(3) In any multiunit premises where the demarcation point is not already at the MPOE, the telephone company must comply with a request from the premises owner to relocate the demarcation point to the MPOE. The telephone company must negotiate terms in good faith and complete the negotiations within forty-five days from said request. Premises owners may file complaints with the Commission for resolution of allegations of bad faith bargaining by telephone companies. See 47 U.S.C. Section 208; 47 C.F.R. Sections 1.720-1.736 (1999).

(4) The telephone company shall make available information on the location of the demarcation point within ten business days of a request from the premises owner. If the telephone company does not provide the information within that time, the premises owner may presume the demarcation point to be at the MPOE. Notwithstanding the provisions of 47 U.S.C. $ 68.110(c), telephone companies must make this information freely available to the requesting premises owner.

(5) In multiunit premises with more than one customer, the premises owner may adopt a policy restricting a customer's access to wiring on the premises to only that wiring located in the customer's individual unit that serves only that particular customer.

Appendix C

Final Regulatory Flexibility Analysis

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

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In this Competitive Networks First Report and Order, the Commission furthers its ongoing efforts under the Telecommunications Act of 199639 to foster competition in local communications markets by implementing measures to ensure that competing telecommunications providers are able to provide services to customers in multiple tenant environments (MTEs). MTEs include apartment buildings, office buildings, office parks, shopping centers, and manufactured housing communities. Based on the extensive record compiled in response to the Competitive Networks NPRM, the Commission adopts several measures to remove obstacles to competitive access in this important portion of the telecommunications market. Specifically the Commission: (1) prohibits carriers from entering into contracts in commercial buildings that prevent access by competing carriers; (2) clarifies its demarcation

governing control of in-building wiring and facilitates exercise of building owner options regarding that wiring; (3) concludes that the access mandated by Section 224 of the Communications Act (the “Pole Attachments Act”) 398 includes access to poles, ducts, conduits or rights-of-way that are owned

point rules 397

391

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

392

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

393

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

395

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

396

Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, codified at 47 U.S.C. $$ 151 et seq. (1996 Act). The 1996 Act amended the Communications Act of 1934 (the "Communications Act” or the “Act”).

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or controlled by a utility within MTEs; and (4) concludes that tenants in MTEs should have the ability to place antennas one meter or less in diameter used to receive or transmit any fixed wireless service in areas within their exclusive use or control, and prohibits most restrictions on their ability to do so by extending the Commission's rules governing Over-the-Air Reception Devices (OTARDs).

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B.

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

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

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CAI states that community associations (i.e., condominiums, cooperatives and planned communities) would incur undue expense and

undue expense and disruptions if the Commission provides telecommunications carriers so-called "forced access" to association property. Similarly, RAA states that the Commission's “proposals will interfere with the ability of landlords to insure compliance with safety codes; provide for the safety of tenants, residents, and visitors; coordinate among tenants and service providers; and manage limited physical space. CAI requests that community associations be exempted from any “forced access” rules adopted by the Commission, while RAA requests that all affected “small businesses” be exempted. RAA also states that the Competitive Networks NPRM should be withdrawn and reissued with a revised IRFA.

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The actions taken in the Competitive Networks First Report and Order today do not impair the authority of property owners or managers, including community associations, under state law to exclude telecommunications carriers from their property. Rather, the Competitive Networks First Report and Order makes clear that “the right of access granted under Section 224 lies only against utilities,

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as

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NACO IRFA Comments (filed Aug. 27, 1999) and NACO Comments (filed Oct. 12, 1999).

409

See Competitive Networks First Report and Order, at para. 76 (“Section 224 was not intended to override whatever authority or control an MTE owners may otherwise retain under the terms of its agreements and state law.")

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Id.

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defined in Section 224(a)(1) of the Act. We also note that our authorization of small antennas for the provision of non-video services is limited to antennas situated on property under the control of a community association member rather than common property of the association, and therefore will not impose undue burdens or expense on community associations or small building owners. CAI also states that prohibiting exclusive telecommunications contracts would adversely impact community associations. The Competitive Networks First Report and Order does not prohibit such contracts for residential properties. Accordingly, even assuming that such a prohibition would significantly impact community associations, no such impact will result from the actions taken in the Competitive Networks First Report and Order today.

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In its comments filed August 27, 1999, NACO states that the Commission's proposals “for building owners and managers represent the federalizing of what is currently a growing local market in site leasing We have deferred to the Competitive Networks Further Notice of Proposed Rulemaking (FNPRM) the issue of whether the Commission should impose a nondiscriminatory access requirement on building owners and managers. NACO also states that “[1]ocal communities would be ... deprived of a revenue stream that could reduce local tax burdens .

In later filed comments, NACO reiterates its concern over "the impact of lost right-of-way and tax revenues and the impact on infrastructure of loss of management control over the public right of way. Although we sought comment on issues related to access to public rights-of-way and franchise taxes in the Competitive Networks Notice of Inquiry, we take no action in this regard today.

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SBA states that the IRFA "inappropriately excludes small incumbent LECs from the definition of small business," and requests that the Commission reconcile its definition of small incumbent LEC with SBA's definition. SBA states that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not "national" in scope. In the Competitive Networks

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In Section V.A. of the Competitive Networks FNPRM, we seek comment on extending the prohibition on exclusive contracts to residential MTEs. Issues regarding the potential impact of such an action on small entities, including community associations, are discussed in the Competitive Networks FNPRM IRFA, infra.

421

Id. at 4. The Small Business Act contains a definition of "small business concern," which the RFA incorporates into its own definition of "small business." See 15 U.S.C. $ 632(a) (Small Business Act); 5 U.S.C. $ 601(3) (RFA). SBA regulations interpret "small business concern" to include the concept of dominance on a national basis. 13 C.F.R. § 121.102(b). Since 1996, out of an abundance of caution, the Commission has included small incumbent LECs in its regulatory flexibility analyses. See, e.g., Implementation of the Local Competition Provisions of the (continued....)

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NPRM IRFA, we determined that, for the purposes of the IRFA, we would use the term “small incumbent LECs” to refer to incumbent LECs that might be defined by the SBA as small business concerns, and would explicitly include small incumbent LECs in the analysis. In this present FRFA, infra, we have included small incumbent LECs within the definition of small business.

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

424

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

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After a thorough review and analysis of the comments filed on our Section 224 proposal, we have determined that a broad definition of utility ownership or control would not best serve the public interest. Rather, in order to minimize the impact of our proposal on utilities (and the buildings that they serve) that must provide access to telecommunications carriers pursuant to Section 224, we find that “state law determines whether, and the extent to which, utility ownership or control of a right-of-way exists in any factual situation within the meaning of Section 224.9-426 The Competitive Networks First Report and Order, moreover, in no way impairs the authority under state law of building owners, including small building owners, to exclude telecommunications carriers from their property.

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(Continued from previous page)
Telecommunications Act of 1996, CC Docket, 96-98, First Report and Order, 11 FCC Rcd 15499, 16144-45
(1996), 61 FR 45476 (Aug. 29, 1996).

422

Competitive Networks NPRM IRFA, 14 FCC Rcd at 12726, 18. A "small business" under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and "is not dominant in its field of operation." 5 U.S.C. § 601(3).

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Competitive Networks FNPRM, Section V.A., supra. In the Competitive Networks NPRM IRFA, we inquired "whether we should limit the scope of any building owner obligation ... (and noted) that a potential rule could exempt buildings that housed fewer than a certain number of tenants or are under a certain size.” Competitive Networks NPRM IRFA, 14 FCC Red at 12733, 31.

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