Federal Register / Vol. 62, No. 170 / Wednesday, September 3, 1997 / Proposed Rules 46453

relation to relevant statutory and

regulatory requirements.

III. Administrative Requirements

A. Docket

Copies of Santa Barbara’s submittal

and other information relied upon for

the direct final actions are contained in

docket number CA–001–PP OPS

maintained at the EPA Regional Office.

The docket is an organized and

complete file of all the information

submitted to, or otherwise considered

by, EPA in the development of this

direct final rulemaking. The docket is

available for public inspection at the

location listed under the ADDRESSES

section of this document.

B. Regulatory Flexibility Act

The EPA’s actions under section 502

of the Act do not create any new

requirements, but simply address

revisions to Santa Barbara’s existing

operating permits program that was

submitted to satisfy the requirements of

40 CFR part 70. Because this action does

not impose any new requirements, it

does not have a significant impact on a

substantial number of small entities.

C. Unfunded Mandates

Under Section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a federal mandate that

may result in estimated costs to state,

local, or tribal governments in the

aggregate; or to the private sector, of

$100 million or more. Under Section

205, EPA must select the most costeffective and least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements. Section 203

requires EPA to establish a plan for

informing and advising any small

governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the approval

action promulgated today does not

include a federal mandate that may

result in estimated costs of $100 million

or more to either state, local, or tribal

governments in the aggregate, or to the

private sector. This federal action

approves pre-existing requirements

under state or local law, and imposes no

new federal requirements. Accordingly,

no additional costs to state, local, or

tribal governments, or to the private

sector, result from this action.

D. Executive Order 12866

The Office of Management and Budget

has exempted this action from review

under Executive Order 12866.

List of Subjects

40 CFR Part 52

Environmental protection, air

pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by

reference, Intergovernmental relations,

Lead, Nitrogen dioxide, Ozone,

Particulate matter, Sulfur oxides,

Volatile organic compounds.

40 CFR Part 70

Environmental protection,

Administrative practice and procedure,

Air pollution control, Hazardous

substances, Intergovernmental relations,

Operating permits, and Reporting and

recordkeeping requirements.

Dated: August 22, 1997.

John Wise,

Regional Administrator.

[FR Doc. 97–23362 Filed 9–2–97; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 60

[AD–FRL–5887–4]

RIN 2060–AE56

Proposed Revision of Standards of

Performance for Nitrogen Oxide

Emissions From New Fossil-Fuel Fired

Steam Generating Units; Proposed

Revisions to Reporting Requirements

for Standards of Performance for New

Fossil-Fuel Fired Steam Generating

Units; Proposed Rule

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed revision; extension of

public comment period.

SUMMARY: The EPA is announcing the

extension of the public comment period

on the Proposed Revision of Standards

of Performance for Nitrogen Oxide

Emissions From New Fossil-Fuel Fired

Steam Generating Units and the

Proposed Revisions to Reporting

Requirements for Standards of

Performance for New Fossil-Fuel Fired

Steam Generating Units which were

published on July 9, 1997 (62 FR

36947).

DATES: Comments must be received on

or before October 8, 1997.

ADDRESSES: Comments should be

submitted in duplicate to: U.S.

Environmental Protection Agency, The

Air and Radiation Docket and

Information Center (6102), 401 M Street,

SW, Room 1500, Washington, DC 20460.

Attention Docket Number A–92–71. The

docket may be inspected at the above

address between 8:00 a.m. and 5:30

p.m., Eastern time, on weekdays. A

reasonable fee may be charged for

copying.

FOR FURTHER INFORMATION CONTACT: Mr.

Jim Eddinger [(919) 541–5426],

Combustion Group, Emission Standards

Division (MD–13), U.S. Environmental

Protection Agency, Research Triangle

Park, North Carolina 27711.

SUPPLEMENTARY INFORMATION: In

response to a request from several

companies and trade groups, the EPA is

extending the public comment period

from September 8, 1997, to October 8,

1997, on the Proposed Revision of

Standards of Performance for Nitrogen

Oxide Emissions From New Fossil-Fuel

Fired Steam Generating Units and the

Proposed Revisions to Reporting

Requirements for Standards of

Performance for New Fossil-Fuel Fired

Steam Generating Units. The EPA agrees

that an extension of the comment period

will provide for more meaningful,

constructive comments on the proposed

revisions to the standards of

performance.

List of Subjects in 40 CFR Part 60

Environmental protection, Air

pollution control, Intergovernmental

relations, Reporting and recordkeeping

requirements.

Dated: August 27, 1997.

Richard Wilson,

Acting Assistant Administrator for Office of

Air and Radiation.

[FR Doc. 97–23360 Filed 9–2–97; 8:45 am]

BILLING CODE 6560–50–U

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 76

[CS Docket No. 95–184; MM Docket No. 92–

260; FCC 97–304]

Telecommunications Services Inside

Wiring; Cable Home Wiring

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: The Commission invites

comments on proposed procedures for

the disposition of cable inside wiring

(including both the cable home wiring

within the premises of the individual

subscriber and the home run wiring

dedicated to an individual subscriber’s
46454 Federal Register / Vol. 62, No. 170 / Wednesday, September 3, 1997 / Proposed Rules

unit) upon termination of service in

multiple dwelling unit (‘‘MDU’’)

buildings. This Further Notice of

Proposed Rulemaking (‘‘Further

NPRM’’) contains proposed or modified

information collections subject to the

Paperwork Reduction Act of 1995

(‘‘PRA’’), Public Law 104–13. It has been

submitted to the Office of Management

and Budget (‘‘OMB’’) for review under

section 3507(d) of the PRA. OMB, the

general public, and other Federal

agencies are invited to comment on the

proposed or modified information

collections contained in this

proceeding.

DATES: Comments must be submitted on

or before September 25, 1997 and reply

comments must be submitted on or

before October 2, 1997. Written

comments by the public on the

proposed and/or modified information

collections are due September 25, 1997.

Written comments must be submitted by

OMB on the proposed and/or modified

information collections on or before

November 3, 1997.

ADDRESSES: Comments and reply

comments should be sent to Office of

the Secretary, Federal Communications

Commission, 1919 M Street, NW,

Washington, DC 20554. Comments and

reply comments will be available for

public inspection during regular

business hours in the FCC Reference

Center, Room 239, Federal

Communications Commission, 1919 M

Street N.W., Washington D.C. 20554.

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 234, 1919 M Street,

NW, Washington, DC 20554, or via the

Internet to jboley@fcc.gov, and to

Timothy Fain, OMB Desk Officer, 10236

NEOB, 725—17th Street, N.W.,

Washington, DC 20503 or via the

Internet to fainlt@al.eop.gov.

FOR FURTHER INFORMATION CONTACT: Rick

Chessen, Cable Services Bureau, (202)

418–7200. For additional information

concerning the information collections

contained in this Further NPRM, contact

Judy Boley at 202–418–0214, or via the

Internet at jboley@fcc.gov.

Paperwork Reduction Act: This

Further NPRM contains either a

proposed or modified information

collection. The Commission, as part of

its continuing effort to reduce

paperwork burdens, invites the general

public and the Office of Management

and Budget (‘‘OMB’’) to comment on the

information collections contained in

this Further NPRM, as required by the

Paperwork Reduction Act of 1995, Pub.

L. 104–13. Public and agency comments

are due at the same time as other

comments on this Further NPRM; OMB

comments are due November 3, 1997.

Comments should address: (1) Whether

the proposed collection of information

is necessary for the proper performance

of the functions of the Commission,

including whether the information shall

have practical utility; (2) the accuracy of

the Commission’s burden estimates; (3)

ways to enhance the quality, utility, and

clarity of the information collected; and

(4) 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.

OMB Approval Number: 3060–0692.

Title: Home Wiring Provisions.

Type of Review: Revision of an

existing collection.

Respondents: Individuals; Business

and other for-profit entities.

Number of Respondents: 30,000

(20,000 MVPDs and 10,000 MDU

owners).

Estimated Time Per Response: 5

minutes to 30 minutes.

Total Annual Burden to Respondents:

33,928 hours, calculated as follows:

This collection (3060–0692) previously

only contained information collection

requirements concerning the disposition

of cable home wiring. In addition to

those requirements, it now addresses

proposed notification and election

requirements between MDU owners and

all multichannel video programming

distributors (‘‘MVPDs’’). Pursuant to the

Paperwork Reduction Act, when

modifying or proposing additional

information collection requirements in

an existing collection, agencies are

obligated to put forth the entire

collection for public comment. 47 CFR

§ 76.802 Disposition of Cable Home

Wiring. In calculating hour burdens for

the disposition of home wiring, we

make the following estimates: There are

approximately 20,000 MVPDs serving

approximately 72 million subscribers in

the United States. The average rate of

churn (subscriber termination) for all

MVPDs is estimated to be 1% per

month, or 12% per year. MVPDs own

the home wiring in 50% of the

occurrences of voluntary subscriber

termination and subscribers already

own the wiring in the other 50% of

occurrences (e.g., where the MVPD has

charged the subscriber for the wiring

upon installation, has treated the wiring

as belonging to the subscriber for tax

purposes, or where state and/or local

law treats cable home wiring as a

fixture). Where MVPDs own the wiring,

we estimate that they intend to actually

remove the wiring 5% of the time, thus

initiating the disclosure requirement.

We believe in most cases that MVPDs

will choose to abandon the home wiring

because the cost and effort required to

remove the wiring generally outweigh

its value. The burden to disclose the

information at the time of termination

will vary depending on the manner of

disclosure, i.e., by telephone, customer

visit or registered mail. Virtually all

voluntary service terminations are done

by telephone. The estimated average

time consumed in the process of the

MVPD’s disclosure and subscriber’s

election is 5 minutes (.083 hours).

Estimated annual number of

occurrences is 72,000,000 ×

12%×50%×5%=216,000. Estimated

annual burden for MVPDs is

216,000×.083 hours=17,928 hours. 47

CFR § 76.802 also states that to inform

subscribers of per-foot replacement

costs, MVPDs may develop schedules

based on readily available information;

if the MVPD chooses to develop such

schedules, it must place them in a

public file and make them available for

public inspection during regular

business hours. We estimate that 50% of

MVPDs will develop cost schedules to

place in their public files. Virtually all

subscribers terminate service via

telephone, with few subscribers

anticipated to review cost schedules on

public file. The annual recordkeeping

burden for cost schedules is estimated

to be 0.5 hours per MVPD. Estimated

annual recordkeeping burden is

20,000×50%×0.5 hours=5,000 hours. 47

CFR § 76.804 Disposition of Home Run

Wiring. We estimate the burden for

notification and election requirements

for building-by-building and unit-byunit disposition of home run wiring as

described below. Note that these

requirements apply only when an

MVPD owns the home run wiring in a

MDU and 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

entity that owns the common areas of

the MDU or have a legally enforceable

right to maintain any particular home

run wire dedicated to a particular unit

on the premises against the MDU

owner’s wishes. For building-bybuilding disposition of home run

wiring, the MDU owner gives the MVPD

a minimum of 90 days’ notice that its

access to the entire building will be

terminated. The MVPD then has 30 days

to elect what it will do with the home

run wiring. Where parties negotiate a

price for the wiring and are unable to

agree on a price, the incumbent MVPD

must make another election between

abandonment or removal of the wiring.
Federal Register / Vol. 62, No. 170 / Wednesday, September 3, 1997 / Proposed Rules 46455

For unit-by-unit disposition of home

run wiring, an MDU owner must notify

the incumbent MVPD of its decision to

permit multiple MVPDs to compete for

the right to use the individual home run

wires dedicated to each unit. The

incumbent MVPD then has 30 days to

elect what it will do with all of its home

run wires dedicated to a subscriber who

chooses an alternative provider’s

service. According to the Statistical

Abstracts of the United States, 1995 at

733 Table No. 1224, over 28 million

people resided in MDUs with three or

more units in 1993. We therefore

estimate there are currently 30 million

MDU residents and that MDUs house an

average of 50 residents, and so we

estimate that there are approximately

600,000 MDUs in the United States. In

many instances, MVPDs may no longer

own the home run wiring or may

continue to have a legally enforceable

right to remain on the premises. Also,

MDU owners may choose not to

undergo the notice and election process.

The Commission therefore estimates

that there will be 10,000 notices and

12,000 elections made on an annual

basis. The larger amount of elections

accounts for instances when parties are

unable to agree on a price for the sale

of home run wiring, therefore

necessitating an additional election. We

assume all notifications and elections

will be in writing and take an average

burden of 30 minutes (0.5 hours) to

prepare. 22,000 notifications and

elections×0.5 hours=11,000 hours.

Total Annual Cost to Respondents:

$32,000 estimated as follows: For

operation and maintenance costs, we

estimate that 50% of the 20,000

MVPDSs will annually develop cost

schedules. Recordkeeping expenses for

these schedules is estimated to be $1 per

MVPD. 20,000×50%×$1=$10,000. Also,

annual stationery and postage costs for

home run wiring disposition

notifications and elections are estimated

to be $1 per occurrence. 22,000

notifications and elections×$1=$22,000.

There are no estimated capital and startup costs.

Needs and Uses: The various

notification and election requirements

in this collection (3060–0692) are set

forth in order to promote competition

and consumer choice by minimizing

any potential disruption in service to a

subscriber switching video providers.

SUPPLEMENTARY INFORMATION: The

following is a synopsis of the

Commission’s Further NPRM in CS

Docket No 95–184 and MM Docket No.

92–260, adopted August 27, 1997 and

released August 28, 1997. The full text

of this document is available for

inspection and copying during normal

business hours in the FCC Reference

Center (Room 239), 1919 M Street, NW,

Washington, DC 20554, and may be

purchased from the Commission’s copy

contractor, International Transcription

Service, (202) 857–3800, 2100 M Street,

NW, Washington, DC 20037.

Synopsis

A. Introduction

1. This Further Notice of Proposed

Rulemaking (‘‘Further NPRM’’) sets

forth specific proposals for addressing

certain issues raised in the Notice of

Proposed Rulemaking in CS Docket No.

95–184 (‘‘Inside Wiring NPRM’’) and the

First Order on Reconsideration and

Further Notice of Proposed Rulemaking

in MM Docket 92–260 (‘‘Cable Home

Wiring Further NPRM’’) regarding

potential changes in our telephone and

cable inside wiring rules. The issues

raised in this Further NPRM are

intended to supplement the issues

already discussed in the Inside Wiring

NPRM and the Cable Home Wiring

Further NPRM.

2. We believe that our inside wiring

rules could more effectively promote

competition and consumer choice, but

we believe that the record would benefit

from additional comment on our

specific proposals. We stress that the

Commission intends to act quickly on

these proposals. The proposals herein

are set forth in great detail and generally

are limited to a single issue: the

disposition of cable inside wiring in

multiple dwelling unit buildings

(‘‘MDUs’’) upon termination of service.

In addition, our proposals herein are

similar to a proposal first made by the

Independent Cable &

Telecommunications Association

(‘‘ICTA’’) in its initial comments in this

proceeding, described more fully by

ICTA in an ex parte letter to the

Commission, and discussed by

interested parties in ex parte letters.

Accordingly, and in light of the

extensive comments and ex parte

meetings and comments received in

response to the Inside Wiring NPRM

and the Cable Home Wiring Further

NPRM, we have set shorter deadlines

than usual for interested parties to file

comments and reply comments. We ask

parties to refrain from filing comments

that are repetitive of their comments

filed in response to the Inside Wiring

NPRM and the Cable Home Wiring

Further NPRM. All such comments will

be considered as part of the record filed

in response to this Further NPRM to the

extent they remain relevant.

3. Section 16(d) of the Cable

Television Consumer Protection and

Competition Act of 1992 (the ‘‘1992

Cable Act’’), codified at section 624(i) of

the Communications Act, requires the

Commission to ‘‘prescribe rules

concerning the disposition, after a

subscriber to a cable system terminates

service, of any cable installed by the

cable operator within the premises of

such subscriber.’’ In February 1993, the

Commission issued a Report and Order

implementing section 624(i) (the ‘‘Cable

Wiring Order’’). The Cable Wiring Order

provided that when a subscriber

voluntarily terminates cable service, the

operator is required, if it proposes to

remove the wiring, to inform the

subscriber: (1) That he or she may

purchase the wire; and (2) what the perfoot charge is. If the subscriber declined

to purchase the home wiring, the

operator was required to remove it

within 30 days or make no subsequent

attempt to remove it or to restrict its use.

4. We further provided that the

subscriber may purchase the cable home

wiring inside his or her premises up to

the demarcation point. As in the

telephone context, a demarcation point

generally is the point at which a service

provider’s system wiring ends and the

customer-controlled wiring begins.

From the customer’s point of view, this

point is significant because it defines

the wiring that he or she may own or

control. For purposes of competition,

the demarcation point is significant

because it defines the point where an

alternative service provider may attach

its wiring to the customer’s wiring in

order to provide service.

5. For MDUs with non-‘‘loopthrough’’ wiring, the cable demarcation

point was set at (or about) 12 inches

outside of where the cable wire enters

the subscriber’s individual dwelling

unit. Generally, in a non-loop-through

configuration, each subscriber in an

MDU has a dedicated line (often called

a ‘‘home run’’) running to his or her

premises from a common ‘‘feeder line’’

or ‘‘riser cable’’ that serves as the source

of video programming signals for the

entire MDU. The riser cable typically

runs vertically in a multi-story building

(e.g., up a stairwell) and connects to the

dedicated home run wiring at a ‘‘tap’’ or

‘‘multi-tap,’’ which extracts portions of

the signal strength from the riser and

distributes individual signals to

subscribers. Depending on the size of

the building, the taps are usually

located in a security box (often called a

‘‘lockbox’’) or utility closet located on

each floor, or at a single point in the

basement. Each time the riser cable

encounters a tap, its signal strength

decreases. In addition, the strength of a

signal diminishes as the signal passes

through the coaxial cable. As a result,
46456 Federal Register / Vol. 62, No. 170 / Wednesday, September 3, 1997 / Proposed Rules

cable wiring often requires periodic

amplification within an MDU to

maintain picture quality. Amplifiers are

installed at periodic intervals along the

riser based upon the number of taps and

the length of coaxial cable within the

MDU. Non-cable video service providers

typically employ a similar inside wiring

scheme, except that many of them (e.g.,

multichannel multipoint distribution

services (‘‘MMDS’’), satellite master

antenna services (‘‘SMATV’’) and direct

broadcast satellite (‘‘DBS’’) providers)

use wireless technologies to deliver

their signal to an antenna on the roof of

an MDU, and then run their riser cable

down from the roof to the taps and

dedicated home run wires.

6. In January 1996, the Commission

issued the Cable Home Wiring Further

NPRM and the Inside Wiring NPRM. In

the Cable Home Wiring Further NPRM,

among other things, the Commission

clarified that, during the initial

telephone call in which a subscriber

voluntarily terminates cable service, if

the operator owns and intends to

remove the home wiring, it must inform

the subscriber: (1) That the cable

operator owns the home wiring; (2) that

it intends to remove the home wiring;

(3) that the subscriber has a right to

purchase the home wiring; and (4) what

the per-foot replacement cost and total

charge for the wiring would be,

including the replacement cost for any

passive splitters attached to the wiring

on the subscriber’s side of the

demarcation point. Where an operator

fails to adhere to these procedures, it is

deemed to have relinquished

immediately any and all ownership

interests in the home wiring, and thus,

is not entitled to compensation for the

wiring and may make no subsequent

attempt to remove it or restrict its use.

If the cable operator informs the

subscriber of his or her rights and the

subscriber agrees to purchase the

wiring, constructive ownership over the

home wiring will transfer immediately

to the subscriber, who may authorize a

competing service provider to connect

with and use the home wiring. If, on the

other hand, the subscriber declines to

purchase the home wiring, the operator

has seven business days to remove the

wiring or make no subsequent attempt

to remove it or restrict its use.

7. In the Inside Wiring NPRM, we

sought comment on ‘‘whether and how

our wiring rules can be structured to

promote competition both in the

markets for multichannel video

programming delivery and in the market

for telephony and advanced

telecommunications services.’’ In

particular, we requested comment on

whether and where the Commission

should establish a common demarcation

point for wireline communications

networks, whether we should continue

to establish demarcation points based

on the services provided over facilities,

or whether we should create

demarcation points based upon the

nature of the facilities ultimately used to

deliver the service (i.e., narrowband

termination facilities or broadband

termination facilities). We noted that we

‘‘recognize that numerous other factors

may affect the proper location of the

cable network’s demarcation point, as

well as one’s control over cable inside

wiring and cable service generally.’’ We

also sought comment on the ‘‘legal and

practical impediments faced by

telecommunications service providers

in gaining access to subscribers.’’

B. The Competitive Landscape

8. The evidence in this proceeding

leads us to conclude that more is

needed to foster the ability of

subscribers who live in MDUs to choose

among competing service providers.

Based on the record evidence, we

believe that one of the primary

competitive problems in MDUs is the

difficulty for some service providers to

obtain access to the property for the

purpose of running additional home run

wires to subscribers’ units. The record

indicates that MDU property owners

often object to the installation of

multiple home run wires in the

hallways of their properties, for reasons

including aesthetics, space limitations,

the avoidance of disruption and

inconvenience, and the potential for

property damage.

9. We believe that property owners’

resistance to the installation of multiple

sets of home run wiring in their

buildings may deny MDU residents the

ability to choose among competing

service providers, thereby contravening

the purposes of the Communications

Act, and particularly section 624(i),

which was intended to promote

consumer choice and competition by

permitting subscribers to avoid the

disruption of having their home wiring

removed upon voluntary termination

and to subsequently utilize that wiring

for an alternative service. We believe

that the impact is substantial. As of

1990, there were almost 31.5 million

MDUs in the United States, comprising

approximately 28% of the nationwide

housing market. Moreover, the trend

between 1980 and 1990 indicates that

the number of MDUs is growing at a

much faster rate than the number of

single family dwellings. Data also shows

that MDUs make up between 32% and

84% of the housing market in cities

with the greatest numbers of households

receiving cable service.

10. The record does not demonstrate

that the current cable home wiring

rules, having been in place for four

years, provide adequate incentives for

MDU property owners to permit the

installation of multiple home run wires.

We believe that disagreement over

ownership and control of the home run

wire substantially tempers competition.

The record indicates that, where the

property owner or subscriber seeks

another video service provider, instead

of responding to competition through

varied and improved service offerings,

the incumbent provider often invokes

its alleged ownership interest in the

home run wiring. Incumbents invoke

written agreements providing for

continued service, perpetual contracts

entered into by the incumbent and

previous owner, easements emanating

from the incumbent’s installation of the

wiring, assertions that the wiring has

not become a fixture and remains the

personal property of the incumbent, or

that the incumbent’s investment in the

wiring has not been recouped, and oral

understandings regarding the ownership

and continued provision of services.

Written agreements are frequently

unclear, often having been

consummated in an era of an accepted

monopoly, and state and local law as to

their meaning is vague. Invoking any of

these reasons, incumbents often refuse

to sell the home run wiring to the new

provider or to cooperate in any

transition. The property owner or

subscriber is frequently left with an

unclear understanding of why another

provider cannot commence service. The

litigation alternative, an option rarely

conducive to generating competition,

while typically not pursued by the

property owner or subscriber, can be

employed aggressively by the

incumbent. The result is to chill the

competitive environment.

C. Disposition of Home Run Wiring

11. We propose to establish

procedures for building-by-building

disposition of the home run wiring

(where the MDU owner decides to

convert the entire building to a new

video service provider) and for unit-byunit disposition of the home run wiring

(where an MDU owner is willing to

permit two or more video service

providers to compete for subscribers on

a unit-by-unit basis) where the MDU

owner wants the alternative provider to

be able to use the existing home run

wiring. We believe that these procedural

mechanisms will not create or destroy

any property rights, but will promote

competition and consumer choice by
Federal Register / Vol. 62, No. 170 / Wednesday, September 3, 1997 / Proposed Rules 46457

bringing order and certainty to the

disposition of the MDU home run

wiring upon termination of service.

12. In today’s marketplace, alternative

video service providers have no timely

and reliable way of ascertaining whether

they will be able to use the existing

home run wiring upon a change in

service. MDU owners are similarly

unsure of their legal rights. Because of

this uncertainty, an MDU owner seeking

to change providers may be confronted

with choosing among: (1) Allowing the

alternative provider to install

duplicative home run wiring before it

knows whether the incumbent will

abandon the existing home run wiring

when it leaves; (2) waiting to see what

the incumbent does with the home run

wiring when it leaves the building,

risking a potential disruption in service

to its residents; (3) staying with the

incumbent provider; or (4) allowing the

alternative provider to use the home run

wiring and risking litigation. The

proposed procedures are intended to

provide all parties sufficient notice and

certainty of whether and how the

existing home run wiring will be made

available to the alternative video service

provider so that a change in service can

occur efficiently. We tentatively

conclude that establishing rules

governing the disposition of the MDU

home run wiring will represent a

substantial step toward increased

competition in the MDU video

programming service marketplace.

13. We propose that the procedural

mechanisms described below would

apply only where the incumbent

provider no longer has an enforceable

legal right to remain on the premises

against the will of the MDU owner. In

other words, these procedures would

not apply where the incumbent provider

has a contractual, statutory or common

law right to maintain its home run

wiring on the property. In the buildingby-building context, the procedures

below would not apply where the

incumbent provider has a legally

enforceable right to maintain its home

run wiring on the premises against the

MDU owner’s wishes and prevent any

third party from using the wiring; in the

unit-by-unit context, the procedures

below would not apply where the

incumbent provider has a legally

enforceable right to keep a particular

home run wire dedicated to a particular

unit (not including the wiring on the

subscriber’s side of the demarcation

point) on the premises against the

property owner’s wishes. We are not

proposing to preempt an incumbent’s

ability to rely upon any rights it may

have under state law. We seek comment

on the impact of this condition on the

efficacy of our proposal, and how any

adverse effects should be addressed. In

particular, we seek comment on

whether the Commission can and

should create any presumptions or other

mechanisms regarding the relative rights

of the parties if the incumbent’s right to

maintain its home run wiring on the

premises is disputed. For example, we

seek comment on a presumption that

the incumbent does not possess an

enforceable legal right to maintain its

home wiring on the premises (and

therefore that our proposed procedures

would apply), unless the incumbent can

adduce a clear contractual or statutory

right to remain.

i. Building-by-Building Disposition of

Home Run Wiring

14. We seek comment on the

following proposal: where the

incumbent service provider owns the

home run wiring in an MDU and does

not (or will not at the conclusion of the

notice period) have a legally enforceable

right to remain on the premises, and the

MDU owner wants to be able to use the

existing home run wiring for service

from another provider, the MDU owner

may give the incumbent service

provider a minimum of 90 days’ notice

that the provider’s access to the entire

building will be terminated. The

incumbent provider would then have 30

days to notify the MDU owner in

writing of its election to do one of the

following for all the home run wiring

inside the MDU: (1) To remove the

wiring and restore the MDU to its prior

condition by the end of the 90-day

notice period; (2) to abandon and not

disable the wiring at the end of the 90-

day notice period; or (3) to sell the

wiring to the MDU owner. If the

incumbent provider elects to remove or

abandon the wiring, and it intends to

terminate service before the end of the

90-day notice period, the incumbent

provider would be required to notify the

MDU owner at the time of this election

of the date on which it intends to

terminate service. If the MDU owner

refuses to purchase the home run

wiring, the alternative video service

provider may purchase it.

15. We are concerned that an

incumbent provider may initially elect

to remove its home run wiring and then

decide to abandon it. Such conduct

could put the alternative service

provider to the unnecessary burden and

expense of installing a second set of

home run wires when the incumbent

has no intention of removing the

existing wiring. We seek comment on

whether to adopt penalties for

incumbent providers that elect to

remove their home run wiring and then

fail to do so.

16. Where the incumbent provider

elects to sell the home run wiring, our

preference is to let the parties negotiate

the price of the wiring. We seek

comment on whether market forces

would provide adequate incentives for

the parties to reach a reasonable price.

If market forces are insufficient, we seek

comment on how a reasonable price

should be established. For instance, we

seek comment on whether: (1) The

Commission should establish broad

guidelines within which negotiations

would occur (e.g., a reasonable price

should be more than a nominal amount

but should not include the incumbent

provider’s lost opportunity costs); (2)

the price should be left to negotiations

between the parties but the Commission

should establish a default price if the

parties cannot reach an agreement; or (3)

the Commission should establish a

general rule or formula for determining

a reasonable price. If parties believe that

the Commission should establish

guidelines, a default price, a general

rule or formula, we seek comment on

the type of guidelines, default price,

general rule or formula that should be

established.

17. We propose that, if the parties

negotiate a price, they would have 30

days from the date of election to

negotiate a price for the home run

wiring. The parties could also negotiate

to purchase additional wiring (e.g., riser

cables) at their option. If the parties are

unable to agree on a price, the

incumbent would be required to elect to

either abandon or remove the wiring

and notify the MDU owner at the time

of this election if and when it intends

to terminate service before the end of

the 90-day notice period. If the

incumbent service provider elects to

abandon its wiring at this point, the

abandonment would become effective at

the end of the 90-day notice period or

upon service termination, whichever

occurs first. Similarly, if the incumbent

elects to remove its wiring and restore

the building to its prior condition, it

would have to do so by the end of the

90-day notice period. If the incumbent

failed to comply with any of the

deadlines established herein, it would

be deemed to have elected to abandon

its home run wiring at the end of the 90-

day notice period.

ii. Unit-by-Unit Disposition of Home

Run Wiring

18. We also seek comment on the

following proposal for unit-by-unit

disposition of home run wiring. Where

the incumbent video service provider

owns the home run wiring in an MDU
46458 Federal Register / Vol. 62, No. 170 / Wednesday, September 3, 1997 / Proposed Rules

and does not (or will not at the

conclusion of the notice period) have a

legally enforceable right to maintain its

home run wiring on the premises, the

MDU owner may permit multiple

service providers to compete head-tohead in the building for the right to use

the individual home run wires

dedicated to each unit. We propose that,

where an MDU owner wishes to permit

such head-to-head competition, the

MDU owner must provide at least 60

days’ notice to the incumbent provider

of the owner’s intention to invoke the

following procedure. The incumbent

service provider would then have 30

days to provide the MDU owner with a

written election as to whether, for all of

the incumbent’s home run wires

dedicated to individual subscribers who

may later choose the alternative

provider’s service, it will: (1) remove the

wiring and restore the MDU to its prior

condition; (2) abandon the wiring

without disabling it; or (3) sell the

wiring to the MDU owner. In other

words, the incumbent service provider

would be required to make a single

election for how it will handle the

disposition of individual home run

wires whenever a subscriber wishes to

switch video service providers; that

election would then be implemented

each time an individual subscriber

switches service providers. The

alternative service provider would be

required to make a similar election

within this same 30-day period for any

home run wiring that the alternative

provider subsequently owns (i.e., after

the alternative provider has purchased

the wiring from the current incumbent

provider) and that is solely dedicated to

a subscriber who switches back from the

alternative provider to the incumbent.

We also tentatively conclude that it

would streamline and expedite the

process to permit the alternative service

provider or the MDU owner to act as the

subscriber’s agent in providing notice of

a subscriber’s desire to change services.

We tentatively conclude that

unauthorized changes in service (i.e.,

‘‘slamming’’) are unlikely to occur in

this context; if slamming does occur,

however, we would propose to take

additional steps to protect consumers,

such as requiring proof of agency.

19. As with the proposed building-bybuilding procedures, we would prefer to

let the parties negotiate for the sale of

the home run wiring and seek comment

on whether market forces will produce

a reasonable price. If market forces are

not adequate, we seek comment on the

appropriate mechanism for establishing

a reasonable price for the home run

wiring. We propose that, if one or both

of the video service providers elects to

negotiate for the sale of the home run

wiring, the parties have 30 days from

the date of such election to reach an

agreement. During this 30-day

negotiation period, the incumbent, the

MDU owner and/or the new provider

could also work out arrangements for an

up-front lump sum payment in lieu of

a unit-by-unit payment. An up-front

lump sum payment would permit either

service provider to use the home run

wiring to provide service to a subscriber

without the administrative burden of

paying separately for each home run

wire every time a subscriber changes

providers. We also propose that, if the

parties cannot agree on a price, the

incumbent provider would be required

to elect one of the other two options

(i.e., abandonment or removal). If the

incumbent fails to comply with any of

the deadlines established herein, we

propose to treat the home run wiring as

abandoned and permit the alternative

provider to use the home run wiring

immediately to provide service.

20. We propose that, after completion

of this initial process, a provider’s

election would be carried out if and

when the provider is notified either

orally or in writing that a subscriber

wishes to terminate service and that an

alternative service provider intends to

use the existing home run wire to

provide service to that particular

subscriber. At that point, a provider that

has elected to remove its home run

wiring would have seven days to do so

and to restore the building to its prior

condition. We tentatively conclude that

seven days is adequate for removal

because we believe that, unlike in the

building-by-building context, the

provider would only be required to

remove a single home run wire. If the

current service provider has elected to

abandon or sell the wiring, the

abandonment or sale would become

effective seven days from the date it

receives a request for service

termination or upon actual service

termination, whichever occurs first. We

would propose that, if the incumbent

provider intends to terminate service

prior to the end of the seven-day period,

the incumbent would be required to

inform the subscriber or the subscriber’s

agent (whichever is notifying the

incumbent that the subscriber wishes to

terminate service) at the time of the

request for service termination of the

date on which service will be

terminated. In addition, we would

propose to require the incumbent

provider to disconnect the home run

wiring from its lockbox and to leave it

accessible for the new provider by the

end of the seven-day period or within

24 hours of actual service termination,

whichever occurs first.

21. We base the above procedures on

the assumption that the alternative

service provider will have an incentive

to ensure that the incumbent is notified

that the alternative service provider

intends to use the existing home run

wire to provide service. To the extent

this assumption is inaccurate, we seek

comment on how the incumbent’s

election regarding the home run wiring

in the unit-by-unit context should be

triggered efficiently and so as to

minimize disruption of service. If the

subscriber’s service is simply

terminated without any indication that

a competing service provider wishes to

use the home run wiring, the incumbent

service provider would not be required

to carry out its election to sell, remove

or abandon the home run wiring. This

might occur, for instance, where an

MDU tenant is moving out of the

building. In such cases, we do not

believe that it would be appropriate to

require the incumbent to sell, remove or

abandon the home run wiring when it

might have every reasonable expectation

that the next tenant will request its

service. We would propose, however,

that the incumbent provider would be

required to carry out its election with

regard to the home run wiring if and

when it receives notice from a

subsequent tenant (either directly or

through an alternative provider) that the

tenant wishes to use the home run

wiring to receive a competing service.

22. Moreover, we propose that, even

where the incumbent receives a request

for service termination but does not

receive notice that an alternative

provider wishes to use the home run

wiring, the incumbent must follow the

procedures set forth in our cable home

wiring rules—e.g., to offer to sell to the

subscriber any cable home wiring that

the incumbent provider otherwise

intends to remove. First, the required

notice in the unit-by-unit context may

be effected in two stages (i.e., the

subscriber may call to terminate service

and the alternative provider may

separately notify the incumbent that it

wishes to use the home run wiring). We

believe that, in order for the home run

wiring and the home wiring to be

disposed of in a coordinated manner,

our cable home wiring rules must apply

upon any termination of service. In

addition, we believe that subscribers

should have the right to purchase their

home wiring to protect themselves from

unnecessary disruption associated with

removal of home wiring, regardless of

whether they intend to subscribe to an

alternative service.
Federal Register / Vol. 62, No. 170 / Wednesday, September 3, 1997 / Proposed Rules 46459

iii. Ownership of Home Run Wiring

23. In both the building-by-building

and unit-by-unit approaches, we

propose to give the MDU owner the

initial option to negotiate for ownership

and control of the home run wiring

because the property owner is

responsible for the common areas of a

building, including safety and security

concerns, compliance with building and

electrical codes, maintaining the

aesthetics of the building and balancing

the concerns of all of the residents.

Moreover, vesting ownership of the

home run wiring in the MDU owner, as

opposed to the alternative service

provider, will reduce future transaction

costs since the procedures proposed

herein would not need to be repeated if

service is subsequently switched again.

Nevertheless, we recognize that some

MDU owners may not want to own the

home run wiring in their buildings; we

propose that in such cases the

alternative service provider should be

permitted to purchase the wiring.

24. We do not believe that individual

subscribers would be disadvantaged by

having the MDU owner own the home

run wiring. If a subscriber has the ability

to choose between multiple service

providers in the unit-by-unit context,

the MDU owner has already concluded

that it is willing to permit multiple

service providers on the premises in

order to compete for subscribers. Given

that the MDU owner would have

voluntarily opened its building to

multiple competitors, we do not believe

that the MDU owner would deny a

resident the ability to use the home run

wiring for the resident’s provider of

choice. Furthermore, we believe that, if

the alternative service provider

purchases the home run wiring, that

provider would not be able to act as a

bottleneck and the individual subscriber

would continue to be protected because,

as described herein, the alternative

service provider would also be subject

to these same procedures if and when

the alternative provider’s service is

terminated.

iv. Impact on Incumbent Video Service

Providers

25. We tentatively conclude that cable

operators’ argument that the loss of their

home run wiring eliminates their ability

to provide other telecommunications

services is misplaced. Cable operators’

ability to compete in the telephony

market should be largely unaffected.

The procedures proposed herein apply

where the incumbent has no legally

enforceable right to remain on the

premises and the MDU owner and/or

the individual subscriber has selected

another provider’s package—

notwithstanding the incumbent’s other

telecommunications services. Given

MDU owners’ resistance to the

installation of multiple home run wires,

we tentatively conclude that affording

consumers a choice among various

packages offered by multiple service

providers is better than the current

situation, in which MDU residents often

have no choice at all. Under our

proposal, MDU owners would remain

free to implement the type of multiplewire model advocated by the cable

industry by requiring all service

providers to install their own home run

wires.

26. Cable operators also complain that

property owners often act as

‘‘gatekeepers’’ in selecting a service

provider and pursue their own interests

rather than the interests of their

residents. While we acknowledge how

these circumstances can exist, we

tentatively conclude that where the real

estate market is competitive, it will

discourage MDU owners from ignoring

their residents’ interests. In addition,

the rules we propose do not grant MDU

owners any additional rights, but simply

establish a procedural mechanism for

MDU owners to enforce rights they

already have. Moreover, in the unit-byunit context, the MDU owner would be

expanding its residents’ choices, not

restricting them.

v. Application of Procedural Framework

27. In both the building-by-building

and unit-by-unit contexts, one of our

goals is to promote competition and

consumer choice by minimizing any

potential disruption in service to a

subscriber switching video service

providers. To that end, we have

proposed certain rules herein designed

to give the subscriber reasonable notice

if and when his or her service will be

terminated prior to the end of the

applicable notice period. In addition,

we would propose to adopt a general

rule requiring the parties to cooperate to

ensure as seamless a transition as

possible. We seek comment on whether

it is necessary to promulgate such a

rule, or whether a provider’s desire to

win the subscriber back will compel the

provider to cooperate during the

transition period.

28. We also propose that the above

procedural mechanisms would apply

regardless of the identity of the

incumbent video service provider

involved. While initially this incumbent

would commonly be a cable operator, it

could also be a SMATV provider, an

MMDS provider, a DBS provider or

others.

vi. Statutory Authority

29. We believe that the Commission

has authority under sections 4(i) and

303(r) of the Communications Act to

establish procedures for the disposition

of MDU home run wiring upon

termination of service. Section 4(i)

permits the Commission to ‘‘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.’’ The Commission may

properly take action under section 4(i)

even if such action is not expressly

authorized by the Communications Act,

as long as the action is not expressly

prohibited by the Act and is necessary

to the effective performance of the

Commission’s functions. We propose to

invoke section 4(i) here because the law

does not expressly prohibit the

Commission from adopting procedures

regarding the disposition of home run

wiring and because affording the widest

range of competitive opportunities is

necessary to effectuate the purposes of

the Communications Act.

30. Section 4(i) has been held to

justify various Commission regulations

that were not within explicit grants of

authority. In these cases, the courts

found that the Commission’s regulations

were not inconsistent with the

Communications Act because they did

not contravene an express prohibition or

requirement of the Act, and were

reasonably ‘‘necessary and proper’’ for

the execution of the agency’s

enumerated powers. Most recently, in

Mobile Communications Corp. v. FCC,

the United States Court of Appeals for

the District of Columbia Circuit

acknowledged the Commission’s

authority under section 4(i) to regulate

even where the Communications Act

does not explicitly authorize such

action. In that case, the D.C. Circuit held

that the Commission had authority

under 4(i) to require Mtel, which held

a pioneer’s preference, to pay for a

narrowband personal communications

service (‘‘PCS’’) license, despite the fact

that the Act did not specifically

authorize the Commission to charge a

price for a license granted to a pioneer’s

preference holder. The court denied

Mtel’s argument that the Commission’s

action was inconsistent with the

Communications Act and therefore not

within the Commission’s section 4(i)

power. Mtel argued that Congress’

explicit grant of authority to the

Commission to collect certain fees and

to conduct auctions for specified types

of licenses denied the Commission

authority to impose other fees. The

court found Mtel’s reliance on the
46460 Federal Register / Vol. 62, No. 170 / Wednesday, September 3, 1997 / Proposed Rules

expressio unius maxim—that the

expression of one is the exclusion of

other—misplaced. According to the

court, ‘‘[t]he maxim ‘has little force in

the administrative setting,’ where we

defer to an agency’s interpretation of a

statute unless Congress has ‘directly

spoken to the precise question at

issue.’ ’’ The court also denied Mtel’s

argument that, in the absence of an

affirmative statutory mandate to support

the payment requirement, the

Commission’s action was not ‘‘necessary

in the execution of [the Commission’s]

functions,’’ as required by section 4(i).

31. Applying these principles here,

we conclude that the Commission is

authorized under section 4(i) to

establish procedures regarding the

disposition of MDU home run wiring

upon termination of service. First,

establishing rules regarding the

disposition of the home run wiring

upon termination is necessary to the

execution of the Commission’s

functions. As noted above, section

624(i) directs the Commission to

prescribe rules regarding the disposition

of wiring within a subscriber’s premises

in order to promote consumer choice

and competition by permitting

subscribers to avoid the disruption of

having their home wiring removed upon

voluntary termination and to

subsequently utilize that wiring for an

alternative service. We believe that,

under our current rules, we cannot fully

meet those objectives in the MDU

context because, as described above,

MDU owners often will not permit

multiple home run wires to be installed

in their buildings. In order to promote

consumer choice and competition, we

therefore propose to prescribe

additional rules regarding the

disposition of the existing home run

wiring upon termination of service.

32. Further, we propose to premise

our decision to establish procedures

regarding the disposition of home run

wiring in MDUs on the Communications

Act’s fundamental purpose of

‘‘regulating interstate and foreign

commerce in communication by wire

and radio so as to make available, so far

as possible, to all people of the United

States * * * a rapid, efficient, Nationwide, and world-wide wire and radio

communications service * * *.’’

Moreover, we propose to premise our

decision on the pervasive regulatory

structure Congress established regarding

cable communications, the goal of

which is to replicate or encourage

competitive conditions. Section 601 of

the Communications Act states that one

of the purposes of Title VI is to promote

competition in cable communications.

Due to the lack of competitive

alternatives in multichannel video

programming services, Congress has

authorized the Commission to ensure

that basic cable services, including

equipment, are available at reasonable

rates, to ensure that cable programming

service rates are not unreasonable, and

to establish standards whereby cable

operators fulfill customer service

requirements.

33. We believe that establishing

procedures regarding the disposition of

MDU home run wiring will assist the

Commission in discharging its statutory

obligations under section 623(b) and its

overall responsibility to pursue

Congress’ preference for competition

stated in the 1992 Cable Act. Section

623(b) of the Communications Act

requires the Commission to prescribe

rules to ensure that rates for basic cable

service are ‘‘reasonable’’ and that such

regulations ‘‘shall include standards to

establish, on the basis of actual cost, the

price or rate for * * * installation and

lease of equipment used by subscribers

* * *.’’ The regulations authorized by

section 623(b) cover ‘‘equipment used

by subscribers to receive the basic cable

service tier, including * * * equipment

as is required to access programming

* * *.’’ The term ‘‘equipment’’ under

section 623(b) includes cable inside

wiring. This extensive authority seeks to

foster enhanced services to the

subscriber at reasonable prices.

34. We believe that establishing the

above procedures regarding the

disposition of MDU home run wiring is

necessary to fulfill section 623(b)’s

mandate of reasonable basic cable rates.

We believe that these procedures will

provide advance certainty for property

owners, alternative video service

providers and subscribers regarding the

disposition of the home run wiring

when the existing service is terminated,

thereby alleviating current

circumstances that deter the property

owner from considering alternative

service providers and fostering

competition among service providers.

We believe that such competitive choice

will exert a restraining influence on

rates as service providers compete for

the opportunity to serve the entire

building or individual subscribers.

35. Moreover, in the 1992 Cable Act,

Congress specifically embraced a

‘‘[p]reference for competition’’ over

regulation in setting rates for cable

services. Fostering competition among

service providers through the adoption

of rules regarding the disposition of

MDU home run wiring is a fundamental

means to ensure that cable service rates

remain ‘‘reasonable.’’ The legislative

history of section 623(b) states that

Congress agreed that ‘‘[r]ather than

requiring the Commission to adopt a

formula to establish the price for

equipment, the Commission is given the

authority to choose the best method of

accomplishing the goals of this

legislation.’’ We therefore find that it is

within our scope of authority under the

1992 Cable Act to establish procedural

mechanisms that encourage reasonable

rates through a competitive

environment rather than a regulatory

one.

36. Finally, we believe that our

proposed approach would help to fulfill

Congress’ mandate in the 1996 Act to

‘‘provide for a pro-competitive, deregulatory national policy framework

designed to accelerate rapidly private

sector deployment of advanced

telecommunications and information

technologies and services to all

Americans.’’ We believe that adoption

of the above procedural mechanisms

would enhance competition, fostering

the deployment of innovative

technologies and expanded services.

37. We believe that the above

provisions authorize the Commission

not only to establish regulations

duplicating the behavior of a

competitive market, but to take actions

that prompt the evolution of a true

competitive environment. Based on the

record before us, we find that failing to

establish such procedures would

continue existing barriers to competitive

choice for individuals residing in

MDUs. Individuals residing in MDUs

often are currently limited to receiving

service from only one provider.

Although we recognize that subscriber

choice would be enhanced by the use of

multiple wires, we do not believe that

requiring MDU owners to permit

multiple wires is a viable option at this

point in time. We believe that the

inability of the MDU owner to use the

existing home run wiring deters

consideration of alternative providers,

and that providing certainty with regard

to the disposition of the MDU home run

wiring provides a reasonable means of

increasing choice and promoting

competition.

38. We also conclude that, in

accordance with the second part of

section 4(i), the procedural mechanisms

we are proposing are not inconsistent

with any provision of the law. Nothing

in the language of section 624(i)

prohibits the Commission from adopting

rules concerning wiring outside the

subscriber’s premises. This is not a

circumstance where the general canon

of statutory construction, the ‘‘specific

governs the general,’’ applies. The

courts have found this canon applicable

only where there ‘‘is an ‘inescapable

conflict’ between the specific provision
Federal Register / Vol. 62, No. 170 / Wednesday, September 3, 1997 / Proposed Rules 46461

and the general provision.’’ Section

624(i) does not expressly prohibit the

Commission from adopting rules

affecting home run wiring. Thus, we

tentatively conclude that there is no

‘‘inescapable conflict’’ between section

624(i) and the procedures discussed

below. To the contrary, as described

above, we believe that the rules we are

proposing will further promote section

624(i)’s underlying purpose of

promoting consumer choice and

competition by permitting subscribers to

use their existing home wiring to

receive an alternative video

programming service. Finally, as the

Mtel court found, the expressio unius

maxim—that the expression of one is

the exclusion of other—‘‘ ‘has little force

in the administrative setting,’ where we

defer to an agency’s interpretation of a

statute unless Congress has ‘directly

spoken to the precise question at

issue.’ ’’ Indeed, the Mtel court stated:

‘‘[W]e think the nature of Congress’s

auction authorization more supports

than undermines the Commission’s

decision here.’’

39. While the legislative history of

section 624(i) indicates that Congress

was concerned about the potential for

theft of service and signal leakage, we

believe that the rules we are proposing

would not have an adverse impact on

those concerns. First, we do not believe

that the procedural mechanisms we are

proposing will increase the frequency of

service theft; a provider’s control over

its network security is unaffected by our

rules. Our proposed rules do not give

the MDU owner, the alternative service

provider or the subscriber access to the

incumbent’s riser cable or lockbox.

Second, our proposed rules would not

affect the service provider’s signal

leakage responsibilities. It would remain

the duty of the provider to protect

against signal leakage while it is

providing service, regardless of who

owns the home run wiring in the

building.

40. We also think that cable operator

reliance on the ‘‘Joint Use’’ provision of

the 1996 Act (codified at section

652(d)(2) of the Communications Act) as

evidence of Congress’ intent that cable

operators retain ownership and control

of the home run wiring is misplaced.

Section 652(d)(2) provides generally

that a LEC may obtain permission from

the cable operator to use that part of the

transmission facilities extending from

the last multi-user terminal to the

premises of the end user, and that such

use must be reasonably limited in scope

and duration. Cable operators assert that

this provision invests them with

ownership and control of all cable

wiring outside the subscriber

demarcation point, including the home

run wiring, even after a subscriber

terminates service, as Congress

otherwise would not have established

rules allowing cable operators to set the

terms and conditions for a LEC’s use of

the facilities.

41. We disagree. Notably, section

652(d)(2) is entitled ‘‘Joint Use,’’

indicating Congress’’ intent for the

provision to govern only the joint use of

the facilities by a cable operator and a

local exchange carrier. It is an exception

to the general prohibition in section

652(c) on joint ventures or partnerships

between cable operators and LECs that

serve the same market area. We believe

that section 652(d)(2) does not constrain

our authority to establish procedures

governing the disposition of the home

run wiring because the provision only

addresses use of the wiring while the

cable operator continues to own or use

the facilities. Here, the procedural

mechanisms would not apply until the

cable operator has no legally enforceable

right to remain on the premises and the

MDU owner and/or subscriber

terminates the operator’s service.

42. Additionally, we believe that had

Congress intended the ‘‘Joint Use’’

provision to govern cable wiring, it

would have placed the provision in

section 624, which sets forth the

existing wiring provisions, rather than

in section 652, which concerns

telephone company-cable television

cross-ownership restrictions. We also

agree with alternative video service

providers that Congress would have

enumerated additional types of

potential users of cable operators’

wiring, other than telephone companies,

if it had intended this provision to cover

uses of the wiring other than the limited

situation of wiring being shared

between a LEC and a cable operator.

43. We believe that we have authority

to apply all our cable inside wiring rules

to all MVPDs, and not just to cable

operators. Section 303(r) of the

Communications Act authorizes the

Commission, as required by public

convenience, interest, or necessity, to

promulgate rules and restrictions, not

inconsistent with law, as may be

necessary to carry out the provisions of

the Act. We believe that applying these

rules to over-the-air video service

providers would be in the public

interest. The same competitive concerns

described above exist regardless of

whether a cable operator or some other

video service provider initially installed

a subscriber’s or an MDU’s inside

wiring. In addition, we believe that

applying our cable home wiring rules to

MVPDs that are radio licensees would

not be inconsistent with section 624(i)

and would further its purposes, since

subscribers could use their existing

inside wiring to receive an alternative

service. Further, for similar reasons to

those discussed above in proposing

procedures for disposition of the home

run wiring in MDUs for cable operators,

such procedures would not be

inconsistent with section 624(i) if

applied to MVPDs that are radio

licensees.

44. In addition, we tentatively

conclude that we have the authority

under sections 201 to 205 of the

Communications Act to extend our

cable inside wiring rules to common

carriers engaged in the transmission of

video programming. We tentatively

conclude that section 4(i) also invests

the Commission with authority to

expand our rules in this manner with

regard to MVPDs that are neither radio

licensees nor common carriers. Again,

we tentatively conclude that the same

competitive concerns are present

regardless of the type of service provider

that initially installs the broadband

inside wiring. In addition, we

tentatively conclude that such an

extension of our rules is necessary in

the execution of our functions and is not

inconsistent with the Communications

Act, as described above. To promote

parity among broadband competitors

and to fulfill the directives of the 1992

Cable Act and the 1996 Act, we propose

to apply our cable inside wiring rules to

all MVPDs.

vii. Constitutional Arguments

45. We tentatively conclude that the

procedural mechanisms we have

proposed do not constitute an

impermissible ‘‘taking’’ under the Fifth

Amendment. First, there is no forced

taking of the incumbent’s physical

property, since the incumbent has a

reasonable opportunity to remove,

abandon, or sell the wiring. If the

incumbent fails to act within the

reasonable periods set forth and its

wiring is deemed abandoned, it is the

operator’s failure to act, not the

Commission’s rule, that would

extinguish the cable operator’s rights.

The Fifth Amendment cannot be

construed to allow a service provider

with no contractual or other legal right

to remain on a person’s property to

leave its wiring on the property

indefinitely and prohibit the property

owner from using it. In addition, there

can be no taking of the incumbent’s

access rights because the procedures

expressly apply only where the

incumbent does not have a contractual,

statutory or other legal right to maintain

its wiring on the premises. We seek
46462 Federal Register / Vol. 62, No. 170 / Wednesday, September 3, 1997 / Proposed Rules

comment on these tentative

conclusions.

D. Disposition of Cable Home Wiring

46. We believe that fostering

competitive choice in MDUs requires

the coordinated disposition of two

segments of cable wiring: (1) The home

run wiring from the point where the

wiring becomes devoted to an

individual unit to the cable demarcation

point; and (2) the cable home wiring

from the demarcation point to the

subscriber’s television set or other

customer premises equipment. Without

clear and predictable rules for the

disposition of each of these segments,

an alternative provider’s ability to

convince an MDU owner or individual

subscriber to switch services could be

significantly compromised. The

procedural framework proposed above

addressed the disposition of MDU home

run wiring. Here, we set forth a specific

proposal on how to address certain

issues regarding the disposition of MDU

cable home wiring. We believe that

these rules will promote competition

and consumer choice by providing a

comprehensive and workable

framework for the disposition of MDU

cable wiring.

47. As in the context of home run

wiring, we propose that these home

wiring procedural mechanisms apply

regardless of the identity of the

incumbent video service provider

involved. While initially this incumbent

would commonly be a cable operator, it

could also be a SMATV provider, an

MMDS provider, a DBS provider or

others. We tentatively conclude that we

have the authority to apply these home

wiring rules to other video service

providers. We request comment on this

proposal.

i. Building-by-Building Disposition of

Home Wiring

48. In the Cable Home Wiring Further

NPRM, we requested comment on,

among other issues, whether, in order to

promote the goals of section 624(i) and

our rules thereunder, the subscriber (on

a non-loop-through wiring

configuration) or the building owner

(with a loop-through wiring

configuration) should be given the

opportunity to purchase the cable home

wiring when the MDU owner terminates

cable service for the entire building.

49. We tentatively conclude that, if

the MDU owner has the legal right,

either by law or by contract, to

terminate the subscriber’s cable service,

the owner terminating service for the

entire building is effectively voluntarily

terminating service on the subscribers’

behalf. We therefore tentatively

conclude that our home wiring rules

would be triggered when an MDU

owner terminates service for the entire

building. We tentatively conclude that

providing the cable operator a single

point of contact (i.e., the MDU owner)

would further the statutory purposes of

minimizing disruption and facilitating

the transfer of service to a competing

video service provider. Because we

believe that it would be impractical and

inefficient for the incumbent provider to

deal with each individual subscriber

regarding the disposition of his or her

cable home wiring when the entire

MDU is switching providers, we

propose to deem the MDU owner to be

acting as the terminating ‘‘subscriber’’

for purposes of the disposition of the

cable home wiring within the individual

dwelling unit where the cable home

wiring is not already owned by a

resident. We request comment on this

proposal. Similarly, with regard to bulk

service contracts, we tentatively

conclude that it is logical for the

landlord to be deemed the subscriber,

and thus for the landlord to have the

right to purchase the wiring as provided

in our general rules. We tentatively

conclude, however, that this rule should

not override a bulk service contract that

specifically provides for the disposition

of the wiring upon termination of the

contract.

50. We propose that, when an MDU

owner provides an incumbent provider

with its minimum of 90 days notice that

the incumbent provider’s access to the

entire building will be terminated and

that the MDU owner seeks to use the

home run wiring for another service, the

incumbent provider must, in accordance

with our current home wiring rules, (1)

offer to sell to the MDU owner any

home wiring within the individual

dwelling units which the incumbent

provider owns and intends to remove,

and (2) provide the MDU owner with

the total per-foot replacement cost of

such home wiring. As with the home

run wiring, if the MDU owner declines

to purchase the cable home wiring not

already owned by a resident, the

alternative service provider could elect

to purchase it upon service termination

under our rules.

51. We propose to require that the

MDU owner decide whether it or the

alternative provider will purchase the

cable home wiring and so notify the

incumbent provider no later than 30

days before the termination of access to

the building will become effective. We

propose to modify our current home

wiring rules to allow the incumbent

provider 30 days, rather than the current

seven, to remove all of the cable home

wiring for the entire building. We

believe this is appropriate given the

amount of home wiring that may need

to be removed from an entire building.

We propose that, if the MDU owner and

the alternative service provider decline

to purchase the home wiring, the

incumbent provider would not be

permitted to remove the home wiring

until the date of actual service

termination, i.e., likely 90 days after the

building owner notified the incumbent

that its access to the entire building will

be terminated. Under these

circumstances, we would propose that if

the incumbent provider fails to remove

the home wiring within 30 days of

actual service termination, it could

make no subsequent attempt to remove

the wiring or restrict its use. We request

comment on this proposal.

ii. Unit-by-Unit Disposition of Home

Wiring

52. In the unit-by-unit context, we

propose to continue to apply our rules

permitting terminating subscribers (or

their agents) to purchase the cable home

wiring up to a point approximately 12

inches outside their individual units.

We continue to believe that this is

consistent with the purposes of section

624(i) to promote consumer choice and

competition by permitting subscribers to

avoid the disruption of having their

home wiring removed upon voluntary

termination and to subsequently utilize

that wiring for an alternative service.

We do, however, propose to modify our

rules in two ways. First, as discussed

below, we propose to permit the MDU

owner or the alternative service

provider to purchase the cable home

wiring within each unit if the subscriber

declines, provided that the building

owner timely notifies the incumbent

provider that it or the alternative

provider wants to purchase the home

wiring whenever a subscriber declines.

Second, we propose to change the time

in which an incumbent provider must

remove the home wiring or make no

further effort to use it or restrict its use

from seven business days to seven

calendar days after the individual

subscriber terminates service. We

believe that this minor change is

sufficient time for removal of a single

unit’s cable home wiring, and will avoid

customer confusion by having the time

permitted for the provider to remove the

home wiring within the individual unit

run concurrently with the time

permitted for the provider to remove,

sell or abandon the home run wiring

outside the unit.

53. In the Cable Home Wiring Further

NPRM, we requested comment on

whether the premises owner should

have the right to purchase the cable
Federal Register / Vol. 62, No. 170 / Wednesday, September 3, 1997 / Proposed Rules 46463

home wiring when a subscriber who

voluntarily terminates cable service

does not own the premises and elects

not to purchase the wiring. We

tentatively conclude that an MDU

owner should be permitted to purchase

the wiring within an individual

dwelling unit based on the per-foot

replacement cost if the individual

subscriber declines to do so. This

approach would preserve the current

subscriber’s rights, and still allow the

building owner to act on behalf of future

tenants, thus promoting competition

and consumer choice. As with the home

run wiring, if the MDU owner declines

to purchase the cable home wiring, the

alternative service provider would be

permitted to purchase it. Except with

respect to the building-by-building

procedure described above, we would

not require that the building owner or

the alternative provider have the

opportunity to purchase the wiring

before the subscriber has the

opportunity to do so because we believe

that Congress intended for section 624(i)

to promote individual subscriber choice

whenever possible. Our preference is

therefore for the subscriber to control its

own home wiring, and only when that

is not reasonable or efficient, for the

building owner or alternative provider

to control it.

54. We propose that the MDU owner

should notify the incumbent provider of

its election to purchase or to allow the

alternative provider to purchase the

home wiring at the same time as the

MDU owner provides the incumbent

provider with 60 days notice that it

intends to allow head-to-head

competition within its building. Thus,

the MDU owner would be required to

inform the incumbent provider one time

for the entire building. If the MDU

owner fails to provide the incumbent

with such notice, the incumbent would

be under no obligation to sell the home

wiring to the MDU owner or the

alternative provider when an individual

subscriber terminates and declines to

purchase the wiring. We request

comment on this proposal.

E. Alternatives to Procedural

Framework

55. In some cases, there may be room

in the molding or conduit for an

alternative service provider to install its

home run wiring without interfering

with the incumbent’s wiring. We

propose to permit the alternative service

provider to install its wiring within the

existing molding or conduit, even over

the incumbent provider’s objection,

where there is room in the molding or

conduit and the MDU owner does not

object. We seek comment on whether

and how to allow compensation for the

alternative service provider’s use of the

molding or conduit. We tentatively

conclude that such a rule would

promote competition and consumer

choice and would not constitute a

taking of the incumbent provider’s

private property without just

compensation under the Fifth

Amendment. We seek comment on

these tentative conclusions. We also

seek comment on whether and how this

rule would apply in the situation where

an incumbent provider has an exclusive

contractual right to occupy the molding

or conduit.

56. Several commenters also point out

that the current cable demarcation point

can be physically inaccessible. We

tentatively conclude that where the

cable demarcation point is truly

physically inaccessible to an alternative

service provider (e.g., embedded in

brick, metal conduit or cinder blocks,

not simply within hallway molding), the

demarcation point should be moved

back to the point at which it first

becomes physically accessible. We seek

comment on this tentative conclusion

and on how to define ‘‘physically

inaccessible.’’ We also seek comment on

the percentage of installations in which

the demarcation point would be deemed

physically inaccessible. Finally, we seek

comment on our authority to adopt, and

any other legal implications of, this

proposed modification.

57. We also seek comment on whether

we should adopt a rule requiring video

service providers to transfer to the MDU

owner upon installation ownership of

the home wiring and home run wiring

installed in MDUs under contracts

entered into on or after the effective date

of any rules we may adopt. Such a rule

might increase competition and

consumer choice in future installations

by permitting MDU owners to control

access to the home run wiring from the

start. We seek comment on the

appropriate mechanism for effecting

such a transfer, whether the price for the

wiring should be regulated or left to

private negotiations, and whether and

how our rules should address the issue

of an MDU owner that does not want to

own the home run wiring in its

building. In addition, we seek comment

on our authority to adopt, and any other

legal implications of, such a rule.

58. Finally, we seek comment on any

other proposals to promote MVPD

competition and consumer choice in

MDUs that have not already been

previously raised and commented on in

the Inside Wiring NPRM and the Cable

Home Wiring Further NPRM. In

particular, we ask commenters to

address the legal, policy and practical

implications of any such proposals.

Initial Regulatory Flexibility Act

Analysis

59. As required by section 603 of the

Regulatory Flexibility Act, 5 U.S.C.

§ 603, (‘‘RFA’’), the Commission has

prepared an Initial Regulatory

Flexibility Analysis (‘‘IRFA’’) of the

expected significant impact on small

entities by the policies and rules

proposed in this Further NPRM. Written

public comments are requested on the

IRFA. These comments must be filed in

accordance with the same filing

procedures as other comments in this

proceeding, but they must have a

separate and distinct heading

designating them as responses to the

IRFA. The Secretary shall send a copy

of the Further NPRM, including the

IRFA to the Chief Counsel for Advocacy

of the Small Business Administration in

accordance with section 603(a) of the

RFA.

Need for Action and Objectives of the

Proposed Rules

60. This Further NPRM proposes to

supplement the cable home wiring rules

with new procedural mechanisms to

provide certainty regarding the use of

MDU home run wiring upon

termination of existing service. In

addition, we propose to expand our

cable inside wiring rules to apply to all

MVPDs in order to promote parity

among competitors.

Legal Basis

61. This Further NPRM is adopted

pursuant to sections 1, 4(i), 201–205,

303, 623, 624, and 632 of the

Communications Act of 1934, as

amended, 47 U.S.C. §§ 151, 154(i), 201–

205, 303, 543, 544 and 552.

Description and Estimate of the Number

of Small Entities Impacted

62. The RFA directs the Commission

to provide a description of and, where

feasible, an estimate of the number of

small entities that will be affected by the

proposed rules. The RFA defines the

term ‘‘small entity’’ as having the same

meaning as the terms ‘‘small business,’’

‘‘small organization,’’ and ‘‘small

governmental jurisdiction,’’ and the

same meaning as the term ‘‘small

business concern’’ under section 3 of

the Small Business Act. Under the

Small Business Act, 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’’). The rules we
46464 Federal Register / Vol. 62, No. 170 / Wednesday, September 3, 1997 / Proposed Rules

propose in this Further NPRM will

affect MVPDs and MDU owners.

63. Small MVPDs: SBA has developed

a definition of a small entity for cable

and other pay television services, which

includes all such companies generating

$11 million or less in annual receipts.

This definition includes cable system

operators, closed circuit television

services, direct broadcast satellite

services, multipoint distribution

systems, satellite master antenna

systems and subscription television

services. According to the Bureau of the

Census, there were 1423 such cable and

other pay television services generating

less than $11 million in revenue that

were in operation for at least one year

at the end of 1992. We will address each

service individually to provide a more

succinct estimate of small entities.

64. Cable Systems: The Commission

has developed its own definition of a

small cable company for the purposes of

rate regulation. Under the Commission’s

rules, a ‘‘small cable company’’ is one

serving fewer than 400,000 subscribers

nationwide. Based on our most recent

information, we estimate that there were

1439 cable operators that qualified as

small cable companies at the end of

1995. 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 1439

small entity cable system operators that

may be affected by the decisions and

rules proposed in this Further NPRM.

65. 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% 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.’’ The Commission has

determined that there are 61,700,000

subscribers in the United States.

Therefore, we found that an operator

serving fewer than 617,000 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. Based on available data,

we find that the number of cable

operators serving 617,000 subscribers or

less totals 1450. Although it seems

certain that some of these cable system

operators are affiliated with entities

whose gross annual revenues exceed

$250,000,000, we 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.

66. MMDS: The Commission refined

the definition of ‘‘small entity’’ for the

auction of MMDS as an entity that

together with its affiliates has average

gross annual revenues that are not more

than $40 million for the preceding three

calendar years. This definition of a

small entity in the context of the

Commission’s Report and Order

concerning MMDS auctions has been

approved by the SBA.

67. The Commission completed its

MMDS auction in March 1996 for

authorizations in 493 basic trading areas

(‘‘BTAs’’). Of 67 winning bidders, 61

qualified as small entities. Five bidders

indicated that they were minorityowned and four winners indicated that

they were women-owned businesses.

MMDS is an especially competitive

service, with approximately 1573

previously authorized and proposed

MMDS facilities. Information available

to us indicates that no MMDS facility

generates revenue in excess of $11

million annually. We tentatively

conclude that there are approximately

1634 small MMDS providers as defined

by the SBA and the Commission’s

auction rules.

68. ITFS: There are presently 1,989

licensed educational ITFS stations and

97 licensed commercial ITFS stations.

Educational institutions are included in

the definition of a small business.

However, we do not collect annual

revenue data for ITFS licensees and are

unable to ascertain how many of the 97

commercial stations would be

categorized as small under the SBA

definition. Thus, we tentatively

conclude that at least 1,989 ITFS

licensees are small businesses.

69. DBS: There are presently nine

DBS licensees, some of which are not

currently in operation. The Commission

does not collect annual revenue data for

DBS and, therefore, is unable to

ascertain the number of small DBS

licensees that could be impacted by

these proposed rules. Although DBS

service requires a great investment of

capital for operation, we acknowledge

that 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 a small business, if

independently owned and operated.

70. HSD: The market for HSD service

is difficult to quantify. Indeed, the

service itself bears little resemblance to

other multichannel video service

providers. HSD owners have access to

more than 265 channels of programming

placed on C-band satellites by

programmers for receipt and

distribution by video service providers,

of which 115 channels are scrambled

and approximately 150 are

unscrambled. HSD owners can watch

unscrambled channels without paying a

subscription fee. To receive scrambled

channels, however, an HSD owner must

purchase an integrated receiver-decoder

from an equipment dealer and pay a

subscription fee to an HSD

programming packager. Thus, HSD

users include: (1) Viewers who

subscribe to a packaged programming

service, which affords them access to

most of the same programming provided

to subscribers of other video service

providers; (2) viewers who receive only

non-subscription programming; and (3)

viewers who receive satellite

programming services illegally without

subscribing. Because scrambled

packages of programming are most

specifically intended for retail

consumers, these are the services most

relevant to this discussion.

71. According to the most recently

available information, there are

approximately 30 program packagers

nationwide offering packages of

scrambled programming to retail

consumers. These program packagers

provide subscriptions to approximately

2,314,900 subscribers nationwide. This

is an average of about 77,163 subscribers

per program packager. This is

substantially smaller than the 400,000

subscribers used in the Commission’s

definition of a small MSO. Furthermore,

because this an average, it is likely that

some program packagers may be

substantially smaller.

72. OVS: The Commission has

certified nine open video system

(‘‘OVS’’) operators. Because these

services were introduced so recently

and only one operator is currently

offering programming to our knowledge,

little financial information is available.

Bell Atlantic (certified for operation in

Dover) and Metropolitan Fiber Systems

(‘‘MFS,’’ certified for operation in

Boston and New York) have sufficient

revenues to assure us that they do not

qualify as small business entities. Two

other operators, Residential

Communications Network (‘‘RCN,’’

certified for operation in New York) and

RCN/BETG (certified for operation in

Boston), are MFS affiliates and thus also

fail to qualify as small business

concerns. However, Digital Broadcasting

Open Video Systems (a general

partnership certified for operation in

southern California), Urban

Communications Transport Corp. (a

corporation certified for operation in

New York and Westchester), and

Microwave Satellite Technologies, Inc.
Federal Register / Vol. 62, No. 170 / Wednesday, September 3, 1997 / Proposed Rules 46465

(a corporation owned solely by Frank T.

Matarazzo and certified for operation in

New York) are either just beginning or

have not yet started operations.

Accordingly, we tentatively conclude

that three OVS licensees may qualify as

small business concerns.

73. SMATVs: Industry sources

estimate that approximately 5200

SMATV operators were providing

service as of December 1995. Other

estimates indicate that SMATV

operators serve approximately 1.05

million residential subscribers as of

September 1996. The ten largest

SMATV operators together pass 815,740

units. If we assume that these SMATV

operators serve 50% of the units passed,

the ten largest SMATV operators serve

approximately 40% of the total number

of SMATV subscribers. Because these

operators are not rate regulated, they are

not required to file financial data with

the Commission. Furthermore, we are

not aware of any privately published

financial information regarding these

operators. Based on the estimated

number of operators and the estimated

number of units served by the largest

ten SMATVs, we tentatively conclude

that a substantial number of SMATV

operators qualify as small entities.

74. LMDS: Unlike the above pay

television services, LMDS technology

and spectrum allocation will allow

licensees to provide wireless telephony,

data, and/or video services. An LMDS

provider is not limited in the number of

potential applications that will be

available for this service. Therefore, the

definition of a small LMDS entity may

be applicable to both cable and other

pay television (SIC 4841) and/or

radiotelephone communications

companies (SIC 4812). The SBA

definition for cable and other pay

services is defined above. A small

radiotelephone entity is one with 1500

employees or less. For the purposes of

this proceeding, we include only an

estimate of LMDS video service

providers. The vast majority of LMDS

entities providing video distribution

could be small businesses under the

SBA’s definition of cable and pay

television (SIC 4841). However, in the

LMDS Second Report and Order, we

defined a small LMDS provider as an

entity that, together with affiliates and

attributable investors, has average gross

revenues for the three preceding

calendar years of less than $40 million.

We have not yet received approval by

the SBA for this definition.

75. There is only one company,

CellularVision, that is currently

providing LMDS video services.

Although the Commission does not

collect data on annual receipts, we

assume that CellularVision is a small

business under both the SBA definition

and our proposed auction rules. We

tentatively conclude that a majority of

the potential LMDS licensees will be

small entities, as that term is defined by

the SBA.

76. MDU Operators: 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. 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. 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. 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.

Reporting, Recordkeeping, and Other

Compliance Requirements

77. The Further NPRM proposes rules

to require that, upon termination of

existing service, the MDU operator must

provide the incumbent service provider

with notice of termination of the

incumbent’s access to the building or of

the owner’s wish to permit head-to-head

competition for individual home run

wires. The MDU operator would have

the option of either purchasing the

wiring or allowing the alternative

provider to purchase it. The incumbent

service provider would be required to

elect to sell, remove or abandon its

home run wiring and would have to

complete its sales negotiations or

remove its wiring within the time

schedule provided herein or be deemed

to have abandoned its wiring. The

Commission’s inside wiring rules would

also be expanded to apply to all MVPDs.

78. The Further NPRM requests

comment on the adoption of penalties

for incumbent MVPDs that elect to

remove their MDU home run wiring

upon termination of service and then

fail to do so. Incumbent providers may

choose to maintain records to prove

their compliance with the rules

regarding disposition of home run

wiring, but we do not believe that they

will need additional professional skills

to maintain such records and we

propose no requirement for such

recordkeeping.

79. The Further NPRM proposes a

rule requiring video service providers to

transfer ownership of MDU home run

wiring to the MDU owner upon

installation. Video service providers

may choose to maintain records of the

home run wiring subject to such a rule,

but we do not believe that they will

need additional professional skills to

maintain such records and we propose

no requirement for such recordkeeping.

Steps Taken to Minimize Significant

Economic Impact on Small Entities and

Significant Alternatives Considered:

None. However, any significant

alternatives presented in the comments

will be considered.

Federal Rules That May Duplicate,

Overlap, or Conflict with the Proposed

Rules: None.

Paperwork Reduction Act of 1995

Analysis

80. The requirements proposed in this

Further NPRM have been analyzed with

respect to the Paperwork Reduction Act

of 1995 (the ‘‘1995 Act’’) and would

impose new and modified information

collection requirements on the public.

The Commission, as part of its

continuing effort to reduce paperwork

burdens, invites the general public to

take this opportunity to comment on the

proposed information collection

requirements contained in this Further

NPRM, as required by the 1995 Act.

Public comments are due September 25,

1997. Comments should address: (1)

Whether the proposed collection of

information is necessary for the proper

performance of the functions of the

Commission, including whether the

information would have practical

utility; (2) the accuracy of the

Commission’s burden estimates; (3)

ways to enhance the quality, utility, and

clarity of the information collected; and

(4) 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.

81. Written comments by the public

on the proposed new and modified

information collection requirements are

due September 25, 1997. Comments

should be submitted to Judy Boley,

Federal Communications Commission,

Room 234, 1919 M Street, N.W.,

Washington, D.C. 20554, or via the

Internet to jboley@fcc.gov. For

additional information on the proposed

information collection requirements,

contact Judy Boley at 202–418–0214 or

via the Internet at the above address.
46466 Federal Register / Vol. 62, No. 170 / Wednesday, September 3, 1997 / Proposed Rules

Procedural Provisions

82. Ex parte Rules—‘‘Permit-butDisclose’’ Proceeding. This proceeding

will be treated as a ‘‘permit-butdisclose’’ proceeding subject to the

‘‘permit-but-disclose’’ requirements

under section 1.1206(b) of the rules. 47

CFR 1.1206(b), as revised. Ex parte

presentations are permissible if

disclosed in accordance with

Commission rules, except during the

Sunshine Agenda period when

presentations, ex parte or otherwise, are

generally prohibited. Persons making

oral ex parte presentations are reminded

that a memorandum summarizing a

presentation must contain a summary of

the substance of the presentation 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. See 47 CFR 1.1206(b)(2), as

revised. Additional rules pertaining to

oral and written presentations are set

forth in section 1.1206(b).

83. Filing of Comments and Reply

Comments. Pursuant to applicable

procedures set forth in Sections 1.415

and 1.419 of the Commission’s Rules, 47

CFR 1.415 and 1.419, interested parties

may file comments on or before

September 25, 1997 and reply

comments on or before October 2, 1997.

To file formally in this proceeding, you

must file an original plus four copies of

all comments, reply comments, and

supporting comments. If you want each

Commissioner to receive a personal

copy of your comments and reply

comments, you must file an original

plus nine copies. You should send

comments and reply comments to Office

of the Secretary, Federal

Communications Commission, 1919 M

Street, N.W., Washington, D.C. 20554.

Comments and reply comments will be

available for public inspection during

regular business hours in the FCC

Reference Center, Room 239, Federal

Communications Commission, 1919 M

Street N.W., Washington D.C. 20554.

84. Written comments by the public

on the proposed and/or modified

information collections are due

September 25, 1997. Written comments

must be submitted by the Office of

Management and Budget (‘‘OMB’’) on

the proposed and/or modified

information collections on or before

November 3, 1997. 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

234, 1919 M Street, N.W., Washington,

DC 20554, or via the Internet to

jboley@fcc.gov and to Timothy Fain,

OMB Desk Officer, 10236 NEOB, 725—

17th Street, N.W., Washington, DC

20503 or via the Internet to

fainlt@al.eop.gov.

Ordering Clauses

85. It is ordered that, pursuant to

sections 1, 4(i), 201–205, 303, 623, 624

and 632 of the Communications Act of

1934, as amended, 47 U.S.C. §§ 151,

154(i), 201–205, 303, 543, 544 and 552,

notice is hereby given of proposed

amendments to Part 76, in accordance

with the proposals, discussions and

statements of issues in this Further

Notice of Proposed Rulemaking, and

that comment is sought regarding such

proposals, discussions and statements of

issues.

86. It is further ordered that the

Commission shall send a copy of this

Further Notice of Proposed Rulemaking,

including the Initial Regulatory

Flexibility Analysis, to the Chief

Counsel for Advocacy of the Small

Business Administration.

List of Subjects in 47 CFR Part 76

Cable television.

Federal Communications Commission

William F. Caton,

Acting Secretary.

Proposed Rule Changes

Part 76 of title 47 of the Code of

Federal Regulations is proposed to be

amended as follows:

PART 76—CABLE TELEVISION

SERVICE

1. The authority citation for Part 76

would continue to read as follows:

Authority: 47 U.S.C. 151, 152, 153, 154,

301, 302, 303, 303a, 307, 308, 309, 312, 315,

317, 325, 503, 521, 522, 531, 532, 533, 534,

535, 536, 537, 543, 544, 544a, 545, 548, 552,

554, 556, 558, 560, 561, 571, 572, 573.

2. Section 76.5 is proposed to be

amended by revising paragraph (mm)(2)

to read as follows:

§ 76.5 Definitions.

* * * * *

(mm) * * *

(2) For new and existing multiple

dwelling unit installations with nonloop-through wiring configurations, the

demarcation point shall be a point at or

about twelve inches outside of where

the cable wire enters the subscriber’s

dwelling unit, or, where the wire is

physically inaccessible at such point, as

close as practicable thereto so as to

permit access to the cable home wiring.

* * * * *

3. Section 76.802 is proposed to be

amended by revising paragraph (a) and

paragraph (g) by removing the word

‘‘business’’, and by adding new

paragraphs (l), (m) and (n) to read as

follows:

§ 76.802 Disposition of cable home wiring.

(a) (1) Upon voluntary termination of

cable service by a subscriber in a single

unit dwelling, a cable operator shall not

remove the cable home wiring unless it

gives the subscriber the opportunity to

purchase the wiring at the replacement

cost, and the subscriber declines. If the

subscriber declines to purchase the

cable home wiring, the cable system

operator must then remove the cable

home wiring within seven days of the

subscriber’s decision, under normal

operating conditions, or make no

subsequent attempt to remove it or to

restrict its use.

(2) Upon voluntary termination of

cable service by an individual

subscriber in a multiple dwelling unit

building, a cable operator shall not

remove the cable home wiring unless it

gives the subscriber the opportunity to

purchase the wiring at the replacement

cost, the subscriber declines, and the

owner of the multiple dwelling unit

building’s common areas (referred to

herein as the ‘‘MDU owner’’) has not

previously elected to purchase or have

the alternative MVPD purchase the

cable home wiring when a subscriber

declines, as provided in paragraph (l)

hereof. If the subscriber declines to

purchase the cable home wiring, and,

the MDU owner has not elected to

purchase or have the alternative MVPD

purchase the cable home wiring, the

cable system operator must then remove

the cable home wiring within seven

days of the subscriber’s decision, under

normal operating conditions, or make

no subsequent attempt to remove it or

to restrict its use.

(3) Upon voluntary termination of

cable service for an entire multiple

dwelling unit building by the MDU

owner, a cable operator shall not remove

the cable home wiring unless it gives

the MDU owner the opportunity to

purchase the wiring at the replacement

cost, and the MDU owner declines

either to purchase the wiring or to allow

the alternative MVPD to purchase the

wiring. If the MDU owner declines to

purchase or have the alternative MVPD

purchase the cable home wiring, the

cable system operator must then remove

the cable home wiring no later than 30

days, under normal operating

conditions, after it is notified of the

MDU owner’s decision, or make no

subsequent attempt to remove it or to

restrict its use.

(4) The cost of the cable home wiring

is to be based on the replacement cost
Federal Register / Vol. 62, No. 170 / Wednesday, September 3, 1997 / Proposed Rules 46467

per foot of the wiring on the subscriber’s

side of the demarcation point multiplied

by the length in feet of such wiring, and

the replacement cost of any passive

splitters located on the subscriber’s side

of the demarcation point.

* * * * *

(l) If a subscriber who is not the

owner of the premises terminates

service and declines to purchase the

cable home wiring under this section,

the owner of the multiple dwelling unit

building’s common areas (referred to

herein as the ‘‘MDU owner’’) may

purchase it under the same terms and

conditions provided in subsection (a)

hereof, provided that the MDU owner

notified the cable system operator of its

desire to purchase the cable home

wiring in the event the subscriber

declines. Such notification must occur

no later than the time at which the MDU

owner provides the incumbent MVPD

60 days’ notice of the MDU owner’s

intention to invoke the procedure set

forth in Section 76.804(b).

(m) Where an entire multiple

dwelling unit building is switching

service providers, the MDU owner shall

be permitted to exercise the rights of

individual subscribers for purposes of

the disposition of the cable home wiring

under this section. If the MDU owner

declines to purchase the cable home

wiring, the MDU owner may allow the

alternative provider to purchase it upon

service termination under this section.

(n) This section shall apply to all

multichannel video programming

distributors, as that term is defined in

Section 602(13) of the Communications

Act, 47 U.S.C. § 522(13), in the same

manner as it applies to cable operators.

4. Section 76.804 is proposed to be

added to read as follows:

§ 76.804 Disposition of home run wiring.

(a) Building-by-building disposition of

home run wiring: (1) Where an MVPD

owns the home run wiring in a multiple

dwelling unit building (‘‘MDU’’) and

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 entity

that owns the common areas of the

MDU (‘‘the MDU owner’’), the MDU

owner may give the MVPD a minimum

of 90 days’ notice that its access to the

entire building will be terminated. The

MVPD will then have 30 days to elect,

for all the home run wiring inside the

MDU building: (i) To remove the wiring

and restore the MDU building to its

prior condition by the end of the 90-day

notice period; (ii) to abandon and not

disable the wiring at the end of the 90-

day notice period; or (iii) to sell the

wiring to the MDU building owner. If

the incumbent provider elects to remove

or abandon the wiring, and it intends to

terminate service before the end of the

90-day notice period, the incumbent

provider shall notify the MDU owner at

the time of this election of the date on

which it intends to terminate service. If

the MDU owner refuses to purchase the

home run wiring, an alternative

provider that has been authorized to

provide service to the MDU by the MDU

owner may negotiate to purchase the

wiring. For purposes of this section,

‘‘home run wiring’’ shall refer to the

wiring from the point at which the

MVPD’s wiring becomes devoted to an

individual subscriber to the

demarcation point.

(2) If the parties negotiate a price for

the home run wiring, they shall have 30

days from the date of election to

negotiate a price. If the parties are

unable to agree on a price, the

incumbent must elect one of the other

two options (i.e., abandonment or

removal) and notify the MDU owner at

the time of this election if and when it

intends to terminate service before the

end of the 90-day notice period. If the

incumbent service provider elects to

abandon its wiring at this point, the

abandonment shall become effective at

the end of the 90-day notice period or

upon service termination, whichever

occurs first. If the incumbent elects to

remove its wiring and restore the

building to its prior condition, it must

do so by the end of the 90-day notice

period. If the incumbent fails to comply

with any of the deadlines established

herein, it shall be deemed to have

elected to abandon its home run wiring

at the end of the 90-day notice period.

(b) Unit-by-unit disposition of home

run wiring: (1) Where an MVPD owns

the home run wiring in an MDU and

does not (or will not at the conclusion

of the notice period) have a legally

enforceable right to maintain any

particular home run wire dedicated to a

particular unit on the premises against

the MDU owner’s wishes, an MDU

owner may permit multiple MVPDs to

compete for the right to use the

individual home run wires dedicated to

each unit. The MDU owner must

provide 60 days’ notice to the

incumbent MVPD of the MDU owner’s

intention to invoke this procedure. The

incumbent MVPD will then have 30

days to provide a single written election

to the MDU owner and the competing

MVPD(s) whether, for each and every

one of its home run wires dedicated to

a subscriber who chooses an alternative

provider’s service, the incumbent MVPD

will:

(i) Remove the wiring and restore the

MDU building to its prior condition;

(ii) Abandon the wiring without

disabling it; or

(iii) sell the wiring to the MDU owner.

If the MDU owner refuses to purchase

the home run wiring, the alternative

provider may purchase it. The

alternative provider(s) will be required

to make a similar election within this

30-day period for each home run wire

solely dedicated to a subscriber who

switches back from the alternative

provider to the incumbent MVPD.

(2) When an existing MVPD is

notified either orally or in writing that

a subscriber wishes to terminate service

and that another service provider

intends to use the existing home run

wire to provide service to that particular

subscriber, an existing provider that has

elected to remove its home run wiring

will have seven days to remove its home

run wiring and restore the building to

its prior condition. If the existing

provider has elected to abandon or sell

the wiring, the abandonment or sale will

become effective seven days from the

date it received the request for service

termination or upon actual service

termination, whichever occurs first. If

the incumbent provider intends to

terminate service prior to the end of the

seven-day period, the incumbent shall

inform the party requesting service

termination, at the time of such request,

of the date on which service will be

terminated. The incumbent provider

shall make the home run wiring

accessible to the alternative provider by

the end of the seven-day period or

within 24 hours of actual service

termination, whichever occurs first.

(3) If the incumbent provider fails to

comply with any of the deadlines

established herein, the home run wiring

shall be considered abandoned and the

alternative provider shall be permitted

to use the home run wiring immediately

to provide service. The alternative

provider or the MDU owner may act as

the subscriber’s agent in providing

notice of a subscriber’s desire to change

services. If a subscriber’s service is

terminated without notifying the

incumbent provider that the subscriber

wishes to use the home run wiring to

receive an alternative service, the

incumbent provider will not be required

to carry out its election to sell, remove

or abandon the home run wiring; the

incumbent provider will be required to

carry out its election, however, if and

when it receives notice that a subscriber

wishes to use the home run wiring to

receive an alternative service. Section

76.802 of our rules regarding the

disposition of cable home wiring will

apply where a subscriber’s service is

terminated without notifying the

incumbent provider that the subscriber
46468 Federal Register / Vol. 62, No. 170 / Wednesday, September 3, 1997 / Proposed Rules

wishes to use the home run wiring to

receive an alternative service.

(4) The parties shall cooperate to

ensure as seamless a transition as

possible for the subscriber.

(5) Section 76.802 of our rules

regarding the disposition of cable home

wiring will continue to apply to the

wiring on the subscriber’s side of the

cable demarcation point.

5. Section 76.805 is proposed to be

added to read as follows:

§ 76.805 Access to molding and conduits

An multichannel video service

provider (‘‘MVPD’’) shall be permitted

to install one or more home run wires

in an existing molding or conduit

where:

(a) Sufficient space is present to

permit the installation;

(b) The installation will not interfere

with the ability of an existing MVPD to

provide service; and

(c) The owner of the multiple

dwelling unit building does not object

to such installation.

[FR Doc. 97–23303 Filed 9–2–97; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 90

[WT Docket No. 97–153, RM–8584, RM–

8623, RM–8680, RM–8734; FCC 97–239]

Amendments to Part 90 Private Land

Mobile Radio Service Rules

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: The Commission has released

a Notice of Proposed Rule Making that

proposes several amendments to the

part 90 Private Land Mobile Radio

Services rules. This action was initiated

in response to petitions for rulemaking

concerning eliminating certain

frequency coordination requirements in

the Business Radio Service, the

transmission of safety alerting signals on

Radiolocation Service frequencies, and

modifying construction and loading

requirements for private, nonSpecialized Mobile Radio systems

operating in the 800 and 900 MHz

bands. The proposed rules will reduce

the regulatory burden on licensees, and

will promote more efficient and flexible

use of the private land mobile radio

frequency spectrum. Additionally,

comments are requested on potential

interference problems resulting from

shared use of the 216–217 MHz band

under parts 90 and 95 of the rules.

DATES: Comments are due October 3,

1997. Reply comments are due October

17, 1997.

FOR FURTHER INFORMATION CONTACT:

Gene Thomson, Policy and Rules

Branch, Public Safety and Private

Wireless Division, Wireless

Telecommunicatioons Bureau, (202)

418–0680.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Notice of

Proposed Rule Making (Notice), WT

Docket No. 97–153, FCC 97–239,

adopted July 2, 1997, and released

August 25, 1997. The full text of this

Notice is available for inspection and

copying during normal business hours

in the FCC Reference Center, Room 246,

1919 M Street NW., Washington, D.C.

The complete text may be purchased

from the Commission’s copy contractor,

ITS, Inc., 1231 20th St. NW.,

Washington, DC. 20036, telephone (202)

857–3800.

Summary of Notice of Proposed Rule

Making

1. The Commission has released a

Notice of Proposed Rule Making that

proposes several amendments to part 90

of the rules concerning the Private Land

Mobile Radio (PLMR) Services.

2. In response to a Petition for Rule

Making filed by the Council of

Independent Communications

Suppliers, (RM–8623), the Notice

proposes the elimination of frequency

coordination requirements for five lowpower frequencies in the Business Radio

Service.

3. In response to a Petition for Rule

Making filed by the Radio Association

Defending Airwave Rights, (RM–8734),

the Notice proposes to permit the

transmission of safety alerting signals in

the 24.05–24.25 GHz band in the

Radiolocation Service. The Notice also

proposes to extend use of 24.05–24.25

GHz band frequencies to permit traffic

light control by emergency vehicles.

4. In response to a Petition for Rule

Making filed by the Alliance of 800/900

MHz Licensees, (RM–8584), the Notice

proposes to modify the construction

requirements for private, nonSpecialized Mobile Radio systems

operating in the 800 and 900 MHz

bands. The Notice declines to also

change the mobile loading and reporting

requirements for 800 and 900 MHz nonSMR systems.

5. As requested in a Petition for Rule

Making filed jointly by the Industrial

Telecommunications Association and

the Council of Independent

Communications Suppliers, (RM–8680),

the Notice declines to amend the part 90

and part 13 rules to establish a PLMR

Services Radio Maintainers License and

to require persons installing and

servicing land mobile radio equipment

to have such a license.

6. Additionally, the Notice requests

comments on potential interference

problems resulting from shared use of

the 216–217 MHz band under parts 90

and 95 of the rules.

List of Subjects in 47 CFR Part 90

Communications equipment, Radio.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

Rule Changes

Part 90 of Title 47 of the Code of

Federal Regulations is proposed to be

amended as follows:

PART 90—PRIVATE LAND MOBILE

RADIO SERVICES

1. The authority citation for part 90

continues to read as follows:

Authority: Secs. 4, 303, and 332, 48 Stat.

1066, 1082, as amended: 47 U.S.C. 154, 303,

and 332, unless otherwise noted.

2. Section 90.17 is proposed to be

amended by revising paragraph (e)(4) to

read as follows:

§ 90.17 Local Government Radio Service.

* * * * *

(e) * * *

(4) A licensee of a radio station in this

service may operate radio units for the

purpose of determining distance,

direction, speed, or position by means

of a radiolocation device on any

frequency available for radiolocation

purposes without additional

authorization from the Commission,

provided type accepted equipment or

equipment authorized pursuant to

§§ 90.203(b)(4) and (b)(5) is used, and

all other rule provisions are satisfied. A

licensee in this service may also

operate, subject to all of the foregoing

conditions and on a secondary basis,

radio units at fixed locations and in

emergency vehicles that transmit on the

frequency 24.10 GHz, both unmodulated

continuous wave radio signals and

modulated FM digital signals for the

purpose of alerting motorists to

hazardous driving conditions or the

presence of an emergency vehicle.

Unattended and continuous operation of

such transmitters will be permitted.

Additionally, licensees may utilize type

accepted equipment operating in the

24.20–24.25 GHz portion of the 24.05–

24.25 GHz band for traffic light control

purposes without additional

authorization and on a secondary basis.