8996 Federal Register / Vol. 60, No. 32 / Thursday, February 16, 1995 / Proposed Rules

presentations, as defined in the rules,

and would therefore not be subject to

permit-but-disclose requirements. Once

another party appeared, both the

applicant or filer and the other party

would have to comply with the permitbut-disclose rules, because their

presentations would be ‘‘ex parte.’’

8. In rulemaking proceedings, the

public would, in effect, be treated as

parties. Thus, the rules would expressly

provide that permit-but-disclose

requirements would be triggered by the

filing of a petition for rulemaking, or the

issuance of a notice of proposed

rulemaking (or a rulemaking order done

without notice and comment) and

would apply to all persons.

9. The Commission also solicits

comments as to whether the sunshine

period prohibition should be modified.

Under the current rules, once a

proceeding has been placed on a

sunshine notice, no presentations,

whether ex parte or not, are permitted

until the Commission has released the

full text of the order in the proceeding

noticed in the sunshine notice, deleted

the item from the sunshine agenda, or

returned the item for further staff

consideration. The prohibition is

intended to give the Commission ‘‘a

period of repose’’ in which to make

decisions.

10. The Commission asks for

comments on whether there should be

a ‘‘sunshine period’’ once items are

adopted on circulation. The

Commission also proposes to exempt

from the prohibition the discussion of

recent Commission actions at public

meetings or symposia.

11. Additionally, the Commission

proposes certain specific provisions of

the ex parte rules. First, the Commission

proposes to give additional authority to

the Office of General Counsel to

evaluate alleged ex parte violations.

Second, the Commission proposes that

notices of oral ex parte presentations

should be more informative by requiring

that a full summary of the contents of

the presentation be filed with respect to

all oral presentations, whether or not

the arguments or data presented are

‘‘new.’’ Third, the Commission proposes

to require that persons with reason to

believe that a situation raises an ex parte

question must alert the Office of General

Counsel of this circumstance.

Initial Regulatory Flexibility Analysis

Reason for Action

The Commission has determined that

the rules governing ex parte

communications in Commission

proceedings should be made simpler,

clearer, and less restrictive. The

Commission finds it appropriate to

reexamine the public interest basis for

the limitations on ex parte

communications.

Objective

The Commission seeks to simplify

and clarify the rules governing ex parte

communications in Commission

proceedings and to make the rules more

consistent with the needs of

administrative practice.

Legal Basis

Action is being taken pursuant to 47

U.S.C. §§ 154(i) and (j),303(r), 403.

Reporting, Record Keeping and Other

Compliance Requirements

This proposal would modify the

requirement to report ex parte

presentations in order to increase the

usefulness and value of the reports and

to eliminate unnecessary restrictions on

ex parte presentations.

Federal Rules which Overlap, Duplicate

or Conflict with the Proposed Rules

None.

Description, Potential Impact, and

Number of Small Entities Affected

Small entities participating in

Commission proceedings would be

subject to limitations on ex parte

presentations.

Any Significant Alternative Minimizing

Impact on Small Entities and Consistent

with the Stated Objections

None.

List of Subjects for 47 CFR Part 1

Administrative practice and

procedure, Radio, Telecommunications,

Television.

Federal Communications Commission.

William F. Caton,

Secretary.

[FR Doc. 95–3935 Filed 2–15–95; 8:45 am]

BILLING CODE 6712–01–F

47 CFR Part 63

[CC Docket No. 87–266; FCC 95–20]

Telephone Company-Cable Television

Cross-Ownership Rules

AGENCY: Federal Communications

Commission.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Commission adopted a

Fourth Further Notice of Proposed

Rulemaking in Common Carrier Docket

87–266, with the intent of soliciting

information and comment on the extent

to which Title II of the Communications

Act, Title VI, or both, apply to a

telephone company’s provision of video

programming directly to subscribers

within its telephone service area. The

Commission also requested comment on

what changes, if any, need to be made

to the video dialtone regulatory

framework if a telephone company

decides to become a video programmer

on its own video dialtone platform in its

telephone service area, and in

particular, whether telephone company

provision of video programming raises

new concerns about anticompetitive

behavior or cross-subsidy that the

Commission’s existing regulatory

framework may not sufficiently address.

DATES: Comments must be submitted on

or before March 6, 1995. Reply

comments are due on March 27, 1995.

ADDRESSES: Comments and Reply

Comments may be mailed to the Office

of the Secretary, Federal

Communications Commission, 1919 M

Street NW., Washington, DC 20554. A

copy of each filing should also be filed

with Peggy Reitzel of the Common

Carrier Bureau, and James Yancey of the

Cable Services Bureau.

FOR FURTHER INFORMATION CONTACT:

Jane Jackson (202) 418–1593, Common

Carrier Bureau, Policy and Program

Planning Division, and Larry Walke

(202) 416–0847, Cable Services Bureau.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Fourth Further Notice of

Proposed Rulemaking in Common

Carrier Docket 87–266: Telephone

Company-Cable Television CrossOwnership Rules, Sections 63.54–63.58,

adopted January 12, 1995, and released

January 20. 1995. The complete text of

this Fourth Further Notice of Proposed

Rulemaking is available for inspection

and copying, Monday through Friday,

9:00 a.m.–4:30 p.m., in the FCC

Reference Room (Room 239), 1919 M

Street, NW., Washington, DC 20554. The

complete text of the Fourth Further

Notice of Proposed Rulemaking may

also be purchased from the

Commission’s copy contractor,

International Transcription Services,

2100 M Street, NW., Suite 140,

Washington, DC 20037, (202) 857–3800.

Synopsis of Fourth Further Notice of

Proposed Rulemaking

A. Governing Statutory Provisions.

1. Local exchange carrier (LEC)

provision of video programming raises

questions about whether Title II of the

Communications Act, Title VI of the

Communications Act, or both, would

govern particular LEC video offerings,

and how these provisions might apply

to a LEC’s provision of video
Federal Register / Vol. 60, No. 32 / Thursday, February 16, 1995 / Proposed Rules 8997

programming directly to subscribers

within its telephone service area and

over facilities used to provide both

voice and video services. We now seek

comment on these issues and on the

analysis we offer below.

1. Application of Title II to LEC Video

Programming Offerings

2. We first tentatively conclude that

telephone companies should be

permitted to provide video

programming over Title II video

dialtone platforms. We recently

reaffirmed our conclusion that the

construction of video dialtone systems

would serve the public interest goals of

facilitating competition in the provision

of video programming services,

encouraging efficient investment in our

national information infrastructure, and

fostering the availability to the

American public of new and diverse

sources of video programming. Two

U.S. Courts of Appeals have now held

unconstitutional the specific statutory

basis for prohibiting a telephone

company from providing, directly or

indirectly, programming over its own

video dialtone platform. In light of the

public interest benefits of a video

dialtone platform, which provides

multiple video programmers with

common carrier-based access to end

users, we tentatively conclude, in the

absence of Section 533(b), that we

should not ban telephone companies

from providing their own video

programming over their video dialtone

platforms. We note that we allow

telephone companies to use their

networks to provide their own enhanced

services today, subject to safeguards.

Thus, in the absence of a demonstration

of a significant governmental interest to

the contrary, we propose to allow

telephone companies to provide video

programming over their own video

dialtone platforms, subject to

appropriate safeguards. We seek

comment on this proposal, and on

whether any such significant

governmental interest to support a ban

exists and, if it does, whether a ban

would be a narrowly tailored restriction

on the telephone companies’ First

Amendment rights.

3. A second Title II issue is whether

we can, and should, require telephone

companies to provide video

programming only over video dialtone

platforms. Even before the recent court

decisions invalidating the telco-cable

cross-ownership ban, there were three

circumstances in which LECs could

provide video programming directly to

subscribers. In these circumstances,

however, LECs have not been

authorized to use their local exchange

facilities to provide cable service, but,

rather, to construct or purchase interests

in separate cable facilities. Indeed, as

noted by the court in NCTA v. FCC

(1994), it was not until after the 1984

Cable Act that technological advances

have made it practical to deliver video

signals over the same common carrier

networks that are used to provide

telephone service. Previously, as the

court noted, ‘‘[a] telephone company

that wanted to provide cable service

would have had to construct a coaxial

cable distribution system parallel to its

telephone system.’’

4. We seek comment on whether we

have authority under Section 214 to

require LECs that seek to provide video

programming directly to subscribers in

their telephone service areas to do so on

a video dialtone common carrier

platform and not on a non-common

carrier cable television facility. We seek

comment on what circumstance would

warrant such a requirement, and

specifically on whether we should

require use of a video dialtone platform

whenever a LEC provides video services

over facilities that are also used in the

provision of telephone services. We seek

comment on our authority generally to

require LECs seeking Section 214

authority to acquire or construct video

facilities to comply with our video

dialtone framework.

2. Application of Title VI to LEC

Provision of Video Programming

5. We now seek comment on the

circumstances, if any, in which a LEC

that, by court decision, is not subject to

the 1984 Cable Act telco-cable crossownership ban may offer a cable service

subject to Title VI in lieu of a Title II

video dialtone offering. We also seek

comment on the extent to which Title VI

should apply to video programming

provided by LECs on a Title II video

dialtone system. We have previously

held that LEC provision of a common

carrier video dialtone platform is not

subject to Title VI of the Act. In

particular, we found that such LECs are

not offering ‘‘cable service,’’ and are not

operating a ‘‘cable system’’ within the

meaning of Title VI. We reasoned that

LECs did not actively participate in the

selection and distribution of video

programming because they were

precluded from providing video

programming directly to subscribers in

their telephone service areas. We also

concluded that video dialtone facilities

are not cable systems because they are

common carrier facilities subject to title

II of the Act which, under Commission

rules, could not be used for LEC

provision of video programming directly

to subscribers in the LEC’s telephone

service area. We now seek comment on

whether, if a LEC, or its affiliate, does

provide video programming over its

video dialtone system and actively

engages in the selection and distribution

of such programming, that LEC, or its

affiliate, is subject to Title VI. We seek

comment on the Commission’s legal

authority to determine whether some,

but not all, provisions of Title VI

relating to cable operators would apply

to a LEC that provides video

programming over its video dialtone

platform. We also seek comment on

whether the application of some or all

provisions of Title VI would result in a

regulatory framework that is duplicative

of, or inconsistent with, federal or state

regulation of communications common

carriage. For example, the goals of the

leased access provision of Title VI could

be met through obligations Title II

imposes on a LEC as the provider of the

video dialtone platform whether or not

the LEC as a video service provider

provides its own leased access channels.

We seek comment on the potential

impact of our determinations in this

proceeding on existing grants by state

and local authorities of public rights-ofway. We also invite parties to discuss

both the legal and practical implications

of requiring, or not requiring, telephone

companies providing video

programming over their own video

dialtone systems to comply with each of

the various provisions of Title VI. In the

event that Title VI cable rate regulation

rules apply, we seek comment on how

such rules would apply to a LEC

providing video programming directly

to subscribers over its own video

dialtone platform.

6. In addition, we seek comment on

whether, if Title VI does not apply to

telephone companies’ provision of

video programming on video dialtone

facilities, the Commission should adopt,

under Title II, provisions that are

analogous to certain aspects of Title VI.

For example, we seek comment on

whether we should adopt rules

governing program access by competing

distributors, carriage agreements

between video service providers and

unaffiliated programmers, and vertical

ownership restrictions.

7. Finally, we note that the court’s

opinion in NCTA v. FCC (1994) is

consistent with the Commission’s

reasoning in the First Report and Order,

56 FR 65464–01 (December 17, 1991),

that a LEC providing video dialtone

service does not require a local

franchise because the LEC does not

provide the video programming. We

seek comment on whether this view

would require a LEC offering video

dialtone service to secure a local
8998 Federal Register / Vol. 60, No. 32 / Thursday, February 16, 1995 / Proposed Rules

franchise if that LEC also engages in the

provision of video programming carried

on its platform.

B. Regulatory Safeguards Governing a

Local Exchange Carrier’s Provision of

Video Programming on its Video

Dialtone Platform

1. Introduction and Scope

8. In this section we consider what

changes, if any, need to be made to our

video dialtone regulatory framework if a

telephone company, pursuant to an

applicable court decision, decides to

become a video programmer on its own

video dialtone platform in its telephone

service area. In addressing the issues

identified below, parties should address

whether we should apply different

safeguards for technical and market

trials than for commercial offerings of

video dialtone.

2. Ownership Affiliation Standards

9. Under our current rules, LECs are

prohibited from providing video

programming directly to subscribers,

and from having a cognizable (i.e., 5

percent or more) financial interest in, or

exercising direct or indirect control

over, any entity that is deemed to

provide video programming in its

telephone service area. We propose to

retain these ownership affiliation

standards to identify those video

dialtone programmers that we will

consider to be affiliated with LECs

providing the underlying common

carriage. Under this proposal, if the

Commission determines that LEC

ownership of video programming

requires additional safeguards, those

safeguards would apply if the LEC

owned five percent or more of a video

programmer. We seek comment on this

proposal.

3. Safeguards Against Anticompetitive

Conduct

a. Sufficient Capacity To Serve Multiple

Service Providers

10. Under the video dialtone

regulatory framework, a LEC is required

to provide sufficient capacity to serve

multiple service providers on a

nondiscriminatory basis. In the Video

Dialtone Reconsideration Order, 59 FR

63909–01 (December 12, 1994), we

rejected use of an ‘‘anchor

programmer,’’ that is, allocation of all or

substantially all of the analog capacity

of the video dialtone platform to a single

programmer. We seek comment on

whether there are other across-the-board

rules that we should adopt to ensure

that video dialtone retains its essential

Title II character when a LEC becomes

a video programmer on its platform.

11. We seek comment, for instance, on

whether we should limit the percentage

of its own video dialtone platform

capacity that a LEC, or its affiliate, may

use. Such a limit could help ensure

other programmers access, but may

create a risk that some capacity might go

unused. We seek comment on what an

appropriate limit would be; whether any

percentage limit should vary with the

platform’s capacity; and whether

different rules should apply to analog

and digital channels. Video dialtone

capacity constraints appear likely to be

most severe in the short-term, with

respect to analog channels, and may be

of less concern on future all-digital

systems. Commenters should address

whether LEC use of video dialtone

capacity raises short-term or long-term

concerns, and how the probable

duration of the problem should affect

our regulatory approach. Alternatively,

we seek comment on whether LECs that

deny capacity to independent

programmers should be subject to

procedural requirements more detailed

than those imposed inthe Video

Dialtone Reconsideration Order.

12. In the Third Further Notice of

Proposed Rulemaking, 59 FR 63971–01

(December 12, 1994), the Commission

sought comment and information

regarding channel sharing mechanisms

that LECs have proposed as means of

making analog capacity available to

more customer-programmers than might

otherwise be accommodated. Parties

addressing limits on LEC use of the

video dialtone platforms should

comment in this proceeding on the

relationship between such channel

sharing mechanisms and any proposal

to limit LEC use of analog channels. The

Third Further Notice of Proposed

Rulemaking also sought comment on

two other signal carriage issues: (1)

Whether the Commission should

mandate preferential video dialtone

access or rates for commercial

broadcasters, public, educational and

governmental (‘‘PEG’’) channnels, or

other not-for-profit programmers; and

(2) whether the Commission should

permit LECs to offer preferential

treatment to certain programmers on a

voluntary (‘‘will carry’’) basis. Parties

should comment in this proceeding on

the relationships among mandatory

preferential treatment, ‘‘will carry,’’ and

any proposed limits on a LEC’s use of

its video dialtone capacity to provide

programming directly to subscribers.

13. Another example of potentially

anticompetitive conduct that has been

cited in the context of cable television

service under Title VI involves channel

positioning. Programmers assert that

cable operators can and do deliberately

assign unaffiliated program services to

undesirable channel locations. Under

Title II, such discriminatory conduct is

prohibited. We seek comment on

whether LECs that are also video

program providers have an increased

incentive to use their control over the

video dialtone platform to engage in

such activities and what, if any, specific

safeguards we should implement to

prevent such conduct. In particular, we

seek comment on whether the channel

positioning rules that apply to cable

operators in the context of the ‘‘mustcarry’’ requirement of Title VI should

also apply to video dialtone platform

operators providing programming

directly to subscribers in their local

exchange service areas.

b. Non-Ownership Relationships and

Activities Between Telephone

Companies and Video Programmers

14. In the Video Dialtone

Reconsideration Order, the Commission

affirmed, with certain modifications, its

decision to permit LECs to enter into

non-ownership relationships with video

programmers that exceed a carrier-user

relationship. We propose at a minimum,

to retain these restrictions as safeguards

against LEC anticompetitive conduct

and to promote further LEC deployment

of broadband services. We believe that

the restrictions on non-ownership

affiliations between LECs and cable

operators are important to the

Commission’s goal of promoting

competition in the video services

marketplace, and are not overbroad

infrigements on LEC First Amendment

rights. Parties should comment on the

proposal to retain these safeguards and

should describe any specific additional

measures they believe necessary to

safeguard against anticompetitive

conduct by LECs that offer programming

on their own video dialtone system.

c. Acquisition of Cable Facilities

15. In the Video Dialtone

Reconsideration Order, the Commission

substantially affirmed its decision to

prohibit telephone companies from

acquiring cable facilities in their

telephone service areas for the provision

of video dialtone. We continue to

believe that this ban will benefit the

public interest by promoting greater

competition in the delivery of video

services, increasing the diversity of

video programming available to

consumers, and advancing the

deployment of the national

communications infrastructure. We

tentatively conclude that the ban on

LEC acquisition of cable facilities for the

provision of video dialtone does not

impermissibly restrict LEC speech
Federal Register / Vol. 60, No. 32 / Thursday, February 16, 1995 / Proposed Rules 8999

under C&P Tel. Co. v. U.S. and U S West

v. U.S., and seek comment on this

conclusion.

16. In the Third Further Notice of

Proposed Rulemaking, the Commission

recognized that some markets may be

incapable of supporting two video

delivery systems. The Commission was

concerned that, in such markets, the

prohibition could preclude

establishment of video dialtone service,

thereby denying consumers the benefits

of competition and diversity of

programming sources that our video

dialtone regulatory framework is

designed to promote. As a result, the

Commission requested parties to suggest

criteria that would permit us to identify

those markets in which two wire-based

multi-channel video delivery systems

would not be viable. We seek comment

on how, if at all, the decisions in C&P

Tel. Co. v. U.S. and U S West v. U.S.

should affect our consideration of

criteria for allowing exceptions to our

two-wire policy. We also seek comment

on whether we should ban telephone

company acquisition of cable facilities,

with or without exceptions, if (a) Title

VI applies to telephone companies

providing programming on their own

video dialtone platforms; or (b)

telephone companies are permitted to

become traditional cable operators in

their own service areas instead of

constructing video dialtone platforms.

d. Joint Marketing and Customer

Proprietary Network Information

17. In the Video Dialtone

Reconsideration Order, the Commission

also affirmed its decision to permit LECs

to engage in joint marketing of basic and

enhanced video services, and of basic

video and non-video services. We found

that significant public interest benefits

can accrue from the efficiencies and

innovations that may be obtained by

permitting LECs to engage in joint

marketing of basic and enhanced video

services, and of basic video and nonvideo services. We also found that the

record on reconsideration did not

support a finding that joint marketing of

common carrier video and telephony

services would have an anticompetitive

impact on the provision of video

programming to end users. We now seek

comment on whether LEC provision of

video programming directly to end users

requires that we revisit our analysis of

joint marketing issues.

18. In the Bell Atlantic Market Trial

Order, released on January 20, 1995, the

Commission authorized Bell Atlantic to

conduct a six-month video dialtone

market trial that will include provision

of video programming directly to

subscribers by a Bell Atlantic affiliate as

well as by independent video

programmers.

Pending resolution of the instant

rulemaking proceeding, we conditioned

Bell Atlantic’s authorization on its

compliance with existing safeguards for

the provision of nonregulated services,

including enhanced services, and with

several additional, interim safeguards

against discrimination. We seek

comment on whether any or all of these

interim safeguards should be adopted as

permanent requirements for LECs that

provide video programming over their

own video dialtone platforms.

19. Under the Commission’s customer

proprietary network information (CPNI)

requirements, the Commission limits

the Bell Operating Companies’ (BOCs’)

and GTE Service Corporation’s (GTE’s)

use of CPNI; requires them to make

CPNI available to competitive enhanced

service providers (ESPs) designated by a

customer; and requires that they make

available to ESPs non-proprietary

aggregated CPNI on the same terms and

conditions on which they make such

CPNI available to their own enhanced

service personnel. In the Video Dialtone

Reconsideration Order, the Commission

determined that there was insufficient

evidence to conclude that our existing

CPNI rules do not properly balance our

CPNI goals relating to privacy,

efficiency, and competitive equity in the

context of video dialtone. The

Commission also required the BOCs and

GTE to provide additional information

regarding the kinds of CPNI to which

they will have access as a result of

providing video dialtone service and

indicated its intent to seek further

comment on such information. We now

seek additional comment and

information on whether LEC provision

of video programming impacts the

balancing of our goals for CPNI.

20. In addition to concerns over

possible anticompetitive use of CPNI,

parties should discuss whether LEC

provision of video programming raises

new concerns regarding consumer

privacy. Parties that perceive a greater

threat to consumer privacy should

describe with specificity their concerns,

and suggest specific safeguards for

protecting consumer privacy, and

explain how these suggestions benefit

the public interest.

21. We also seek comments on

safeguards to ensure nondiscriminatory

access to network technical information.

In the Bell Atlantic Market Trial Order,

the Commission required Bell Atlantic

to provide all video programmers with

nondiscriminatory access to technical

information concerning the basic video

dialtone platform and related

equipment. The Commission also noted

that, in the circumstances of the market

trial, Bell Atlantic would also be subject

to the more specific Computer III

network disclosure rules. We seek

comment on whether the Bell Atlantic

condition should be adopted as a

permanent safeguard. We also seek

parties to address whether the Computer

III network disclosure rules should be

modified in any way for application in

the video dialtone context.

4. Safeguards Against CrossSubsidization of Video Programming

Activities

22. In the Video Dialtone

Reconsideration Order, the Commission

determined that price cap regulation

and accounting safeguards would be

effective to prevent cross-subsidization

of video dialtone-related nonregulated

activities. We tentatively conclude that

these safeguards against crosssubsidization apply to LEC provision of

video programming just as they would

to any other activity not regulated as

Title II common carrier service, and that

the existing rules are adequate to

forestall cross-subsidy of the video

programming activity. We seek

comment on these tentative

conclusions.

23. Assuming we do not require

structural separation, LECs will have the

flexibility to conduct video

programming activities both within the

telephone operating company and

through affiliates. For those video

programming activities conducted in the

operating company, the LEC will be

required to record costs and revenues in

accordance with Part 32 of the

Commission’s Rules, the Uniform

System of Accounts (USOA), and to

separate the costs of video programming

activity from the costs of regulated

telephone service in accordance with

the part 64 joint cost rules. We

tentatively conclude that these rules are

adequate to prevent cross-subsidization

of video programming activities. We

also tentatively conclude that we will

apply to video programming activities

the rule adopted in the Video Dialtone

Reconsideration Order requiring LECs to

amend their cost allocation manuals to

reflect video dialtone-related

nonregulated activities within 30 days

of receiving video dialtone facilities

authorization. We seek comment on

these tentative conclusions.

24. H a LEC chooses for business

reasons to provide video programming

through an affiliate, the accounting

treatment of operating company

transactions with that affiliate will be

governed by the affiliate transactions

rules. We seek comment on whether

amendments to those rules are needed
9000 Federal Register / Vol. 60, No. 32 / Thursday, February 16, 1995 / Proposed Rules

to safeguard against abuses in

transactions between LECs and affiliated

video program providers. Specifically,

we seek comment on whether we

should amend Section 32.27 to clarify

that any video program provider that is

considered, because of a LEC’s five

percent ownership interest, to be a LEC

affiliate for purposes of applying video

dialtone safeguards will also be

considered an ‘‘affiliate’’ for purposes of

the affiliate transactions rule.

5. Structural Separation

25. In the Computer III proceeding,

the Commission replaced its

requirement that BOCs offer enhanced

services through separate subsidiaries

with a set of nonstructural safeguards.

Those nonstructural safeguards were

intended to protect against

discrimination and cross-subsidization

while avoiding the inefficiencies

associated with structural separation.

We seek comment on whether our

approach to these questions should

differ when BOCs provide video

programming. Specifically, we seek

comment as to whether there are aspects

of the video programming business that

warrant our treating BOC provision of

video programming differently from the

way we treat BOC provision of customer

premises equipment (CPE) and

enhanced services generally. We also

seek comment on whether any

structural separation requirement

should apply to LECs other than the

BOCs. Commenting parties should

specifically identify what aspects

warrant different treatment, and what

form of separation would be

appropriate. Parties should also offer

information concerning the relative

costs and benefits of structural

separation.

6. Pole Attachments

26. Section 63.57 of our rules requires

LECs seeking to provide channel service

to show in their Section 214

applications that the cable system for

which they would be providing channel

service had pole attachment rights or

conduit space available ‘‘at reasonable

charges and without undue restrictions

on the uses that may be made of the

channel by the operator.’’ In the Third

Further Notice of Proposed Rulemaking,

the Commission sought comment on

whether a similar rule should apply to

LECs providing video dialtone service.

We now seek additional comment on

that proposal in light of C&P Tel. Co. v.

U.S. and U S West v. U.S. Parties should

address whether incentives to abuse

control over pole and conduit space are

increased if a LEC decides to offer video

programming within its telephone

service area. In addition, as requested in

the Third Further Notice of Proposed

Rulemaking, advocates of such a rule

should propose specific language, and

should explain how the rule would

prevent anticompetitive conduct.

7. Legal and Constitutional Issues

a. Waiver of the Cross-Ownership Ban

27. Section 533(b)(4) of the

Communications Act provides that,

upon a ‘‘showing of good cause,’’ the

Commission may waive the 1984 Cable

Act’s cross-ownership ban. Under

Section 533(b)(4), a waiver ‘‘shall be

granted by the Commission upon a

finding that the issuance of such waiver

is justified by the particular

circumstances demonstrated by the

petitioner, taking into account the

policy of this subsection.’’ In GTE

California v. FCC, the United States

Court of Appeals for the Ninth Circuit

raises the question whether the

Commission may establish conditions

under which it will waive the telcocable cross-ownership ban in order to

obviate potential constitutional

difficulties. We tentatively conclude

that such a reading of Section 533(b)(4)

is consistent with the terms of the

statute. ‘‘Good cause’’ is commonly

interpreted to include changed

circumstances, and the circumstances

that led us to institute the crossownership rule in 1970 have changed

dramatically. The cable industry is no

longer a fledgling industry. Instead, as

the Supreme Court recently recognized,

‘‘Congress found that over 60 percent of

the households with television sets

subscribe to cable * * * and for those

households cable has replaced over-theair broadcast television as the primary

provider of video programming.’’

28. We also tentatively conclude that

the safeguards we will establish will

constitute ‘‘particular circumstances

* * *, taking into account the policy’’

of Section 533(b), under which waivers

are warranted. We do not intend to

waive the telco-cable cross-ownership

rule altogether, so that telephone

companies may purchase cable

companies that do not face competition

and offer their own programming via a

monopoly cable system. Rather, and in

fulfillment of the policy underlying

Section 533(b), we intend to promote

competition in the multi-channel video

programming market by establishing

particular conditions under which

telephone companies may establish

video dialtone systems that will

compete with existing cable operators,

thus providing consumers with a choice

of multi-channel video systems.

29. The United States Court of

Appeals for the District of Columbia

Circuit recognized, in NCTA v. FCC

(1990), that ‘‘the policy of this

subsection is to promote competition.’’

However, in that decision the D.C.

Circuit also appeared to give a narrow

reading to the scope of the waiver

provision. Specifically, the court of

appeals remanded a decision in which

the Commission had granted a waiver

because the court concluded that the

Commission had not shown that the

participation of an affiliate of a

telephone company in constructing

transmission facilities was ‘‘essential to

the success’’ of an experimental video

programming project. But at that time

no court had declared Section 533(b)

unconstitutional, and the D.C. Circuit

did not consider whether a broader

reading of Section 533(b)(4) was

appropriate to render the provision

constitutional. The Supreme Court has

recently reiterated that ‘‘a statute is to be

construed where fairly possible so as to

avoid substantial constitutional

questions.’’ A reading of the waiver

provision that authorizes telephone

companies that comply with the

safeguards we will establish to provide

video programming should render

Section 533(b) constitutional, because in

those circumstances any burden on

speech by telephone companies will be

minimal. Hence, under U.S. v. XCitement Video, a broad interpretation

of Section 533(b)(4) seems warranted.

We seek comment on these tentative

conclusions.

b. Constitutionality of Proposed

Safeguards

30. As the Court of Appeals for the

Fourth Circuit stated in C&P Tel. Co. v.

U.S., in order for a content-neutral

government regulation of speech, such

as the cross-ownership ban, to be

constitutional, that regulation must be

‘‘narrowly tailored to serve a significant

governmental interest, and * * * leave

open ample alternative channels for

communication of the information.’’

With respect to all proposals set forth

above for safeguards on LEC provision

of video programming, we seek

comment on whether such safeguards,

whether individually, or in any

combination, would be consistent with

the First Amendment, the Fourth

Circuit’s decision in C&P Tel. Co. v.

U.S., and the Ninth Circuit’s decision in

U.S. West v. U.S.

Ex Parte Presentations

31. This Fourth Further Notice of

Proposed Rulemaking is a non-restricted

notice-and-comment rulemaking

proceeding. Ex parte presentations are
Federal Register / Vol. 60, No. 32 / Thursday, February 16, 1995 / Proposed Rules 9001

permitted, except during the Sunshine

Agenda period, provided that they are

disclosed as provided in the

Commission’s rules. See generally 47

CFR 1.1202, 1.1203, 1.1206.

Comment Filing Dates

32. Pursuant to applicable procedures

set forth in Sections 1.415 and 1.419 of

the Commission’s rules, 47 C.F.R. 1.415,

1.419, interested parties may file

comments on or before March 6, 1995,

and reply comments on or before March

27, 1995. To file formally in this

proceeding, you must file an original

and four copies of all comments, reply

comments, and supporting comments. If

you want each Commissioner to receive

a personal copy of your comments, you

must file an original and nine copies.

Comments and reply comments should

be sent to Office of the Secretary,

Federal Communications Commission,

Washington, DC 20554, with a copy to

Peggy Reitzel of the Common Carrier

Bureau, Room 544, and James Yancey of

the Cable Services Bureau, Room 408C.

Parties should also file one copy of any

documents filed in this docket with the

Commission’s copy contractor,

International Transcription Services,

Inc., 2100 M Street, NW., Suite 140,

Washington, DC 20037. Comments and

reply comments will be available for

public inspection during regular

business hours in the FCC Reference

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

Washington, DC.

Initial Regulatory Flexibility Analysis

Statement

33. Pursuant to the Regulatory

Flexibility Act of 1980, 5 U.S.C. 601–

612, the Fourth Further Notice of

Proposed Rulemaking, seeking comment

and information regarding whether

additional or modified safeguards and

rule changes may be necessary or

appropriate in the context of the

Commission’s video dialtone regulatory

framework, when a telephone company

provides video programming directly to

subscribers in its telephone service area

may directly impact entities that are

small business entities, as defined in

Section 601(3) of the Regulatory

Flexibility Act.

34. The Secretary shall send a copy of

this Fourth Further Notice of Proposed

Rulemaking, including the Initial

Regulatory Flexibility Analysis, to the

Chief Counsel for Advocacy of the Small

Business Administration in accordance

with Section 603(a) of the Regulatory

Flexibility Act, Pub. L. 96–354, 94 Stat.

1164, 5 U.S.C. 601, et seq.

Ordering Clauses

35. It is ordered that, pursuant to

Sections 1, 4, 201–205, 215, and 218 of

the Communications Act of 1934, as

amended, 47 U.S.C. 151, 154, 201–205,

215, and 218, a Fourth Further Notice of

Proposed Rulemaking is hereby

adopted.

36. It is further ordered that, the

Secretary shall send a copy of the

Fourth Further Notice of Proposed

Rulemaking, including the regulatory

flexibility certification, to the Chief

Counsel for Advocacy of the Small

Business Administration, in accordance

with paragraph 603(a) of the Regulatory

Flexibility Act, 5 U.S.C. 601 et seq.

(1981).

List of Subjects in 47 CFR Part 63

Cable television, Communications

common carriers, Reporting and

recordkeeping requirements, Telephone,

Video dialtone.

Federal Communications Commission

William F. Caton,

Secretary.

[FR Doc. 95–3831 Filed 2–15–95; 8:45 am]

BILLING CODE 6712–01–M

47 CFR Part 73

[MM Docket No. 95-16]

Radio Broadcasting Services; Leone,

American Samoa

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: The Commission, on its own

motion, proposes the deletion of vacant

and unapplied-for Channel 266C1 from

Leone, American Samoa. The

independent nation of Western Samoa

has recently assigned an FM station to

operate on Channel 266A which

conflicts with the American Samoa

allotment. Should an interest in

applying for a Class C1 channel at Leone

be expressed, the staff has determined

that Channel 230C1 can be allotted to

Leone in compliance with the

Commission’s minimum distance

separation requirements without the

imposition of a site restriction, at

coordinates –14–20–38 South Latitude

and 170–47–06 West Longitude.

DATES: Comments must be filed on or

before April 3, 1995, and reply

comments on or before April 18, 1995.

ADDRESSES: Federal Communications

Commission, Washington, D.C. 20554.

FOR FURTHER INFORMATION CONTACT:

Leslie K. Shapiro, Mass Media Bureau,

(202) 418–2180.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Notice of

Proposed Rule Making, MM Docket No.

95-16, adopted January 25, 1995, and

released February 10, 1995. The full text

of this Commission decision is available

for inspection and copying during

normal business hours in the FCC

Reference Center (Room 239), 1919 M

Street, NW, Washington, D.C. The

complete text of this decision may also

be purchased from the Commission’s

copy contractor, International

Transcription Services, Inc., (202) 857–

3800, 2100 M Street, NW, Suite 140,

Washington, D.C. 20037.

Provisions of the Regulatory

Flexibility Act of 1980 do not apply to

this proceeding.

Members of the public should note

that from the time a Notice of Proposed

Rule Making is issued until the matter

is no longer subject to Commission

consideration or court review, all ex

parte contacts are prohibited in

Commission proceedings, such as this

one, which involve channel allotments.

See 47 CFR 1.1204(b) for rules

governing permissible ex parte contacts.

For information regarding proper

filing procedures for comments, see 47

CFR 1.415 and 1.420.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Federal Communications Commission.

John A Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 95–3936 Filed 2–15–95; 8:45 am]

BILLING CODE 6712–01–F

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 225

[FRA Docket No. RAR–4, Notice No. 10]

RIN 2130–AA58

Railroad Accident Reporting

AGENCY: Federal Railroad

Administration (FRA).

ACTION: Notice of postponement of

decision whether or not to issue a

supplemental notice of proposed

rulemaking and confirmation of March

10, 1995, deadline for comments.

SUMMARY: In accordance with a notice

published on December 27, 1994 (59 FR

66501), FRA held an informal public

regulatory conference on January 30–

February 2, 1995, in Washington, D.C. to

further discuss issues related to its

notice of proposed rulemaking (NPRM)