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

a

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169. In the Report and Order above, we conclude that, for purposes of Section 224, a "rightof-way” in a building includes, at a minimum, a defined pathway that a utility either is actually using or has specifically identified and obtained the right to use in connection with its transmission and distribution network. Some commenters, however, advocate a broader interpretation of the term. In particular, several commenters suggest that where a utility has a right to install facilities anywhere in an MTE, it has a right-of-way over the entire property, which can then be accessed by any party included as a beneficiary under Section 224.368

170. We seek additional comment regarding the extent of utility rights-of-way within MTE buildings under Section 224. On the one hand, we recognize that a broad ability by competitive carriers to access areas within MTEs would arguably speed the arrival of telecommunications choices and advanced services to consumers. On the other hand, we are concerned about the ramifications of potentially granting carriers an unbounded right to place facilities anywhere within buildings. First, as a matter of statutory construction, we note that the terms “pole,” “duct,” and “conduit” refer to defined spaces occupied by a utility as part of its network. We thus seek comment on whether "right-of-way” should also be read to denote only a similar type of defined space. Parties advocating a broader definition should also address how, in the absence of a defined pathway, we would comply with the statutory directive to determine just and reasonable rates by means of an allocation of space. We further seek comment on whether, in the absence of a mechanism for compensating underlying property owners, a broad definition of rights-of-way would effect an uncompensated taking in violation of the

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See, e.g., AT&T Comments at 19-22; Teligent Comments at 34-35; WinStar Comments at 56.

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

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Fifth Amendment. We also request comment regarding the circumstances, if any, under which a utility might “own or control" a right-of-way in the absence of a defined space, as required to create a right of access under Section 224.372 Finally, commenters should address whether an expansive definition of "right-of-way” would compromise the operation of our rules governing the disposition of cable inside wire by broadly permitting cable incumbents to remain in an MDU against the wishes of the property owner.

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

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172. Section 76.804(a) of the Commission's rules, enacted in 1997, sets forth the procedures for disposition of “home run wiring” owned by an MVPD in a multiple dwelling unit (MDU) when the MVPD “does not (or will not at the conclusion of the notice period) have a legally enforceable right to remain on the premises against the wishes of the MDU owner

Several definitions are fundamental to understanding the application of the home run wiring rules. First, an MVPD includes “a person such as, but not limited to, a cable operator, a multichannel multipoint distribution service, a direct broadcast satellite service, or a television receive-only satellite program distributor, who makes available for purchase, by subscribers or customers, multiple channels of video programming ... Second, MDUs include residential buildings such as apartment buildings, condominiums and cooperatives, but do not include commercial office buildings. Third, home run wiring is “[t]he wiring from the [MVPD) demarcation point to the point at which the MVPD's wiring becomes devoted to an individual subscriber or individual loop." By contrast, cable home wiring is "[t]he internal wiring contained within the premises of a subscriber which begins at the demarcation point.

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We note our recent holding that a utility is not required to exercise its powers of eminent domain on behalf of third parties in order to expand an existing right-of-way. See Local Competition Pole Attachments Reconsideration Order, 14 FCC Red at 18063,1 38.

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Competitive Networks NPRM, 14 FCC Rcd at 12710, 68 (footnote omitted).

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See, e.g., CAI Comments at 28-29; RCN Comments at 18-21; USTA Comments at 18.

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47 C.F.R. § 76.5(l1). The cable demarcation point in MDUs, with non-loop-through wiring configurations, is at (or about) 12 inches outside of where the cable wire enters the subscriber's individual dwelling unit. 47 C.F.R. S (continued....)

MVPD.382

173. The Commission's home run wiring rules provide that when an MVPD no longer has a legal right to remain on the premises of an MDU,381 the MDU owner (or another MVPD at the MDU owner's discretion) may negotiate to purchase the home run wiring if it is not removed by the incumbent

If the parties cannot agree on a price, then the incumbent MVPD “must elect: to abandon without disabling the wiring; to remove the wiring and restore the MDU consistent with state law; or to submit the price determination to binding arbitration by an independent expert. In the Competitive Networks NPRM, we noted that “[c]ommenters in other proceedings have argued that this rule offers benefits to providers of video services that are not currently available to telecommunications providers, and that this distinction not only is arbitrary but creates uneconomic incentives for providers to incorporate video services into their offerings simply to take advantage of the more favorable rules.

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

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175. We note our agreement with CAI that extending the cable home run wiring rules to include telecommunications carriers would result in “[a]dditional ... home run wiring be[ing] made available for use by alternative providers (thereby) promoting competition. We encourage parties to comment on the technical and policy implications of extending the cable home run wiring rule as proposed above. Parties should address whether there are any technical impediments to using coaxial cable home run wiring to provide telecommunications service. Parties should also address the potential

(Continued from previous page) 76.5(mm)(2). The cable demarcation point in MDUs, with loop-through wiring configurations, is at (or about) 12 inches outside of where the cable enters or exits the first and last individual dwelling units on the loop. 47 C.F.R. § 76.5(mm)(3).

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

impact on the provision of video service to MDUs if we extend the home run wiring rules to allow MDU owners to designate telecommunications carriers to acquire the wiring.

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

of competitive, diverse, and advanced telecommunications service offerings.

consumers

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

178. Paperwork Reduction Act Analysis. This First Report and Order and Further Notice of Proposed Rulemaking, Fifth Report and Order and Memorandum Opinion and Order, and Fourth Report and Order and Memorandum Opinion and Order contains information collections, as described in Section D of the Final Regulatory Flexibility Analysis in Appendix C infra. As part of our continuing effort to reduce paperwork burdens, we invite the general public and the Office of Management and Budget (OMB) to take this opportunity to comment on the information collections contained in this First Report and Order and Further Notice of Proposed Rulemaking, Fifth Report and Order and Memorandum Opinion and Order, and Fourth Report and Order and Memorandum Opinion and Order, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Comments from the public, OMB, and other

agencies on the information collections contained in this First Report and Order and Further Notice of Proposed Rulemaking, Fifth Report and Order and Memorandum Opinion and Order, and Fourth Report and Order and Memorandum Opinion and Order are due 60 days from date of publication of the item in the Federal Register. Comments should address: (a) whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

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179. Ex Parte Rules. This First Report and Order and Further Notice of Proposed Rulemaking, Fifth Report and Order and Memorandum Opinion and Order, and Fourth Report and Order and Memorandum Opinion and Order constitute a "permit-but-disclose" proceeding in accordance with the Commission's ex parte rules. Persons making oral ex parte presentations relating to the First Report and Order and Further Notice of Proposed Rulemaking, Fifth Report and Order and Memorandum Opinion and Order, and Fourth Report and Order and Memorandum Opinion and Order are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required.

390 Other rules pertaining to oral and written presentations are set forth in Section 1.1206(b) as well. Interested parties are to file with the Secretary, FCC, and serve International Transcription Services (ITS) with copies of any written ex parte presentations or summaries of oral ex parte presentations in these proceedings in the manner specified below for filing comments.

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

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

182. Regardless of whether parties choose to file electronically or by paper, parties should also file one copy of any documents filed in this docket with the Commission's copy contractor, International Transcription Services, Inc., 445 Twelfth Street, S.W., Room CY-B402, Washington, D.C.

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