they must
submit to binding arbitration to settle the dispute.[^527]

In addition, the *Competitive Networks First Report and Order* requires,
as a condition of invoking protection under the OTARD rule from
government, landlord and association restrictions, that licensees ensure
that subscriber antennas be labeled to give notice of potential
radiofrequency safety hazards of antennas used for fixed wireless
transmissions. Labeling information should include minimum separation
distances required between users and radiating antennas to meet the
Commission\'s radiofrequency exposure guidelines. Labels should also
include reference to the Commission's applicable radiofrequency exposure
guidelines. In addition, the instruction manuals and other information
accompanying subscriber transceivers should include a full explanation
of the labels, as well as a reference to the applicable Commission
radiofrequency exposure guidelines.

E. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered.

The rule changes adopted in this *Competitive Networks First Report and
Order* are intended to promote competition in local communications
markets by implementing measures to ensure that competing
telecommunications providers are able to provide services to customers
in MTEs. The actions taken today will benefit consumers,
telecommunications carriers, and building owners, including small
entities.

In the *Competitive Networks NPRM*, we sought comment on seven
proposals: (1) the tentative conclusion that, to the extent that LECs or
other utilities own or control rooftop and other rights-of-way or riser
conduit in MTEs, Section 224 of the Act[^528] requires that they permit
competing providers access to such rights-of-way or conduit under just,
reasonable and nondiscriminatory rates, terms, and conditions; (2)
whether we should require incumbent LECs to make available to any
requesting telecommunications carrier unbundled access to riser cable
and wiring that they control within MTEs, subject to the Commission\'s
future interpretation of the \"necessary\" and \"impair\" standards of
Section 251 of the Act;[^529] (3) whether we should require building
owners, who allow access to their premises to any telecommunications
provider, to make comparable access available to all such providers on a
nondiscriminatory basis; (4) whether we should forbid telecommunications
service providers, under some or all circumstances, from entering into
exclusive contracts with building owners, and abrogate any existing
exclusive contracts between these parties; (5) whether we should modify
our rules governing determination of the demarcation point between
facilities controlled by the telephone company and by the landowner on
multiple unit premises; (6) whether the rules governing access to cable
home wiring for multichannel video program distribution should be
extended to benefit providers of telecommunications services; and (7)
whether we should adopt rules similar to those adopted in the video
context under Section 207 of the 1996 Act protecting the ability to
place antennas to transmit and receive telecommunications signals and
other signals that are not covered under Section 207. After careful
review and analysis of the voluminous record developed in response to
the *Competitive Networks NPRM*, we take action on four proposals today.

First, we prohibit telecommunications service providers from entering
into exclusive contracts to serve commercial buildings. In the
*Competitive Networks NPRM*, we solicited comment on this proposal as an
alternative to our proposal to require building owners to provide
nondiscriminatory access to their premises to telecommunications
providers.[^530] As noted above, we received comment opposed to this
second alternative. We have not adopted the latter proposal in the
*Competitive Networks First Report and Order*; however, we do seek
additional comment on it in the *Competitive Networks FNPRM*.[^531] In
the *Competitive Networks NPRM*, we also inquired whether we should
abrogate existing exclusive contracts.[^532] Based on the record in this
proceeding, we have determined that abrogating exclusive contracts may
interfere with the investment-backed expectations of the parties to such
contracts, including small entities, and thus we defer consideration of
this issue to the *Competitive Networks FNPRM*.[^533] We also find that
the record is not sufficiently developed to determine whether the
prohibition on exclusive contracts should apply to residential
MTEs,[^534] and therefore defer this issue to the *Competitive Networks
FNPRM*.[^535] We note that there was widespread support in the record
for prohibiting future exclusive contracts in commercial MTEs.[^536] We
also note our expectation that small entities, including small
telecommunications carriers and small building owners, will benefit from
the competitive telecommunications environment that the ban on exclusive
contracts will foster.

Second, with respect to modifying the Commission's demarcation point
rules, we sought comment on, *inter alia*, establishing a uniform
demarcation point at the minimum point of entry (MPOE) to multiple unit
premises.[^537] We have weighed the evidence in the record concerning
this proposal carefully. We find that the potential financial burden of
moving the demarcation point to the MPOE and the fact that it may hinder
deployment of facilities by carriers, including small entities, which
utilize unbundled local loops outweigh the potential benefits of
adopting this proposal.[^538] In the alternative, we take the following
actions to promote access to telecommunications wiring by competing
carriers, including small entities: (1) we clarify that the Commission's
demarcation point rules govern the control of inside wiring and related
facilities for purposes of competitive access, as well as the control of
these facilities for purposes of installation and maintenance; (2) we
require that incumbent LECs conclude negotiations with building owners
to relocate the demarcation point to the MPOE within 45 days of the
building owner's request and submit to binding arbitration if the
parties are unable to agree upon the terms of relocation; and (3) we
require that incumbent LECs fulfill their duty to disclose the location
of the demarcation point, where it is not located at the MPOE, within
ten business days of a building owner's request.[^539] Collectively,
these actions "will substantially reduce the potential for incumbent
LECs to obstruct competitive access to MTEs," [^540] while imposing only
minimal financial burdens. We expect that that many smaller carriers
seeking competitive entry will benefit directly from these actions.

Third, we have adopted our proposal under Section 224 of the Act[^541]
to require LECs and other utilities which own or control poles, ducts,
conduits and other rights-of-way in MTEs, to permit competing providers
access to such facilities under just, reasonable and nondiscriminatory
rates, terms, and conditions. We anticipate that this action will
benefit many small entities, including property owners and managers. We
emphasize that our proposal as adopted will not impair the authority
under state law, of property owners and managers to exclude
telecommunications carriers from their property.[^542] Rather, building
owners and managers, and their tenants, will benefit from our proposal
because utilities, as defined in Section 224(a)(1) of the Act,[^543]
will no longer have the unfettered ability to exclude telecommunications
carriers from their poles, ducts, conduits, and defined rights-of way in
MTEs. Telecommunications carriers, including small entities, will
benefit from increased access to MTEs. We note that, although it did not
file comments on the IRFA, the National League of Cities expressed
concern that our proposed implementation of Section 224 within buildings
may preempt implementation or enforcement of state safety-related
codes.[^544] As we make clear in the *Competitive Networks First Report
and Order*, "our actions taken today are not intended to preempt, or
impede, in any way the implementation or enforcement of state
safety-related codes."[^545]

Fourth, we are amending Section 1.4000 of our rules (the "OTARD
rule")[^546] to protect the ability of customers to place antennas used
for transmitting and receiving all forms of fixed wireless
transmissions. Section 1.4000 currently prohibits any state or local law
or regulation, private covenant, contract provision, lease provision,
homeowners' association rule, or similar restriction that impairs the
installation, maintenance, or use of certain antennas designed to
receive video programming services on property within the exclusive use
or control of the antenna user where the user has a direct or indirect
ownership or leasehold interest in the property.

Currently, Section 1.4000 prohibits restrictions that impair the
installation, maintenance or use of: (1) any antenna designed to receive
direct broadcast satellite service, including direct-to-home satellite
services, that is one meter or less in diameter or is located in Alaska;
(2) any antenna designed to receive video programming services via
multipoint distribution services, including multichannel multipoint
distribution services, and local multipoint distribution services, and
that is one meter or less in diameter; (3) any antenna designed to
receive television broadcast signals; or (4) any mast supporting an
antenna receiving any video programming described in the section. For
the purposes of Section 1.4000, a law, regulation or restriction impairs
installation, maintenance or use of an antenna if it unreasonably delays
or prevents installation, maintenance or use, unreasonably increases the
cost of installation, maintenance or use, or precludes reception of an
acceptable quality signal. Section 1.4000 also includes provisions for
waiver and declaratory ruling proceedings.

There is widespread support in the record for an extension of the OTARD
rule to include all fixed wireless services.[^547] Moreover, we believe
that extending the OTARD rule to include all fixed wireless services is
essential to meeting our obligation to promote the deployment of
advanced telecommunications capability under Section 706(a) of the 1996
Act.[^548] To the extent a restriction unreasonably limits a customer's
ability to place antennas to receive communications services, that
restriction may impede the development of advanced, competitive
services.

The *Competitive Networks First Report and Order* underscores the policy
rationale for amending the OTARD rule:

\[D\]istinguishing in the protection afforded based on the services
provided through an antenna produces irrational results. Precisely the
same antennas may be used for video services, telecommunications, and
internet access. Indeed, sometimes a single company offers different
packages of services using the same type of antennas. Under our current
rules, a customer ordering a telecommunications/video package would
enjoy protection that a customer ordering a telecommunications-only
package from the same company using the same antenna would not. Thus, we
conclude that the current rules potentially distort markets by creating
incentives to include video programming service in many service
offerings even if it is not efficient or desired by the consumer.[^549]

We do not anticipate that today's rule change will have a significant
adverse economic impact on small entities. To the contrary, we expect
that small communications carriers that previously were unable to serve
customers in MTEs may now be able to do so as a result of our rule
change. However, we emphasize that "the action we take today does not
confer a right as against the building owner in restricted or common use
areas in commercial or residential buildings, like most rooftops."[^550]
Rather our extension of the OTARD rule to wireless services "applies
only to areas within the exclusive use or control of the antenna user
and in which the antenna user has a direct or indirect ownership or
leasehold interest."[^551]

We also note that any impact on small entities is mitigated by our
preservation of the exceptions to the OTARD rule permitting certain
restrictions for safety and historic preservation purposes. Restrictions
that would otherwise be forbidden are permitted if they are necessary to
achieve certain safety or historic preservation purposes, are no more
burdensome than necessary to achieve their purpose, and meet certain
other conditions set forth in the OTARD rule. Finally, to address any
potential concerns regarding transmitting antennas, we have determined
that "\[t\]o the extent that local governments, associations, and
property owners elect to require professional installation for
transmitting antennas, the usual prohibition of such requirements under
the OTARD rule will not apply."[^552]

**[Report to Congress]{.underline}**: The Commission will send a copy of
the *Competitive Networks First Report and Order*, including this FRFA,
in a report to be sent to Congress pursuant to the Small Business
Regulatory Enforcement Fairness Act of 1996, *see* 5 U.S.C. §
801(a)(1)(A). In addition, the Commission will send a copy of the
*Competitive Networks First Report and Order*, including the FRFA, to
the Chief Counsel for Advocacy of the Small Business Administration. A
copy of the *Competitive Networks First Report and Order* and FRFA (or
summaries thereof) will also be published in the Federal Register. *See*
5 U.S.C. § 604(b).

**Appendix D**

**Initial Regulatory Flexibility Analysis**

As required by the Regulatory Flexibility Act (RFA),[^553] the
Commission has prepared this present Initial Regulatory Flexibility
Analysis (IRFA) of the possible significant economic impact on small
entities by the policies and rules proposed in this *Competitive
Networks Further Notice of Proposed Rulemaking (FNPRM)*, WT Docket No.
99-217. Written public comments are requested on this IRFA. Comments
must be identified as responses to the IRFA and must be filed by the
deadline for comments on the *Competitive Networks FNPRM* provided above
in paragraph 179 of the *Competitive Networks FNPRM***.** The Commission
will send a copy of the *Competitive Networks FNPRM*, including this
IRFA, to the Chief Counsel for Advocacy of the Small Business
Administration.[^554] In addition, the *Competitive Networks FNPRM* and
IRFA (or summaries thereof) will be published in the Federal
Register.[^555]

**A. Need for, and Objectives of, the Rules**

In the *Competitive Networks FNPRM*, the Commission seeks comment on a
number of proposals to further its ongoing efforts under the
Telecommunications Act of 1996[^556] to foster competition in local
communications markets. Specifically, we seek comment on measures to
ensure that competing telecommunications providers are able to provide
services to customers in multiple tenant environments (MTEs). MTEs
include apartment and office buildings, office parks, shopping centers,
and manufactured housing communities. Each of the proposals in the
*Competitive Networks FNPRM* is intended to benefit telecommunications
carriers, building owners and their tenants by creating a more
competitive MTE telecommunications service environment.

The *Competitive Networks FNPRM* seeks comment on: (1) whether we should
require building owners, who allow access to their premises to any
telecommunications provider, to make comparable access available to all
providers on a nondiscriminatory basis; (2) whether we should prohibit
local exchange carriers from serving buildings that do not afford
nondiscriminatory access to all telecommunications service providers;
(3) whether we should forbid telecommunications service providers, under
some or all circumstances, from entering into exclusive contracts with
residential building owners; (4) whether we should prohibit carriers
from enforcing exclusive access provisions in existing contracts in
either commercial or residential MTEs; (5) whether we should phase out
exclusive access provisions by establishing a future termination date
for such provisions; (6) whether we should phase out exclusive access
provisions for carriers that qualify as small entities and the timing of
any such phase out; (7) whether, and to what extent, preferential
agreements between building owners and LECs should be regulated by the
Commission; (8) whether the Commission's rules governing access to cable
home run wiring for multichannel video program distribution should be
extended to benefit providers of telecommunications services; and (9)
the extent to which utility rights-of-way within MTEs are subject to
access by telecommunications carriers (except incumbent LECs) and cable
companies pursuant to Section 224 of the Act.[^557]

B.  **Legal Basis**

The potential actions on which comment is sought in this *Competitive
Networks FNPRM* would be authorized under Sections 1, 2(a), 4(i),
201(b), 202(a), 205(a), 224(d), 224(e), 303(r), and 411(a) of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 152(a),
154(i), 201(b), 202(a), 205(a), 224(d), 224(e), 303(r), and 411(a), and
Sections 1.411 and 1.412 of the Commission's Rules, 47 C.F.R. §§ 1.411
and 1.412.

**C.** **Description and Estimate of the Number of Small Entities to
which the Rules Will Apply**

The RFA requires that an IRFA be prepared for notice-and-comment
rulemaking proceedings, unless the agency certifies that \"the rule will
not, if promulgated, have a significant economic impact on a substantial
number of small entities.\"[^558] The RFA generally defines \"small
entity\" as having the same meaning as the terms \"small business,\"
\"small organization,\" and \"small governmental jurisdiction.\"[^559]
In addition, the term \"small business\" has the same meaning as the
term \"small business concern\" under the Small Business Act.[^560] A
small business concern is one which: (1) is independently owned and
operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the Small Business
Administration (SBA).[^561] For many of the entities described below, we
utilize SBA definitions of small business categories, which are based on
Standard Industrial Classification (\"SIC\") codes.

We have included small incumbent LECs in this present IRFA. As noted
above, a \"small business\" under the RFA is one that, *inter alia*,
meets the pertinent small business size standard (*e.g.*, a telephone
communications business having 1,500 or fewer employees), and \"is not
dominant in its field of operation.\"[^562] The SBA contends that, for
RFA purposes, small incumbent LECs are not dominant in their field of
operation because any such dominance is not \"national\" in scope.[^563]
We have therefore included small incumbent LECs in this IRFA, although
we emphasize that this RFA action has no effect on FCC analyses and
determinations in other, non-RFA contexts.

This *Competitive Networks FNPRM* proposes rule changes that, if
adopted, would impose requirements on local exchange carriers and other
utilities, building owners and managers, neighborhood associations, and
small governmental jurisdictions, as discussed below.

a.  **Local Exchange Carriers**

Many of the potential rule changes on which comment is sought in this
*Competitive Networks FNPRM*, if adopted, would affect small LECs.
Neither the Commission nor the SBA has developed a definition for small
providers of local exchange services. The closest applicable definition
under the SBA rules is for telephone communications companies other than
radiotelephone (wireless) companies.[^564] The SBA has defined
establishments engaged in providing \"Telephone Communications, Except
Radiotelephone\" to be small businesses when they have no more than
1,500 employees.[^565] According to recent *Telecommunications Industry
Revenue* data, 1,348 incumbent carriers reported that they were engaged
in the provision of local exchange services.[^566] We do not have data
specifying the number of these carriers that are either dominant in
their field of operations, are not independently owned and operated, or
have more than 1,500 employees, and thus are unable at this time to
estimate with greater precision the number of LECs that would qualify as
small business concerns under the SBA\'s definition. Consequently, we
estimate that fewer than 1,348 providers of local exchange service are
small entities that may be affected by the potential actions discussed
in this *Further Notice of Proposed Rulemaking*, if adopted.

b.  **Other Utilities**

The proposals in the *Competitive Networks FNPRM* with respect to the
application of Section 224 of the Act, if adopted, would affect
utilities other than LECs. Section 224 defines a \"utility\" as \"any
person who is a local exchange carrier or an electric, gas, water,
steam, or other public utility, and who owns or controls poles, ducts,
conduits, or rights‑of‑way used, in whole or in part, for any wire
communications. Such term does not include any railroad, any person who
is cooperatively organized, or any person owned by the Federal
Government or any state.\" The Commission anticipates that, to the
extent its legal interpretation of Section 224 affects non-LEC
utilities, the effect would be concentrated on electric utilities.

(1) **Electric Utilities (SIC 4911, 4931 & 4939)**

[Electric Services (SIC 4911)]{.underline}. The SBA has developed a
definition for small electric utility firms.[^567] The Census Bureau
reports that a total of 1,379 electric utilities were in operation for
at least one year at the end of 1992. According to SBA, a small electric
utility is an entity whose gross revenues do not exceed five million
dollars.[^568] The Census Bureau reports that 447 of the 1,379 firms
listed had total revenues below five million dollars in 1992.[^569]

[Electric and Other Services Combined (SIC 4931)]{.underline}. The SBA
has classified this entity as a utility whose business is less than 95%
electric in combination with some other type of service.[^570] The
Census Bureau reports that a total of 135 such firms were in operation
for at least one year at the end of 1992. The SBA\'s definition of a
small electric and other services combined utility is a firm whose gross
revenues do not exceed five million dollars.[^571] The Census Bureau
reported that 45 of the 135 firms listed had total revenues below five
million dollars in 1992.[^572]

[Combination Utilities, Not Elsewhere Classified (SIC
4939)]{.underline}. The SBA defines this type of utility as providing a
combination of electric, gas, and other services that are not otherwise
classified.[^573] The Census Bureau reports that a total of 79 such
utilities were in operation for at least one year at the end of 1992.
According to SBA\'s definition, a small combination utility is a firm
whose gross revenues do not exceed five million dollars.[^574] The
Census Bureau reported that 63 of the 79 firms listed had total revenues
below five million dollars in 1992.[^575]

(2) **Gas Production and Distribution (SIC 4922, 4923, 4924, 4925 &
    4932)**

[Natural Gas Transmission (SIC 4922)]{.underline}. The SBA\'s definition
of a natural gas transmitter is an entity that is engaged in the
transmission and storage of natural gas.[^576] The Census Bureau reports
that a total of 144 such firms were in operation for at least one year
at the end of 1992. According to SBA\'s definition, a small natural gas
transmitter is an entity whose gross revenues do not exceed five million
dollars.[^577] The Census Bureau reported that 70 of the 144 firms
listed had total revenues below five million dollars in 1992.[^578]

[Natural Gas Transmission and Distribution (SIC 4923)]{.underline}. The
SBA has classified this type of entity as a utility that transmits and
distributes natural gas for sale.[^579] The Census Bureau reports that a
total of 126 such entities were in operation for at least one year at
the end of 1992. The SBA\'s definition of a small natural gas
transmitter and distributor is a firm whose gross revenues do not exceed
five million dollars.[^580] The Census Bureau reported that 43 of the
126 firms listed had total revenues below five million dollars in
1992.[^581]

[Natural Gas Distribution (SIC 4924)]{.underline}. The SBA defines a
natural gas distributor as an entity that distributes natural gas for
sale.[^582] The Census Bureau reports that a total of 478 such firms
were in operation for at least one year at the end of 1992. According to
the SBA, a small natural gas distributor is an entity whose gross
revenues do not exceed five million dollars.[^583] The Census Bureau
reported that 267 of the 478 firms listed had total revenues below five
million dollars in 1992.[^584]

[Mixed, Manufactured, or Liquefied Petroleum Gas Production and/or
Distribution (SIC 4925)]{.underline}. The SBA has classified this type
of entity as a utility that engages in the manufacturing and/or
distribution of the sale of gas.[^585] These mixtures may include
natural gas. The Census Bureau reports that a total of 43 such firms
were in operation for at least one year at the end of 1992. The SBA\'s
definition of a small mixed, manufactured or liquefied petroleum gas
producer or distributor is a firm whose gross revenues do not exceed
five million dollars.[^586] The Census Bureau reported that 31 of the 43
firms listed had total revenues below five million dollars in
1992.[^587]

[Gas and Other Services Combined (SIC 4932)]{.underline}. The SBA has
classified this entity as a gas company whose business is less than 95%
gas, in combination with other services.[^588] The Census Bureau reports
that a total of 43 such firms were in operation for at least one year at
the end of 1992. According to the SBA, a small gas and other services
combined utility is a firm whose gross revenues do not exceed five
million dollars.[^589] The Census Bureau reported that 24 of the 43
firms listed had total revenues below five million dollars in
1992.[^590]

(3) **Water Supply (SIC 4941)**

The SBA defines a water utility as a firm who distributes and sells
water for domestic, commercial and industrial use.[^591] The Census
Bureau reports that a total of 3,169 water utilities were in operation
for at least one year at the end of 1992. According to SBA\'s
definition, a small water utility is a firm whose gross revenues do not
exceed five million dollars.[^592] The Census Bureau reported that 3,065
of the 3,169 firms listed had total revenues below five million dollars
in 1992.[^593]

(4) **Sanitary Systems (SIC 4952, 4953 & 4959)**

[Sewerage Systems (SIC 4952)]{.underline}. The SBA defines a sewage firm
as a utility whose business is the collection and disposal of waste
using sewage systems.[^594] The Census Bureau reports that a total of
410 such firms were in operation for at least one year at the end of
1992. According to SBA\'s definition, a small sewerage system is a firm
whose gross revenues did not exceed five million dollars.[^595] The
Census Bureau reported that 369 of the 410 firms listed had total
revenues below five million dollars in 1992.[^596]

[Refuse Systems (SIC 4953)]{.underline}. The SBA defines a firm in the
business of refuse as an establishment whose business is the collection
and disposal of refuse \"by processing or destruction or in the
operation of incinerators, waste treatment plants, landfills, or other
sites for disposal of such materials.\"[^597] The Census Bureau reports
that a total of 2,287 such firms were in operation for at least one year
at the end of 1992. According to SBA\'s definition, a small refuse
system is a firm whose gross revenues do not exceed six million
dollars.[^598] The Census Bureau reported that 1,908 of the 2,287 firms
listed had total revenues below six million dollars in 1992.[^599]

[Sanitary Services, Not Elsewhere Classified (SIC 4959)]{.underline}.
The SBA defines these firms as engaged in sanitary services.[^600] The
Census Bureau reports that a total of 1,214 such firms were in operation
for at least one year at the end of 1992. According to SBA\'s
definition, a small sanitary service firm\'s gross revenues do not
exceed five million dollars.[^601] The Census Bureau reported that 1,173
of the 1,214 firms listed had total revenues below five million dollars
in 1992.[^602]

(5) **Steam and Air Conditioning Supply (SIC 4961)**

The SBA defines a steam and air conditioning supply utility as a firm
who produces and/or sells steam and heated or cooled air.[^603] The
Census Bureau reports that a total of 55 such firms were in operation
for at least one year at the end of 1992. According to SBA\'s
definition, a steam and air conditioning supply utility is a firm whose
gross revenues do not exceed nine million dollars.[^604] The Census
Bureau reported that 30 of the 55 firms listed had total revenues below
nine million dollars in 1992.[^605]

(6) **Irrigation Systems (SIC 4971)**

The SBA defines irrigation systems as firms who operate water supply
systems for the purpose of irrigation.[^606] The Census Bureau reports
that a total of 297 firms were in operation for at least one year at the
end of 1992. According to SBA\'s definition, a small irrigation service
is a firm whose gross revenues do not exceed five million dollars.[^607]
The Census Bureau reported that 286 of the 297 firms listed had total
revenues below five million dollars in 1992.[^608]

c.  **Building Owners and Managers**

Our proposals in the this *Further Notice of Proposed Rulemaking*
regarding the scope of in-building rights-of way under Section 224 of
the Act, termination or phasing out of exclusive contracts between
commercial MTEs and telecommunications carriers, and nondiscriminatory
access to MTEs, if adopted, would affect multiple dwelling unit
operators and real estate agents and managers.

(1) **Multiple Dwelling Unit Operators (SIC 6512, SIC 6513, SIC 6514)**

The SBA has developed definitions of small entities for operators of
nonresidential buildings, apartment buildings, and dwellings other than
apartment buildings, which include all such companies generating \$5
million or less in revenue annually.[^609] According to the Census
Bureau, there were 26,960 operators of nonresidential buildings
generating less than \$5 million in revenue that were in operation for
at least one year at the end of 1992.[^610] Also according to the Census
Bureau, there were 39,903 operators of apartment dwellings generating
less than \$5 million in revenue that were in operation for at least one
year at the end of 1992.[^611] The Census Bureau provides no separate
data regarding operators of dwellings other than apartment buildings,
and we are unable at this time to estimate the number of such operators
that would qualify as small entities.

(2) **Real Estate Agents and Managers (SIC 6531)**

The SBA defines real estate agents and managers as establishments
primarily engaged in renting, buying, selling, managing, and appraising
real estate for others.[^612] According to SBA\'s definition, a small
real estate agent or manager is a firm whose revenues do not exceed 1.5
million dollars.[^613]

d.  **Neighborhood Associations**

Section 601(4) of the Regulatory Flexibility Act, 5 U.S.C. § 601(4),
defines \"small organization\" as \"any not‑for‑profit enterprise which
is independently owned and operated and is not dominant in its field.\"
This definition includes homeowner and condominium associations that
operate as not‑for‑profit organizations. We note that these groups would
be indirectly affected by our proposals. The Community Associations
Institute estimates that there are 205,000 such associations.[^614]

e.  **Municipalities**

Our proposals in the this *Competitive Networks FNPRM* regarding the
scope of in-building rights-of way under Section 224 of the Act,
termination or phasing out of exclusive contracts between commercial
MTEs and telecommunications carriers, and nondiscriminatory access to
MTEs would, if adopted, affect municipalities. The term \"small
governmental jurisdiction\" is defined as \"governments of . . .
districts, with a population of less than 50,000.\"[^615] As of 1992,
there were approximately 85,006 governmental entities in the United
States.[^616] This number includes such entities as states, counties,
cities, utility districts and school districts. Of the 85,006
governmental entities, 38,978 are counties, cities and towns. The
remainder are primarily utility districts, school districts, and states.
Of the 38,978 counties, cities and towns, 37,566, or 96%, have
populations of fewer than 50,000.[^617] The Census Bureau estimates that
this ratio is approximately accurate for all governmental entities.
Thus, of the 85,006 governmental entities, we estimate that 81,606 (96%)
are small entities.

f.  **Cable Services or Systems**

Our proposals in the this *Competitive Networks FNPRM* regarding the
scope of in-building rights-of way under Section 224 of the Act,
nondiscriminatory access to MTEs, and extension of the cable home run
wiring rule to telecommunications carriers, would, if adopted, affect
owners and operators of cable systems. The SBA has developed a
definition of small entities for cable and other pay television
services, which includes all such companies generating \$11 million or
less in revenue annually.[^618] This definition includes cable systems
operators, closed circuit television services, direct broadcast
satellite services, multipoint distribution systems, satellite master
antenna systems and subscription television services. According to the
Census Bureau data from 1992, there were 1,788 total cable and other pay
television services and 1,423 had less than \$11 million in
revenue.[^619]

The Commission has developed its own definition of a small cable system
operator for purposes of rate regulation. Under the Commission\'s rules,
a \"small cable company\" is one serving fewer than 400,000 subscribers
nationwide*.*[^620] Based on our most recent information, we estimate
that there were 1,439 cable operators that qualified as small cable
system operators at the end of 1995.[^621] Since then, some of those
companies may have grown to serve over 400,000 subscribers, and others
may have been involved in transactions that caused them to be combined
with other cable operators. Consequently, we estimate that there are
fewer than 1,439 small entity cable system operators.

The Communications Act also contains a definition of a small cable
system operator, which is \"a cable operator that, directly or through
an affiliate, serves in the aggregate fewer than 1 percent of all
subscribers in the United States and is not affiliated with any entity
or entities whose gross annual revenues in the aggregate exceed
\$250,000,000.\"[^622] The Commission has determined that there are
66,690,000 subscribers in the United States. Therefore, we found that an
operator serving fewer than 666,900 subscribers shall be deemed a small
operator, if its annual revenues, when combined with the total annual
revenues of all of its affiliates, do not exceed \$250 million in the
aggregate.[^623] Based on available data, we find that the number of
cable operators serving 666,900 subscribers or less totals 1,450.[^624]
We do not request nor do we collect information concerning whether cable
system operators are affiliated with entities whose gross annual
revenues exceed \$250,000,000,[^625] and thus are unable at this time to
estimate with greater precision the number of cable system operators
that would qualify as small cable operators under the definition in the
Communications Act.

**g. Multipoint Distribution Service (MDS)**.

This service involves a variety of transmitters, which are used to relay
programming to the home or office, similar to that provided by cable
television systems.[^626] In connection with the 1996 MDS auction, the
Commission defined small businesses as entities that had annual average
gross revenues for the three preceding years not in excess of \$40
million.[^627] This definition of a small entity in the context of MDS
auctions has been approved by the SBA.[^628] These stations were
licensed prior to implementation of Section 309(j) of the Communications
Act of 1934, as amended.[^629] Licenses for new MDS facilities are now
awarded to auction winners in Basic Trading Areas (BTAs) and BTA-like
areas.[^630] The MDS auctions resulted in 67 successful bidders
obtaining licensing opportunities for 493 BTAs. Of the 67 auction
winners, 61 meet the definition of a small business. There are 2,050 MDS
stations currently licensed. Thus, we conclude that there are 1,634 MDS
providers that are small businesses as deemed by the SBA and the
Commission\'s auction rules.

**h. Wireless Services**

h.  Many of the proposals in this *Competitive Networks FNPRM,* if
    enacted, could affect providers of wireless services regulated by
    the Commission.

    [Broadband Personal Communications Service (PCS)]{.underline}. The
    broadband PCS spectrum is divided into six frequency blocks
    designated A through F, and the Commission has held auctions for
    each block. The Commission defined "small entity" for Blocks C and F
    as an entity that has average gross revenues of \$40 million or less
    in the three previous calendar years. [^631] For Block F, an
    additional classification for "very small business" was added and is
    defined as an entity that, together with its affiliates, has average
    gross revenues of not more than \$15 million for the preceding three
    calendar years.[^632] These regulations defining "small entity" in
    the context of broadband PCS auctions have been approved by the
    SBA.[^633] No small businesses within the SBA-approved definition
    bid successfully for licenses in Blocks A and B. There were 90
    winning bidders that qualified as small entities in the Block C
    auctions. A total of 93 small and very small business bidders won
    approximately 40 percent of the 1,479 licenses for Blocks D, E, and
    F.[^634] Based on this information, we conclude that the number of
    small broadband PCS licensees will include the 90 winning C Block
    bidders and the 93 qualifying bidders in the D, E, and F blocks, for
    a total of 183 small entity PCS providers as defined by the SBA and
    the Commission\'s auction rules.

    [Cellular Licensees]{.underline}. Neither the Commission nor the SBA
    has developed a definition of small entities applicable to cellular
    licensees. Therefore, the applicable definition of a small entity is
    the definition under the SBA rules applicable to radiotelephone
    (wireless) companies. This provides that a small entity is a
    radiotelephone company employing no more than 1,500 persons.[^635]
    According to the Bureau of the Census, only twelve radiotelephone
    firms from a total of 1,178 such firms that operated during 1992 had
    1,000 or more employees. [^636] Therefore, even if all twelve of
    these firms were cellular telephone companies, nearly all cellular
    carriers were small businesses under the SBA's definition. In
    addition, we note that there are 1,758 cellular licenses; however, a
    cellular licensee may own several licenses. In addition, according
    to the most recent Trends in Telephone Service data, 808 carriers
    reported that they were engaged in the provision of either cellular
    service, Personal Communications Service (PCS), or Specialized
    Mobile Radio Telephone (SMR) service, which are placed together in
    the data.[^637] We do not have data specifying the number of these
    carriers that are not independently owned and operated or have more
    than 1,500 employees, and thus are unable at this time to estimate
    with greater precision the number of cellular service carriers that
    would qualify as small business concerns under the SBA's definition.
    Consequently, we estimate that there are 808 or fewer small cellular
    service carriers that may be affected by any regulations adopted
    pursuant to this proceeding.

    [Fixed Microwave Services.]{.underline} Microwave services include
    common carrier,[^638] private‑operational fixed,[^639] and broadcast
    auxiliary radio services.[^640] At present, there are approximately
    22,015 common carrier fixed licensees and 61,670 private
    operational‑fixed licensees and broadcast auxiliary radio licensees
    in the microwave services. The Commission has not yet defined a
    small business with respect to microwave services. For purposes of
    this IRFA, we will utilize the SBA\'s definition applicable to
    radiotelephone companies \-- [i.e.]{.underline}, an entity with no
    more than 1,500 persons.[^641] We estimate, for this purpose, that
    all of the Fixed Microwave licensees (excluding broadcast auxiliary
    licensees) would qualify as small entities under the SBA definition
    for radiotelephone companies.

[Rural Radiotelephone Service.]{.underline} The Commission has not
adopted a definition of small entity specific to the Rural
Radiotelephone Service.[^642] A significant subset of the Rural
Radiotelephone Service is the Basic Exchange Telephone Radio Systems
(BETRS).[^643] We will use the SBA\'s definition applicable to
radiotelephone companies, [i.e.]{.underline}, an entity employing no
more than 1,500 persons.[^644] There are approximately 1,000 licensees
in the Rural Radiotelephone Service, and we estimate that almost all of
them qualify as small entities under the SBA\'s definition.

**D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements**

The *Competitive Networks FNPRM* *Rulemaking* proposes no additional
reporting, recordkeeping or other compliance measures. We note *supra*,
however, that the *Competitive Networks FNPRM* seeks comment on
termination or phase out of exclusivity and preferential provisions in
contracts between telecommunications providers and MTEs.

**E. Steps Taken To Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered.**

The RFA requires an agency to describe any significant alternatives that
it has considered in reaching its proposed approach, which may include
the following four alternatives (among others): (1) the establishment of
differing compliance or reporting requirements or timetables that take
into account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use of
performance, rather than design, standards; and (4) an exemption from
coverage of the rule, or any part thereof, for small entities.[^645]

In this *Competitive Networks FNPRM,* we seek comment on proposals that
are intended to promote competition in local communications markets by
ensuring that competing telecommunications providers are able to serve
customers in MTEs. We anticipate that the proposals, if enacted in whole
or in part, would benefit consumers, telecommunications carriers and
building owners, including small entities.

Specifically, we seek comment on the following proposals: (1) whether we
should require building owners, who allow access to their premises to
any telecommunications provider, to make comparable access available to
all providers on a nondiscriminatory basis; (2) whether we should
prohibit local exchange carriers from serving buildings that do not
afford nondiscriminatory access to all telecommunications service
providers; (3) whether we should forbid telecommunications service
providers, under some or all circumstances, from entering into exclusive
contracts with residential building owners; (4) whether we should
prohibit carriers from enforcing exclusive access provisions in existing
contracts in either commercial or residential MTEs; (5) whether we
should phase out exclusive access provisions by establishing a future
termination date for such provisions; (6) whether we should phase out
exclusive access provisions for carriers that qualify as small entities
and the timing of any such phase out; (7) whether, and to what extent,
preferential agreements between building owners and LECs should be
regulated by the Commission; (8) whether the Commission's rules
governing access to cable home run wiring for multichannel video program
distribution should be extended to benefit providers of
telecommunications services; and (9) the extent to which utility
rights-of-way within MTEs are subject to access by telecommunications
carriers (except incumbent LECs) and cable companies pursuant to Section
224 of the Act.[^646]

In this *Competitive Networks FNPRM,* we seek comment on whether we
should require building owners, who allow access to their premises to
any telecommunications provider, to make comparable access available to
all such providers on a nondiscriminatory basis. To enable us to
evaluate the necessity of such a requirement, we have asked commenters
to provide the Commission updated information on the market for
telecommunications services in MTEs. Second, we seek comment on issues
related to our legal authority to place the obligations attendant with a
mandatory access requirement on local telecommunications providers
and/or building owners. Third, we seek comment regarding how a
nondiscriminatory access requirement, if adopted, should be implemented.

We recognize that certain aspects of a nondiscriminatory access
requirement have the potential to burden small entities. In this
*Competitive Networks FNPRM*, we note that "there may be some entities
for which the burdens arising out of a nondiscriminatory access rule
would outweigh the benefits to competition and customer choice."[^647]
Thus, we inquire whether it would be appropriate to differentiate
between commercial and residential buildings if a nondiscriminatory
access requirement is implemented and whether such a requirement should
"be triggered only if a building meets some threshold number of square
feet, number of tenants, or gross rental revenue?"[^648] Further, in
order to minimize any potential burden on building owners, including
small entities, should they be subject to a nondiscriminatory access
requirement, we seek comment on "accommodating building space
limitations and ensuring building safety and security."[^649]

In the *Competitive Networks First Report and Order,* we enacted a
prospective ban on exclusive contracts between commercial MTEs and
telecommunications service providers. However, we found that the record
was not sufficiently developed to determine whether the prohibition on
exclusive contracts should apply to residential MTEs.[^650] In the
*Competitive Networks FNPRM*, we seek comment on whether we should
forbid telecommunications service providers, under some or all
circumstances, from entering into exclusive contracts with residential
building owners. We also seek comment on prohibiting carriers from
enforcing exclusive access provisions in existing contracts in either
commercial or residential MTEs. We recognize that abrogating exclusive
contracts may interfere with the investment back expectations of the
parties to such contracts, including small entities. Therefore, in the
alternative, we seek comment on whether we should phase out exclusive
access provisions by establishing a future termination date for these
provisions. We believe that a future sunset or phase-out of exclusive
contract provisions would have a lower likelihood of interfering with
the investment back expectations of the parties to such contracts. We
also seek comment on whether we should phase out exclusive access
provisions for carriers that qualify as small entities and the timing of
any such phase out. Finally, we expect that small entities, including
small telecommunications carriers and small building owners, would
benefit from the competitive telecommunications environment that a ban
on and/or phase out of residential MTE exclusive contracts would foster.

We seek comment on whether, and to what extent, preferential agreements
between building owners and LECs should be regulated by the Commission.
Such agreements may lessen telecommunications service competition in
MTEs by fostering discriminatory behavior. We believe that competition
among telecommunications service providers and limiting the scope and/or
duration of such agreements could enhance service options for customers
within MTEs.

We also seek comment on whether the Commission's rules governing access
to cable home run wiring for multichannel video program distribution
should be extended to benefit providers of telecommunications services.
Our proposal is intended to foster competitive entry of alternative
telecommunications service providers, including small entities, by
increasing their access to MTE inside wiring. We seek comment on whether
our proposal, if adopted, would affect providers of multichannel video
programming services, including small entities.

Finally, we seek comment on the extent to which utility rights-of-way
within MTEs are subject to access by telecommunications carriers (except
incumbent LECs) and cable companies pursuant to Section 224 of the
Act.[^651] Our proposals in this regard are intended to add clarity to
the rights and obligations of utilities, including small entities, that
are subject to Section 224 and to facilitate competitive entry by
competing LECs, including small LECs. We anticipate that this action
will benefit many small entities, including property owners and
managers.

**F. Federal Rules that May Duplicate, Overlap, or Conflict With the
Proposed Rules**

None.

**DISSENTING STATEMENT OF COMMISSIONER HAROLD W. FURCHTGOTT-ROTH**

**In the Matter of Promotion of Competitive Networks in Local
Communications Markets, WT Docket No. 99-217; Wireless Communications
Association International, Inc. Petition for Rulemaking to Amend Section
1.4000 of the Commission's Rules to Preempt Restrictions on Subscriber
Premises Reception or Transmission Antennas Designed to Provide Fixed
Wireless Services, Implementation of the Local Competition Provisions in
the Telecommunications Act of 1996, CC Docket No. 96-98; Review of
Sections 68.104, and 68.213 of the Commission's Rules Concerning
Connection of Simple Inside Wiring to the Telephone Network, CC Docket
88-57.**

I respectfully dissent from this item, which purports: to prohibit
exclusive or effectively exclusive contracts between common carriers and
business customers[^652]; to modify the rules governing access to inside
wiring by competitive carriers[^653]; to permit wireless service
providers to invoke the benefit of our pole attachment rules[^654]; to
extend our rules governing over-the-air reception devices ("OTARD") to
providers of telephone and other non-video telecommunications
service[^655]; and to engage in further rulemaking on, among other
things, the issue of mandatory access for wireless providers to private
property[^656]. For the reasons stated below, I find each of these
decisions to be ill-considered, from both legal and practical
standpoints.

*Ban On Exclusive Contracts*

First, I question the ultimate efficacy of the new, extremely
restrictive regulation of private contracts adopted today. While we
likely have statutory authority under section 201

over the common carrier conduct at issue here, *see generally Cable &
Wireless v. FCC*, 166 F.3d 1224 (D.C. Cir. 1999), nothing in our
regulations stops building owners from making their contracts *de facto*
exclusive ones. That is, they remain free, even under our new rule,
simply to decline to enter into contracts with providers other than the
existing one. We certainly have no legal authority to force building
owners to enter into contracts for service with other carriers.

Moreover, I question the evidentiary assumption that exclusive contracts
between carriers and businesses are generally "unjust or unreasonable,"
as required by section 201. In many cases, such contracts may allow for
the provision of service in buildings that would otherwise have gone
unsaved or allow for higher quality service that it otherwise might have
received from multiple providers. Contrary to the Commission's approach,
the question is not whether there is sufficient evidence of these
pro-competitive benefits to warrant rejection of the proposed rule, *see
supra* at para. 32, but whether there is enough proof of harmful effects
to justify its adoption. I submit that the record is devoid of such
empirical support.

*Inside Wiring*

I likewise dissent from the changes to our inside wiring rules. Although
the Commission is wise not to mandate a uniform demarcation point for
all inside wiring, *supra* at para. 53, I would not have required the
demarcation point to be moved to the minimum point of entry upon the
request of the building owner. Instead, I would simply have relied on
the section 251-based duty of non-discriminatory access to unbundled
network elements that incumbent local exchange carriers might owe under
their interconnection agreements to remedy any problems that competitive
carriers face. We should allow markets, not federal regulation, to sort
out where any particular demarcation point should be located and thus
who will be responsible for this infrastructure. Nor do I think that the
Commission should have taken the further step of regulating negotiations
between owners and carriers as to the relocation of demarcation points.
*See id*. at paras. 55-56.

*Access to Conduits and Rights-of-Way*

At this time, I can not support the use of section 224 of the
Communications Act to allow attachments by wireless or internet service
providers to poles, ducts, conduits, or rights-of-way owned or
controlled by utilities. The legal uncertainty surrounding our statutory
authority to do so makes this application of the statute highly
imprudent.

In *Gulf Power Co. v. FCC*, 208 F.3d 1263 (11^th^ Cir. 2000), the U.S.
Court of Appeals for the Eleventh Circuit "h\[e\]ld that the FCC lacks
authority \[under section 224\] to regulate the placement of wireless
equipment on utility poles and attachments for Internet service."
*Id.*at 1266. In fact, the Court went on to say that "Congress did not
give the FCC authority to regulate the placement of wireless carriers'
equipment under section 224 (*or any other section*) of the
Telecommunications Act of 1996." *Id.* at 1275 (emphasis added).

The full Court has denied the Commission's petition for rehearing *en
banc*. Although the Court recently granted a stay of its mandate while
the Solicitor General decides whether to file a petition for certiorari
in the Supreme Court, it is unlikely that these rules can ultimately
apply to grant wireless carriers or providers of internet service a
right of attachment.[^657] The chances of obtaining review in the
Supreme Court are always slim; and this case concerns, at bottom, a
straightforward question of statutory construction -- not the typical
sort in which certiorari is granted. If the Supreme Court denies a
future petition for certiorari in this case and the stay is lifted, the
Commission will just have a larger body of unlawful regulations to
deconstruct than it otherwise would have had. Moving ahead with these
rules at now, with this legal cloud looming over the application of the
rules to wireless carriers and internet service providers, is extremely
imprudent. Regardless of the Eleventh Circuit's temporary stay, the most
responsible course of action is first to establish the rules' legality
in any further appellate processes and then adopt them, instead of the
other way around.

*Extension of OTARD Rules*

I dissent from the extension of OTARD rules to cover devices used to
receive services other than video programming. We simply have no
statutory authority to do so, whatever the policy reasons that the
majority might have to favor that action. Section 207 of the 1996
Telecommunications Act applies only to "restrictions that impair a
viewer's ability to receive video programming services through devices
designed for over-the-air reception of television broadcast signals,
multichannel multipoint distribution service, or direct broadcast
satellite services," not restrictions of a person's ability to receive
telecommunications services by way of fixed wireless technology.

I do not think that Commission's invocation of ancillary jurisdiction
can get it over this clear textual hurdle. As I have said repeatedly,
when Congress has spoken specifically to the topic at hand, the
Commission's oft-invoked theory of ancillary jurisdiction renders
inoperable any "plain language" boundaries of a specific statutory
provision:

On \[the Commission's\] view of administrative law, Congress must
expressly prohibit the Commission from going further than a particular
provision authorizes it to go in order to make the textual limits of any
provision stick. In an administrative scheme based on delegated powers
\-- where the Commission possesses only those powers granted by
Congress, not all powers except those forbidden by Congress \-- this
approach to jurisdiction is clearly erroneous.

Statement of Commissioner Harold W. Furchtgott-Roth, Concurring in Part
and Dissenting in Part, *In the Matter of Implementation of Video
Description of Video Programming*, MM Docket No. 99-339 (rel. Aug. 7,
2000).[^658]

The Commission's strained attempt to read section 207 as creating only a
time deadline for the exercise of the substantive authority already
possessed by the Commission under section 303, *see id.* at para. 107,
is cute in the extreme. Section 303(r) is a purely procedural provision,
giving the Commission authority to adopt regulations "necessary to carry
out the provisions of this Act," 47 U.S.C. section 303(r), it is not an
independent grant of substantive authority. Moreover, the Commission's
understanding of section 207 renders it a largely useless exercise on
the part of the Congress that passed it and the President who signed it
into law: if the Commission already had the authority to extend OTARD
rules to services other than those delineated in section 207, then
everything in that section apart from the short introductory clause
regarding the timing of the rulemaking was surplusage. Such a reading of
the statute is contrary to venerable principles of statutory
construction. *See, e.g., Washington Market Co. v. Hoffman*, 101 U.S.
112, 115-116 (1879) (\"We are not at liberty to construe any statute so
as to deny effect to any part of its language. It is a cardinal rule of
statutory construction that significance and effect shall, if possible,
be accorded to every word. As early as in Bacon\'s Abridgment, sect. 2,
it was said that \'a statute ought, upon the whole, to be so construed
that, if it can be prevented, no clause, sentence, or word shall be
superfluous, void, or insignificant.\' This rule has been repeated
innumerable times.\")

Finally, I question the Commission's sweeping and conclusory assertion
of authority to preempt all state and local laws governing the placement
of fixed wireless devices. *See* Order at para. 108. Principles of
comity and federalism teach that, just as state legislatures are
beginning their work on the general question of building access for
telecommunications carriers, we should not pull the rug out from under
them by preemption. On top of that, we have no clear expression of
Congressional intent in the Communications Act to oust States of
regulatory jurisdiction over this class of zoning and contract
decisions. *See generally* *Louisiana Public Service Commission v. FCC*,
476 U.S. 355, 369 (1986) ("The critical question in *any* pre-emption
analysis is always whether Congress intended that federal regulation
supersede state law.") (emphasis added). Given that neither section 207
nor any other provision of the Act expressly grants the sort of
regulatory authority at issue here, there is no clear legislative
statement sufficient to justify federal preemption. Of course, zoning
and the enforcement of basic contracts such as homeowners' covenants are
classic examples of the sort of matters that have been traditionally
reserved to the States, and I thus think it doubtful that Congress meant
to disable state and local governments in these areas.

*Issuance of Further Notice of Proposed Rulemaking.*

In my view, further rulemaking on the issue of rights of access for
wireless service providers and others is unnecessary. Worse, it harms
the private negotiations now taking place in the market. It is clear
from the first notice and the comments received in response that we lack
unambiguous statutory authority to impose a right of access, or even a
or duty of "non-discrimination," on building owners, and the Commission
points to none in its discussion of the matter. *See* Order at paras.
133-143.[^659] Even if such authority existed on a discretionary basis,
the exercise thereof would raise serious constitutional questions; I
cannot set forth the reasons why this is so better than Professor Tribe
did. *See* Comments of the Real Access Alliance, Memorandum of Laurence
H. Tribe, "Takings Issues Raised by NPRM in FCC No. 99-141 (filed Aug.
24, 2000). There is no reason to continue to pursue a policy inquiry
when this much is clear about the law.

Given my view that we lack clear authority in this area, I also would
not leave open this proceeding and threaten future action. While I am
pleased that the Commission declines to adopt a right of access today,
the suggestion that it might do so in the future will itself influence
private market behavior.

\*\*\*

For the foregoing reasons, and notwithstanding my pleasure that the
Commission does not today adopt a right of building access, I cannot
vote to adopt this Report and Order and Further Notice of Proposed
Rulemaking,

[^1]: Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56,
    *codified at* 47 U.S.C. §§ 151 *et seq.* (1996 Act). The 1996 Act
    amended the Communications Act of 1934 (the "Communications Act" or
    the "Act").

[^2]: Promotion of Competitive Networks in Local Telecommunications
    Markets, *Notice of Proposed Rulemaking and Notice of Inquiry in WT
    Docket No. 99-217, and Third Further Notice of Proposed Rulemaking
    in CC Docket No. 96-98*, 14 FCC Rcd 12673, 12687-12712, ¶¶ 28-69
    (1999) (*Competitive Networks NPRM*). In the Notice of Inquiry
    portion of the same item, we requested comment on issues relating to
    access to public rights-of-way and franchise fees, state and local
    taxes, and other means of promoting competitive networks. *Id*. at
    12712-19, ¶¶ 70-85. These issues will be addressed separately at
    another time.

[^3]: 47 U.S.C. § 224.

[^4]: *See* Letter from Real Access Alliance to William E. Kennard,
    Chairman, FCC, dated September 6, 2000 (September 6 Real Access
    Alliance Letter).

[^5]: S. Conf. Rep. No. 104-230, 104^th^ Cong., 2d Sess. at 1 (1996)
    (1996 Conference Report).

[^6]: *See* Implementation of the Local Competition Provisions in the
    Telecommunications Act of 1996, CC Docket No. 96-98, *First Report
    and Order*, 11 FCC Rcd 15499, 15505-06, ¶ 3 (1996) (*Local
    Competition First Report and Order*), *aff'd in part and vacated in
    part sub nom.* *Competitive Telecommunications Ass'n v. FCC*, 117
    F.3d 1068 (8^th^ Cir. 1997), *aff'd in part and vacated in part sub
    nom.* *Iowa Utils. Bd. v. FCC*, 120 F.3d 753 (8^th^ Cir. 1997),
    *aff'd in part, rev'd in part, and remanded sub nom.* *AT&T Corp. v.
    Iowa Utils. Bd.*, 525 U.S. 366 (1999) (*Iowa Utilities Board*).

[^7]: *See* 47 U.S.C. §§ 251(c)(2) (requiring incumbent LECs to provide
    interconnection with the facilities and equipment of any requesting
    telecommunications carrier on just, reasonable, and
    nondiscriminatory rates, terms, and conditions), 251(c)(3)
    (requiring incumbent LECs to provide nondiscriminatory access to
    network elements on an unbundled basis on just, reasonable, and
    nondiscriminatory rates, terms, and conditions), 251(c)(4)
    (requiring incumbent LECs to offer services for resale at wholesale
    rates, and generally forbidding incumbent LECs from prohibiting or
    imposing unreasonable or discriminatory conditions or limitations on
    resale).

[^8]: 47 U.S.C. § 224.

[^9]: *See, e.g.,* Implementation of the Local Competition Provisions of
    the Telecommunications Act of 1996, CC Docket No. 96-98, *Third
    Report and Order and Fourth Further Notice of Proposed Rulemaking*,
    15 FCC Rcd 3696 (1999) (promulgating rules governing access to
    unbundled network elements following United States Supreme Court
    remand) (*UNE Remand Order*); Deployment of Wireline Services
    Offering Advanced Telecommunications Capability, *Third Report and
    Order in CC Docket No. 98-147, Fourth Report and Order in CC Docket
    No. 96-98*, 14 FCC Rcd 20912 (1999) (adopting line sharing and other
    unbundling rules for Digital Subscriber Line service).

[^10]: *See Competitive Networks NPRM*, 14 FCC Rcd at 12676-77, ¶ 4.

[^11]: *See id.* at 12685-86, ¶¶ 20-23.

[^12]: 1996 Act, § 706, codified as a note to 47 U.S.C. § 157.

[^13]: Inquiry Concerning the Deployment of Advanced Telecommunications
    Capability to All Americans in a Reasonable and Timely Fashion, and
    Possible Steps to Accelerate Such Deployment Pursuant to Section 706
    of the Telecommunications Act of 1996, CC Docket No. 98-146, *Second
    Report*, FCC 00-290 (rel. Aug. 21, 2000) (*Section 706 Second
    Report*).

[^14]: For example, although competitive LECs currently serve under 7%
    of asymmetric digital subscriber line (DSL) subscribers, they
    reportedly have DSL-capable equipment in one-third more central
    offices than do incumbents, and they appear to be adding DSL
    customers at a faster rate. *Id*. at para. 102. *See also id.* at
    paras. 192-193 (discussing competitive LEC investment in DSL
    infrastructure). Moreover, analysts have projected that terrestrial
    wireless providers will serve between 12 and 15 percent of the
    residential and between 14 and 50 percent of the business high-speed
    market within the next few years, and that satellite providers could
    serve between 5 and 10 percent of the high-speed market. *Id.* at
    paras. 197, 202.

[^15]: *See Competitive Networks NPRM*, 14 FCC Rcd at 12675-76, 12687,
    ¶¶ 3, 26.

[^16]: *See* paras. 17-19, *infra* (describing barriers to deployment in
    MTEs).

[^17]: *See* Section IV*.*B, *infra.*

[^18]: *See* Section IV*.*C, *infra.* In addition, we take this
    opportunity to resolve certain pending petitions for reconsideration
    of our telecommunications inside wiring rules. *Id.*

[^19]: *See* Section IV*.*D, *infra.*

[^20]: *See* Section IV*.*E, *infra*; 47 C.F.R. § 1.4000.

[^21]: *See* September 6 Real Access Alliance Letter.

[^22]: *Id.*

[^23]: *Id*. at 1.

[^24]: *See* Letter from Thomas Cohen, Smart Buildings Policy Project,
    to FCC Commissioners, dated September 7, 2000.

[^25]: *See* Section V.A, *infra.*

[^26]: *See* Section V.B, *infra.*

[^27]: *See* Section V.C, *infra.*

[^28]: *See* Section V.D, *infra.*

[^29]: *See* Section V.E, *infra.*

[^30]: *See generally Competitive Networks NPRM*, 14 FCC Rcd at
    12678-80, ¶¶ 8-10.

[^31]: *See, e.g.,* Public Notice, "The Wireless Telecommunications
    Bureau Announces That It Is Prepared to Grant 1848 Licenses to
    Operate in the 39 GHz Band," DA 00-2242 (rel. Oct. 2, 2000)
    (announcing licenses ready to grant in 38.6-40.0 MHz band);
    Amendments to Parts 1, 2, 87 and 101 of the Commission\'s Rules to
    License Fixed Services at 24 GHz, WT Docket No. 99-327, *Report and
    Order*, FCC 00-272 (rel. Aug. 1, 2000) (adopting service rules for
    24.25-24.45 and 25.05-25.25 GHz bands); Rulemaking to Amend Parts 1,
    2, 21, and 25 of the Commission's Rules to Redesignate the 27.5-29.5
    GHz Frequency Band, to Reallocate the 29.5-30.0 GHz Frequency Band,
    to Establish Rules and Policies for Local Multipoint Distribution
    Service and for Fixed Satellite Services, CC Docket No. 92-297,
    *Third Report and Order and Memorandum Opinion and Order*, 15 FCC
    Rcd 11857 (2000) (declining to extend restriction on incumbent LECs
    and cable companies holding attributable interests in Local
    Multipoint Distribution Service Block A licenses, based in part on
    finding that open eligibility may speed the availability of
    broadband services in rural areas); Service Rules for the 746-764
    and 776-794 MHz Bands, and Revisions to Part 27 of the Commission's
    Rules, WT Docket No. 99-168, *First Report and Order*, 15 FCC Rcd
    476 (2000) (establishing service rules for spectrum to be vacated by
    television broadcasters), *Memorandum Opinion and Order and Further
    Notice of Proposed Rulemaking*, FCC 00-224 (rel. June 30, 2000)
    (addressing issues raised on reconsideration and seeking comment on
    potential cost-sharing rules, relocation agreements, and secondary
    auctions to facilitate clearing of spectrum), *Second Memorandum
    Opinion and Order*, FCC 00-330 (rel. Sept. 14, 2000) (dismissing
    additional petition for reconsideration as moot).

[^32]: *Competitive Networks NPRM*, 14 FCC Rcd at 12683-87, ¶¶ 18-27.

[^33]: *Id.* at 12719, ¶ 85.

[^34]: *See id.* at 12688, ¶ 30; *see also Section 706 Second Report* at
    para. 60 (noting that landlord control over access may create
    barrier to provision of advanced services in MTEs, especially by
    competitive providers).

[^35]: *See Competitive Networks NPRM,* 14 FCC Rcd at 12687-88, ¶ 29.

[^36]: *See* 1996 Act, § 706(a); 1996 Conference Report at 1.

[^37]: Commenters and the short forms by which they are cited herein are
    listed in Appendix A. Unless otherwise indicated, all citations to
    comments and reply comments herein refer to comments and reply
    comments on the *Competitive Networks NPRM.* In order to enable the
    Commission to develop a more comprehensive record in this
    proceeding, we grant the motions to file further reply comments by
    the Wireless Communications Association International, Inc. and by
    Concerned Communities and Organizations.

[^38]: FCC Local and State Government Advisory Committee Advisory
    Recommendation Number 19: Notice of Proposed Rulemaking, Notice of
    Inquiry, and Third Further Notice of Proposed Rulemaking, WT Docket
    No. 99-217, CC Docket No. 96-98, dated Nov*.* 1, 1999 (LSGAC
    Recommendation No. 19); FCC Local and State Government Advisory
    Committee Recommendation Number 22: Notice of Proposed Rulemaking,
    Notice Of Inquiry, and Third Further Notice of Proposed Rulemaking,
    WT Docket No. 99-217, CC Docket No. 96-98, dated Aug. 29, 2000
    (LSGAC Recommendation No. 22).

[^39]: Ex parte filings are accessible on the Commission's Electronic
    Comment Filing System (ECFS), <http://www.fcc.gov/e-file/ecfs.html>.
    Instructions for using ECFS are also available on that page.

[^40]: *Access to Buildings and Facilities by Telecommunications
    Providers*: *Hearing Before the Subcomm. on Telecommunications,
    Trade, and Consumer Protection of the House Committee on Commerce,*
    106^th^ Cong. 24 (1999) (Written Testimony of William J. Rouhana,
    Jr., Chairman and Chief Executive Officer, WinStar Communications,
    Inc.).

[^41]: *Competitive Networks NPRM* at 12687-88, ¶ 29.

[^42]: *See* Cornerstone Properties, *et al.* Comments at 7-8. *See also
    Section 706 Second Report*.

[^43]: WinStar Comments at 2.

[^44]: Real Access Alliance Comments at 7.

[^45]: September 6 Real Access Alliance Letter.

[^46]: *Id*.

[^47]: AT&T Comments at 4; Nextlink Comments at 4-5; Teligent Comments
    at 9-10; WinStar Comments at 16-18.

[^48]: *Id.*

[^49]: *See, e.g.,* AT&T Comments at 6-7; Nextlink Comments at 2.

[^50]: ALTS Comments at 12.

[^51]: *Id.* at 15.

[^52]: *Id.*

[^53]: *Id.* at 9.

[^54]: *See* Letter from Frank Simone, Government Affairs Director,
    AT&T, to Magalie Roman Salas, Secretary, FCC, dated June 20, 2000.

[^55]: *Id.*

[^56]: *See* Letter from Matthew C. Ames, Counsel for Real Access
    Alliance, to Magalie Roman Salas, Secretary, FCC, dated July 3, 2000
    (enclosing article from June 16, 2000 edition of *Commercial
    Property News* entitled "Demetree, Hornig Stress Tenant Needs").

[^57]: *See* Letter from Kathleen Q. Abernathy, Counsel for Broadband
    Office, to Magalie Roman Salas, Secretary, FCC, dated May 17, 2000
    (enclosing news article entitled "Birth of a BLEC: Service Providers
    Jump at Chance to Win Over MTU \[multi-tenant unit\] Audience").

[^58]: Real Access Alliance Comments at 8-9.

[^59]: Teligent Comments at 11; WinStar Comments at 18.

[^60]: *See* Local Telephone Competition at the New Millennium
    (Summarizing December 31, 1999 data from Forms 477 and 499-A),
    Common Carrier Bureau, Industry Analysis Division, August 2000,
    [http://www.fcc.gov/Bureaus/Common_Carrier/Reports/FCC-State_Link/IAD/lcom.pdf](http://www.fcc.gov/ccb/stats/lcomp98.pdf)
    at 3.

[^61]: *See* Local Competition Report, Common Carrier Bureau, Industry
    Analysis Division, August 1999,
    <http://www.fcc.gov/ccb/stats/lcomp98.pdf> at 1.

[^62]: *See Competitive Networks NPRM*, 14 FCC Rcd at 12706-12707, ¶¶ 61
    and 64.

[^63]: *Id*.

[^64]: *Id*.

[^65]: Order Establishing Statewide Policy for MDU Access, Application
    No. C-1878/PI-23, slip op. at 4 (Neb. P.S.C. March 2, 1999)
    (*Nebraska MDU Order*).

[^66]: *See, e.g.*, AT&T Comments at 25-27; Qwest Comments at 11; SBC
    Comments at 7; Teligent Comments at 17-19; WinStar Comments at
    24-25.

[^67]: Teligent Comments at 17.

[^68]: AT&T Comments at 26.

[^69]: OpTel Comments at 18; Real Access Alliance Comments at 70.

[^70]: *See* Letter from Matthew C. Ames, counsel for Real Access
    Alliance, to Magalie Roman Salas, Secretary, FCC, filed June 16,
    2000 (June 16 Real Access Alliance Letter). *See also* Section V.B,
    *infra*. We note that the Commission's rules currently permit
    exclusive contracts for video programming services. *See* 47 C.F.R.
    Part 76; s*ee also* Telecommunications Services Inside Wiring
    Customer Premises Equipment, *Report and Order and Second Further
    NPRM*, CS Docket No. 95-184, 13 FCC Rcd 3659 at 3778-80, ¶¶ 258-266.
    (*Inside Wire Report and Order and Second Further NPRM).*

[^71]: *See* para. 37 *infra* for a discussion of the types of
    arrangements that would fall under this prohibition.

[^72]: The text of the rule that we adopt is set forth in Appendix B. We
    do not address in this section arrangements that give a preference
    to a particular carrier but do not effectively restrict the premises
    owner from permitting other providers access, such as exclusive
    marketing agreements. Rather, we seek comment on such arrangements
    in a *Further Notice of Proposed Rulemaking*. *See* Section V.C,
    *infra*.

[^73]: Several states have considered this issue and reached the same
    conclusion. In Connecticut, "\[c\]ontracts for access and wiring
    between telecommunications providers and \[building\] owners" cannot
    include "\[a\]ny term that grants an exclusive license to any
    telecommunications provider." Conn. Gen. Stat. Ann. §
    16-247c-6(a)(3) (1997). In Massachusetts, the Department of
    Telecommunications and Energy recently adopted a rebuttable
    presumption against exclusive contracts, noting that an exclusive
    contract "is more likely than not anticompetitive and, therefore,
    not conformable to statute." Mass. DTE 98-36-A, Slip Op. At 30
    (*Massachusetts Nondiscriminatory Access Order*). In Nebraska, the
    Public Service Commission (PSC) found exclusive contracts and
    marketing agreements between telecommunications companies and
    landlords to be "anti-competitive and . . . against public policy."
    The Nebraska PSC further determined that "\[e\]xclusionary contracts
    are barriers to entry and marketing agreements can have a
    discriminatory effect." *Nebraska MDU Order* at 6.

[^74]: *See* Jean Tirole, *The Theory of Industrial Organization*,
    Chapter 4, (1997).

[^75]: *See id*. at 187-198; Aghion, P. & Bolton, P., "Contracts as
    Barriers to Entry," 77 *American Economic Review*, No. 3, 388-401
    (June 1987).

[^76]: WinStar Reply comments, Exhibit 1, at 9 (Economic Analysis of the
    Market for Building Access).

[^77]: That is, the buyer may be offered a lower price on a per unit
    basis if the seller can guarantee the buyer's demand for the
    particular good or service will be high.

[^78]: *See, e.g*., AT&T Comments at 25; Bell Atlantic Comments at 5;
    GTE Comments at 16; Sprint Comments at 20.

[^79]: *See* June 16 Real Access Alliance Letter. Real Access Alliance
    states that an average-sized office building can yield over 13 times
    as much revenue as a medium-sized apartment building (\$240,000 vs.
    \$18,000) and a medium-sized office building can yield 4 times as
    much revenue as a medium-sized apartment building (\$360,000 vs.
    \$90,000).

[^80]: *Id*.

[^81]: *Id*. We note that by limiting the rule to commercial buildings,
    we generally avoid any possible effect on cable inside wiring rules
    because cable service providers typically do not serve commercial
    buildings.

[^82]: *See* Teligent Comments at 17-19; WinStar Comments at 25.

[^83]: For example, Real Access Alliance provides data for residential
    video, then concludes without additional support that the same
    reasoning applies to telecommunications. Parties arguing for a rule
    against all exclusive contracts do not address residential buildings
    specifically.

[^84]: *See* Sections V. B & V. C, *infra*. We also note that we have
    sought comment in another proceeding on whether we should forbid or
    limit exclusive contracts for video programming services. *See*
    *Inside Wiring Report and Order and Second Further Notice of
    Proposed Rulemaking*, 13 FCC Rcd at 3778-80, ¶¶ 258-266.

[^85]: Section 201(b) expressly authorizes the Commission to regulate
    "\[a\]ll charges, practices, classifications, and regulations for
    and in connection with \[interstate or foreign\] communication
    service," to ensure that such practices are "just and reasonable."
    47 U.S.C. § 201(b). As the D.C. Circuit recently held, the
    Commission thus has undoubted power to regulate the contractual or
    other arrangements between common carriers and other entities, even
    those entities that are generally not subject to Commission
    regulation. *See* *Cable & Wireless v. FCC*, 166 F.3d 1224, 1230-32
    (D.C. Cir. 1999).

[^86]: AT&T Comments at 25-26.

[^87]: WinStar Comments at 24-25.

[^88]: *See* WinStar Comments to *Second Further Notice of Proposed
    Rulemaking* in CC Docket No. 96-98 (rel. April 16, 1999) filed May
    26, 1999 at 14.

[^89]: *Western Union Telegraph Co. v. FCC*, 815 F.2d 1495, 1501 (D.C.
    Cir. 1987); Competition in the Interstate Interexchange Marketplace,
    *Memorandum Opinion & Order on Reconsideration*, 10 FCC Rcd 4421, ¶
    5 n.15 (1995); Competition in the Interstate Interexchange
    Marketplace, *Report & Order*, 6 FCC Rcd 5880, ¶ 151 (1991).

[^90]: We note that the State of California similarly bars *de facto*
    exclusive contracts. California "prohibit\[s\] all carriers from
    entering into any type of arrangement with private property owners
    that has the effect of restricting the access of other carriers to
    the owners' properties or discriminating against the facilities of
    other carriers such as \[competitive LECs\]." *Order Instituting
    Rulemaking on the Commission's Own Motion into Competition for Local
    Exchange Service,* 1998 WL 1109255, Slip Op. at 48 (Cal. P.U.C. Oct
    22, 1998).

[^91]: *See* 47 U.S.C. § 208.

[^92]: We note that hotels, or similar establishments, are not covered
    by the prohibition against exclusive contracts because hotel guests
    are not "tenants" within the meaning of our rules. At the same time,
    to the extent that a hotel itself is a tenant in a commercial
    building, our prohibition against exclusive contracts would apply.
    Thus, a telecommunications carrier providing service in an MTE that
    includes a hotel as one of its tenants would be prohibited from
    entering into an exclusive contract.

[^93]: *See, e.g.*, *Nebraska MDU Order* at 6; Conn. Gen. Stat. Ann. §
    16-2471 (1997*); Massachusetts Nondiscriminatory Access Order* at
    30; 16 Tex. Admin. Code § 26.129 (Sept. 7, 2000).

[^94]: For example, Massachusetts permits a service provider or property
    owner to rebut the presumption that an exclusive contract is
    anticompetitive by showing that the contract benefits tenants and is
    therefore in the public interest, considering such factors as the
    duration of the contract, the contracting provider's status as a new
    entrant, the effect of the exclusive contract on the development of
    competition and new technology, and efficiency benefits.
    *Massachusetts Nondiscriminatory Access Order* at 30. Similarly, our
    regulations permit the waiver of any provision of our rules for good
    cause shown. *See* 47 C.F.R. § 1.3 (rules may be suspended, revoked,
    amended, or waived for good cause shown). Thus, in order to comply
    with both the Massachusetts and the federal regulations, a provider
    seeking to enter into an exclusive contract must both make the
    required public interest showing before the Massachusetts Department
    of Telecommunications and obtain a waiver from the Commission.

[^95]: *See* Education Parties Comments at 10.

[^96]: We note that the *Competitive Networks NPRM* also raised the
    issue of whether the Commission should amend its rules governing
    cable inside wiring so that telecommunications service providers, as
    well as multichannel video programming distributors (MVPDs), can
    take advantage of procedures governing the disposition of home run
    wiring when an incumbent MVPD no longer has a legally enforceable
    right to maintain its home run wiring in a building. As discussed in
    the Further Notice of Proposed Rulemaking, Section V.E, *infra*, we
    conclude that we lack sufficient information in the record to
    determine whether to take this action, and seek further comment on
    the issue.

[^97]: *See Competitive Networks NPRM,* 14 FCC Rcd at 12708-9, ¶¶ 65-67.

[^98]: *See, e.g.* Teligent Comments at 78; WinStar Comments at 67.

[^99]: *See* letter from Jason D. Oxman, Senior Government Affairs
    Counsel, Covad Communications Company, to Leon Jackler, Staff
    Attorney, FCC, dated Aug. 24, 2000 (Covad Letter). Further, building
    owners would not be obligated to provide "conditioned" lines capable
    of transmitting Digital Subscriber Line (DSL) signals, as are
    incumbent LECs.

[^100]: *See* Petitions Seeking Amendment of Part 68 of the Commission's
    Rules Concerning the Connection of Telephone Equipment, System and
    Protective Apparatus to the Telephone Network*,* *First Report and
    Order*, CC Docket No. 81-216, 97 FCC 2d 527 (1984) (*1984
    Demarcation Point Order*); 47 C.F.R. §§ 68.3, 68.213.

[^101]: *See* 47 C.F.R. § 68.3*.* This section currently defines the
    Demarcation Point for multiple unit premises as follows: "(1) In
    multiunit premises existing as of August 13, 1990, the Demarcation
    Point shall be determined in accordance with the local carrier's
    reasonable and non-discriminatory standard operating practices.
    Provided, however, that where there are multiple demarcation points
    within the multiunit premises, a demarcation point shall not be
    further inside the customer's premises than a point twelve inches
    from where the wiring enters the customer's premises, or as close
    thereto as practicable. (2) In multiunit premises in which wiring is
    installed after August 13, 1990, including major additions or
    rearrangements of wiring existing as of that date, the telephone
    company may establish a reasonable and non-discriminatory practice
    of placing the demarcation point at the minimum point of entry. If
    the telephone company does not elect to establish a practice of
    placing the demarcation point at the minimum point of entry, the
    multiunit premises owner shall determine the location of the
    demarcation point or points. . . ." *Id.*

[^102]: *See 1984 Demarcation Point Order*, 97 FCC 2d 527. In several
    related orders, the Commission determined that the installation and
    maintenance of inside wiring no longer constituted a common carrier
    offering under Title II of the Communications Act and therefore
    detariffed the installation and maintenance of inside wiring. *See*
    Modifications to the Uniform System of Accounts for Class A and
    Class B Telephone Companies Required by Detariffing of Customer
    Premises Equipment and Proposed Detariffing of Customer Provided
    Cable Wiring, CC Docket No. 82-681, *Report and Order*, 48 Fed. Reg.
    50534 (1983); Detariffing the Installation and Maintenance of Inside
    Wiring, CC Docket No. 79-105, *Second Report and Order*, 51 Fed.
    Reg. 8498 (1986); Detariffing the Installation and Maintenance of
    Inside Wiring, CC Docket No. 79-105, *Memorandum Opinion and Order*,
    1 FCC Rcd. 1190 (1986).

[^103]: *See* In the Matter of Review of Sections 68.104 and 68.213 of
    the Commission's Rules Concerning Connection of Simple Inside Wiring
    to the Telephone Network, *Report and Order and Further Notice of
    Proposed Rulemaking,* CC Docket 88-57, 5 FCC Rcd 4686 (1990). (*1990
    Demarcation Point Order and Further NPRM*).

[^104]: The MPOE is defined as "either the closest practicable point to
    where the wiring crosses a property line or the closest practicable
    point to where the wiring enters a multiunit building or buildings."
    47 C.F.R. § 68.3.

[^105]: We note that the definition of the demarcation point for
    telephone company communications facilities is not identical to the
    demarcation point definition for cable television facilities for
    purposes of the cable inside wiring rules. 47 C.F.R. § 76.6(mm). In
    1997, we declined to establish uniform rules to govern the
    demarcation point for cable and telephone service providers. *See
    Inside Wire Report and Order and Second Further NPRM,* 13 FCC Rcd at
    3719-30, ¶¶ 129-151.

[^106]: See, In the Matter of Review of Sections 68.104 and 68.213 of
    the Commission's Rules Concerning Connection of Simple Inside Wiring
    to the Telephone Network and Petition for Modification of Section
    68.213 of the Commission's Rules filed by the Electronic Industries
    Association*, Order on Reconsideration, Second Report and Order and
    Second Further Notice of Proposed Rulemaking,* CC Docket No. 88-57,
    RM-5643, 12 FCC Rcd 11897 (1997) (*1997 Demarcation Point Order*).

[^107]: *Id.* at ­11915.

[^108]: *Id.* at *n.*104.

[^109]: *Id.*

[^110]: One petition requested that the Commission clarify that it
    intended to give only prospective effect to its interpretation of
    the demarcation point definition in the *1997 Demarcation Point
    Order.* Bell Atlantic Petition for Clarification and Reconsideration
    of the *1997 Demarcation Point Order (*Bell Atlantic Petition) at 2.
    The other petition requested that the Commission clarify that its
    statement in footnote 104 does not authorize unilateral changes by
    the premises owner to demarcation point location. BellSouth Petition
    for Clarification and Reconsideration of the *1997 Demarcation Point
    Order* (BellSouth Petition) at 3-4.

[^111]: Review of Sections 68.104 and 68.213 of the Commission's Rules
    Concerning Connection of Simple Inside Wiring to the Telephone
    Network, CC Docket No. 88-57, *Third Report and Order*, 15 FCC Rcd
    927 (2000) (*2000 Demarcation Point Third Report and Order*).

[^112]: *See Competitive Networks NPRM,* 14 FCC Rcd at 12708, ¶ 65.

[^113]: *See* 47 U.S.C. § 251(c)(3) (requiring incumbent LECs to provide
    requesting telecommunications carriers unbundled access to elements
    of their networks on just, reasonable, and nondiscriminatory terms).
    In 1996, pursuant to Congress' mandate in Section 251, the
    Commission promulgated rules establishing unbundled network elements
    (UNEs), and directed incumbent LECs to make them available to
    competitors. *Local Competition First Report and Order,* 11 FCC Rcd
    at 15697-99, ¶¶ 392-397; *see* 47 C.F.R. § 51.319(b). The rules were
    challenged and remanded to the Commission for clarification of the
    standards by which UNEs were defined. *Iowa Utilities Board*, 525
    U.S. 366. In April, 1999, the Commission sought comment on these
    standards. *See* *Second Further Notice of Proposed Rulemaking,* CC
    Docket No. 96-98, 14 FCC Rcd 8694 (1999).

[^114]: *See UNE Remand Order*.

[^115]: *See* ALTS Comments at 22; AT&T Reply Comments at 25; WinStar
    reply Comments at 61; *see* *also* GTE Comments at 7-8.

[^116]: *See* Section IV*.* A, *supra*.

[^117]: *See* Teligent Comments at 80.

[^118]: Digital Subscriber Line (DSL) is a broadband data protocol that
    provides service over the high frequency portion of conventional
    copper lines. It is most commonly provided by collocating facilities
    in a central office of the incumbent LEC and transmitting the signal
    over unbundled local loops.

[^119]: *See* Covad Letter.

[^120]: *See UNE Remand Order,* 15 FCC Rcd at 3773, ¶168.

[^121]: Whether this practice is consistent with the goals of the 1996
    Act is beyond the scope of this proceeding, and we therefore decline
    to comment on it here.

[^122]: *See* Bell Atlantic Comments at 9; BellSouth Reply Comments at
    17.

[^123]: *See* CAIS, Inc. Reply Comments at 6.

[^124]: *See* GTE Reply Comments at 6.

[^125]: We do not credit several arguments suggesting that we reduce the
    likelihood tha the location of the demarcation point will be at the
    MPOE. For example, we find no support for BellSouth's assertion that
    service quality would suffer if the demarcation point were moved,
    nor for its assertion that it would lose good will with its
    customers because of problems with inside wiring no longer under its
    control. BellSouth Comments at 8. The record also does not support
    BellSouth's claim that property owners will not be able to undertake
    responsibility for wiring their premises. *Id* at 19-20. Indeed, the
    Real Access Alliance has stated that its members advocate having
    such choice in the hands of premises owners and feel it is the best
    way to provide tenants with choice in advanced telecommunications
    services. *See* June 16 Real Access Alliance Letter. We also reject
    the argument of BellSouth that permitting building owners to control
    the inside wiring would discourage the placement of fiber facilities
    in the building and thus discourage the provision of advanced
    services. We believe that where demand for advanced services exists,
    there will be sufficient incentive for incumbent LECs, competitive
    LECs and other third parties to undertake the installation of fiber
    facilities regardless of the location of the demarcation point.
    Moreover, contrary to BellSouth's contention, the record indicates
    that building owners would be willing to pay for and maintain such
    facilities.

[^126]: ^ ?^ 47 C.F.R. § 68.3(b)(2).

[^127]: ^ ?^ *See 1997 Demarcation Point Order,* 12 FCC Rcd at 11915
    n.104; *see* 47 C.F.R. § 68.3(b)(2).

[^128]: ^ ?^ BellSouth Petition at 4.

[^129]: *See* Real Access Alliance comments at ­­­59.

[^130]: *See* 47 U.S.C. § 208; 47 C.F.R. §§ 1.720-1.736 (1999).

[^131]: In this context we see no reason to distinguish between
    buildings constructed prior to and after August 13, 1990. Therefore
    we hold that these rules shall apply to all existing buildings
    regardless of when constructed.

[^132]: *See* Real Access Alliance Comments at 60; BlueStar
    Communications Reply Comments at 2.

[^133]: *Id.*

[^134]: *See* 47 C.F.R. § 68.110(c). This section of the Commission's
    Rules requires LECs to make available all technical information
    regarding the configuration of wiring on the customer's side of the
    demarcation point, but it does not require that it do so in a
    specified time. Further, while this section allows the LEC to charge
    reasonable costs for this technical information, we believe that any
    costs incurred in providing the location of the demarcation point
    would be *de minimis* and that the LECs should provide this
    information freely.

[^135]: This arrangement would be similar to that in single unit
    residential properties, where the customer has the option to pay a
    monthly fee to the incumbent LEC for inside wiring maintenance while
    retaining ownership and control of that wiring.

[^136]: *See* September 6 Real Access Alliance Letter.

[^137]: To the extent parties raise issues regarding incumbent LEC
    compliance with the UNE rules, they are beyond the scope of this
    proceeding. Similarly, we do not address in this proceeding whether
    competitive LECs should also be required to afford access to wiring
    that they control within MTEs under some statutory authority other
    than Section 251(c)(3) of the Act.

[^138]: *See* *2000 Demarcation Point Third Report and Order*.

[^139]: Complex wiring is defined as those installations of four or more
    lines. *See* *1997 Demarcation Point Order*.

[^140]: *See 1997 Demarcation Point Order,* 12 FCC Rcd at 11907; 5
    U.S.C. § 553.

[^141]: Specifically, the Commission found that because the same
    demarcation point definition had always applied to both simple and
    complex wiring, the parties should have realized that a change in
    the demarcation point definition would be likely to apply to both
    simple and complex wiring installations. *1997 Demarcation Point
    Order*, 12 FCC Rcd at 11925; *see also* Review of Sections 68.104
    and 68.213 of the Commission\'s Rules Concerning Connection of
    Simple Inside Wiring to the Telephone Network, *Notice of Proposed
    Rulemaking*, CC Docket No. 88-57, 3 FCC Rcd 1120 (1988).

[^142]: *1997 Demarcation Point Order*, 12 FCC Rcd at 11925*.*

[^143]: *Id.* at 11926.

[^144]: *See 1997 Demarcation Point Order*.

[^145]: *1997 Demarcation Point Order*, 12 FCC Rcd at 11905-07.

[^146]: Multi-Media Telecommunications Association (MMTA) Comments on
    the *1997 Demarcation Point Order* at 1; Shared Communications
    Systems (SCS) Comments on *1997 Demarcation Point Order* at 2-3.

[^147]: The petitioners were AT&T, GTE, Southwestern Bell (SBC), and
    TIA. *1997 Demarcation Point Order*, 12 FCC Rcd at 11908, 11926.

[^148]: Specifically, petitioners argued that location of the
    demarcation point at the MPOE may require the installation of a
    second network protector at or near the building in order to comply
    with the NEC*. 1997 Demarcation Point Order* 12 FCC Rcd at 11926-27.

[^149]: *1997 Demarcation Point Order*, 12 FCC Rcd at 11926. Network
    protector coordination refers to any activities required to ensure
    that the technical characteristics of multiple network protectors
    will not cause problems to the network or among themselves.

[^150]: *Id*.

[^151]: *Id.*

[^152]: *Id.*

[^153]: *Id*.

[^154]: *Id*.

[^155]: Ameritech Comments on *1997 Demarcation Point Order* at 2-3;
    Bell Atlantic/NYNEX Comments on *1997 Demarcation Point Order* at
    1-2; GTE Comments on *1997 Demarcation Point Order* at 3; SCS
    Comments on *1997 Demarcation Point Order* at 2-3.

[^156]: Bell Atlantic/NYNEX Comments on *1997 Demarcation Point Order*
    at 1-2; SCS Comments on *1997 Demarcation Point Order* at 2-3. GTE
    notes that it has adopted a normal business policy of locating the
    demarcation point for simple inside wiring at the MPOE, and notes
    its agreement with the Commission\'s definition. GTE Comments on
    *1997 Demarcation Point Order* at 3. Ameritech notes that the NEC
    does not refer to the demarcation point location, and that for
    various reasons property owners may prefer to limit the extent to
    which telecommunications service providers may intrude on their
    property. Ameritech also reports that its standard practice is to
    locate the demarcation point at the property line only for
    sophisticated commercial enterprises, as opposed to single tenant
    residences. Ameritech Comments on *1997 Demarcation Point Order* at
    2-3.

[^157]: GTE states that its company policy for wire extensions that
    serve separate buildings is to install protectors at both ends of
    any on-premises wire extension facility that could accidentally come
    into contact with power facilities carrying voltages of 300 volts or
    more, or those that extend to a separate building more than 75 feet
    away. In its initial comments, GTE acknowledges that the addition of
    the second protector may confuse tenants and building owners as to
    the location of the demarcation point. It therefore stresses the
    need for proper coordination among carriers and building owners to
    enable accurate identification of the demarcation point location,
    and supports a rule requiring parties that locate simple inside
    wiring demarcation points at the property line to inform premises
    owners and tenants of the need for a second protector and protector
    coordination. GTE Comments on *1997 Demarcation Point Order* at 4-5.
    In its reply comments, however, GTE agrees with other commenters,
    now stating that \"there is no need for the Commission to modify its
    rules to address safety and coordination of a second protector,\"
    and that \"all necessary coordination can be achieved easily without
    a rule change.\" GTE Reply Comments on *1997 Demarcation Point
    Order* at 3-4.

[^158]: Bell Atlantic/NYNEX Comments on *1997 Demarcation Point Order*
    at 3; BellSouth Reply Comments on *1997 Demarcation Point Order* at
    3; GTE Reply Comments on *1997 Demarcation Point Order* at 3-4.

[^159]: Bell Atlantic/NYNEX Comments on *1997 Demarcation Point Order*
    at 3; GTE Reply Comments on *1997 Demarcation Point Order* at 4; SCS
    Comments on *1997 Demarcation Point Order* at 2-3.

[^160]: Section 68.3(b)(1) states, in relevant part, \"\[i\]n multiunit
    premises existing as of August 13, 1990, the demarcation point shall
    be determined in accordance with the local carrier\'s reasonable and
    non‑discriminatory standard operating practices.\" 47 C.F.R. §
    68.3(b)(1).

[^161]: *See* *1997 Demarcation Point Order*, 12 FCC Rcd at 11914; 47
    C.F.R. § 68.3(b)(1).

[^162]: Bell Atlantic Petition~.~

[^163]: *See* *1990 Demarcation Point Order and Further NPRM.*

[^164]: *1997 Demarcation Point Order,* 12 FCC Rcd at 11914.

[^165]: The demarcation point in multiunit buildings was moved to the
    minimum point of entry in Pennsylvania, Maryland, Virginia, West
    Virginia and Delaware.

[^166]: 47 U.S.C. § 224(f)(1).

[^167]: S. Rep. No. 580, 95^th^ Cong., 1^st^ Sess. at 19, 20 (1977)
    (1977 Pole Attachments Act Senate Report).

[^168]: Adoption of Rules for the Regulation of Cable Television Pole
    Attachments, CC Docket No. 78-144, *First Report and Order*, 68 FCC
    2d 1585 (1978); s*ee also Second Report and Order*, 72 FCC 2d 59
    (1979) (*Pole Attachments Second Report and Order*); *Memorandum
    Opinion and Order in CC Docket No. 78-144*, 77 FCC 2d 187 (1980),
    *aff'd sub nom* *Monongahela Power Co. v. FCC*, 655 F.2d 1254 (D.C.
    Cir. 1985); Amendment of Rules and Policies Governing the Attachment
    of Cable Television Hardware to Utility Poles, CC Docket No. 86-212,
    *Report and Order*, 2 FCC Rcd 4387 (1987) (*1987* *Pole Attachments
    Revisions Order*).

[^169]: *Pole Attachments Second Report and Order*, 72 FCC 2d at 59;
    Petition to Adopt Rules Concerning Usable Space on Utility Poles, RM
    4556, *Memorandum Opinion and Order*, FCC 84-325, at ¶ 10 (rel. July
    25, 1984). *See also* *Alabama Power Co. v. FCC*, 773 F.2d 362 (D.C.
    Cir. 1985) (upholding challenge to the Commission's pole attachments
    formula relating to net pole investment and carrying charges).
    Following *Alabama Power*, the Commission revised its rules in the
    *1987* *Pole Attachments Revisions Order,* 2 FCC Rcd at 4387. *See
    also* Amendment of Rules and Policies Governing Pole Attachments,
    *Report and* *Order,* CS Docket No. 97-98, 15 FCC Rcd 6453 (2000)
    (*Cable Pole Attachments Pricing Report and Order*); Implementation
    of Section 703(e) of the Telecommunications Act of 1996, CS Docket
    No. 97-151, *Report and* *Order*, 13 FCC Rcd 6777 (1998)
    (*Telecommunications Pole Attachments Pricing Report and Order*),
    *rev'd in part sub nom Gulf Power Co. v. FCC*, 208 F.3d 1263 (11th
    Cir. 2000) (*Gulf Power II*).

[^170]: 47 U.S.C. § 224, as amended by the 1996 Act, § 703.

[^171]: 47 U.S.C. § 224(a), (f). *See Gulf Power Co. v. United States*,
    187 F.3d 1324 (11^th^ Cir. 1999) (upholding the constitutionality of
    Section 224(f)(1)) (*Gulf Power I*)*.*

[^172]: 47 U.S.C. § 224(a).

[^173]: 47 U.S.C. § 224(a)(5).

[^174]: 1996 Conference Report at 113.

[^175]: *Local Competition First Report and Order,* 11 FCC Rcd at
    16058-59, ¶¶ 1119-1122. We subsequently promulgated rate formulas to
    govern telecommunications service providers' access to pole
    attachments after February 8, 2001. *See Telecommunications Pole
    Attachments Pricing Report and Order*, 13 FCC Rcd at 6777.

[^176]: *Local Competition First Report and Order*, 11 FCC Rcd at 16082,
    ¶ 1179.

[^177]: Implementation of the Local Competition Provisions in the
    Telecommunications Act of 1996, CC Docket No. 96-98, *Order on
    Reconsideration,* 14 FCC Rcd 18049 at 18067, ¶ 51. (*Local
    Competition Pole Attachments Reconsideration Order*).

[^178]: *Id.* at 18063, ¶ 38.

[^179]: *Local Competition First Report and Order*, 11 FCC Rcd at
    16084-85, ¶ 1185.

[^180]: WinStar Communications, Inc. Petition for Clarification or
    Reconsideration (filed Sept. 30, 1996) (WinStar Petition). Relevant
    oppositions and comments were filed by American Electric Power
    Service Corporation et al. (AEPSC et al.), Ameritech, Duquesne Light
    Company (Duquesne), Edison Electric Institute and UTC, Sprint
    Corporation (Sprint), and United States Telephone Association.
    Replies were filed by AEPSC et al., Duquesne, and WinStar. *See
    also* WinStar Communications, Inc. Opposition to Petitions for
    Reconsideration at 5-10 (filed Oct. 31, 1996) (replying to Duquesne
    Opposition).

[^181]: *Competitive Networks NPRM*, 14 FCC Rcd at 12693-98, ¶¶ 39-48.

[^182]: *Id.* at 12687, ¶ 28.

[^183]: *Id*. at 12694, ¶ 40.

[^184]: *Id.* at 12695, ¶ 43.

[^185]: In the Further Notice of Proposed Rulemaking, we seek additional
    comment regarding the definition of rights-of-way in the context of
    MTEs. *See* Section V. D, *infra.*

[^186]: AT&T Comments at 10; Nextlink Comments at 3-4; Teligent Comments
    at 7-8; WinStar Comments at 7-9.

[^187]: *See* 47 U.S.C. §§ 251(c)(2) (interconnection), 251(c)(3)
    (unbundled access), and 251(c)(6) (collocation).

[^188]: *Competitive Networks NPRM*, 14 FCC Rcd at 12695, ¶ 42.

[^189]: *Id.* at 12696, ¶ 44.

[^190]: AT&T Comments at 14; Teligent Comments at 27-28; WinStar
    Comments at 54.

[^191]: AT&T Comments at 15; Teligent Comments at 14; WinStar Comments
    at 45.

[^192]: *See, e.g.,* GTE Comments at 25; United States Telephone
    Association Comments at 10.

[^193]: Bell Atlantic Comments at 7.

[^194]: Cincinnati Bell Comments at 4.

[^195]: Real Access Alliance Comments at 49.

[^196]: AT&T Comments at 18; WinStar Comments at 60. The United States
    Court of Appeals for the Eleventh Circuit recently held that the
    Commission lacks authority under Section 224(f)(1) over pole
    attachments for wireless communications. *Gulf Power II*, 208 F.3d
    at 1263, *petition for reh'g denied*, 2000 WL 1335040 (11^th^ Cir.
    Sept. 12, 2000). *Gulf Power II* disposed of consolidated petitions
    for review of the Commission's *Telecommunications Pole Attachments
    Pricing Report and Order,* 13 FCC Rcd 6777, implementing 47 U.S.C. §
    224, as amended by the 1996 Act. We note that the court has stayed
    issuance of the mandate in *Gulf Power II* pending the ultimate
    disposition of any petition for certiorari. Moreover, although some
    language in *Gulf Power II* could be read to suggest that the scope
    of Section 224 turns on the identity of the carrier, and thus that
    even a wireline facility is not covered by Section 224 when used by
    a "wireless" carrier, we do not believe the decision must
    necessarily be read in this manner. To the contrary, it is possible
    that the decision is most reasonably construed to turn in whole or
    in part on the nature of the particular equipment for which
    attachments is sought, and thus not to exclude, for example, any
    telecommunications carrier's wireline facilities within MTEs from
    the scope of Section 224.

[^197]: 47 U.S.C. § 224(f)(1) (emphasis added).

[^198]: AT&T Comments at 19.

[^199]: *See* *Cable Pole Attachments Pricing Report and Order,* 15 FCC
    Rcd at 6523, App. A (amending definition of "conduit" to refer to "a
    structure . . . usually placed in the ground," rather than "a pipe
    placed in the ground"); *see also* Petition by MCI for Arbitration
    of Certain Terms and Conditions of a Proposed Agreement with GTE
    South Incorporated Concerning Interconnection and Resale Under the
    Telecommunications Act of 1996, Case No. 96-440, *Order* (Ky. P.S.C.
    Dec. 23, 1996) (holding that incumbent LEC has duty under Section
    251(b)(4) of the Act to afford access to rights-of-way in private
    office buildings).

[^200]: *See* *Competitive Networks NPRM,* 14 FCC Rcd at 12696, ¶ 44 &
    n.98 (citing 1977 Pole Attachments Act Senate Report at 26).

[^201]: *See* H.R. Rep. No. 104-204, 104^th^ Cong., 1^st^ Sess. at 91-92
    (1995); H.R. Rep. No. 104-458, 104^th^ Cong., 2^nd^ Sess. at 205-207
    (1996).

[^202]: *Ratzlaf v. United States*, 510 U.S. 135, 147-48 (1994). *See
    also* *Burlington N. R.R. Co. v. Oklahoma Tax Comm\'n*, 481 U.S.
    454, 461 (1987) (when language of statute is unambiguous, review of
    legislative history is unnecessary).

[^203]: Real Access Alliance Comments at 49.

[^204]: *See, e.g.*, *Great Northern Ry. Co. v. United States*, 315 U.S.
    262, 276-79 (1942) (construing rights-of-way granted by the 1875
    Right-of-way Act to constitute easements); *Joy v. City of Saint
    Louis*, 138 U.S. 1, 44 (1890) (*Joy*); *Board of County Supervisors
    of Prince William County v. United States*, 48 F.3d 520, 527 (Fed.
    Cir.) ("'Rights-of-way' are another term for easements"), *cert.
    denied*, 516 U.S. 812 (1995).

[^205]: Teligent Comments at 26-27; Real Access Alliance Reply Comments
    at 25-26.

[^206]: For example, a broadly worded easement permitting a utility to
    place facilities throughout a building or "in hallways" would not in
    itself create a right-of-way under this definition. A utility's
    placement of facilities in a defined pathway pursuant to such an
    easement would, however, create a right-of-way along that pathway,
    thus giving telecommunications carriers and cable service providers
    a right of access if the right-of-way is owned or controlled by the
    utility.

[^207]: We note, however, that a utility must take all reasonable steps
    to expand capacity to accommodate requests for attachments just as
    it would expand capacity to meet its own needs. *See Local
    Competition Pole Attachments Reconsideration Order*, 14 FCC Rcd at
    18067, ¶ 51.

[^208]: *Competitive Networks NPRM*, 14 FCC Rcd at 12694, ¶ 40; *see
    also Local Competition First Report and Order*, 11 FCC Rcd at
    16084-85, ¶ 1185 (stating that Congressional intent in promulgating
    Section 224(f) "was to permit cable operators and telecommunications
    carriers to "piggyback" along distribution networks owned or
    controlled by utilities, as opposed to granting access to every
    piece of equipment or real property owned or controlled by the
    utility.").

[^209]: *Competitive Networks NPRM*, 14 FCC Rcd at 12695, ¶ 43.

[^210]: GTE Comments at 25.

[^211]: *See* AT&T Comments at 17; WinStar Comments at 56.

[^212]: *See Joy v. City of Saint Louis*, 138 U.S. at 44; Black's Law
    Dictionary 1326 (6^th^ ed. 1990). We note that, in interpreting
    Section 224(f), an arbitration panel of the Michigan Public Service
    Commission has held that land used for distribution facilities would
    be considered a "right-of-way" even if it were held by the utility
    in fee simple absolute. AT&T Communications of Michigan, Inc., Case
    No. U-11151, *Decision of Arbitration Panel* at 50-52 (Mich. P.S.C.
    Oct. 28, 1996); *see also* AT&T Communications of Ohio, Inc.'s
    Petition for Arbitration of Inter-Connection Rates, Terms and
    Conditions and Related Arrangements with Ohio Bell Telephone Company
    d.b.a. Ameritech Ohio, Case No. 96-752-TP-ARB, *Arbitration Panel
    Report* at 52-53.

[^213]: AT&T Comments at 17.

[^214]: *See* Petition for Environmental Impact Statement filed by the
    National League of Cities, the National Association of Counties, the
    Michigan Municipal League, and the Texas Coalition of Cities for
    Utility Issues, at 21-24 (August 16, 2000) (National League of
    Cities, et al. Petition for EIS). We address petitioners' concern
    regarding the extension of the OTARD rules in paras. 121-123
    *infra*. To the extent that the EIS petition expresses concern
    regarding issues raised in the Notice of Inquiry portion of the
    *Competitive Networks NPRM*, those issues will be addressed
    separately at another time. *See* note 2, *supra*.

[^215]: 47 U.S.C. § 224(f)(2).

[^216]: 47 U.S.C. § 224(a)(4).

[^217]: *Local Competition First Report and Order*, 11 FCC Rcd at 16082,
    ¶ 1179.

[^218]: *Id.*

[^219]: *Competitive Networks NPRM*, 14 FCC Rcd at 12696-97, ¶¶ 45-47.

[^220]: Ameritech Comments at 4.

[^221]: Real Access Alliance Comments at 55.

[^222]: AT&T Comments at 19-20.

[^223]: WinStar Comments at 62.

[^224]: *Id.*

[^225]: *Local Competition First Report and Order,* 11 FCC Rcd at
    16081-82, ¶ 1178.

[^226]: *Id.*

[^227]: *Id.*

[^228]: We note, however, that nothing in Section 224 prevents a state
    from extending the principles of Section 224 under state law to
    entities other than those considered to be "utilities," as that term
    is defined in the federal statute. For example, Massachusetts
    recently promulgated building access regulations which include a
    premises owner within the definition of "utility." *Massachusetts
    Nondiscriminatory Access Order*.

[^229]: Real Access Alliance Comments at 53-55. We further note that the
    parties' respective rights and responsibilities may typically be
    different over rights-of-way located outside buildings than inside
    buildings. For example, rights-of-way over land are typically used
    to provide service to the general public, whereas rights-of-way in
    MTEs ordinarily are used only to provide service to tenants in the
    MTE.

[^230]: *See* *Gulf Power I,* 187 F.3d at 1324.

[^231]: 47 C.F.R. § 76.804(a).

[^232]: 47 U.S.C. § 224(b)(1).

[^233]: 47 U.S.C. § 224(d),(e).

[^234]: *Telecommunications* *Pole Attachments Pricing Report and
    Order*, 13 FCC Rcd at 6777; *Cable Pole Attachments Pricing Report
    and Order*, 15 FCC Rcd at 6453.

[^235]: *Cf. Telecommunications* *Pole Attachments Pricing Report and
    Order*, 13 FCC Rcd at 6832, ¶ 121 (holding that the record did not
    permit us to establish detailed standards for the pricing of access
    to rights-of-way, and accordingly that we would consider allegations
    of unjust, unreasonable, or discriminatory rates on a case-by-case
    basis).

[^236]: 47 U.S.C. § 224(c).

[^237]: *Telecommunications Pole Attachments Pricing Report and Order,*
    13 FCC Rcd at 6777; *Cable Pole Attachments Pricing Report and
    Order*, 15 FCC Rcd at 6453.

[^238]: AT&T Comments at 21-22; Teligent Comments at 38; WinStar
    Comments at 65.

[^239]: *See* 47 C.F.R. § 1.1414(e). We note that if it is shown in a
    complaint proceeding that a state does not regulate access to ducts
    or conduits within buildings, for example, that state\'s regulation
    of pole attachments on public rights-of-way, and its certification
    to such regulation, would not defeat the Commission\'s jurisdiction
    over access to ducts or conduits within buildings. In such a case,
    we would decide the complaint regarding in-building attachments,
    while continuing to respect the state's authority over those pole
    attachments that it does regulate.

[^240]: 47 C.F.R. § 1.4000.

[^241]: *See* Preemption of Local Zoning Regulation of Satellite Earth
    Stations, *Report and Order, Memorandum Opinion and Order in IB
    Docket No. 95-59*, and Implementation of Section 207 of the
    Telecommunications Act of 1996 and Restrictions on Over-the-Air
    Reception Devices: Television Broadcast Service and Multichannel
    Multipoint Distribution Service, *Further Notice of Proposed
    Rulemaking in CS Docket No. 96-83*, 11 FCC Rcd 19276 (1996) (*OTARD
    First Report and Order*). Section 207 of the 1996 Act states that
    "\[w\]ithin 180 days after the date of enactment of this Act, the
    Commission shall, pursuant to Section 303 of the Communications Act
    of 1934, promulgate regulations to prohibit restrictions that impair
    a viewer's ability to receive video programming services through
    devices designed for over-the-air reception of television broadcast
    signals, multichannel multipoint distribution service, or direct
    broadcast satellite services." 47 U.S.C. § 303 note (1996 Act,
    Section 207).

[^242]: Wireless Communications Association International, Inc. Petition
    for Rulemaking to Amend Section 1.4000 of the Commission's Rules to
    Preempt Restrictions on Subscriber Premises Reception or
    Transmission Antennas Designed to Provide Fixed Wireless Service
    (filed May 26, 1999); *see also* Letter from Paul J. Sinderbrand,
    Counsel for Wireless Communications Association International, Inc.,
    to Magalie Roman Salas, Secretary, FCC, dated September 7, 2000
    (asserting that timely deployment of Sprint and WorldCom fixed
    wireless broadband services is being thwarted by homeowner
    associations' antenna restrictions).

[^243]: *Competitive Networks NPRM*, 14 FCC Rcd at 12710-12712, ¶ 69.

[^244]: *See* AT&T Comments at vi; Fixed Wireless Communications
    Coalition Comments at 14-15; PCIA Comments at 34-35; Teligent
    Comments at 46. *Cf*. Real Access Alliance Comments at vii.

[^245]: PCIA Comments at 34-35. *See* 47 U.S.C. § 157(a) note.

[^246]: Real Access Alliance Comments at vii.

[^247]: *Id.* at 72.

[^248]: *Id*. at 72-73.

[^249]: The text of Section 1.4000, as amended by this Order, appears in
    Appendix B.

[^250]: Although the definition of "fixed wireless signals" does not
    apply to broadcast signals, we note that television broadcast
    signals continue to be covered under our OTARD rules.

[^251]: This definition of "fixed wireless signals" does not include,
    among other things, AM radio, FM radio, amateur (\"HAM\") radio,
    Citizen\'s Band (CB) radio, and Digital Audio Radio Service (DARS)
    signals. We note that State and local regulation of the placement of
    antennas used for HAM radio is covered by Section 97.15(b) of the
    Commission's rules, 47 C.F.R. § 97.15(b).

[^252]: *See*, *e.g.*, 47 U.S.C. § 251 (each telecommunications carrier
    has the duty to interconnect directly or indirectly with the
    facilities and equipment of other telecommunications carriers to
    promote the development of competitive markets); 47 U.S.C. § 157 nt
    (1996 Act, Section 706) (Commission shall encourage the deployment
    of high-speed, switched, broadband telecommunications capability
    that enables users to originate and receive high-quality voice,
    data, graphics, and video telecommunications using any technology).

[^253]: *See*, *e.g.*, 47 U.S.C. § 253 (removal of barriers to entry);
    47 U.S.C. § 332(c)(7) (local zoning authority shall not prohibit the
    provision of personal wireless service); 47 U.S.C. § 303 nt (1996
    Act, Section 207) (Commission shall promulgate regulations to
    prohibit restrictions that impair a viewer's ability to receive
    video programming services through devices designed for over-the-air
    reception of television broadcast signals, multichannel multipoint
    distribution service, or direct broadcast satellite services).

[^254]: *OTARD First Report and Order*, 11 FCC Rcd at 19279, ¶ 5.

[^255]: Special provisions to protect the public from excessive exposure
    to radio frequency emissions are discussed at paras. 118-121,
    *infra.* We note that our existing rule already covers transmission
    devices that work in tandem with the receiving device and are
    necessary to select programming on a covered receiving antenna.
    Implementation of Section 207 of the Telecommunications Act of 1996
    and Restrictions on Over-the-Air Reception Devices: Television
    Broadcast Service and Multichannel Multipoint Distribution Service,
    *Order on Reconsideration*, 13 FCC Rcd 18962, 18988 at ¶ 59 (1998)
    (*OTARD Order on Reconsideration*).

[^256]: Regulations governing the placement of such antennas may,
    however, be affected by other provisions of the Communications Act
    or our rules. *See*, *e.g.*, 47 U.S.C. § 332(c)(7); 47 C.F.R. §
    25.104.

[^257]: *See* text of Section 1.4000 in Appendix B.

[^258]: This revision to the OTARD rules does not change the
    Commission\'s conclusion in the previous OTARD proceedings that
    masts that extend more than 12 feet above the roof of the building
    or that are taller than the distance between the antenna and the lot
    line may require a safety permit. *See* *OTARD Order on
    Reconsideration*, 13 FCC Rcd at 18979-80, ¶¶ 34-36. This recognition
    of a possible safety hazard due to the height of the mast may apply,
    as well, to the non-video antennas now covered by the OTARD rules.
    We reiterate that permit requirements for masts exceeding this
    height may be imposed to achieve legitimate safety objectives, not
    for aesthetic purposes. We do not condone an outright prohibition of
    such masts unless the safety concerns cannot be addressed
    adequately. *See* *OTARD Order on Reconsideration*, 13 FCC Rcd at
    18979-80, ¶ 36. Of course, masts should not be taller than necessary
    to receive an acceptable quality signal from the desired service.

[^259]: *See* 47 C.F.R. § 1.4000(b).

[^260]: Telecommunications Act of 1996, Pub. L. No. 104-04, purpose
    statement, 110 Stat. 56, 56 (1996) (*1996 Act Preamble*).

[^261]: *See, e.g.,* *AT&T Corp.* *v.* *Iowa Utils.* *Bd.*, 525 U.S. 366
    (1999) (J. Scalia, writing for the majority, upholding Commission's
    exercise of ancillary jurisdiction pursuant to Section 201(b));
    *United States* *v.* *Southwestern Cable,* 392 U.S. 157 (1968)
    (S*outhwestern Cable*) (upholding the Commission's authority to
    regulate cable television); *National Broadcasting Comm'n* *v.*
    *United States*, 319 U.S. 190, 219 (1943) (Congress "did not
    frustrate the purposes for which the Communications Act of 1934 was
    brought into being by attempting an itemized catalogue of the
    specific manifestations of the general problems for the solution of
    which it was establishing a regulatory agency"); *Texas Rural Legal
    Aid, Inc.* *v.* *Legal Serv. Corp.*, 940 F.2d 685, 694 (D.C. Cir.
    1991) (a "congressional prohibition of a particular conduct may
    actually support the view that the administrative entity can
    exercise its authority to eliminate a similar danger"); *United
    Video, Inc*. *v.* *FCC*, 890 F.2d 1173, 1183 (D.C. Cir. 1989)
    (upholding Commission's authority to reinstate syndicated
    exclusivity rules for cable television companies as ancillary to the
    Commission's authority to regulate television broadcasting); *Rural
    Tel.* *Coalition* *v.* *FCC*, 838 F.2d 1307 (D.C. Cir. 1988)
    (upholding Commission's pre-statutory version of the universal
    service fund as ancillary to its responsibilities under Sections 1
    and 4(i) of the Communications Act, stating that "\[a\]s the
    Universal Service Fund was proposed in order to further the
    objective of making communications service available to all
    Americans at reasonable charges, the proposal was within the
    Commission's statutory authority"); *North American Telecomm. Ass'n*
    *v.* *FCC*, 772 F.2d 1281, 1292-93 (7^th^ Cir. 1985) ("Section 4(i)
    empowers the Commission to deal with the unforeseen -- even if \[\]
    that means straying a little way beyond the apparent boundaries of
    the Act -- to the extent necessary to regulate effectively those
    matters already within the boundaries") (citations omitted);
    *Lincoln Tel. & Tel. Co.* *v.* *FCC*, 659 F.2d 1092, 1109 (D.C. Cir.
    1981) ("The instant case was an appropriate one for the Commission
    to exercise the residual authority contained in Section 154(i) to
    require a tariff filing. . . . The Commission properly perceived the
    need for close supervision and took the necessary course of action:
    it required LT&T to file an interstate tariff setting forth the
    charges and regulations for interconnection."); *GTE Serv.* *Corp.*
    *v.* *FCC*, 474 F.2d 724, 731 (2d Cir. 1974) (holding that "even
    absent explicit reference in the statute, the expansive power of the
    Commission in the electronic communications field includes the
    jurisdictional authority to regulate carrier activities in an area
    as intimately related to the communications industry as that of
    computer services, where such activities may substantially affect
    the efficient provision of reasonably priced communications
    service").

[^262]: 47 U.S.C. § 151.

[^263]: *Id*.

[^264]: 47 U.S.C. § 157 note.

[^265]: *See* 47 U.S.C. § 201(b) ("all charges, practices,
    classifications, and regulations for and in connection with such
    communication service, shall be just and reasonable, and any such
    charge, practice, classification, or regulation that is unjust or
    unreasonable is hereby declared to be unlawful. . . ."); 47 U.S.C. §
    202(a) ("\[i\]t shall be unlawful for any common carrier to make any
    unjust or unreasonable discrimination in charges, practices,
    classifications, regulations, facilities, or services for or in
    connection with like communications service. . . ."); 47 U.S.C. §
    205(a) ("the Commission is authorized and empowered to determine and
    prescribe what will be the just and reasonable charge or
    charges\[,\] . . . and what classification, regulation, or practice
    is or will be just, fair, and reasonable. . . .").

[^266]: *See* 47 U.S.C. § 201(b).

[^267]: 47 U.S.C. § 303; *see also* 47 U.S.C. § 301 ("It is the purpose
    of this Act, among other things, to maintain the control of the
    United States over all the channels of radio transmission\[.\]").

[^268]: 47 U.S.C. § 303(r).

[^269]: 47 U.S.C. § 154(i).

[^270]: *See* note 261 *supra* (citing federal court cases upholding
    Commission's exercise of ancillary jurisdiction).

[^271]: 47 U.S.C. § 303 note.

[^272]: *See* Preemption of Local Zoning or Other Regulation of
    Receive-Only Satellite Earth Stations, 59 Rad. Reg. 2d (P&F) 1073
    (1986); Earth Satellite Communications, Inc., 95 FCC 2d 1223 (1983)
    (preempting "state and local regulation of SMATV systems . . .
    ha\[s\] the effect of interfering with, delaying, or terminating
    interstate and federally controlled communications services"),
    *aff'd sub nom. New York State Commission on Cable Television* *v.*
    *FCC*, 749 F. 2d 804 (D.C. Cir. 1984); Preemption of Local Zoning
    Regulation of Satellite Earth Stations, *Report and Order and
    Further Notice of Proposed Rulemaking*, 11 FCC Rcd 5809 (1996).

[^273]: *Louisiana Pub. Serv. Comm'n v.* FCC, 476 U.S. 355, 368-69
    (1986) (*Louisiana PSC*) (citing *Hines v. Davidovitz*, 312 U.S. 52
    (1941)).

[^274]: *Louisiana PSC,* 476 U.S. at 369 (citing *Fidelity Federal
    Savings & Loan Assn. v. De la Cuesta*, 458 U.S. 141 (1982) and
    *Capital Cities Cable, Inc. v. Crisp*, 467 U.S. 691 (1984)).

[^275]: *Louisiana PSC,* 476 U.S. at 376 n.4.

[^276]: *See, e.g.*, *National Ass'n of Regulatory Util.* *Comm'rs* *v.*
    *FCC*, 746 F.2d 1492, 1498 (D.C. Cir. 1984) (stating that "purely
    intrastate facilities and services used to complete even a single
    interstate call may become subject to FCC regulation to the extent
    of their interstate use"); *cf.* *Louisiana* *PSC*, 476 U.S. at 376
    n.4 (1986) (acknowledging that where it is "not possible to separate
    the interstate and the intrastate components of the asserted FCC
    regulation," FCC preemption is sustainable). The Communications Act
    defines "interstate communication" as any communication that
    originates in one state and terminates in another. 47 U.S.C. §
    153(e).

[^277]: City and County of San Francisco Comments at 16; National
    Association of Counties, the National Association of
    Telecommunications Officers and Advisors, and Montgomery County,
    Maryland Joint Comments at 20; Reply Comments of Concerned
    Communities and Organizations at 20. LSGAC references the argument
    regarding Section 332(c)(7) in its Recommendation No. 19, issued
    November 1, 1999. Section 332(c)(7) states that "\[e\]xcept as
    provided in this paragraph, nothing in this Act shall limit or
    affect the authority of a State or local government or
    instrumentality thereof over decisions regarding the placement,
    construction, and modification of personal wireless service
    facilities." 47 C.F.R. § 332(c)(7). Section 332(c)(7) expressly
    permits the Commission to regulate State or local government
    decisions of the siting of personal wireless service facilities on
    the basis of RF emissions safety.

[^278]: WCA Further Reply Comments at 14.

[^279]: *See, e.g.,* *Communications Company of Charlottesville v. Board
    of Supervisors of Albemarle County*, 211 F.3d 79, 86 (4^th^ Cir.
    2000).

[^280]: 47 U.S.C. § 153(14).

[^281]: *See, e.g.,* 47 U.S.C. § 255 ("A manufacturer of
    telecommunications equipment or customer premises equipment shall
    ensure that the equipment is designed, developed, and fabricated to
    be accessible to and usable by individuals with disabilities, if
    readily achievable."); 47 U.S.C. § 273 ("A Bell operating company
    may manufacture and provide telecommunications equipment, and
    manufacture customer premises equipment, if the Commission
    authorizes that Bell operating company or any Bell operating company
    affiliate to provide interLATA services under Section 271(d) . . . .
    \[subject to requirements and exceptions\].")

[^282]: See 47 U.S.C. § 549 (governing commercial consumer availability
    of equipment used to access services provided by multichannel video
    programming distributors). That section states: "Nothing in this
    section affects Section 64.702(e) of the Commission's regulations
    (47 C.F.R. 64.702(e)) or other Commission regulations governing
    interconnection and competitive provision of customer premise
    equipment used in connection with basic common carrier
    communications services." 47 U.S.C. § 549(d)(2).

[^283]: S. Conf. Rep. No. 104-230, 104^th^ Cong., 2d sess. at 91 (1996)
    (1996 Act Conference Report).

[^284]: *1996 Act Preamble*.

[^285]: *See Local Competition First Report and Order*, 11 FCC Rcd at
    15505-06, ¶ 3. Thus, in Section 251 of the Communications Act,
    Congress imposed special duties on LECs and incumbent LECs to take
    actions, including making their facilities and services available to
    competitors on reasonable terms, that would promote competition. 47
    U.S.C. § 251. In Section 271, Congress required the former Bell
    operating companies to meet a competitive checklist, and to
    demonstrate either the existence of facilities-based competition in
    the local exchange market or the absence of a request for access and
    interconnection to provide local exchange service, before they are
    allowed to provide in-region interLATA service. 47 U.S.C. § 271.

[^286]: 47 C.F.R. § 332(c )(7)(B)(i).

[^287]: *Cf.* Real Access Alliance Comments at vii. (arguing that the
    Commission has already exceeded its authority and violated the Fifth
    Amendment by extending the OTARD rules to include leased property
    and will further compound the error by extending the rules to
    include new services).

[^288]: *See* Implementation of Section 207 of the Telecommunications
    Act of 1996 and Restrictions on Over-the-Air Reception Devices:
    Television Broadcast, Multichannel Multipoint Distribution and
    Direct Broadcast Satellite Services, *Second Report and Order in CS
    Docket No. 96-83*, 13 FCC Rcd 23874, 23883-85, ¶¶19-20 (1998)
    (*OTARD Second Report and Order*). We note that this holding is
    being appealed in the U.S. Court of Appeals in the D.C. Circuit.

[^289]: *Id.*

[^290]: *See* Guidelines for Evaluating the Environmental Effects of
    Radiofrequency Radiation, ET Docket No. 93-62, *Report and Order*,
    11 FCC Rcd 15123, 15124, 15152 (1996); 47 C.F.R. §§ 1.1307(b)(1),
    1.1310.

[^291]: 47 C.F.R. §1.4000(b).

[^292]: *See* Rulemaking to Amend Parts 1, 2, 21, and 25 of the
    Commission's Rules to Redesignate the 27.5-29.5 GHz Frequency Band,
    To Reallocate the 29.5-30.0 GHz Frequency Band, To Establish Rules
    and Policies for Local Multipoint Distribution Service and for Fixed
    Satellite Service, CC Docket No. 92-297, *Second Report and Order,
    Order on Reconsideration, and Fifth Notice of Proposed Rulemaking* ,
    12 FCC Rcd 12545, 12670, ¶ 295 (1997) (*LMDS Order*); Amendment of
    Parts 21 and 74 to Enable Multipoint Distribution Service and
    Instructional Television Fixed Service Licensees to Engage in Fixed
    Two-Way Transmissions, MM Docket No. 97-217, *Report and Order*, 13
    FCC Rcd 19112, 19129, ¶ 37 (1998) (*MDS/ITFS Order*); Amendment to
    Parts 1, 2, 87 and 101 of the Commission's Rules to License Fixed
    Services at 24 GHz, WT Docket No. 99-327, *Report and Order*, FCC
    00-272 (rel. August 1, 2000); 47 C.F.R. § 1.1307(b)(1).

[^293]: *See Evaluating Compliance with FCC Guidelines for Human
    Exposure to Radiofrequency Electromagnetic Fields*, FCC Office of
    Engineering and Technology (OET), OET Bulletin 65, August, 1997, at
    53 (available at
    <http://www.fcc.gov/oet/info/documents/bulletins/#65>).

[^294]: *See, e.g., LMDS Order*, 12 FCC Rcd at 12670. We note that
    professional installation is in fact required for certain antennas
    used for MDS and ITFS under the Commission's rules. *See* 47 C.F.R.
    §§ 21.909(n), 74.939(p).

[^295]: *See, e.g., Declaratory Ruling In re MacDonald**, ***13 FCC Rcd
    4844, 4853, ¶ 28 (CSB, 1997) (prohibiting a local government
    regulation requiring OTARD users to hire an installer).

[^296]: In the LMDS and MMDS proceedings, we also strongly encouraged
    the use of safety interlock features on the subscriber units that
    would prevent a transceiver from continuing to transmit when
    blocked, to the extent that such features could be made available at
    a reasonable cost. *See LMDS Order*, 12 FCC Rcd at 12670, ¶ 296;
    *MDS/ITFS Order*, 13 FCC Rcd at 19129, ¶ 38; *see also* Amendment of
    Parts 21 and 74 to Enable Multipoint Distribution Service and
    Instructional Television Fixed Service Licensees to Engage in Fixed
    Two-Way Transmissions, MM Docket No. 97-217, *Report and Order on
    Reconsideration*, 14 FCC Rcd 12764, 12779, ¶ 29 (1999) (rules
    amended to provide for a positive "interlock" feature that prevents
    inadvertent activation of a newly installed response transmitter
    when the response antenna is not properly installed so as to receive
    signals from the associated main or booster transmitters). We do not
    preclude the possibility that requirements of such interlock
    features by State or local governments, home owner associations,
    building owners, or other third parties could under appropriate
    circumstances be justified under the safety exception in Section
    1.4000(b) if the requirement promotes a clearly defined, legitimate
    safety objective and is no more burdensome than necessary. In
    addition, we do not preclude the possibility that the Commission
    could in the future require safety devices for some customer-end
    transmitters, such as those that transmit above some threshold level
    of radiated power.

[^297]: *See* National League of Cities, et al. Petition for EIS. We
    address petitioners' concern regarding issues related to Section 224
    in para. 85 *supra*. To the extent that the EIS petition expresses
    concern regarding issues raised in the Notice of Inquiry portion of
    the *Competitive Networks NPRM*, those issues will be addressed
    separately at another time. *See* note 2 *supra*.

[^298]: *See* National League of Cities, et al. Petition for EIS at
    16-24.

[^299]: *See* 47 C.F.R. § 1.4000(b)(1); para. 100, *supra*.

[^300]: See 47 C.F.R. § 1.4000(b)(1). We reject the petitioners'
    assertion that the Cable Services Bureau's *Star Lambert* decision
    "effectively read that exemption out of the rule (by prohibiting the
    enforcement of safety related codes and regulations against
    satellite dish providers." EIS Petition at v-vi. *See* Star Lambert
    and Satellite Broadcasting and Communications Association of
    America, *Memorandum Opinion and Order*, 12 FCC Rcd 10455 (CSB 1997)
    (*Star Lambert*). In that decision, the Bureau determined that the
    City of Meade, Kansas had not satisfied the safety exception to the
    OTARD rules because it had not sufficiently identified the type of
    safety concern it intended to address. *Star Lambert Order*, 12 FCC
    Rcd at 10469, ¶ 36 (noting that the Meade, Kansas zoning requirement
    made no more than passing reference to unspecified and general
    safety concerns). Moreover, the Bureau stated its concern that the
    general statement of safety interests in the Meade ordinance at
    issue was so broad and ill-defined that it constituted little more
    than a pro forma recitation. Thus, the *Star Lambert* decision did
    not prohibit the enforcement of all State and local safety codes as
    applied to antennas subject to the OTARD rules, but rather
    prohibited enforcement of such codes that do not accomplish a
    clearly defined, legitimate safety objective. Significantly, in the
    Commission's *OTARD Order on Reconsideration*, which was issued
    subsequent to the Meade decision, the Commission declined requests
    to cut back on the safety exception and reiterated the validity of
    recognizing legitimate safety concerns. *See* *OTARD Order on
    Reconsideration*, 13 FCC Rcd at 18968-71, ¶¶ 8-15.

[^301]: *See* National League of Cities, et al. Petition for EIS at
    31-38.

[^302]: *See* para. 100, *supra*.

[^303]: *See* 47 C.F.R. §§ 1.4000(c), 1.4000(d).

[^304]: *See* National League of Cities, et al. Petition for EIS at
    24-25.

[^305]: *See* para. 100*, supra*.

[^306]: *See* 47 C.F.R.§ 1.4000(b)(2).

[^307]: 47 C.F.R. § 1.4000(c)*.*

[^308]: *Competitive Networks NPRM,* 14 FCC Rcd at 12701, ¶ 53.

[^309]: *Id.* at 12701-07, ¶¶ 53-63.

[^310]: *Id.*

[^311]: *See* September 6 Real Access Alliance Letter.

[^312]: *See* Addendum to ALTS Comments at 43-48 (discussing possible
    ways in which "\[t\]he Commission can secure tenant access to
    telecommunications options without imposing requirements directly
    upon MTE owners and managers"); Letter from Jonathan Askin, Counsel
    for ALTS, to Magalie Roman Salas, Secretary, FCC, dated April 12,
    2000 (noting that "\[t\]hat the Commission can accomplish MTE access
    indirectly through its authority to regulate providers of interstate
    communications. Specifically, it should prohibit carriers from
    serving MTEs owners or operated by owners or managers that
    discriminate among telecommunications carriers or otherwise
    unreasonably restrict access by telecommunications carriers to the
    tenants in those MTEs. Alternatively, the Commission could prohibit
    carriers from entering into contracts with MTE owners or managers
    that provide or allow for discriminatory or unreasonable treatment
    of other carriers."); Letter from Gunnar Halley, Counsel for
    Teligent, to Magalie Roman Salas, Secretary, FCC, dated April 28,
    2000 (noting that the Commission "may impose suitable obligations
    upon \[carriers\] that have the effect of influencing multi-tenant
    environment owner behavior" and citing *Ambassador, Inc.* *v.*
    *United States*, 325 U.S. 317 (1945) (*Ambassador*)); Letter from
    Philip L. Verveer, Counsel for WinStar Communications, Inc., to
    Commissioner Powell, dated June 22, 2000, filed in WTB 99-217
    (noting that "\[t\]he Commission may exercise its jurisdiction over
    carriers' practices in order to ensure access to buildings on
    nondiscriminatory and reasonable terms").

[^313]: *See* paras. 14 -24, *supra*.

[^314]: We note that we recently received two *ex parte* submissions
    from groups representing the interests of consumers. In its
    submission, AARP asserts that "\[t\]enants, not landlords and
    building owners, should have the opportunity to choose among
    carriers for their telecommunications services." Letter from Martin
    Corry, Director, Federal Affairs, AARP, to William E. Kennard,
    Chairman, FCC, dated September 20, 2000. Similarly, the Consumers
    Union asserts that "occupants of MTEs should have the right to
    select from a variety of carriers. . . . . \[J\]ust compensation
    does not require that property owners be allowed to block the
    expansion of local phone competition." Letter from Gene Kimmelman,
    Co-Director, Washington Office, Consumers Union, to William E.
    Kennard, Chairman, FCC, dated September 19, 2000.

[^315]: For example, TeraBeam Internet, a jointly-owned venture of
    Lucent and TeraBeam Networks, is developing a fiberglass network
    technology that can send data through the windows of office
    buildings using optical beams. *See* Communications Daily, April 13,
    2000.

[^316]: The Communications Act defines "exchange access" as "the
    offering of access to telephone exchange services or facilities for
    the purpose of the origination or termination of telephone toll
    services." 47 U.S.C. § 153(16).

[^317]: *See, e.g.*, *National Ass'n of Regulatory Util. Comm'rs v.
    FCC*, 746 F.2d 1492, 1498 (D.C. Cir. 1984) (stating that "purely
    intrastate facilities and services used to complete even a single
    interstate call may become subject to FCC regulation to the extent
    of their interstate use"); *cf. Louisiana PSC*, 476 U.S. at 376 n.4
    (acknowledging that where it is "not possible to separate the
    interstate and the intrastate components of the asserted FCC
    regulation," FCC preemption is sustainable). The Communications Act
    defines "interstate communication" as any communication that
    originates in one state and terminates in another. 47 U.S.C. §
    153(e).

[^318]: Under Section 1, the Commission is charged with "execut\[ing\]
    and enforc\[ing\] the provisions of th\[e Communications\] Act," 47
    U.S.C. § 151, the provisions of which "apply to all interstate and
    foreign communication by wire or radio and all interstate and
    foreign transmission of energy by radio, which originates and/or is
    received within the United States." 47 U.S.C. § 152(a). Section 2(a)
    makes it clear that the Act applies to the LECs: "The provisions of
    this act shall apply to . . . all persons engaged within the United
    States in such communication or such transmission of energy by
    radio." 47 U.S.C. § 152(a). Moreover, Section 4(i) provides the
    Commission with general authority to promulgate regulations that are
    necessary to perform its functions: "The Commission may perform any
    and all acts, make such rules and regulations, and issue such
    orders, not inconsistent with this Act, as may be necessary in the
    execution of its functions." 47 U.S.C. § 154(i). The Commission's
    mandate under Title I has justified regulation of common carrier
    activities that are not specifically addressed in Title II. *See,
    e.g.*, *Rural Tel. Coalition v. FCC*, 838 F.2d 1307 (D.C. Cir. 1988)
    (upholding Commission's pre-statutory version of the universal
    service fund as ancillary to its responsibilities under Sections 1
    and 4(i) of the Communications Act, stating that "\[a\]s the
    Universal Service Fund was proposed in order to further the
    objective of making communications service available to all
    Americans at reasonable charges, the proposal was within the
    Commission's statutory authority"); *GTE Serv. Corp. v. FCC*, 474
    F.2d 724, 731 (2d Cir. 1974) (holding that "even absent explicit
    reference in the statute, the expansive power of the Commission in
    the electronic communications field includes the jurisdictional
    authority to regulate carrier activities in an area as intimately
    related to the communications industry as that of computer services,
    where such activities may substantially affect the efficient
    provision of reasonably priced communications service").

[^319]: 47 U.S.C. § 201(b); *see also* 47 U.S.C. § 303(r) (stating that
    the Commission shall "\[m\]ake such rules and regulations and
    prescribe such restrictions and conditions, not inconsistent with
    law, as may be necessary to carry out the provisions of the Act").

[^320]: 47 U.S.C. § 205(a).

[^321]: *Cf. Ambassador, Inc. v. U.S.*, 325 U.S. 317 (1945). In the
    *Ambassador* case, the Supreme Court held that the Commission's
    supervisory power was not limited to rates and services, but also,
    under Section 201(b), extended to practices in connection with such
    service. *Id*. at 323. The practices at issue involved the terms of
    telephone company tariff filings, which regulated the relationship
    that the telephone subscribers had with their third party customers.
    Specifically, the tariffs stated that provision of telephone service
    was conditioned on the private branch exchange ("PBX") subscribers
    (*i.e.*, hotel, apartment house and club owners) not charging their
    guests any fee in addition to the telephone company's message toll
    charges for use of the service. The Supreme Court recognized the
    Commission's authority to review whether the telephone companies'
    requirements (filed with and reviewable by the Commission pursuant
    to Section 203) directly affecting the relationship between their
    subscribers and third parties were "just and reasonable" practices
    under Section 201(b), and whether use of the tariffs
    "perpetrate\[d\] an unjust or unreasonable discrimination or
    preference" under Section 202. *Id*. The Court stated that these
    Sections "clearly authorize the \[telephone\] companies to
    promulgate rules binding on PBX subscribers as to the terms upon
    which the use of the facilities may be extended to others not
    themselves subscribers." *Id*.

[^322]: The ISP requires: (1) that U.S. carriers receive the same
    accounting rate from dominant foreign carriers; (2) that the
    accounting rate be divided evenly between a U.S. carrier and a
    dominant foreign carrier; and (3) that U.S. carriers receive a
    proportionate share of return traffic from dominant foreign
    carriers. 1998 Biennial Regulatory Review Reform of the
    International Settlements Policy and Associated Filing Requirements,
    *Report and Order and Order on Reconsideration*, IB Docket No.
    98-148, 14 FCC Rcd 7963 (1999).

[^323]: *Local Competition First Report and Order*, 11 FCC Rcd at 15506.

[^324]: *See* 47 U.S.C. § 151 (stating that purpose of Commission
    regulation under Act is "to make available to all the people of the
    United States, without discrimination on the basis of race, color,
    religion, national origin, or sex, a rapid, efficient, Nation-wide,
    and world-wide wire and radio communication service with adequate
    facilities at reasonable charges").

[^325]: 47 U.S.C. § 205(a); *see also* *Western Union Telegraph Company
    v. FCC*, 665 F.2d 1126, 1151 (D.C. Cir. 1981) (rejecting argument
    that Section 205(a) requires formal evidentiary hearing, stating
    that "\[i\]t is settled law that FCC policy decisions impacting, but
    not setting, rates may, when appropriate, be made in an informal
    rulemaking rather than in an adjudicatory ratemaking proceeding").

[^326]: *See Competitive Networks NPRM*, 14 FCC Rcd at 12703-04, ¶¶
    57-58.

[^327]: International Settlement Rates, *Report and Order,* IB Docket
    No. 96-261, 12 FCC Rcd 19806 (1997).

[^328]: *See* Special Telephone Charges of Hotels, *Report of the
    Commission,* Docket No. 6255, 10 FCC 252, 264 (1943).

[^329]: The Court went on to conclude that, given the fact that the
    hotels' surcharges on their guests were not based on the service
    rendered by the hotel, but rather varied in accordance with the toll
    charge made by the telephone company for communications service,
    these charges were "so identified with the communications service
    that they are brought within the prohibitions of this regulation."
    *Id*. at 324.

[^330]: *Cf. GTE Service Corp.*, 474 F.2d at 730 (holding that, in light
    of the threat that common carriers' expansion into computer data
    processing posed to the efficiency of the communications market and
    the reasonableness of prices therein, the Commission had the
    authority to regulate the entry of such carriers into the
    non-regulated field of data processing services).

[^331]: Section 411(a) provides as follows: "In any proceeding for the
    enforcement of the provisions of this Act, . . . it shall be lawful
    to include as parties, in addition to the carrier, all persons
    interested in or affected by the charge, regulation, or practices
    under consideration, and inquiries, investigations, orders, and
    decrees may be made with reference to and against such additional
    parties in the same manner, to the same extent, and subject to the
    same provisions as are or shall be authorized by law with respect to
    carriers." 47 U.S.C. § 411(a).

[^332]: *See* *Competitive Networks NPRM,* 14 FCC Rcd at 12704-05.

[^333]: *See, e.g.*, *id*. at 12705 (asking, *e.g.*, if constitutional
    problems might be mitigated if a requirement were tailored to apply
    only where the property owner has already permitted another carrier
    physically to occupy its property, or if the requirement enabled the
    property owner to obtain from a new entrant the same compensation
    that it had voluntarily agreed to accept from an incumbent LEC).

[^334]: *See, e.g.*, *Cable Holdings of Georgia, Inc. v. McNeil Real
    Estate Fund VI, Ltd.*, 953 F.2d 600, 605 (11^th^ Cir. 1992). The
    court noted, in dicta, that if Section 621(a)(1) of the
    Communications Act were construed to require cable company access in
    cases where the property owner had previously and privately agreed
    to provide compatible access to others, the court "would have
    substantial reservations regarding the constitutionality of the
    Cable Act." *Id*. The court explained that "\[b\]ecause every modern
    apartment building is linked to electric, telephone, and/or video
    programming services, the district court's interpretation \[upon
    which the court of appeals did not need to pass\] effectively grants
    franchised cable companies the same unencumbered right of access to
    private property which the Supreme Court held to be a compensable
    taking in *Loretto* \[*v. Teleprompter Manhattan CATV Corp.*, 458
    U.S. 419 (1982)\]." *Id.*

[^335]: *See also* *Andrus v. Allard*, 444 U.S. 51, 65-66 (1979)
    (holding that prohibition of the sale of eagle feathers was not a
    taking as applied to traders of bird artifacts because the
    challenged regulations did not compel surrender of the artifacts,
    there was no physical invasion or restraint upon the artifacts, and
    appellees retained the rights to possess, transport, donate or
    devise the protected birds; "loss of future profits -- unaccompanied
    by any physical property restriction provides a slender reed upon
    which to rest a takings claim."); *Heart of Atlanta Motel, Inc. v.
    United States*, 379 U.S. 241 (1964) (holding that nondiscrimination
    provision under Title VII of the Civil Rights Act of 1964, requiring
    general access to places of public accommodation, did not constitute
    taking of property).

[^336]: Under the avoidance canon, a court will narrow an agency's
    construction of a statute in order to avoid substantial
    constitutional questions. The court in *Bell Atlantic* explained
    that "when 'there is an identifiable class of cases in which
    application of \[the\] statute will necessarily constitute a
    taking,'" the avoidance canon should take effect. *Bell Atlantic*,
    24 F.3d at 1445 (quoting *United States v. Riverside Bayview Homes,
    Inc*., 474 U.S. 121, 128 n.5 (1985)). The avoidance canon, however,
    is not applicable to situations in which it is only possible that a
    statute or regulation might effect a taking. *National Mining
    Association v. Babbitt*, 172 F.3d 906 (D.C. Cir. 1999) (refusing to
    apply the avoidance canon to interpret the Energy Policy Act to
    mandate an exemption in the Secretary of the Interior's regulations,
    even though it was possible that a court might determine in a
    particular case that application of the regulations had caused a
    regulatory taking).

[^337]: In response to the *Competitive Networks NPRM,* 14 FCC Rcd at
    12673*,* we have received extensive comment on the legal issues
    related to potential imposition of a non-discriminatory access
    requirement on building owners. Although we do not resolve these
    legal issues today, we see no need for further comment on these
    questions, except to the extent expressly discussed above.

[^338]: See *Competitive Networks NPRM*, 14 FCC Rcd at 12706 (asking
    commenters whether "we should limit the scope of any obligation in
    order to avoid imposing unreasonable regulatory burdens on building
    owners").

[^339]: *See, e.g.,* *Massachusetts Nondiscriminatory Access Order*
    (generally exempting residential multidwelling units with fewer than
    four units); Conn. Gen. Stat. Ann. § 16-2471 (1997) (generally
    requiring minimum threshold of three units); 16 Texas Admin. Code §
    26.129(b)(1)(C) (Sept. 7, 2000) (Texas law applies, [inter
    alia]{.underline}, to "\[p\]ublic or private property owners of
    commercially operated residential property with four or more
    dwelling units . . . .").

[^340]: We note that the Conference Report associated with H.R. 4475,
    which was signed into law on October 23, 2000, includes the
    following language: "The conferees direct the executive branch
    \[to\] identify building telecommunications access barriers and take
    necessary steps to ensure that telecommunications providers are
    given fair and reasonable access to provide service to Federal
    agencies in buildings where the Federal government is the owner or
    tenant." H.R. Conf. Rep. No. 106-940 at 161.

[^341]: *Massachusetts Nondiscriminatory Access Order* at 18.

[^342]: *See* LSGAC Recommendation No. 22.

[^343]: *See* Letter from Kathleen Q. Abernathy, Vice President,
    Broadband Office, to Magalie Roman Salas, Secretary, FCC, dated May
    17, 2000 (enclosing news article entitled "Birth of a BLEC: Service
    Providers jump at Chance to Win Over MTU \[multi-tenant unit\]
    Audience").

[^344]: For example, BroadBand Office, one such competitive LEC, was
    founded by the following eight real estate companies: Carr America
    Realty Corporation, Crescent Real Estate Equities Company,
    Duke-Weeks Realty Corporation, Equity Office Properties Trust,
    Highwoods Properties, Inc., the Hines Organization, Mack-Cali Realty
    Corporation, and Spieker Properties, Inc., along with the venture
    capital firm of Kleiner Perkins Caufield and Byers. *See* Letter
    from Kathleen Q. Abernathy, Vice President, BroadBand Office, to
    Magalie Roman Salas, Secretary, FCC, dated April 13, 2000 (enclosing
    handout from April 13, 2000 *ex parte* meeting with Commercial
    Wireless Division staff). Another example is the building LEC OnSite
    Access, Inc., for which Reckson Service Industries, an affiliate of
    the real estate investment trust Reckson Associates Realty, is a
    principal financial backer. Letter from Joseph M. Sandri, Jr.,
    WinStar Communications, Inc., to Magalie Roman Salas, Secretary,
    FCC, dated November 22, 1999 (noting that, at some point, Reckson
    held a 42% equity stake in OnSite access).

[^345]: *See* Letter from Robert J. Aamoth, Counsel for Edge
    Connections, Inc., to Magalie Roman Salas, Secretary, FCC, dated
    September 7, 2000 (referring to alleged 12-month blackout period in
    MTE served by Broadband Office, limiting service by other CLECs).

[^346]: *Competitive Networks NPRM*, 14 FCC Rcd at 12706.

[^347]: *See* Conn. Gen. Stat. Ann. § 16-2471 (1997); 16 Texas Admin.
    Code § 26.129 (Sept. 7, 2000).

[^348]: *See* 47 C.F.R. § 1.711 *et seq.*

[^349]: *See, e.g*., 47 C.F.R. § 1.1401 *et seq*. (establishing
    procedures for complaints under the Pole Attachments Act).

[^350]: *See* Letter from Matthew C. Ames, Counsel for Real Access
    Alliance, to Magalie Roman Salas, Secretary, FCC, filed June 16,
    2000.

[^351]: *See*, *e.g.*, AT&T Comments at V.; Teligent Comments at 17.

[^352]: Real Access Alliance Comments at 7.

[^353]: *See, e.g.*, AT&T Comments at 28.

[^354]: The Commission has the power to prescribe a change in contract
    rates when it finds them to be unlawful and to modify other
    provisions of private contracts when necessary to serve the public
    interest. AT&T Comments at 27 (citing *Western Union Telegraph Co.
    v. FCC*, 815 F.2d 1495, 1501 (D.C. Cir. 1987)). The Commission
    previously has exercised that authority to permit customers to
    "terminate" their "service arrangements" with a carrier "without
    being contractually liable for such termination.\" AT&T Comments at
    26-27 (citing Competition in the Interstate Interexchange
    Marketplace, *Memorandum Opinion & Order on Reconsideration*, 10 FCC
    Rcd 4421, ¶ 5 n.15 (1995)); s*ee also* Competition in the Interstate
    Interexchange Marketplace, *Report & Order*, 6 FCC Rcd 5880, ¶ 151
    (1991).

[^355]: Expanded Interconnection with Local Telephone Company
    Facilities, *Memorandum Opinion and Order*, 9 FCC Rcd 5154, ¶ 197
    (1994) (*Expanded Interconnection Order*).

[^356]: *Id.*

[^357]: WinStar Comments at 25 (discussing both exclusive contracts and
    preferences and arguing that they do not promote competition); Qwest
    Reply Comments at 11.

[^358]: Qwest Reply Comments at 11. Although we have already prohibited
    *de facto* exclusive contracts, *see supra para.* 37, we seek
    comment on whether we should prohibit preferential arrangements that
    fall short of being considered *de facto* contracts.

[^359]: SBC Comments at 7 (arguing that, while exclusive access
    contracts are anti-competitive, exclusive marketing or advertising
    contracts "are valid business tools"); Optel Comments at 18; *see
    also* SBC Reply Comments at 9-11.

[^360]: SBC Comments at 7.

[^361]: Optel Comments at 18.

[^362]: *Id.*

[^363]: *See, e.g., Massachusetts Nondiscriminatory Access Order;
    Nebraska MDU Order.*

[^364]: *Massachusetts Nondiscriminatory Access Order* at 30.

[^365]: Conn. Gen. Stats. Ann. § 16-2471-6(a)(6) (1997).

[^366]: *See* Letter from Kathleen Q. Abernathy, Vice President,
    BroadBand Office, to Magalie Roman Salas, Secretary, FCC, dated
    April 13, 2000 (enclosing handout from April 13, 2000 *ex parte*
    meeting with Commercial Wireless Division staff); Letter from Joseph
    M. Sandri, Jr., WinStar Communications, Inc., to Magalie Roman
    Salas, Secretary, FCC, dated November 22, 1999.

[^367]: *See* para. 83, *supra.*

[^368]: *See, e.g.,* AT&T Comments at 19-22; Teligent Comments at 34-35;
    WinStar Comments at 56.

[^369]: We note the *in pari materia* rule of statutory construction,
    which states that when a particular statute is ambiguous, statutes
    which relate to the same subject matter should be read together so
    that the legislature's intention can be gathered from the whole of
    the enactments. *See* *Undercofler v. L.C. Robinson & Sons, Inc.,*
    111 Ga.App. 411, 141 S.E.2d 847, 849 (Ga. App. 1965); *Kimes v.
    Bechtold*, 342 S.E.2d 147, 150 (W.Va. 1986).

[^370]: *See* 47 U.S.C. § 224(d),(e).

[^371]: We note our recent holding that a utility is not required to
    exercise its powers of eminent domain on behalf of third parties in
    order to expand an existing right-of-way. *See Local Competition
    Pole Attachments Reconsideration Order*, 14 FCC Rcd at 18063, ¶ 38.

[^372]: *See* paras. 85-90, *supra.*

[^373]: 47 C.F.R. § 76.804(a); *see* para. 90, *supra.*

[^374]: *Competitive Networks NPRM*, 14 FCC Rcd at 12710, ¶ 68 (footnote
    omitted).

[^375]: *See, e.g.*, CAI Comments at 28-29; RCN Comments at 18-21; USTA
    Comments at 18.

[^376]: 47 C.F.R. § 76.804 (a).

[^377]: 47 U.S.C. § 522(13).

[^378]: 47 C.F.R. § 76.800(a).

[^379]: 47 C.F.R. § 76.800(d).

[^380]: 47 C.F.R. § 76.5(ll). The cable demarcation point in MDUs, with
    non-loop-through wiring configurations, is at (or about) 12 inches
    outside of where the cable wire enters the subscriber's individual
    dwelling unit. 47 C.F.R. § 76.5(mm)(2). The cable demarcation point
    in MDUs, with loop-through wiring configurations, is at (or about)
    12 inches outside of where the cable enters or exits the first and
    last individual dwelling units on the loop. 47 C.F.R. § 76.5(mm)(3).

[^381]: An MVPD's legal right to remain on the premises of an MDU may be
    extinguished by, among other things, operation of contract, statute
    or common law.

[^382]: 47 C.F.R. § 76.804 (a).

[^383]: 47 C.F.R. § 76.804(a).

[^384]: *Competitive Networks NPRM*, 14 FCC Rcd at 12710, ¶ 68.

[^385]: ICTA Comments at 7.

[^386]: 47 C.F.R. § 76.802.

[^387]: CAI Comments at 40.

[^388]: *See Competitive Networks NPRM*, 14 FCC Rcd at 12723-34.

[^389]: *See* Amendment of 47 C.F.R. § 1.1200 *et seq.* Concerning Ex
    Parte Presentations in Commission Proceedings, GC Docket No. 95-21,
    *Report and Order*, 12 FCC Rcd 7348, 7356-57, ¶ 27, citing 47 C.F.R.
    § 1.1204(b)(1) (1997).

[^390]: *See* 47 C.F.R. § 1.1206(b)(2), as revised.

[^391]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 *et. Seq*.,
    has been amended by the Contract With America Advancement Act of
    1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of
    the CWAAA is the Small Business Regulatory Enforcement Fairness Act
    of 1996 (SBREFA).

[^392]: Promotion of Competitive Networks in Local Telecommunications
    Markets, *Notice of Proposed Rulemaking and Notice of Inquiry in WT
    Docket No. 99-217, and Third Further Notice of Proposed Rulemaking
    in CC Docket No. 96-98*, 14 FCC Rcd 12673, 12723-12734 (1999)
    (*Competitive Networks NPRM*).

[^393]: Review of Sections 68.104, and 68.213 of the Commission's Rules
    Concerning Connection of Simple Inside Wiring to the Telephone
    Network, *Order on Reconsideration, Second Report and Order and
    Second Further Notice of Proposed Rulemaking*, CC Docket No. 88-57,
    12 FCC Rcd 11897, 11934-39 (1997) (*1997 Demarcation Point Order on
    Reconsideration*).

[^394]: *See* 5 U.S.C. § 604.

[^395]: Promotion of Competitive Networks in Local Telecommunications
    Markets, *First Report and Order*, WT Docket No. 99-217*,* FCC
    00-366 (adopted Oct. 12, 2000) (*Competitive Networks First Report
    and Order).*

[^396]: Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat.
    56, *codified at* 47 U.S.C. §§ 151 *et seq.* (1996 Act). The 1996
    Act amended the Communications Act of 1934 (the "Communications Act"
    or the "Act").

[^397]: *See* 47 C.F.R. § 68.3.

[^398]: 47 U.S.C. § 224.

[^399]: *See* 47 C.F.R. § 1.4000.

[^400]: CAI IRFA Response (filed Aug. 27, 1999).

[^401]: NACO IRFA Comments (filed Aug. 27, 1999) and NACO Comments
    (filed Oct. 12, 1999).

[^402]: RAA Joint Regulatory Flexibility Act Comments (filed Aug. 27,
    1999).

[^403]: SBA Reply Comments (filed Sept. 10, 1999).

[^404]: CAI IRFA Response at 6-14.

[^405]: RAA Joint Regulatory Flexibility Act Comments at 7.

[^406]: CAI IRFA Response at 16-17.

[^407]: RAA Joint Regulatory Flexibility Act Comments at 8.

[^408]: *Id.* at 8-9.

[^409]: *See* *Competitive Networks First Report and Order*, at para. 76
    ("Section 224 was not intended to override whatever authority or
    control an MTE owners may otherwise retain under the terms of its
    agreements and state law.").

[^410]: *Id*.

[^411]: 47 U.S.C. § 224(a)(1).

[^412]: *See* *Competitive Networks First Report and Order,* Section
    IV.E., *supra*.

[^413]: CAI IRFA Response at 14-15 (filed August 27, 1999).

[^414]: *Competitive Networks First Report and Order*, at para. 27.

[^415]: In Section V.A. of the *Competitive Networks FNPRM*, we seek
    comment on extending the prohibition on exclusive contracts to
    residential MTEs. Issues regarding the potential impact of such an
    action on small entities, including community associations, are
    discussed in the *Competitive Networks FNPRM* IRFA, *infra.*

[^416]: NACO IRFA Comments at 3 (filed Aug. 27, 1999).

[^417]: *Competitive Networks FNPRM,* Section V.A., *supra.*

[^418]: NACO IRFA Comments at 3 (filed Aug. 27, 1999).

[^419]: NACO Comments at 48 (filed Oct. 12, 1999).

[^420]: SBA Reply Comments at 3-4.

[^421]: *Id.* at 4. The Small Business Act contains a definition of
    \"small business concern,\" which the RFA incorporates into its own
    definition of \"small business.\" *See* 15 U.S.C. § 632(a) (Small
    Business Act); 5 U.S.C. § 601(3) (RFA). SBA regulations interpret
    \"small business concern\" to include the concept of dominance on a
    national basis. 13 C.F.R. § 121.102(b). Since 1996, out of an
    abundance of caution, the Commission has included small incumbent
    LECs in its regulatory flexibility analyses. *See*, *e.g*.,
    Implementation of the Local Competition Provisions of the
    Telecommunications Act of 1996, CC Docket, 96-98, *First Report and
    Order*, 11 FCC Rcd 15499, 16144‑45 (1996), 61 FR 45476 (Aug. 29,
    1996).

[^422]: *Competitive Networks NPRM* IRFA, 14 FCC Rcd at 12726, ¶ 8. A
    \"small business\" under the RFA is one that, *inter alia*, meets
    the pertinent small business size standard (*e.[g]{.underline}.*, a
    telephone communications business having 1,500 or fewer employees),
    and \"is not dominant in its field of operation.\" 5 U.S.C. §
    601(3).

[^423]: SBA Reply Comments at 4 (filed Sept. 10, 1999).

[^424]: *Competitive Networks FNPRM,* Section V.A., *supra*. In the
    *Competitive Networks NPRM* IRFA, we inquired "whether we should
    limit the scope of any building owner obligation . . . \[and noted\]
    that a potential rule could exempt buildings that housed fewer than
    a certain number of tenants or are under a certain size."
    *Competitive Networks NPRM* IRFA, 14 FCC Rcd at 12733, ¶ 31.

[^425]: *Competitive Networks NPRM*, 14 FCC Rcd at 12697, ¶ 47.

[^426]: *Competitive Networks First Report and Order*, at para. 87.

[^427]: *See* *id.*

[^428]: *Competitive Networks NPRM* IRFA, 14 FCC Rcd at 12733, ¶ 31
    (internal citations omitted).

[^429]: SBA Reply Comments at 2.

[^430]: *See id.* at 5.

[^431]: RAA Joint Regulatory Flexibility Act Comments at 3-5.

[^432]: *See* 5 U.S.C. § 553.

[^433]: 5 U.S.C. § 605(b).

[^434]: 5 U.S.C. § 601(6).

[^435]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    \"small business concern\" in Small Business Act, 15 U.S.C. § 632).
    Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small
    business applies \"unless an agency, after consultation with the
    Office of Advocacy of the Small Business Administration and after
    opportunity for public comment, establishes one or more definitions
    of such term which are appropriate to the activities of the agency
    and publishes such definition(s) in the Federal Register.\"

[^436]: Small Business Act, 15 U.S.C. § 632.

[^437]: 5 U.S.C. § 601(3).

[^438]: SBA Reply Comments at 3-4. *See also* Letter from Jere W.
    Glover, Chief Counsel for Advocacy, SBA, *to* William E. Kennard,
    Chairman, FCC (May 27, 1999). The Small Business Act contains a
    definition of \"small business concern,\" which the RFA incorporates
    into its own definition of \"small business.\" *See* 15 U.S.C.
    632(a) (Small Business Act); 5 U.S.C. § 601(3) (RFA). SBA
    regulations interpret \"small business concern\" to include the
    concept of dominance on a national basis. 13 C.F.R. §121.102(b).
    Since 1996, out of an abundance of caution, the Commission has
    included small incumbent LECs in its regulatory flexibility
    analyses. *See*, *e.g*., Implementation of the Local Competition
    Provisions of the Telecommunications Act of 1996, CC Docket, 96-98,
    *First Report and Order*, 11 FCC Rcd 15499, 16144‑45 (1996), 61 FR
    45476 (Aug. 29, 1996).

[^439]: *See* 13 C.F.R. § 121.201, SIC Code 4813.

[^440]: 13 C.F.R. § 121.201. *See* Executive Office of the President,
    Office of Management and Budget, Standard Industrial Classification
    Manual (1987) (*1987 SIC Manual*).

[^441]: FCC, Common Carrier Bureau, Industry Analysis Division, *Trends
    in Telephone Service*, Table 19.3 (March 2000)

[^442]: *1987 SIC Manual*.

[^443]: 13 C.F.R. § 121.201.

[^444]: U.S. Department of Commerce, Bureau of the Census, 1992 Economic
    Census Industry and Enterprise Receipts Size Report, Table 2D
    (Bureau of Census data under contract to the Office of Advocacy of
    the SBA) (*1992 Economic Census Industry and Enterprise Receipts
    Size Report*).

[^445]: *1987 SIC Manual*.

[^446]: 13 C.F.R. § 121.201.

[^447]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^448]: *1987 SIC Manual*.

[^449]: 13 C.F.R. § 121.201.

[^450]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^451]: *1987 SIC Manual*.

[^452]: 13 C.F.R. § 121.201.

[^453]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^454]: *1987 SIC Manual*.

[^455]: 13 C.F.R. § 121.201.

[^456]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^457]: *1987 SIC Manual*.

[^458]: 13 C.F.R. § 121.201.

[^459]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^460]: *1987 SIC Manual*.

[^461]: 13 C.F.R. § 121.201.

[^462]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^463]: *1987 SIC Manual*.

[^464]: 13 C.F.R. § 121.201.

[^465]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^466]: *1987 SIC Manual*.

[^467]: 13 C.F.R. § 121.201.

[^468]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^469]: *1987 SIC Manual*.

[^470]: 13 C.F.R. § 121.201.

[^471]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^472]: *1987 SIC Manual*.

[^473]: 13 C.F.R. § 121.201.

[^474]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^475]: *1987 SIC Manual*.

[^476]: 13 C.F.R. § 121.201.

[^477]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^478]: 1*987 SIC Manual*.

[^479]: 13 C.F.R. § 121.201.

[^480]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^481]: *1987 SIC Manual*.

[^482]: 13 C.F.R. § 121.201.

[^483]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^484]: 13 C.F.R. § 121.601 (SIC 6512, SIC 6513, SIC 6514).

[^485]: 1992 Economic Census of Financial, Insurance and Real Estate
    Industries, Establishment and Firm Size Report, Table 4, SIC 6512
    (U.S. Bureau of the Census data under contract to the Office of
    Advocacy of the U.S. Small Business Administration) (*1992 Economic
    Census of Financial, Insurance and Real Estate Industries,
    Establishment and Firm Size Report*).

[^486]: *1992 Economic Census of Financial, Insurance and Real Estate
    Industries, Establishment and Firm Size Report*, Table 4, SIC 6513.

[^487]: *1987 SIC Manual*.

[^488]: 13 C.F.R. § 121.201.

[^489]: *See* 5 U.S.C. § 601(4).

[^490]: CAI IRFA Response at 5 (filed Aug. 27, 1999).

[^491]: 5 U.S.C. § 601(5).

[^492]: U.S. Department of Commerce, Bureau of the Census, \"1992 Census
    of Governments.\"

[^493]: *Id.*

[^494]: 13 C.F.R. § 121.201, SIC code 4841.

[^495]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D, SIC code 4841 (U.S. Bureau of the Census data
    under contract to the Office of Advocacy of the U.S. Small Business
    Administration).

[^496]: 47 C.F.R. § 76.901(e). The Commission developed this definition
    based on its determination that a small cable system operator is one
    with annual revenues of \$100 million or less. Implementation of
    Sections of the 1992 Cable Act: Rate Regulation, *Sixth Report and
    Order and Eleventh Order on Reconsideration*, 10 FCC Rcd 7393
    (1995), 60 FR 10534 (Feb. 27, 1995).

[^497]: Paul Kagan Associates, Inc., *Cable TV Investor*, Feb. 29, 1996
    (based on figures for Dec. 30, 1995).

[^498]: 47 U.S.C. § 543(m)(2).

[^499]: 47 C.F.R. § 76.1403(b).

[^500]: Paul Kagan Associates, Inc., *Cable TV Investor*, Feb. 29, 1996
    (based on figures for Dec. 30, 1995).

[^501]: We do receive such information on a case-by-case basis only if a
    cable operator appeals a local franchise authority\'s finding that
    the operator does not qualify as a small cable operator pursuant to
    Section 76.1403(b) of the Commission\'s Rules. *See* 47 CFR §
    76.1403(d).

[^502]: An exception is the Direct Broadcast Satellite (DBS) Service,
    *infra*.

[^503]: 13 C.F.R. § 120.121, SIC code 4899.

[^504]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D, SIC code 4899 (U.S. Bureau of the Census data
    under contract to the Office of Advocacy of the U.S. Small Business
    Administration).

[^505]: 13 C.F.R. § 120.121, SIC code 4841.

[^506]: 13 C.F.R. § 121.201, SIC code 4841.

[^507]: For purposes of this item, MDS includes both the single channel
    Multipoint Distribution Service (MDS) and the Multichannel
    Multipoint Distribution Service (MMDS).

[^508]: 47 C.F.R. § 1.2110 (a)(1).

[^509]: Amendment of Parts 21 and 74 of the Commission\'s Rules with
    Regard to Filing Procedures in the Multipoint Distribution Service
    and in the Instructional Television Fixed Service and Implementation
    of Section 309(j) of the Communications Act - Competitive
    Bidding[,]{.underline} 10 FCC Rcd 9589 (1995), 60 FR 36524 (Jul. 17,
    1995).

[^510]: 47 U.S.C. § 309(j).

[^511]: *Id*. A Basic Trading Area (BTA) is the geographic area by which
    the Multipoint Distribution Service is licensed. *See* Rand McNally
    *1992 Commercial Atlas and Marketing Guide*, 123rd Edition, pp.
    36-39.

[^512]: *See* Amendment of Parts 20 and 24 of the Commission\'s Rules -
    Broadband PCS Competitive Bidding and the Commercial Mobile Radio
    Service Spectrum Cap, WT Docket No. 96-59; Amendment of the
    Commission\'s Cellular/PCS Cross-Ownership Rule, GN Docket 90-314,
    *Report and Order*, 11 FCC Rcd 7824, 7850-52, ¶¶ 57-60 (1996)
    (*Cross Ownership Report & Order*); *see also* 47 C.F.R. §
    24.720(b).

[^513]: *Cross Ownership Report & Order*, 11 FCC Rcd at 7852, ¶ 60.

[^514]: *See*, *e.g.*, Implementation of Section 309(j) of the
    Communications Act -- Competitive Bidding, PP Docket No. 93-253,
    *Fifth Report and Order*, 9 FCC Rcd 5532, 5581-84, ¶¶ 114-20 (1994).

[^515]: FCC News, *Broadband PCS, D, E and F Block Auction Closes*, No.
    71744 (rel. Jan. 14, 1997).

[^516]: 13 C.F.R. § 121.201, SIC code 4812.

[^517]: *1992 Census,* Series UC92-S-1, at Table 5, SIC code 4812.

[^518]: FCC, Common Carrier Bureau, Industry Analysis Division, *Trends
    in Telephone Service*, Table 19.3 (March 2000).

[^519]: 47 C.F.R. §§ 101 *et seq*. (formerly, part 21 of the
    Commission\'s Rules).

[^520]: Persons eligible under parts 80 and 90 of the Commission\'s
    rules can use Private Operational-Fixed Microwave services. *See* 47
    C.F.R. parts 80 and 90. Stations in this service are called
    operational-fixed to distinguish them from common carrier and public
    fixed stations. Only the licensee may use the operational-fixed
    station, and only for communications related to the licensee\'s
    commercial, industrial, or safety operations.

[^521]: Auxiliary Microwave Service is governed by part 74 of Title 47
    of the Commission\'s Rules. See 47 C.F.R. §§ 74 *et seq.* Available
    to licensees of broadcast stations and to broadcast and cable
    network entities, broadcast auxiliary microwave stations are used
    for relaying broadcast television signals from the studio to the
    transmitter, or between two points such as a main studio and an
    auxiliary studio. The service also includes mobile TV pickups, which
    relay signals from a remote location back to the studio.

[^522]: 13 C.F.R. § 121.201, SIC 4812.

[^523]: The service is defined in Section 22.99 of the Commission\'s
    Rules, 47 C.F.R. § 22.99.

[^524]: BETRS is defined in Sections 22.757 and 22.759 of the
    Commission\'s Rules, 47 C.F.R. §§ 22.757 and 22.759.

[^525]: 13 C.F.R. § 121.201, SIC code 4812.

[^526]: The minimum point of entry is defined as \"either the closest
    practicable point to where the wiring crosses a property line or the
    closest practicable point to where the wiring enters a multiunit
    building or buildings.\" 47 C.F.R. § 68.3 (definition of demarcation
    point).

[^527]: We note that our cable inside wiring rules contain similar
    provisions for transferring ownership from the cable operator to the
    property owner. *See* 47 C.F.R. §§ 76.804(a)(2)-(3) & 76.804(b)(2).

[^528]: 47 U.S.C. § 224.

[^529]: 47 U.S.C. § 251.

[^530]: *Competitive Networks NPRM*, 14 FCC Rcd at 12707, ¶ 64.

[^531]: *See Competitive Networks FNPRM,* Section V.A., *supra*.

[^532]: *Competitive Networks NPRM*, 14 FCC Rcd at 12707, ¶ 64.

[^533]: *See* *Competitive Networks First Report and Order*, at para.
    36, and *Competitive Networks FNPRM,* Section V.A., *supra*.

[^534]: *See* *Competitive Networks First Report and Order*, at para.
    33.

[^535]: *See Competitive Networks FNPRM,* Section V.B., *supra*.

[^536]: *See, e.*g., AT&T Comments at 26; Qwest Comments at 11; SBC
    Comments at 7; and Teligent Comments at 17-19.

[^537]: *Competitive Networks NPRM,*14 FCC Rcd at ¶¶ 67 & 68. The
    minimum point of entry is defined as \"either the closest
    practicable point to where the wiring crosses a property line or the
    closest practicable point to where the wiring enters a multiunit
    building or buildings.\" 47 C.F.R. § 68.3 (definition of demarcation
    point).

[^538]: *Competitive Networks First Report and Order*, at paras. 52-53.

[^539]: *See* *Competitive Networks First Report and Order,* at paras.
    54-57.

[^540]: *Id.*, at para. 58.

[^541]: 47 U.S.C. § 224.

[^542]: *See Competitive Networks First Report and Order*, at para. 87.

[^543]: 47 U.S.C. § 224(a)(1).

[^544]: National League of Cities, *et al.* Petition for EIS at 21-24.

[^545]: *Competitive Networks First Report and Order*, at para. 84.

[^546]: 47 C.F.R. § 1.4000.

[^547]: *See e.g.*, AT&T Comments; PCIA Comments; Fixed Wireless
    Communications Coalition Comments; and Teligent Comments.

[^548]: 47 U.S.C. § 157 note.

[^549]: *Competitive Networks First Report and Order*, at para. 98*.*

[^550]: *Id.,* at para. 124*.*

[^551]: *Id.,* at para*.* 100*.*

[^552]: *Id.,* at para*.* 119*.*

[^553]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 *et.
    seq*[.]{.underline}, has been amended by the Contract With America
    Advancement Act of 1996, Pub. L. No. 104-121, 110 Stat. 847 (1996)
    (CWAAA). Title II of the CWAAA is the Small Business Regulatory
    Enforcement Fairness Act of 1996 (SBREFA).

[^554]: *See* 5 U.S.C. § 603(a).

[^555]: *See* *id*.

[^556]: Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat.
    56, *codified at* 47 U.S.C. §§ 151 *et seq.* (1996 Act). The 1996
    Act amended the Communications Act of 1934 (the "Communications Act"
    or the "Act").

[^557]: 47 U.S.C. § 224.

[^558]: 5 U.S.C. § 605(b).

[^559]: 5 U.S.C. § 601(6).

[^560]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    \"small business concern\" in Small Business Act, 15 U.S.C. § 632).
    Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small
    business applies \"unless an agency, after consultation with the
    Office of Advocacy of the Small Business Administration and after
    opportunity for public comment, establishes one or more definitions
    of such term which are appropriate to the activities of the agency
    and publishes such definition(s) in the Federal Register.\"

[^561]: Small Business Act, 15 U.S.C. § 632.

[^562]: 5 U.S.C. § 601(3).

[^563]: SBA Reply Comments at 3-4 (filed Sept. 10, 1999). *See also*
    Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, *to*
    William E. Kennard, Chairman, FCC (May 27, 1999). The Small Business
    Act contains a definition of \"small business concern,\" which the
    RFA incorporates into its own definition of \"small business.\"
    *See* 15 U.S.C. 632(a) (Small Business Act); 5 U.S.C. § 601(3)
    (RFA). SBA regulations interpret \"small business concern\" to
    include the concept of dominance on a national basis. 13 C.F.R. §
    121.102(b). Since 1996, out of an abundance of caution, the
    Commission has included small incumbent LECs in its regulatory
    flexibility analyses. *See*, *e.g*., Implementation of the Local
    Competition Provisions of the Telecommunications Act of 1996, CC
    Docket, 96-98, *First Report and Order*, 11 FCC Rcd 15499, 16144‑45
    (1996), 61 FR 45476 (Aug. 29, 1996).

[^564]: *See* 13 C.F.R. § 121.201, SIC Code 4813.

[^565]: 13 C.F.R. § 121.201. *See* Executive Office of the President,
    Office of Management and Budget, Standard Industrial Classification
    Manual (1987) (*1987 SIC Manual*).

[^566]: FCC, Common Carrier Bureau, Industry Analysis Division, *Trends
    in Telephone Service*, Table 19.3 (March 2000)

[^567]: *1987 SIC Manual*.

[^568]: 13 C.F.R. § 121.201.

[^569]: U.S. Department of Commerce, Bureau of the Census, 1992 Economic
    Census Industry and Enterprise Receipts Size Report, Table 2D
    (Bureau of Census data under contract to the Office of Advocacy of
    the SBA) (*1992 Economic Census Industry and Enterprise Receipts
    Size Report*).

[^570]: *1987 SIC Manual*.

[^571]: 13 C.F.R. § 121.201.

[^572]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^573]: *1987 SIC Manual*.

[^574]: 13 C.F.R. § 121.201.

[^575]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^576]: *1987 SIC Manual*.

[^577]: 13 C.F.R. § 121.201.

[^578]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^579]: *1987 SIC Manual*.

[^580]: 13 C.F.R. § 121.201.

[^581]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^582]: *1987 SIC Manual*.

[^583]: 13 C.F.R. § 121.201.

[^584]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^585]: *1987 SIC Manual*.

[^586]: 13 C.F.R. § 121.201.

[^587]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^588]: *1987 SIC Manual*.

[^589]: 13 C.F.R. § 121.201.

[^590]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^591]: *1987 SIC Manual*.

[^592]: 13 C.F.R. § 121.201.

[^593]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^594]: *1987 SIC Manual*.

[^595]: 13 C.F.R. § 121.201.

[^596]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^597]: *1987 SIC Manual*.

[^598]: 13 C.F.R. § 121.201.

[^599]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^600]: *1987 SIC Manual*.

[^601]: 13 C.F.R. § 121.201.

[^602]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^603]: *1987 SIC Manual*.

[^604]: 13 C.F.R. § 121.201.

[^605]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^606]: *1987 SIC Manual*.

[^607]: 13 C.F.R. § 121.201.

[^608]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D.

[^609]: 13 C.F.R. § 121.601 (SIC 6512, SIC 6513, SIC 6514).

[^610]: 1992 Economic Census of Financial, Insurance and Real Estate
    Industries, Establishment and Firm Size Report, Table 4, SIC 6512
    (U.S. Bureau of the Census data under contract to the Office of
    Advocacy of the U.S. Small Business Administration) (*1992 Economic
    Census of Financial, Insurance and Real Estate Industries,
    Establishment and Firm Size Report*).

[^611]: *1992 Economic Census of Financial, Insurance and Real Estate
    Industries, Establishment and Firm Size Report*, Table 4, SIC 6513.

[^612]: *1987 SIC Manual*.

[^613]: 13 C.F.R. § 121.201.

[^614]: CAI Response to *Competitive Networks NPRM* IRFA at 5 (filed
    Aug. 27, 1999).

[^615]: 5 U.S.C. § 601(5).

[^616]: U.S. Department of Commerce, Bureau of the Census, \"1992 Census
    of Governments.\"

[^617]: *Id.*

[^618]: 13 C.F.R. § 121.201, SIC code 4841.

[^619]: *1992 Economic Census Industry and Enterprise Receipts Size
    Report*, Table 2D, SIC code 4841 (U.S. Bureau of the Census data
    under contract to the Office of Advocacy of the U.S. Small Business
    Administration).

[^620]: 47 C.F.R. § 76.901(e). The Commission developed this definition
    based on its determination that a small cable system operator is one
    with annual revenues of \$100 million or less. Implementation of
    Sections of the 1992 Cable Act: Rate Regulation, *Sixth Report and
    Order and Eleventh Order on Reconsideration*, 10 FCC Rcd 7393
    (1995), 60 FR 10534 (Feb. 27, 1995).

[^621]: Paul Kagan Associates, Inc., *Cable TV Investor*, Feb. 29, 1996
    (based on figures for Dec. 30, 1995).

[^622]: 47 U.S.C. § 543(m)(2).

[^623]: 47 C.F.R. § 76.1403(b).

[^624]: Paul Kagan Associates, Inc., *Cable TV Investor*, Feb. 29, 1996
    (based on figures for Dec. 30, 1995).

[^625]: We do receive such information on a case-by-case basis only if a
    cable operator appeals a local franchise authority\'s finding that
    the operator does not qualify as a small cable operator pursuant to
    § 76.1403(b) of the Commission\'s rules. *See* 47 C.F.R. §
    76.1403(d).

[^626]: For purposes of this item, MDS includes both the single channel
    Multipoint Distribution Service (MDS) and the Multichannel
    Multipoint Distribution Service (MMDS).

[^627]: 47 C.F.R. § 1.2110 (a)(1).

[^628]: Amendment of Parts 21 and 74 of the Commission\'s Rules with
    Regard to Filing Procedures in the Multipoint Distribution Service
    and in the Instructional Television Fixed Service and Implementation
    of Section 309(j) of the Communications Act - Competitive
    Bidding[,]{.underline} 10 FCC Rcd 9589 (1995), 60 FR 36524 (Jul. 17,
    1995).

[^629]: 47 U.S.C. § 309(j).

[^630]: *Id*. A Basic Trading Area (BTA) is the geographic area by which
    the Multipoint Distribution Service is licensed. *See* Rand McNally
    *1992 Commercial Atlas and Marketing Guide*, 123rd Edition, pp.
    36-39.

[^631]: *See* Amendment of Parts 20 and 24 of the Commission\'s Rules -
    Broadband PCS Competitive Bidding and the Commercial Mobile Radio
    Service Spectrum Cap, WT Docket No. 96-59; Amendment of the
    Commission\'s Cellular/PCS Cross-Ownership Rule, GN Docket 90-314,
    *Report and Order*, 11 FCC Rcd 7824, 7850-52, ¶¶ 57-60 (1996)
    (*Cross Ownership Report & Order*); *see also* 47 C.F.R. §
    24.720(b).

[^632]: *Cross Ownership Report & Order*, 11 FCC Rcd at 7852, ¶ 60.

[^633]: *See*, *e.g.*, Implementation of Section 309(j) of the
    Communications Act -- Competitive Bidding, PP Docket No. 93-253,
    *Fifth Report and Order*, 9 FCC Rcd 5532, 5581-84, ¶¶ 114-20 (1994).

[^634]: FCC News, *Broadband PCS, D, E and F Block Auction Closes*, No.
    71744 (released Jan. 14, 1997).

[^635]: 13 C.F.R. § 121.201, SIC code 4812.

[^636]: *1992 Census,* Series UC92-S-1, at Table 5, SIC code 4812.

[^637]: FCC, Common Carrier Bureau, Industry Analysis Division, *Trends
    in Telephone Service*, Table 19.3 (March 2000).

[^638]: 47 C.F.R. §§ 101 *et seq*. (formerly, part 21 of the
    Commission\'s Rules).

[^639]: Persons eligible under parts 80 and 90 of the Commission\'s
    rules can use Private Operational-Fixed Microwave services. *See* 47
    C.F.R. parts 80 and 90. Stations in this service are called
    operational-fixed to distinguish them from common carrier and public
    fixed stations. Only the licensee may use the operational-fixed
    station, and only for communications related to the licensee\'s
    commercial, industrial, or safety operations.

[^640]: Auxiliary Microwave Service is governed by part 74 of Title 47
    of the Commission\'s Rules. See 47 C.F.R. § 74 *et seq.* Available
    to licensees of broadcast stations and to broadcast and cable
    network entities, broadcast auxiliary microwave stations are used
    for relaying broadcast television signals from the studio to the
    transmitter, or between two points such as a main studio and an
    auxiliary studio. The service also includes mobile TV pickups, which
    relay signals from a remote location back to the studio.

[^641]: 13 C.F.R. § 121.201, SIC 4812.

[^642]: The service is defined in Section 22.99 of the Commission\'s
    Rules, 47 C.F.R. § 22.99.

[^643]: BETRS is defined in Sections 22.757 and 22.759 of the
    Commission\'s Rules, 47 C.F.R. §§ 22.757 and 22.759.

[^644]: 13 C.F.R. § 121.201, SIC code 4812.

[^645]: 5 U.S.C. § 603(c).

[^646]: 47 U.S.C. § 224.

[^647]: *Competitive Networks FNPRM*, at para*.* 152.

[^648]: *Id.*

[^649]: *Id.*, at para. 156.

[^650]: *See* *Competitive Networks First Report and Order*, at para.
    33.

[^651]: 47 U.S.C. § 224. In the *Competitive Networks First Report and
    Order* we found that LECs and other utilities which own or control
    poles, ducts, conduits and other rights-of-way in MTEs, must permit
    competing providers access to such facilities under just, reasonable
    and nondiscriminatory rates, terms, and conditions. *Competitive
    Networks First Report and Order*, Section IV.D., *supra.*

[^652]: *See supra* Part IV.B.

[^653]: *See id.* Part IV.C.

[^654]: *See id.* Part IV.D.

[^655]: *See id.,* Part IV.E.

[^656]: *See id.* Part V.

[^657]: The *Gulf Power* Court consolidated appeals from the pole
    attachment Order filed in the Third, Fourth, Sixth, Eighth, and D.C.
    Circuits, *see* 208 F. 3d at 1270-1271, and, pursuant to 28 U.S.C.
    section 2342, its ruling is of nationwide applicability.

[^658]: I also note (with what at this point in my tenure I can only
    describe as weary bemusement) the dramatic inconsistency between the
    Commission's approach to the "plain language" of the OTARD and pole
    attachment statutes. *See supra* at paras. 80-81 (relying, in
    discussion of pole attachment regulations, on "plain meaning of
    Section 224(f)(I)" and arguing against "'resort to legislative
    history to cloud a statutory text that is clear'") (internal
    citation omitted). Here, of course, the unambiguous import of the
    OTARD section carries no weight at all with the Commission. *See
    id*. at paras. 102-106. It seems that a statute's "plain meaning"
    only controls when it allows for the exercise of Commission
    authority, not when it restricts the Commission's reach.

[^659]: Notably, the Senate passed on October 12 and the President now
    has before him legislation that would grant telecommunications
    service providers a right of access to government-owned buildings.
    *See* S. 1301, Competitive Access to Federal Buildings Act (106^th^
    Congress) (now contained in Treasury-Postal Appropriations
    Conference Report). This action suggests that, contrary to the
    Commission's argument, we do not currently possess statutory
    authority over the issue of access; if we did, there would have been
    no reason for the Senate to pass this bill. And if the bill is
    ultimately signed into law, it will be even more persuasive in terms
    of establishing our lack of authority in this area. *See FDA v.
    Brown & Williamson*, 120 S.Ct. 1291, 1306 (2000) (explaining that
    "'\[t\]he "classic judicial task of reconciling many laws enacted
    over time, and getting them to "make sense" in combination,
    necessarily assumes that the implications of a statute may be
    altered by the implications of a later statute" and that this is
    "particularly so where the scope of the earlier statute is broad but
    the subsequent statutes more specifically address the topic at
    hand") (internal quotation omitted)