539 incumbent LECs to obstruct competitive access to MTEs, while imposing only minimal financial burdens. We expect that that many smaller carriers seeking competitive entry will benefit directly from these actions. 540 541 Third, we have adopted our proposal under Section 224 of the Act"*to require LECs and other utilities which own or control poles, ducts, conduits and other rights-of-way in MTEs, to permit competing providers access to such facilities under just, reasonable and nondiscriminatory rates, terms, and conditions. We anticipate that this action will benefit many small entities, including property owners and managers. We emphasize that our proposal as adopted will not impair the authority under state law, of property owners and managers to exclude telecommunications carriers from their property. Rather, building owners and managers, and their tenants, will benefit from our proposal because utilities, as defined in Section 224(a)(1) of the Act, $42 will no longer have the unfettered ability to exclude telecommunications carriers from their poles, ducts, conduits, and defined rights-of way in MTEs. Telecommunications carriers, including small entities, will benefit from increased access to MTEs. We note that, although it did not file comments on the IRFA, the National League of Cities expressed concern that our proposed implementation of Section 224 within buildings may preempt implementation or enforcement of state safety-related codes. As we make clear in the Competitive Networks First Report and Order, “our actions taken today are not intended to preempt, or impede, in any way the implementation or enforcement of state safety-related codes. 543 Fourth, we are amending Section 1.4000 of our rules (the “OTARD rule”)$4$ to protect the ability of customers to place antennas used for transmitting and receiving all forms of fixed wireless transmissions. Section 1.4000 currently prohibits any state or local law or regulation, private covenant, contract provision, lease provision, homeowners' association rule, or similar restriction that impairs the installation, maintenance, or use of certain antennas designed to receive video programming services on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property. Currently, Section 1.4000 prohibits restrictions that impair the installation, maintenance or use of: (1) any antenna designed to receive direct broadcast satellite service, including direct-to-home satellite services, that is one meter or less in diameter or is located in Alaska; (2) any antenna designed to receive video programming services via multipoint distribution services, including multichannel multipoint distribution services, and local multipoint distribution services, and that is one meter or less in diameter; (3) any antenna designed to receive television broadcast signals; or (4) any mast supporting an antenna receiving any video programming described in the section. For the purposes of Section 1.4000, a (Continued from previous page) See Competitive Networks First Report and Order, at paras. 54-57. S38 545 47 C.F.R. § 1.4000. law, regulation or restriction impairs installation, maintenance or use of an antenna if it unreasonably delays or prevents installation, maintenance or use, unreasonably increases the cost of installation, maintenance or use, or precludes reception of an acceptable quality signal. Section 1.4000 also includes provisions for waiver and declaratory ruling proceedings. 546 There is widespread support in the record for an extension of the OTARD rule to include all fixed wireless services. Moreover, we believe that extending the OTARD rule to include all fixed wireless services is essential to meeting our obligation to promote the deployment of advanced telecommunications capability under Section 706(a) of the 1996 Act. To the extent a restriction unreasonably limits a customer's ability to place antennas to receive communications services, that restriction may impede the development of advanced, competitive services. 547 The Competitive Networks First Report and Order underscores the policy rationale for amending the OTARD rule: [D]istinguishing in the protection afforded based on the services provided through an 548 We do not anticipate that today's rule change will have a significant adverse economic impact on small entities. To the contrary, we expect that small communications carriers that previously were unable to serve customers in MTEs may now be able to do so as a result of our rule change. However, we emphasize that “the action we take today does not confer a right as against the building owner in restricted or common use areas in commercial or residential buildings, like most rooftops.' Rather our extension of the OTARD rule to wireless services “applies only to areas within the exclusive use or control of the antenna user and in which the antenna user has a direct or indirect ownership or leasehold interest. 1549 a 550رو We also note that any impact on small entities is mitigated by our preservation of the exceptions to the OTARD rule permitting certain restrictions for safety and historic preservation purposes. Restrictions that would otherwise be forbidden are permitted if they are necessary to achieve certain safety or historic preservation purposes, are no more burdensome than necessary to achieve their purpose, and meet certain other conditions set forth in the OTARD rule. Finally, to address any potential 546 See e.g., AT&T Comments; PCIA Comments; Fixed Wireless Communications Coalition Comments; and Teligent Comments. concerns regarding transmitting antennas, we have determined that "[t]o the extent that local governments, associations, and property owners elect to require professional installation for transmitting antennas, the usual prohibition of such requirements under the OTARD rule will not apply. »551 Report to Congress: The Commission will send a copy of the Competitive Networks First Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996, see 5 U.S.C. $ 801(a)(1)(A). In addition, the Commission will send a copy of the Competitive Networks First Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Competitive Networks First Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register. See 5 U.S.C. § 604(b). Appendix D Initial Regulatory Flexibility Analysis As required by the Regulatory Flexibility Act (RFA),562 the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this Competitive Networks Further Notice of Proposed Rulemaking (FNPRM), WT Docket No. 99-217. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadline for comments on the Competitive Networks FNPRM provided above in paragraph 179 of the Competitive Networks FNPRM. The Commission will send a copy of the Competitive Networks FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.553 In addition, the Competitive Networks FNPRM and IRFA (or summaries thereof) will be published in the Federal Register.554 In the Competitive Networks FNPRM, the Commission seeks comment on a number of proposals to further its ongoing efforts under the Telecommunications Act of 1996555 to foster competition in local communications markets. Specifically, we seek comment on measures to ensure that competing telecommunications providers are able to provide services to customers in multiple tenant environments (MTE). MTEs include apartment and office buildings, office parks, shopping centers, and manufactured housing communities. Each of the proposals in the Competitive Networks FNPRM is intended to benefit telecommunications carriers, building owners and their tenants by creating a more competitive MTE telecommunications service environment. The Competitive Networks FNPRM seeks comment on: (1) whether we should require building owners, who allow access to their premises to any telecommunications provider, to make comparable access available to all providers on a nondiscriminatory basis; (2) whether we should prohibit local exchange carriers from serving buildings that do not afford nondiscriminatory access to all telecommunications service providers; (3) whether we should forbid telecommunications service providers, under some or all circumstances, from entering into exclusive contracts with residential building owners; (4) whether we should prohibit carriers from enforcing exclusive access provisions in existing contracts in either commercial or residential MTEs; (5) whether we should phase out exclusive access provisions by establishing a future termination date for such provisions; (6) whether we should phase out exclusive access provisions for carriers that qualify as small entities and the timing of any such phase out; (7) whether, and to what extent, preferential agreements between building owners and LECs should be regulated by the Commission; (8) whether the Commission's rules governing access to cable 552 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 Faimess Act of 1996 (SBREFA). Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, codified at 47 U.S.C. $$ 151 et seq. (1996 Act). The 1996 Act amended the Communications Act of 1934 (the “Communications Act” or the “Act”). home run wiring for multichannel video program distribution should be extended to benefit providers of telecommunications services; and (9) the extent to which utility rights-of-way within MTEs are subject to access by telecommunications carriers (except incumbent LECs) and cable companies pursuant to Section 224 of the Act. 556 The potential actions on which comment is sought in this Competitive Networks FNPRM would be authorized under Sections 1, 2(a), 4(i), 201(b), 202(a), 205(a), 224(d), 224(e), 303(r), and 411(a) of the Communications Act of 1934, as amended, 47 U.S.C. $$ 151, 152(a), 154(i), 201(b), 202(a), 205(a), 224(d), 224(e), 303(r), and 411(a), and Sections 1.411 and 1.412 of the Commission's Rules, 47 C.F.R. $$ 1.411 and 1.412. C. Description and Estimate of the Number of Small Entities to which the Rules Will Apply a The RFA requires that an IRFA be prepared for notice-and-comment rulemaking proceedings, unless the agency certifies that "the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities."587 The RFA generally defines "small The RFA generally defines "small entity" as having the same meaning as the terms "small business," "small organization," and "small governmental jurisdiction. In addition, the term "small business" has the same meaning as the term "small business concern" 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). For many of the entities described below, we utilize SBA definitions of small business categories, which are based on Standard Industrial Classification ("SIC") codes. 559 560 We have included small incumbent LECs in this present IRFA. As noted above, 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." The SBA contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not "national" in scope. We have therefore 1956) 562 559 5 U.S.C. § 601(3) (incorporating by reference the definition of "small business concern" in Small Business Act, 15 U.S.C. § 632). Pursuant to 5 U.S.C. $ 601(3), the statutory definition of a small business applies "unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register." 562 SBA Reply Comments at 3-4 (filed Sept. 10, 1999). See also Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, 10 William E. Kennard, Chairman, FCC (May 27, 1999). 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 (continued....) |