**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of: )

)

TIME WARNER CABLE, )

Complainant, )

)

v\. )

)

RCN TELECOM SERVICES )

OF NEW YORK, INC., )

Defendant; )

)

)

TIME WARNER CABLE, )

Complainant, )

)

v\. )

)

RCN-BECOCOM, L.L.C., )

Defendant. )

**ORDER ON RECONSIDERATION**

# MEMORANDUM OPINION AND ORDER

**Adopted: March 29, 2001 Released: April 3, 2001**

By the Commission:

**I. INTRODUCTION**

1\. Time Warner Cable (\"Time Warner\") has filed a petition for
reconsideration, pursuant to Section 1.106(b)(1) of the Commission's
rules, of the Commission's Memorandum Opinion and Order ("*Order*"),[^1]
granting in part the petition for reconsideration filed by RCN Telecom
Services of New York, Inc. (\"RCN-NY\") of an order released by the
Cable Services Bureau in this proceeding.[^2] Time Warner seeks
reconsideration to the extent that the *Order* determined that Time
Warner is a "competing, in-region cable operator" within RCN-NY's open
video system service area, thereby rendering Time Warner ineligible for
carriage on RCN-NY's open video system and not entitled to obtain system
information pursuant to Section 76.1503(b)(2) of the Commission's
rules.[^3] RCN-NY has filed an opposition to which Time Warner has
replied.

2\. Time Warner has also filed a petition to enforce the Commission's
*Order* and impose a forfeiture ("Petition to Enforce") against RCN-NY
and RCN-BeCoCom, LLC (collectively "RCN").[^4] Although RCN filed
supplements to its Boston-area and New York Notices of Intent to
Establish an Open Video System ("Notices of Intent"), Time Warner
contends that RCN failed to supplement its Notices of Intent as directed
by the *Order* and the Commission's rules. Time Warner also contends
that RCN continues to violate the Commission's rules regarding
information that open video system operators must provide to Time Warner
as a prospective video programming provider ("VPP") in Massachusetts.
RCN has filed an opposition to which Time Warner has replied. After
examining the record, we deny Time Warner's petition for reconsideration
filed in this proceeding and defer consideration of Time Warner's
Petition to Enforce.

**II. BACKGROUND**

3\. In the Telecommunications Act of 1996 (\"1996 Act\"), Congress set
forth four means by which common carriers may enter the video
programming marketplace: (1) radio-based systems; (2) common carriage of
video traffic; (3) cable systems; and (4) open video systems.[^5] In
rulemakings implementing open video system regulations,[^6] the
Commission concluded that Congress did not intend to restrict open video
system service to telephone companies alone, and permitted non-local
exchange carriers and cable operators to operate open video systems and
to obtain carriage on such systems where \"consistent with the public
interest, convenience, and necessity. . . .\"[^7] The Commission stated
that the open video system model \"can provide the competitive benefits
that Congress sought to achieve: market entry by new service providers,
enhanced competition, streamlined regulation, investment in
infrastructure and technology, diversity of programming choices and
increased consumer choice.\"[^8] The United States Court of Appeals for
the Fifth Circuit considered consolidated appeals of the Commission\'s
open video system rules \-- affirming in part, reversing in part, and
remanding in part those rules.[^9]

4\. Although generally enjoying more streamlined regulation than
operators of cable systems, open video system operators are subject to
clearly defined obligations. At the heart of the open video system
concept is the requirement that system operators offer up to two-thirds
of their channel capacity to unaffiliated programmers.[^10] In doing so,
the operators may not unreasonably nor unjustly discriminate against
unaffiliated programming providers, and must provide just and reasonable
rates, terms, and conditions for carriage to all eligible programming
providers that seek carriage.[^11] Open video system operators also are
required to provide certain system information to prospective
programmers to assist them in deciding whether to seek carriage.[^12]
The Commission determined that \"by requiring open video system
operators to provide carriage opportunities for video programming
providers . . . Congress sought to foster competition by encouraging
multiple programming sources on open video systems.\"[^13]

5\. Section 76.1503(b)(1) of the Commission's rules requires an open
video system operator to include in its Notice of Intent to establish an
open video system, information describing the system\'s projected
service area and channel capacity as well as other information required
by potential programming providers.[^14] In addition, the Commission
recognized that \"a prospective video programming provider can
reasonably be expected to need additional information concerning the
system to assess whether to seek carriage on the system.\"[^15]
Therefore, Section 76.1503(b)(2) directs an open video system operator
to provide to a prospective programming provider, within five business
days of a written request, information relating to the operator\'s
build-out schedule, estimated carriage rates, programming provider
qualification requirements, and technical interface specifications,
unless already provided in the operator\'s Notice of Intent.[^16]

6\. Only those entities entitled to carriage on an open video system may
obtain system information pursuant to Section 76.1503(b)(2). In Section
76.1503(c)(2)(v) of its rules, the Commission specifically addressed the
eligibility of cable operators to seek carriage on open video systems.
This rule provides that \"a competing, in-region cable operator or its
affiliate(s) that offers cable service to subscribers located in the
*service area* of an open video system shall not be entitled to obtain
capacity on such open video system. . . .\"[^17] In promulgating Section
76.1503(c)(2)(v), the Commission sought to encourage competing,
in-region cable operators to develop and upgrade their own systems,
rather than occupy capacity on a competing open video system that could
be used by another programming provider, and thereby to promote
facilities-based competition.[^18]

7\. In its FCC Form 1275 (Certification for Open Video Systems) filing,
RCN-NY sought certification to offer open video system service to New
York City, which includes the five boroughs of the Bronx, Brooklyn,
Manhattan, Queens, and Staten Island. At present, RCN offers open video
system service to subscribers in Manhattan. Time Warner seeks carriage
on the prospective Bronx and Brooklyn portions of RCN-NY's open video
system. Time Warner does not hold a cable television franchise to
provide cable service to these boroughs of New York City.

8.  In the *Order*, the Commission determined that the eligibility of
    cable operators to obtain carriage on an open video system pursuant
    to Section 76.1503(c)(2)(v) should be based on an open video
    system's technically integrated service area:

> Accordingly, the term "service area" as used in Section
> 76.1503(c)(2)(v) shall mean the area that is or will be served by the
> open video system's principal headend or other originating point of
> its signal as well as any technically integrated secondary
> distribution points such as ancillary headends or microwave receive
> sites. While an open video system operator may be certified to provide
> service in multiple communities pursuant to a single certification,
> the operator may have multiple service areas within the single
> certificated area depending upon the degree of integration of its
> operations in that area. If a cable operator does not provide cable
> service to subscribers located within the service area of a specific
> open video system, it may seek carriage on that system if it is
> otherwise qualified. A cable operator is not barred from doing so
> under Section 76.1503(c)(2)(v) if it provides cable service to
> subscribers located elsewhere in the open video system operator's
> greater certificated area.[^19]

The Commission ordered RCN to file supplemental Notices of Intent
providing information regarding the technically integrated service area
or areas within the greater certified areas of certain of RCN's open
video systems. In response, RCN filed a Motion for Stay, requesting that
the Commission stay the filing requirements pending resolution of its
Petition for Review filed in the United States Court of Appeals for the
District of Columbia Circuit.[^20] RCN's Motion was denied by the Cable
Service Bureau.[^21] RCN thereafter filed its supplemental Notices of
Intent.

**III. DISCUSSION**

**A. Petition for Reconsideration**

9\. The rather extensive history of this proceeding and the Bureau and
Commission's discussion and analysis of the issues raised therein are
fully addressed in the *Order* and will be reiterated here only to the
extent necessary to resolve the instant proceeding.[^22] Time Warner
argues that the Commission has materially misread the statute, the
Commission's rules, and the legislative history, all of which seek to
create access to open video system facilities to unaffiliated
programmers. Specifically, Time Warner contends that the plain language
of Section 76.1503(c)(2)(v) of the rules demonstrate that the terms
"competing" and "in-region" were intended to have meaning and are not
superfluous.[^23] Time Warner argues that it does not offer cable
service to the Bronx or the portions of Brooklyn for which it seeks to
be a VPP and obtain system information, and that it therefore cannot be
classified as a competing, in-region cable operator in these
communities.[^24] Time Warner continues that a cable operator should
only be considered to be "competing" with an open video system operator
in particular communities that are both in the open video system service
area and in which the cable operator provides franchised cable service.
Time Warner argues that RCN uses the term "in-region cable operator" to
refer to Time Warner, and ignores the other two elements that are part
of the rule section, i.e., "competing" and an operator "that offers
cable service to subscribers located in the service area of an open
video system."[^25] Time Warner also argues that New York City is made
up of five separate boroughs, with distinct governments and cable
television franchises, and has not authorized the cable operator to
provide service in those areas for which it seeks VPP status on RCN-NY's
system.[^26] Time Warner contends that the Commission's interpretation
would allow an open video system applicant to apply to serve an
expansive area encompassing many communities, claim that it has one
proposed open video system service area, and then bar cable operators
serving even one community from being VPPs in all such communities, even
where the cable operator has no franchise and thus is not "competing"
with the open video system operator.[^27]

10\. Time Warner also argues that the Commission's decision relied on
outdated technical criteria to disqualify cable operators from becoming
VPPs in communities that the operators do not serve, in that a cable
operator's service area is no longer limited to its principal headend
and other nearby headends connected by microwave links.[^28] According
to Time Warner, a cable operator's current potential service area is
"almost limitless" through the use of fiber. Time Warner concludes that
the Commission's previous decision will invite open video system
operators to gerrymander their facilities in order to claim that they
have one technically integrated "service area" in order to bar cable
operators serving as few as one of the numerous authorized open video
system communities from VPP status in any other of the communities.[^29]

11\. Time Warner contends that the anticompetitive effect of the *Order*
is demonstrated by a comparison to the Commission's effective
competition rule, which exempts cable operators from rate regulation in
communities where they face direct competition from other multi-channel
video programming distributors.[^30] The rule requires that the
competitor operate within the cable operator's franchise area. Time
Warner argues that under this rule, it could be declared subject to
effective competition from RCN only in the communities where they offer
overlapping service, and that the effective competition rules properly
recognize that an open video system and cable operator "compete" only in
those communities within the open video system service area where the
cable operator holds a franchise. Time Warner concludes that it is
"irrational" to apply a different definition of "compete" to determine a
cable operator's eligibility to become a provider of programming on an
open video system. Time Warner continues that in the case of competition
with a local exchange carrier, the service overlap between a cable
operator and the competitor must be "substantial."

12\. In opposition, RCN-NY argues that Time Warner is merely repeating
arguments made in the earlier stages of this proceeding, and that the
Commission properly interpreted Section 653 of the Communications
Act[^31] which enacted the open video system framework and its rules
implementing Section 653.[^32] RCN-NY states that an in-region cable
operator barred from VPP status is not precluded from serving
subscribers in the open video system service area, as that operator is
free to apply for a franchise and expand its system to serve subscribers
in that area. RCN-NY argues that this possibility is one of the reasons
that the Commission generally banned competitive in-region cable
operators from seeking VPP status on an open video system.[^33]

13\. In regard to Time Warner's contention that the rules promulgated by
the Commission for "effective competition" purposes do not comport with
the Commission's conclusion in the *Order*, RCN-NY argues that what is
considered competitive in one context need not necessarily be
competitive in another. RCN-NY contends that the "effective competition"
rules in the rate regulation context require a very strong showing of
the presence of competition to justify rate deregulation, while the VPP
eligibility rule is designed to encourage cable operators to build out
existing facilities rather than relying on those of an open video system
operator.[^34] RCN-NY argues that assessing the presence of competition
by examining its designated certification area is reasonable and should
be the controlling factor, rather than the happenstance of where an open
video system operator is operating when an issue arises regarding a
proposed VPP.

14\. We are not convinced by Time Warner that the Commission erred in
our interpretation of Section 76.1503(c)(2)(v) of the rules. The
Commission has previously addressed the substance of Time Warner's
arguments, and we are not persuaded to alter our conclusion based on the
contentions raised in the petition for reconsideration. In analyzing
Time Warner's similar arguments in our previous *Order*, the Commission
stated that "the technically integrated service area of the open video
system is a more appropriate basis for the application of Section
76.1503(c)(2)(v). This approach is consistent with the plain language of
Section 76.1503(c)(2)(v) which provides that a competing cable operator
may not obtain carriage on an open video system if it provides cable
service within the 'service area' of the open video system."[^35] Time
Warner's arguments about the proper interpretation of Section
76.1503(c)(2)(v) do not persuade us to reevaluate this conclusion.

15\. Time Warner also argues that the Commission's interpretation of
Section 76.1503(c)(2)(v) is based on an outdated technological
perspective. We disagree. This argument is entirely speculative. Time
Warner has presented no evidence that RCN's open video systems do not,
or will not, employ a technically integrated service area framework that
accords with the Commission's analysis set forth in the *Order.*

16\. Time Warner further argues that it is irrational for the Commission
to apply a different definition of competition in the open video system
context than it does in the effective competition context. Again, we
disagree with Time Warner. As noted by RCN, Time Warner's argument
ignores the divergent nature and goals of these two provisions. The
effective competition provisions exclude a cable operator from basic
rate regulation by the local franchising authority based upon, *inter
alia*, head-to-head competition in a cable operator's franchise area.
This requirement is grounded in the language of the Communications
Act.[^36] Section 76.1503(c)(2)(v) serves an entirely different purpose,
to encourage cable operators to build out their own facilities, rather
than relying on those of a nearby open video system.[^37] Given the
differing purposes of the two provisions, we believe the differing
standards appropriate. Accordingly, Time Warner's request for
reconsideration based on this argument is denied.

**B. Emergency Petition To Enforce Commission Order and Impose
Forfeiture**

17\. In its Petition to Enforce, Time Warner argues that RCN failed to
supplement its open video system Notices of Intent pursuant to the
*Order* and the Commission's rules, and that RCN had no right to file
supplements for its New York and Massachusetts open video systems with
the Commission only, while seeking confidential treatment, and without
serving Time Warner and the appropriate franchising authorities with
full versions of the supplements.[^38] In addition, Time Warner contends
that RCN continues to violate the Commission's rules regarding
information that open video system operators must provide Time Warner as
a prospective VPP in Massachusetts.[^39] Time Warner states that it has
informed RCN that it no longer serves cable subscribers in any community
in which RCN is authorized for open video system service in
Massachusetts. Accordingly, Time Warner contends that RCN is in
violation of the Commission's rules for refusing to provide VPP carriage
and carriage-related information to Time Warner.

18\. For its part, RCN argues that it supplemented its Notices of Intent
as directed by the Commission and is in full compliance with all
relevant Commission rules and orders. RCN also asserts that the
Commission has expressed significantly different interpretations of the
open video system rules than the Cable Services Bureau. RCN contends
that in this context, it is inappropriate for the Commission to exercise
sanctions. RCN states that it declined to provide data to Time Warner
because the cable operator had not provided full information on the
disposition of its cable interests within RCN's certified area.[^40] RCN
claims its refusal to share sensitive open video system data with Time
Warner is entirely reasonable, based on the cable operator's affiliation
with MediaOne, with which RCN competes in a number of Boston suburban
communities.[^41] RCN argues that it has been forced to seek review in
the Court of Appeals to protect what it deems highly sensitive
confidential commercial data, and that it has standing to file with the
courts.[^42] RCN also argues that it was necessary to seek confidential
treatment of the documents it provided to the Commission pursuant to the
*Order* in order to protect its right to meaningful judicial review. RCN
contends that once this sensitive data has been provided to Time Warner,
RCN's position will be irreparably compromised.[^43]

19\. We will refrain from addressing Time Warner's Petition to Enforce
at this time. As the parties have noted, RCN has appealed various
aspects of the Commission's *Order* to the United States Court of
Appeals for the District of Columbia Circuit. The court has stayed
consideration of RCN's appeal pending the Commission's resolution of
Time Warner's petition. Having done so herein, we believe the most
appropriate next step is to await the court's decision. If the court
upholds the Commission on appeal, we will at that time take up the
matter of Time Warner's Petition to Enforce.

## V. ORDERING CLAUSES

20\. Accordingly, **IT IS ORDERED** that Time Warner Cable\'s Petition
for Reconsideration of the Commission's *Order* in the above-captioned
matter **IS DENIED**.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: ^?^*Time Warner Cable v. RCN Telecom Services of New York, Inc.,
    Time Warner Cable v. RCN-BeCoCom, L.L.C*., 15 FCC Rcd 1124 (2000).

[^2]: ^?^*Time Warner Cable v. RCN Telecom Services of New York, Inc*.,
    14 FCC Rcd 50 (1998).

[^3]: ^?^47 C.F.R. § 76.1503(b)(2).

[^4]: ^?^Emergency Petition to Enforce Commission Order and Impose
    Forfeiture.

[^5]: ^?^Telecommunications Act of 1996, Pub. L. No. 104-104, § 651, 110
    Stat. 118-19 (1996); Communications Act § 651, 47 U.S.C. § 571. An
    open video system is defined as \"\[a\] facility consisting of a set
    of transmission paths and associated signal generation, reception,
    and control equipment that is designed to provide cable service
    which includes video programming and which is provided to multiple
    subscribers within a community, provided that the Commission has
    certified that such system complies with this part.\" 47 C.F.R. §
    76.1500(a).

[^6]: ^?^*Implementation of Section 302 of the Telecommunications Act of
    1996: Open Video Systems*, Report and Order and Notice of Proposed
    Rulemaking, FCC 96-99, 11 FCC Rcd 14639 (1996); *Implementation of
    Section 302 of the Telecommunications Act of 1996: Open Video
    Systems*, Second Report and Order, FCC 96-249, 11 FCC Rcd 18223
    (1996) (\"*Second Report and Order*\"); *Implementation of Section
    302 of the Telecommunications Act of 1996: Open Video Systems*,
    Order, FCC 96-256, 11 FCC Rcd 6776 (1996); *Implementation of
    Section 302 of the Telecommunications Act of 1996: Open Video
    Systems*, First Order on Reconsideration, FCC 96-312, 11 FCC Rcd
    19081 (1996); *Implementation of Section 302 of the
    Telecommunications Act of 1996: Open Video Systems*, Third Report
    and Order and Second Order on Reconsideration, FCC 96-334, 11 FCC
    Rcd 20227 (1996); *Implementation of Section 302 of the
    Telecommunications Act of 1996: Open Video Systems*, Third Order on
    Reconsideration, FCC 97-129, 12 FCC Rcd 6258 (1997); *Implementation
    of Section 302 of the Telecommunications Act of 1996: Open Video
    Systems*, Fourth Report and Order, FCC 97-130, 12 FCC Rcd 7545
    (1997); *Implementation of Section 302 of the Telecommunications Act
    of 1996: Open Video Systems*, Order on Reconsideration, FCC 98-172,
    13 FCC Rcd 14553 (1998).

[^7]: ^?^Second Report and Order, 11 FCC Rcd at 18232-42, 18257-60.

[^8]: ^?^*Id*. at 18227.

[^9]: ^?^*City of Dallas, Texas v. FCC*, 165 F.3d 341 (5th Cir. 1999)
    (\"*City of Dallas*\"). In *City of Dallas*, the Fifth Circuit
    affirmed the Commission\'s rules: (i) relating to open video system
    fees paid to local franchise authorities (\"LFAs\"); (ii)
    prohibiting LFAs from requiring institutional networks; and (iii)
    limiting the ability of non-local exchange carrier cable operators
    and expired cable franchisees to become open video system operators.
    165 F.3d at 360. The Fifth Circuit reversed the Commission\'s rules:
    (i) prohibiting LFAs from requiring open video system operators to
    obtain franchises; (ii) requiring open video system operators to
    obtain certification prior to constructing new facilities; and (iii)
    prohibiting local exchange carriers who are also cable operators
    from providing open video system service in the absence of effective
    competition. *Id.* The Fifth Circuit remanded to the Commission for
    further consideration its rules granting discretion to open video
    system operators to permit competing, in-region cable operators to
    become open video system programming providers. *Id.* The Commission
    filed for rehearing before the Fifth Circuit regarding the court\'s
    decision on the issue of whether the statute preempted local
    franchising of open video systems. The Fifth Circuit denied
    rehearing. The Commission resolved the reversed and remanded issues
    in a separate proceeding. *See Implementation of Section 302 of the
    Telecommunications Act of 1996: Open Video Systems*, Order on
    Remand, 65 FR 375 (2000).

[^10]: ^?^47 U.S.C. § 651; Second Report and Order, 11 FCC Rcd at
    18230-31. An open video system operator is defined as \"\[a\]ny
    person or group of persons who provides cable service over an open
    video system and directly or through one or more affiliates owns a
    significant interest in such open video system, or otherwise
    controls or is responsible for the management and operation of such
    an open video system.\" 47 C.F.R. § 76.1500(b); *see* 47 C.F.R. §
    76.5 (ff) (definition of \"cable service\"); 47 C.F.R. § 76.501
    notes (parameters for determining affiliation status); 47 C.F.R. §
    76.1500(g) (reference to \"affiliate\").

[^11]: ^?^47 U.S.C. § 573; 47 C.F.R. § 76.1502-04; Second Report and
    Order, 11 FCC Rcd at 18230, 18285-93. The Commission\'s rules
    provide that:

    an operator of an open video system shall not discriminate among
    video programming providers with regard to carriage on its open
    video system, and its rates, terms and conditions for carriage shall
    be just and reasonable and not unjustly or unreasonably
    discriminatory.

    47 C.F.R. § 76.1503(a).

[^12]: ^?^An open video system operator must provide the following
    information to a prospective programming provider:

    \(i\) The projected activation date of the open video system. If a
    system is to be activated in stages, the operator should describe
    the respective stages and the projected dates on which each stage
    will be activated;

    \(ii\) A preliminary carriage rate estimate;

    \(iii\) The information a video programming provider will be
    required to provide to qualify as a video programming provider,
    e.g., creditworthiness;

    \(iv\) Technical information that is reasonable necessary for
    potential video programming providers to assess whether to seek
    capacity on the open video system, including what type of customer
    premises equipment subscribers will need to receive service;

    \(v\) Any transmission or reception equipment needed by a video
    programming provider to interface successfully with the open video
    system \[e.g., scrambling, signal and audio quality, processing or
    security\]; and

    \(vi\) The equipment available to facilitate the carriage of
    unaffiliated video programming and the electronic form(s) that will
    be accepted for processing and subsequent transmission through the
    system.

    47 C.F.R. § 76.1503(b)(2); *see* Second Report and Order, 11 FCC Rcd
    at 18255.

[^13]: ^?^Second Report and Order, 11 FCC Rcd at 18227.

[^14]: ^?^47 C.F.R. § 76.1503(b)(1).

[^15]: ^?^Second Report and Order, 11 FCC Rcd at 18255.

[^16]: ^?^*See supra* n.12, discussing the information an open video
    system operator must provide directly to prospective programming
    providers.

[^17]: ^?^47 C.F.R. § 76.1503(c)(2)(v) (emphasis added). Section
    76.1503(c)(2)(v) provides two exceptions to the general prohibition
    regarding carriage of a competing, in-region cable operator\'s
    programming:

    \(A\) Where the operator of an open video system determines that
    granting access to the competing, in-region cable operator is in its
    interests; or

    \(B\) Where a showing is made that facilities-based competition will
    not be significantly impeded.

    *Id.* § 76.1503(c)(2)(v)(A)&(B). As discussed in n. 9 *supra*, the
    Fifth Circuit invalidated the provision granting open video system
    operators the discretion to carry the programming of an in-region
    cable operator and remanded this issue to the Commission for further
    consideration. *City of Dallas*, 165 F. 3d at 358. The Commission\'s
    rules provide that facilities-based competition would not be impeded
    where:

    \(1\) The competing, in-region cable operator and affiliated systems
    offer service to less than 20% of the households passed by the open
    video system; and

    \(2\) The competing, in-region cable operator and affiliated systems
    provide cable service to a total of less than 17,000 subscribers
    within the open video system\'s service area.

    47 C.F.R. § 76.1503(c)(2)(v)(note).

[^18]: ^?^Second Report and Order*,* 11 FCC Rcd at 18258.

[^19]: ^?^*Order*, 15 FCC Rcd at 1134-35. In applying the definition of
    "service area" as used in Section 76.1503(c)(2)(v), the Commission
    also stated in the *Order*, at footnote 55: \[T\]he boundaries of an
    open video system's service area shall be determined based upon
    current equipment and transmission capabilities. A secondary
    distribution point in an open video system such as an ancillary
    headend or microwave receive site, will be considered to be
    technically integrated if 75% or more of the video channels are
    received from the principal headend or other originating point of
    the system's signal. *See* 47 C.F.R. § 76.5(kk).

[^20]: ^?^*RCN Telecom Services of New York, Inc., and RCN BeCoCom, LLC,
    v. Federal Communications Commission and United States*, D.C. Cir.
    Case No. 00-1043, filed February 9, 2000. RCN's petition seeks
    judicial review of the Commission's *Order* insofar as it adopts an
    interpretation of § 76.1503(c)(2)(v) of the rules which RCN argues
    is contrary to law, arbitrary, capricious, and an abuse of
    discretion by compelling RCN to reveal confidential and proprietary
    system or corporate data.

[^21]: ^?^*Time Warner Cable v. RCN Telecom Services of New York, Inc.,
    and Time Warner Cable v. RCN-BeCoCom, L.L.C*., 15 FCC Rcd 5025 (CSB
    rel. March 10, 2000).

[^22]: ^?^*See* *Order,* 15 FCC Rcd at 1124-1129.

[^23]: ^?^Time Warner Petition at 4.

[^24]: ^?^*Id*. at 5.

[^25]: ^?^Time Warner Reply at 2-3.

[^26]: ^?^*Id*. at 5-6.

[^27]: ^?^Time Warner Petition at 6.

[^28]: ^?^*Id*. at 7.

[^29]: ^?^*Id*.

[^30]: ^?^Time Warner Petition at 8-9; *See* 47 C.F.R. § 76.905.

[^31]: ^?^47 U.S.C. § 573.

[^32]: ^?^RCN Opposition at 11-12.

[^33]: ^?^*Id*. at 13

[^34]: ^?^*Id*. at 16-17.

[^35]: ^?^*Time Warner Cable v. RCN Telecom Services of New York, Inc.,
    Time Warner Cable v. RCN-BeCoCom, L.L.C*., 15 FCC Rcd at 1134.

[^36]: ^?^*See* Communications Act § 623 (l)(1)(A)-(D), 47 U.S.C. §
    543(l)(1)(A)-(D) (effective competition determined on a franchise
    area basis).

[^37]: ^?^Second Report and Order, 11 FCC Rcd at 18258.

[^38]: ^?^Petition to Enforce at 3-7.

[^39]: ^?^*Id*. at 7-13.

[^40]: ^?^Opposition to Petition to Enforce at 13.

[^41]: ^?^*Id*.

[^42]: ^?^*Id*. at 12. RCN contends that it is an aggrieved party within
    the meaning of § 402(a) of the Communications Act, 47 U.S.C. §
    402(a) and §2342(a) of the Judicial Review Act, 28 U.S.C. § 2342(a).

[^43]: ^?^*Id*. at 9.