WPCF 2MB%RK Z3|X-Times New RomanTimes New Roman Bold P6G;P"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN5l?Technical 5Technical 52` hp x (#X` hp x (# X` hp x (#` hp x (#Technical 6Technical 63` hp x (#X` hp x (# X` hp x (#` hp x (#Technical 2Technical 24 Technical 3Technical 35 2F6$?7lA8$IB9$mDTechnical 4Technical 46` hp x (#X` hp x (# X` hp x (#` hp x (#Technical 1Technical 17 Technical 7Technical 78` hp x (#X` hp x (# X` hp x (#` hp x (#Technical 8Technical 89` hp x (#X` hp x (# X` hp x (#` hp x (#2;O:F;H<J=Mtoc 1toc 1:` hp x (#!(#B!(#B` hp x (#toc 2toc 2;` hp x (#` !(#B` !(#B` hp x (#toc 3toc 3<` hp x (#` !(# ` !(# ` hp x (#toc 4toc 4=` hp x (# !(#  !(# ` hp x (#2=V>mO?Q@vSATtoc 5toc 5>` hp x (#h!(# h!(# ` hp x (#toc 6toc 6?` hp x (#!(#!(#` hp x (#toc 7toc 7@ toc 8toc 8A` hp x (#!(#!(#` hp x (#2^BoVCXDZE\toc 9toc 9B` hp x (#!(#B!(#B` hp x (#index 1index 1C` hp x (#` !(# ` !(# ` hp x (#index 2index 2D` hp x (#` !(#B` !(#B` hp x (#toatoaE` hp x (#!(# !(# ` hp x (#2`Fv_Gl_Hr_Im`captioncaptionF _Equation Caption_Equation CaptionG endnote referenceendnote referenceH head1 #I'd#2p}wC@ #2TcJ}aKaL#bMba1Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfJ$ a2Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfK/` ` ` a3Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfL:` ` `  a4Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfME` ` `  2lfNcO/dPdQea5Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfNP  ` ` ` hhh a6Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfO[   a7Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfPf  a8Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfQq 2oXfKhK4kKmFy.X80,X\  P6G;PG7jC:,9Xj\  P6G;XPH7nC:,|Xn4  pG;Xy.\80,T\4  pG;pDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDdddddd/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d"")>F)))))))))<)C"VV5VYO5O5O5O5^<^<^<^>^<^C^F.".C.).CaC>>^CO"O6O)O0O"VCVVCVC^<^O=O)OFVCVCVCVCVCVCxVV>O5O5O5VCO)VCC.O)V<X<<( (WTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN+HH+@<)<<<<to one of the four options for providing video programming services: radio based, common  X- xcarrier, traditional cable, or open video.IT  {O-ԍTransition Order at  8.I The Commission acknowledged in the Transition Order  xthat it might not be possible in all circumstances for video dialtone operators to complete the  xtransition in 90 days, and that, in such instances, we would consider reasonable extensions of time based upon a showing of good cause.  X%- ` ox3.` ` In this Order, we deny MFS' request for an extension of time to transition to an  X- xopen video system pursuant to the Commission's Transition Order. Although we first examine  xthe availability of video dialtone service to MFS and whether MFS was required to file for  xSection 214 authorization, we do not base our decision on these issues. Rather, our decision is  xpremised on our determination that MFS did not operate a video dialtone system under the rules  xestablished by the Commission. Under these rules, MFS was required to: (1) give notice to the",N(N(ZZp"  xCommission and interested programmers; (2) establish a basic common carrier platform to reach  xxenduser subscribers; (3) provide sufficient capacity to serve multiple customer programmers; and  x(4) offer service on a nondiscriminatory basis to all programmers. After reviewing the record  xin this proceeding and the video dialtone proceedings, we conclude that MFS' video dialtone system did not satisfy these criteria.  Xv-x` `  II.hhPOSITIONS OF THE PARTIES  XH-x A.` ` MFS' Filings  X - ` 2x4.` ` In its notice of election, MFS states that it is a nondominant common carrier that  xcurrently offers video programming over its fiber optic telecommunications network in New York  x[and Boston on a common carrier video dialtone basis, and advises that it is electing to provide  xvideo programming transmission services as an open video system operator. MFS also requests  xan extension of time, until June 1, 1997, in which to make the transition to an open video system.  xyAs support for its requested extension, MFS states that it must conclude negotiations with the  xCities of New York and Boston concerning the terms, prices and conditions for public,  xeducational and governmental ("PEG") access channels, which are required to be made available  Xb- xto subscribers as part of an open video system platform.b yO- xԍMFSNY Election of Open Video System and Motion for Extension of Time at 3; MFSMcCourt Election of  yO-Open Video System and Motion for Extension of Time at 3. Because the open video system rules  xKare being implemented for the first time, MFS states that these negotiations present issues of first  X4- x=impression and will therefore require substantial consideration and discussion by the parties.1 4  {O-ԍId.1  xMFS also asserts that a grant of its requested extension is necessary to ensure that subscribers  X-served by MFS will continue to receive video programming services.1  {Oi-ԍId.1  X-x B.` ` Oppositions  X- ` x5.` ` Several commenters opposed MFS' election and motion for extension on the  xgrounds that MFS is not authorized to provide video dialtone service, is not providing video  x\dialtone service, and therefore is not entitled to the transition relief under the Commission's  Xe- xTransition Order. eD {OZ"-ԍSee NCTA Opposition at 3; Cablevision Opposition at 2; Time Warner Opposition at 7. The National Cable Television Association ("NCTA") states that the  xCommission's video dialtone regulations applied only to "dominant" and "traditional local  xyexchange carriers" and that because MFS did not satisfy these criteria, it could not qualify as a  X"- x=video dialtone operator.G " {O&-ԍSee NCTA Opposition at 6.G Time Warner Cable of New York City and Paragon Communications""h ,N(N(ZZ"  x("Time Warner") and Cablevision of Boston, Inc. ("Cablevision") claim that MFS never obtained  xKthe requisite Section 214 video dialtone authorization, and assert that MFS' facilities have not met  xthe requirements of a video dialtone system because they are closed to other programmers, and  X- x have violated the video dialtone programmer affiliation and channel capacity limits.d  yO4-ԍTime Warner Opposition at 7; Cablevision Opposition at 9. d Time  xWarner also alleges that MFS does not qualify as a video dialtone system, or an open video  X-system distributor because its system ends at the curb.KX yO-ԍTime Warner Opposition at 13.K   Xa- ` ^x6.` ` Opponents also argue that, because MFS is not authorized to provide video dialtone  xpursuant to Section 214 and MFS's tariff is inconsistent with the Commission's video dialtone  xregulations, MFS is actually operating under a nondominant carrier interstate tariff for video  X - xztransport.  yO-ԍCablevision Opposition at 7 8; NCTA Opposition at 5 6; Time Warner Opposition at 5 7. Opponents further allege that this type of common carrier offering, unlike video  xMdialtone, does not permit MFS' affiliated programmer, Residential Communications Network  X - x[("RCN"), to transmit programming of its own choosing.i x yO-ԍCablevision Opposition at 12 13; Time Warner Opposition at 7 9.i Commenters argue that the evidence  X - xyshows that MFS is unlawfully operating a cable system without a franchise.~  yO-ԍCablevision Opposition at 14; NCTA Opposition at 7; Time Warner Opposition at 7.~ As a result, they  xjurge the Commission to take immediate enforcement action against MFS and RCN, its affiliated  X - x.programmer,Z  yO- xԍCablevision Opposition at 20. Cablevision requests that the Commission require MFS and RCN to cease their  x;unfranchised cable operations and impose fines and forfeitures upon MFS and RCN which correspond to the amount  {O-of financial gain realized as a result of their alleged illegal activities. Id.Ċ or commence an investigation of the circumstances under which MFS has been  xoffering video service, and to direct MFS to cease and desist if MFS is operating without lawful  X{-authority.={  yO-ԍNCTA Opposition at 9.=  XM- ` x7.` ` The Massachusetts Cable Television Commission ("MCTC") opposes MFS' motion  X6- xfor extension on four grounds.D6J  yO1!-ԍMCTC Comments at 57. D First, MCTC argues that the motion runs counter to Congress'  xkintent to effectuate a swift transition from video dialtone to an open video system. Second,  xMCTC contends that MFS's purported reason for the extension time to negotiate PEG access  xKissues does not warrant an additional 30 week extension to complete a transition process which  X- xshould have begun with the Commission's Transition Order issued July 23, 1996. Third, MCTC  xNstates that it has an interest in ensuring that MFS is subject to a welldefined regulatory  x framework which would be delayed by MFS' extension. Finally, MCTC argues that prompt",N(N(ZZ"  x=resolution of MFS's open video system transition will end the period during which MFS is not  xsubject to any meaningful regulation, as well as end the needless legal costs associated with  xkMCTC's investigation of MFS. MCTC suggests an extension of no more than 90 days from  X-November 6, 1996, the original video dialtone transition deadline.1 {O4-ԍId.1   X- ` x8.` ` The Boston Community Access and Programming Foundation ("BCAPF")  x-comments that MFS has not yet seriously pursued negotiations with BCAPF, the City of Boston,  X_- xLor MCTC regarding its PEG access obligations.>_Z yOj -ԍBCAPF Comments at 23.> BCAPF requests that any extension granted  xto MFS be conditioned upon MFS providing payments in support of PEG access as of the date  xMon which MFS would have been certified to operate as an open video system had it made a  X - x>timely and proper certification request.9  {O-ԍId. at 45.9 In any event, BCAPF argues that MFS should be  X -granted an extension of no more than 120 days.7 | {O0-ԍId. at 5.7  X -  X - ` x9.` ` The City of Boston ("Boston") also suggests a 120 day extension with leave to file  X - xfor additional extensions  .?  yO}-ԍBoston Comments at 2. ? The remainder of Boston's comments request Commission guidance  xon three issues not directly addressed in the Commission's Open Video Systems Report and  X- xOrders.9 {O-ԍId. at 35.9 First, Boston asserts that there is no clear statement of when an open video system  xoperator must commence payment to the city in lieu of a franchise fee, or when an open video  xsystem operator becomes subject to PEG access requirements. Second, Boston states that it  x!would like to reach an agreement with MFS which is coterminous with the current cable  xytelevision franchise (December 15, 1997). In the event that Boston and the cable franchisee are  xunable to reach an agreement, Boston believes that it would then be entitled to rely on the  xremedies outlined in the Commission's rules for determining MFS's payment and PEG access  x[obligations. Finally, Boston asks whether open video system providers should be expected to  xprovide data to local authorities regarding homes passed, homes served, miles of plant, and annual operating statements.  X- ` x10.` ` The City of New York ("New York") states that because MFS's system is  xcurrently operating, it should be required to meet certain open video system obligations during  Xe- xany transition extension granted by the Commission.?e0  yOF&-ԍNew York Comments at 3.? These requirements include the payment"e ,N(N(ZZ1"  X-of fees for use of rightsofway, and providing PEG access channels and facilities.7 {Oy-ԍId. at 5.7 New  xYork states it does not oppose the motion for extension assuming New York and MFS reach a final agreement on these issues.  X-x C.` ` MFS' Reply  Xv- ` x11.` ` MFS replies that it is a legally authorized video dialtone operator.=vZ yO -ԍMFS Reply at 5.= MFS states  X_- xthat, over a decade ago, in Policy and Rules for Competitive Carrier Services and Facilities  XJ- xAuthorizations Therefor, Fifth Report and Order ("Fifth Competitive Carrier Order"), the  xjCommission amended its rules to relieve all nondominant common carriers, such as MFS, from  x!filing Section 214 applications for any domestic, interstate services, or for construction,  X - xacquisition, or operation of any transmission line.  {O- xԍId. at 6, citing Policy and Rules for Competitive Carrier Services and Facilities Authorizations Therefor, Fifth  yOl-Report and Order, CC Docket No. 79252, 98 FCC 2d 1191, 1210 (1984).  MFS asserts that as a nondominant common  xjcarrier it was not required to seek Section 214 approval before constructing any of its domestic  xinterstate common carrier facilities, regardless of the type of services eventually transmitted over  X - xthose facilities. According to MFS, the rules adopted in the Fifth Competitive Carrier Order, D {O-ԍSee infra notes 6369 and accompanying text (discussing the Competitive Carrier decisions).  xlwhich relieved nondominant carriers from Section 214 obligations, also relieved it of the  X- x=requirement to receive Section 214 certification prior to operating its video dialtone systems.7  yO-ԍMFS Reply at 5.7  X- x<MFS argues that the Fifth Competitive Carrier Order relieves all nondominant common carriers,  xsuch as MFS, from filing for Section 214 authorization for any domestic, interstate services to  XS- x[any domestic point or for construction, acquisition, or operation of any transmission line.9!Sf  {Oj-ԍId. at 56.9 In  X<- xsupport of its argument, MFS cites the Fifth Competitive Carrier Order, and 47 C.F.R.  xM63.07(a), which states that "[a]ny party that would be a nondominant domestic interstate  xcommunications common carrier is authorized to provide domestic, interstate services to any  x<domestic point and to construct, acquire, or operate any transmission line as long as it obtains all  X- xnecessary authorizations from the Commission for use of radio frequencies."@"  yO"-ԍ47 C.F.R. 63.07(a).@ MFS states that  X- xyno precedent following the Fifth Competitive Carrier Order requires a nondominant carrier to  X-file for Section 214 authorization.7#  yO%-ԍMFS Reply at 6.7 "#,N(N(ZZ"Ԍ X- ` #x12.` ` MFS maintains that the Commission's video dialtone proceedings did not modify  xthis longstanding policy. MFS also asserts that it provides nondiscriminatory access to all video  xprogrammers, and that no programmer using the MFS platform to deliver video programming has  X- x.exclusive or discriminatory access to MFS's common carrier facilities.=$ {O4-ԍId. at 9.= MFS also asserts that  xKit is not subject to any affiliation prohibitions relevant to its video dialtone service because of the  xCommission's ruling that nondominant common carriers were not subject to the telephonecable  Xv- x-crossownership rules.%vZ {O - xԍId. at 1314 (footnote omitted), citing In re Application of Teleport CommunicationsNew York, 7 FCC Rcd 5986 (1982). In response to Time Warner's allegations that MFS' system ends at the  xcurb, MFS states that there is no authority for the premise that open video systems must  XH-physically extend, in every case, to enduser premises.>&H yO -ԍMFS Reply at 22.>  X - ` Qx13.` ` In response to commenters' claims that MFS actually provides video transport  xservice, rather than video dialtone service, MFS contends that the tariff it filed with the  X - x-Commission includes all the video dialtone attributes required by the Commission's rules.9' D {O-ԍId. at 78.9 MFS  xstates that it adopted the service name, "Video Transport Service," under the tariff, noting there  X - x.is no legal requirement that it be called "video dialtone service."7(  {OE-ԍId. at 8.7 MFS asserts that it is not a  x"cable operator" providing "cable service" and is therefore not required to obtain a franchise in  X-New York or Boston.)Zh  yO- xԍMFS also argues that its status as an open video system operator precludes a finding that MFS is a cable  xoperator because the Telecommunications Act of 1996 excludes from the definition of "cable system" an open video  {O9-system that complies with Section 653 of the Communications Act of 1934, as amended. Id. at 17.  Xy-  Xb- ` x14.` ` With regard to comments concerning PEG access obligations and fees, MFS states  xthat it is currently working with New York in arranging for MFS to pay a gross receipt fee on  xvideo revenues, and to make PEG contributions and channel capacity available during the  X- xtransition period between certification and full open video system implementation.;*  yOX!-ԍMFS Reply at 2627.; MFS states  X-that it "does not object in principle to reaching a similar arrangement with the City of Boston.">+ {O#-ԍId. at 27.> "+,N(N(ZZ'"  X-x` `   III.hhDISCUSSION  X- ` x15.` ` In 1991, the Commission, in Telephone CompanyCable Television Cross X- xOwnership Rules, Sections 63.5463.58 ("First Report and Order"), began implementing the  X- xregulatory process known as video dialtone, permitting local exchange carriers ("LECs"),4,$ yO!- xԍThe Commission clarified that the term "local telephone company," as sometimes used in the video dialtone  {O- xKrulemaking, refers to local exchange carriers. See Telephone CompanyCable Television CrossOwnership Rules,  {O- xSections 63.54 63.58, CC Docket No. 87266, Second Report and Order, Recommendation to Congress, and Second  yO}-Further Notice of Proposed Rulemaking, 7 FCC Rcd 5781, 5783, n.3 (1992). 4 to  xmake available to multiple service providers, on a nondiscriminatory common carrier basis, a  Xz- xbasic platform for delivery of video programming and other services to end users.?-Zz {O - xԍSee Telephone CompanyCable Television CrossOwnership Rules, Sections 63.5463.58, CC Docket No. 87 x266, Further Notice of Proposed Rulemaking, First Report and Order and Second Further Notice of Inquiry, 7 FCC Rcd at 300, 306 (1991).? Prior to the  x>implementation of video dialtone, LECs were prohibited from providing video programming  xjdirectly to subscribers in their telephone service areas as a result of the cabletelephone cross x<ownership restriction. The Commission developed video dialtone to allow LECs to provide video  xprogramming to subscribers consistent with the cabletelephone crossownership restriction,  xKthereby encouraging development of an increasingly competitive video marketplace in the United  X - xStates..$  {Ow- xԍSee Telephone CompanyCable Television CrossOwnership Rules, Sections 63.54 63.58, Further Notice of  xhProposed Rulemaking, First Report and Order, and Second Further Notice of Inquiry, CC Docket No. 87266, 7 FCC  {O - xwRcd 300, 30102 (1991); see infra notes 4954 and accompanying text (discussing video dialtone and the telephonecable crossownership rules). The basic platform was envisioned as a common carriage transmission service coupled  xywith the means by which consumers can access any or all video program providers making use  X -of the platform./  {O5- xԍSee Second Report and Order, aff'd, Memorandum Opinion and Order on Reconsideration and Third Further  {O-Notice of Proposed Rulemaking, CC Docket No. 87266, 10 FCC Rcd 244 (1992).  X- ` Bx16.` ` At the outset of our discussion, we note that, except for the transition periods  X}- xspecifically authorized by the Commission under the Transition Order, video dialtone service is  x.no longer a permissible regulatory option for any entity. Congress repealed the Commission's  XQ- xvideo dialtone regulations as part of the Telecommunications Act of 1996 (the "1996 Act").`0Q {O !-ԍSee Telecommunications Act of 1996 302(b)(3).`  xyWe must resolve MFS' status under the rules governing video dialtone service for purposes of  xtransitioning to an open video system because only authorized video dialtone providers are  X - x entitled to transition to open video systems under the Transition Order. Our inquiry must  x.therefore address the following issues: (1) was video dialtone a regulatory option available to  xMFS; (2) must MFS have obtained Section 214 authorization from the Commission in order to  X- xbe considered an authorized video dialtone operator under the Commission's Transition Order;  xand (3) was the service provided under the tariff relied upon by MFS video dialtone service. "0,N(N(ZZp"  X- xA.` ` Availability of Video Dialtone to MFS  X-  X- `  x 17.` ` We first examine whether video dialtone service was an option available to MFS.  X- xLNCTA argues that video dialtone service was an option available exclusively to LECs and that  X- xyMFS was not a LEC when it began offering video service.1 yO-ԍNCTA Opposition at 46. MFS filed its tariff for Video Transport Service on November 7, 1995. The Cable Communications Policy  xLAct of 1984 prohibited LECs from providing video programming directly to subscribers in their  Xv- x[telephone service areas.2vX yO -ԍCable Communications Policy Act of 1984, Pub. L. No. 98549, 613(b) (codified at 47 U.S.C. 533(b)). The Commission's video dialtone rules were established to increase  x!competition for video programming service by permitting LEC participation in the video  xprogramming marketplace in a manner not inconsistent with the statutory telephonecable cross X1- xownership ban.31 yO - xԍThe United States Courts of Appeal for the Fourth and Ninth Circuits found that the crossownership ban  {O- xviolated the First Amendment and enjoined the Commission from enforcing it against virtually all LECs. See  {O\-Chesapeake & Potomac Tel. Co. of Virginia v. United States, 42 F.3d 181 (4th Cir. 1994), rehearing denied  {O&- x(January 18, 1995) cert. granted, 115 S.Ct. 2608 (June 26, 1995), remanded (February 27, 1996); U.S. West, Inc.  {O-v. United States, 48 F.3d 1092(9th Cir. 1995); see also United States Tel. Ass'n v. United States, No. 1:94CV01961  yO-(D.D.C. Feb. 14, 1995). The  First Report and Order refers to video dialtone as "an enriched version of  X - xvideo common carriage under which LECs will offer various nonprogramming services in  X - xiaddition to the underlying video transport."d4 h  {O-ԍFirst Report and Order, 7 FCC Rcd at 300, 306 (1991). d Similarly, the Commission, in Telephone Company xCable Television CrossOwnership Rules, Sections 63.54 63.58, Second Report and Order,  X - xRecommendation to Congress, and Second Further Notice of Proposed Rulemaking ("Second  X - xReport and Order") stated that video dialtone will "enable local telephone companies" to  X - xparticipate in the video marketplace.5X  yOZ- xԍTelephone CompanyCable Television CrossOwnership Rules, Sections 63.54 63.58, CC Docket No. 87266,  xSecond Report and Order, Recommendation to Congress, and Second Further Notice of Proposed Rulemaking, 7 FCC  yO-Rcd 5781, 5783, n.3 (1992) (defining local telephone companies as "local telephone exchange carriers").Ķ Finally, Telephone CompanyCable Television Cross xOwnership Rules, Memorandum Opinion and Order on Reconsideration and Third Further Notice  X- xof Proposed Rulemaking ("Video Dialtone Reconsideration Order") states that "in 1991 and 1992,  xthe Commission adopted policies and rules to permit an expanded role by local exchange carriers  XW- x=(LEC's) in the provision of video services in their telephone service area."6W yO"!- xԍ Telephone CompanyCable Television CrossOwnership Rules, CC Docket No. 87266, Memorandum Opinion and Order on Reconsideration and Third Further Notice of Proposed Rulemaking, 10 FCC Rcd 244, 247 (1994).  In this regard, the  x-video dialtone orders repeatedly refer to video dialtone as a service offering available specifically  xto LECs. Although the video dialtone orders do not expressly limit the service to LECs, there  xMis also no indication that the Commission intended that video dialtone be available to other entities, such as competitive access providers ("CAPs").  X- ` Cx18.` ` We note that MFS has not provided record evidence that it is certified as a" r6,N(N(ZZ"  xLcompetitive LEC in Boston or New York. For purposes of this order, we assume that MFS was  x{not a LEC when it began offering its alleged video dialtone service in these jurisdictions.  xjMoreover, current publicly available information suggests that MFS' status was that of a CAP,  x{rather than a LEC. For example, MFS identifies itself on the Internet as a ". . . provider of  X- xLcompetitive access and local private line telecommunications services. . . ."7 {O- xԍMFS Internet Home Page, http://www.mfst.com/mfstelecom/. See also MFS Communications Co., Inc. SEC 10Q, filed November 12, 1996. MFS also states  xthat it "leads all other Competitive Access Providers in the four most significant levels of  Xv- xmeasurement . . . ."E8v" yOI -ԍMFS Internet Home Page.E Because it does not appear that MFS was a LEC when it began providing  xvideo programming, and MFS itself avers that the telephonecable crossownership rules did not  xapply to it, it is questionable whether the video dialtone framework was available to MFS at the  xtime MFS initiated its video service. Indeed, nonLECs, such as MFS, were not subject to the  xtelephonecable cross ownership ban, and thus MFS could have applied for a cable franchise for  xvideo programming service in New York and Boston. However, we cannot definitively state that  xthe Commission would have barred MFS from providing video dialtone, had MFS presented the  xquestion to the Commission at the time it initiated service. Although we take into account MFS'  xidentity as a CAP, rather than a LEC, this alone is an insufficient ground to rest our  X - x=determination. We next  examine whether MFS' failure to obtain Section 214 authorization from  xthe Commission for its service provides a sufficient basis for a decision as to MFS' status as an authorized video dialtone provider.  Xb-  XK-x B.` ` Section 214 Requirement x  X- ` x 19.` ` NCTA, Time Warner and Cablevision have argued that MFS cannot be considered  xLan authorized video dialtone operator, and is therefore ineligible to transition to an open video  xsystem, because MFS never obtained authorization to operate a video dialtone system pursuant  X- xto Section 214 of the Communications Act of 1934, as amended ("Communications Act").9Z yO;- xԍCommunications Act 214, 47 U.S.C. 214. Section 214 of the Communications Act requires carriers to obtain  xYa certificate from the Commission that the construction, extension, acquisition, or operation of a line will serve the  {O-present or future public convenience and necessity. Id.ă We  xnote that in adopting the rules applicable to video dialtone, the Commission repeatedly  x emphasized the importance of the Section 214 authorization process in ensuring that video  xdialtone served the public interest, stating ". . . as local telephone companies devise specific video  xdialtone proposals, we intend to evaluate compliance with our rules and public interest policies  Xe-during the Section 214 certification process.":Fe {O#- xԍSecond Report and Order, 7 FCC Rcd at 5797, n.68; id. at 5891 ("we will require applications for Section 214  xcertificates for video dialtone and will then more fully evaluate whether particular proposals do serve the public  {O|%- xZinterest"); id. at 5823 ("we clarify that we are prepared to impose additional safeguards tailored to specific video  {OF&- xYdialtone proposals in the Section 214 certification process"); id. at 5827 ("we intend to reassess the adequacy of our  xiexisting safeguards at such time as local telephone companies present us with specific video dialtone proposals in"'9,N(N(A'"  {O- xconnection with a Section 214 authorization certificate."); id. at 5827, n.231 ("because we believe that the Section  x214 process plays an important role in our ability to ensure that the risk of anticompetitive conduct is minimized,  {O"- xwwe decline to streamline or eliminate as unnecessary the present Section 214 certification requirement"); id. at 5832  x("we note that we are prepared to impose additional safeguards tailored to specific video dialtone proposals in  xconnection with the Section 214 certification process if necessary and should a carrier fail to comply with the Section  {O|- x214 requirements, the Commission can take appropriate enforcement action"); id. at 5840 ("because we believe that  x;many important issues will arise only in connection with specific video dialtone proposals . . . we anticipate ample opportunity to review specific video dialtone proposals in connection with the Section 214 certification process"). Indeed, the Commission acknowledged that:"e :,N(N(ZZ"Ԍ ` pԙXxX` ` We are aware, however, that video dialtone facilities may be deployed in  ` pvarying configurations and that we may need to address the extent of our  ` pjurisdiction depending upon the particular configuration. We believe,  ` phowever, that to delay the adoption of video dialtone until all such issues  ` pcare resolved would not serve the public interest, especially given the  ` puncertain nature of how such facilities and services will develop. Such  ` pissues can be addressed in the context of Section 214 applications, for  X_-example.:;_ {O-ԍId. at 5820.: `  x.The Commission envisioned that particular video dialtone configurations could have different  xmjurisdictional impacts. Notably, the Commission continued to rely on the Section 214 certification process.  X - ` x20.` ` In the Video Dialtone Reconsideration Order, the Commission addressed various  X - xzpetitions for reconsideration of the Second Report and Order, including arguments that the  X - xLSection 214 certification process for video dialtone should be streamlined or eliminated.i< h  {O-ԍVideo Dialtone Reconsideration Order, 10 FCC Rcd at 30304.i The  xCommission rejected these petitions stating that "[b]ecause video dialtone is based upon new and  x>evolving technologies, the Section 214 process is critical to our ability to ensure that video  Xf- xdialtone is implemented in a manner that best serves the public interest."9=f  {O-ԍId. at 309.9 With regard to  xsuggestions that the Section 214 process be streamlined or simplified for certain established video  xdialtone services, or architectures, the Commission affirmatively restated the significance of the  X!- xSection 214 requirement.>B !  yO^!-ԍThe Commission stated that:  ` pXxX` ` We decline to eliminate or streamline the Section 214 certification process at this time.  ` ppWe reject arguments that the tariff review process is at this time, by itself, an adequate  {O~$- ` pmechanism for overseeing video dialtone deployment. In the Second Report and Order  ` pthe Commission emphasized that . . . because we anticipate and encourage variations in  ` pnetwork architectures, technology, and services, many important policy issues would likely  ` p5be raised only in connection with specific video dialtone proposals. We stated our"&=,N(N(+'"  ` pBintention to review these proposals carefully to ensure that video dialtone is implemented  ` pin a manner that best serves the public interest. . . . For similar reasons, we also decline  ` pto limit the type of construction or deployment subject to full Section 214 review. . . .  ` pParticularly during the early stages of video dialtone implementation, even those  ` poapplications that use previously approved architectures may pose other issues that warrant  ` p$careful consideration in the context of a specific proposal. . . . Our processing of Section  ` p214 applications also enables the Commission to consider other factors that may be  ` prelevant to the determination of whether a proposed video dialtone service will serve the  ` ppublic interest, convenience and necessity, such as whether the proposal is economically  ` pjustified and complies with the Commission's rules and policies, and the extent to which  ` pthe state in which the service is proposed authorizes competition for local exchange services. `  {O -Id. at 31213. In both the Second Report and Order and the Video Dialtone"! >,N(N(ZZ"  X- xReconsideration Order, the Commission emphasized the importance of the Section 214 process  xand refused to abrogate or streamline this process with regard to the authorization of any video dialtone system.  X- `  x21.` ` MFS, however, asserts that, as a nondominant carrier, it did not need to obtain  x.Section 214 authorization to provide any domestic service, including video dialtone, citing the  Xx- x/Commission's rulemaking in Policy and Rules Concerning Rates for Competitive Common  Xc- xCarrier Services and Facilities Authorizations Therefor, First Report and Order ("Competitive  XN- xCarrier").?N  {O- xwԍSee Policy and Rules Concerning Rates for Competitive Common Carrier Services and Facilities Authorizations  {OK- xTherefor, First Report and Order, CC Docket No. 79252, 85 FCC 2d 1(1980); Second Report and Order, 91 FCC  yO- x2d 59, 62 (1982); Order on Reconsideration, 93 FCC 2d 54 (1983); Fourth Report and Order, CC Docket No. 79 {O- xy252, 95 FCC 2d 554 (1983); Fifth Competitive Carrier Order, 98 FCC 2d 1191 (1984) (applying Section 214  yO-forbearance to nondominant interexchange carriers). We note that Competitive Carrier appears to apply to interexchange carriers, as  X9- xevidenced by the Notice of Inquiry and Proposed Rulemaking preceding Competitive Carrier  X$ - xy("Competitive Carrier NOI"),"@$ 8 {O - xZԍPolicy and Rules Concerning Rates for Competitive Common Carrier Services and Facilities Authorizations  {O-Therefor, Notice of Inquiry and Proposed Rulemaking, CC Docket No. 79252, 77 FCC 2d 308 (1979)." as well as the Fourth Competitive Carrier Order and the Fifth  X - xjCompetitive Carrier Order. The Competitive Carrier NOI clearly contemplated application to  X - x"the current and potential suppliers of interstate services,"9A  {O? -ԍId. at 317.9 such as interstate Message  X - xTelecommunications Service and Wide Area Telecommunications Service ("MTS/WATS").B & {O"-ԍId. at 318. The Competitive Carrier NOI also uses the term "long distance" services. Id. at 345.  X - xMFS' video transport service is not MTS/WATS. Likewise, the Fourth Competitive Carrier  X - xOrder repeatedly and explicitly states that Competitive Carrier applies to "interstate, domestic,  X- xinterexchange telecommunications services,"fC {O '-ԍFourth Report and Order, 95 FCC 2d at 557. f such as "MTS/WATS, private line, and public" JC,N(N(ZZ"  X- xswitched record."[D {Oy-ԍId. at 563564.[ Furthermore, the Fourth Competitive Carrier Order enumerates the providers  xit applies to: miscellaneous common carriers, domestic satellite carriers, domestic satellite  x resellers, domestic operations of Western Union, international record carriers, other record  xcarriers, and interexchange telephone companies. MFS does not fall clearly within one of these  X- xenumerated categories.  Similarly, the Fifth Competitive Carrier Order notes that the Competitive  X- xCarrier proceeding applies to "nondominant suppliers of domestic, interstate, interexchange  X|-telecommunications common carrier services."JE$|Z {O - x[ԍFifth Report and Order, 98 FCC 2d 1191 (1984). See also In the Matter of Implementation of Section  xI 402(b)(2)(A) of the Telecommunications Act of 1996, Notice of Proposed Rulemaking, CC Docket No. 9711 at para.  {O - x.27 (Jan. 13, 1997) ("In the Competitive Carrier proceeding, we determined that LECs could offer interstate,  yO -interexchange services on a nondominant basis. . . " without being subject to the requirements of Section 214).J  XN- ` x22.` ` In its reply, MFS cites language from the Fourth Competitive Carrier Order as  X9- x[evidence that the Commission intended Competitive Carrier to apply to video communication  X$ - xservices. MFS notes that the Commission stated that "increasingly, customers purchase bandwidth  xcapacity, not a service for a specific type of transmission or a service provided by a specific  xtransmission medium. Many carriers offer integrated voice/data/facsimile/video communication  X - xservices."^F F {O-ԍFourth Report and Order, 95 FCC 2d at 564.^ MFS seems to infer from this language that video services offered by nondominant  X - x=carriers, such as MFS, were expressly contemplated in the Fourth Competitive Carrier Order.  X - xWe are not convinced that the mere mention that "many carriers offer integrated  xvoice/data/facsimile/video communication services" is evidence that the Commission intended that  X- xCompetitive Carrier would apply prospectively to vitiate the Section 214 certification requirement  Xp- xwith regard to video dialtone services not in existence at the time of the Fourth Competitive  X[-Carrier Order.  X/- `  x23.` ` Even if we were to find that Competitive Carrier did apply to MFS' provision of  x^video services, we cannot reconcile MFS' argument that it did not need a Section 214  xauthorization to be considered an authorized video dialtone provider in view of the repeated,  xLexpress statements of the Commission regarding the necessity of Section 214 authorization for  X- xvideo dialtone.  In interpreting a general provision or regulation that conflicts with a specific  xstatutory or regulatory provision, the United States Supreme Court has stated that the general rule  xof statutory construction is that "where there is no clear intention otherwise, a specific statute will  X- xnot be controlled or nullified by a general one, regardless of the priority of the enactment."G {O#- xԍMorton v. Mancari, 417 U.S. 535, 552 (1974); see Radzanower v. Touche Ross & Co., 426 U.S. 148, 151  {O#- x;(1976) (same); Employment Development Department v. U.S. Postal Service, 698 F.2d 1029, 1036 (9th Cir. 1981)  {O$- x(same); United Parcel Service v. U.S. Postal Service, 455 F. Supp. 857, 870 (E.D. PA 1978) (ordinary rule is that  {Oy%- xJa general duties provision may not override a specific provision); see also, Ginsburg, Feldman & Bress v. FEA, 591 F2d 717, 719 (D.C. Cir. 1978) (specific statements of legislative intent usually prevail over more general provisions). In  xthis context, we believe that the more recent, particularized video dialtone Section 214"{ G,N(N(ZZ"  xauthorization requirement would take precedence over the earlier, more generalized regulatory  X- xforbearance considerations of Competitive Carrier for purposes of deciding this case. In reaching  xZthis conclusion, not all of the Commission's stated reasons for requiring Section 214 authorization  xregarding video dialtone apply to a nondominant common carrier such as MFS. For example,  xthe Commission's concern over crosssubsidization of video dialtone with local exchange  xMrevenues does not apply to MFS because it was not an incumbent LEC. The Commission's  xconcerns regarding the need to impose additional safeguards tailored to specific video dialtone  x[proposals, and the evolving nature of video dialtone, however, apply equally to MFS's alleged  xvideo dialtone network and traditional, dominant local exchange carriers offering video dialtone service.  X - ` 2x24.` ` As with the issue of whether video dialtone was available to nonLECs, the issue  xof whether the Commission would have required MFS to obtain a Section 214 authorization in  x1995 was never presented to the Commission and cannot now be definitely answered. MFS'  xlack of Section 214 authorization, standing alone, is not dispositive of whether it is an authorized  xvideo dialtone operator. Rather, we find dispositive an examination of the nature of MFS' tariffed Video Transport Service.  Xd- xC.` ` MFS' Service and Tariff  X6- ` $x25.` ` While MFS argues that the Competitive Carrier decisions relieve it of a filing  X!- x[obligation under Section 214, these decisions did not relieve MFS of the obligation to conduct  xits alleged video dialtone operations in compliance with the Commission's rules. MFS represents  X- xthat its service, as well as the tariff it filed on November 7, 1995, are consistent with the  X- xCommission's guidelines for video dialtone service.7H yOU-ԍMFS Reply at 7.7 We examine MFS's service and tariff to determine whether each is consistent with the Commission's video dialtone rules and policies.  X- ` ox26.` ` To qualify as an authorized video dialtone operator under our rules, MFS must  X- x=have satisfied the requirements set forth in our Second Report and Order and Video Dialtone  Xk- xiReconsideration Order.yIkX {Ot- x ԍTelephone CompanyCable CrossOwnership Rules, Sections 63.5463.58, CS Docket No. 87266, Second Report  {O>- xand Order, Recommendation to Congress, and Second Further Notice of Proposed Rulemaking, FCC 92327, 7 FCC  {O - xRcd 5823 (1995); Telephone CompanyCable CrossOwnership Rules, Sections 63.5463.58, CC Docket No. 87266,  {O - xMemorandum Opinion and Order on Reconsideration and Third Further Notice of Proposed Rulemaking, 10 FCC  yO!-Rcd 244 (1994).y In addition, specific video dialtone requirements were developed in the  XV- xcourse of the Commission's review of individual LECs' Section 214 proceedings.FJ(V {O$- xiԍSee, e.g., New Jersey Bell Telephone Company, 9 FCC Rcd 3677 (1994);  Ameritech Operating Companies,Ą  {O$- x[10 FCC Rcd 4101 (1995) ; Application of New York Telephone Company, 8 FCC Rcd 4325 (1993); Order on  {O%- x<Reconsideration, 10 FCC Rcd. 11548 (1995);  Pacific Bell, 10 FCC Rcd 12448 (1995); Carolina Telephone and  {Ou&-Telegraph Company, 10 FCC Rcd 1583 (1994); BellSouth Telecommunications, 11 FCC Rcd 4404 (1995).F Indicia of  xvideo dialtone service includes the provision of: (1) notice to the Commission and interested"? J,N(N(ZZ"  xprogrammers; (2) a basic common carrier platform to reach enduser subscribers; (3) sufficient  x<capacity to serve multiple customer programmers; and (4) service offered on a nondiscriminatory basis to all programmers.  X- ` x27.` ` We first address whether MFS provided sufficient notice to the Commission and  x interested programmers that it would construct and operate a video dialtone platform. The  xyCommission's video dialtone regime was designed to provide notice of a video dialtone system  xso that the common carrier and nondiscriminatory requirements of such platform could be  XH- xyenforced.6KXH yO - xJԍThis notice was commonly accomplished when a LEC filed for Section 214 authorization for its video dialtone  xsystem. As discussed below, MFS could have, but did not, accomplish such notice through its alleged video dialtone tariff filing.6 It was equally important that interested programmers had notice so that they could  xinquire about obtaining capacity for their programming on the video dialtone platform. For  xexample, in authorizing BellSouth's video dialtone trial, the Commission, responding to concerns  x>regarding the lack of awareness of BellSouth's trial among potential programmers, held that  xBellSouth "must take reasonable measures to inform potential customerprogrammers of any  X - xenrollment period, such as by placing an announcement in industry trade journals."RL  {On-ԍBellSouth Order, 11 FCC Rcd at 4413.R MFS has  xZprovided no evidence that it provided any notice to the Commission or to interested programmers  xLthat it was operating a video dialtone system until after the repeal of video dialtone in the 1996  xAct. According to Time Warner, MFS' first public pronouncement expressly stating that it was  xproviding "video dialtone service" came in June 1996, in reply to a programmer's answer to a  Xb- xprogram access complaint filed by RCN.Mbz {O- xԍTime Warner Comments at 5; See Interface Communications Group, Inc. v. Cablevision Systems Corp., DA  yOW-961520 (rel. September 13, 1996).  In any event, MFS' filing of a responsive pleading  xin an unrelated Commission proceeding cannot be said to constitute notice to the Commission that MFS had instituted video dialtone service.  X- ` x28.` ` The tariff MFS filed for "Video Transport Service," and the accompanying  x/transmittal letter do not support MFS' claim that MFS is operating a video dialtone system.  x?While MFS correctly points out that nowhere in the Commission's regulations is there a  xrequirement that MFS name its service "Video Dialtone Service," this does not obviate MFS'  xLresponsibility to give the Commission and interested programmers clear notice that it intended  X- xto provide video dialtone service. Although we found in the First Report and Order that  xindependent programmers providing programming on a video dialtone platform would not be  xLproviding cable service, and therefore would not be subject to the provisions of Title VI of the  XP- xCommunications Act,ZNP {O$-ԍFirst Report and Order, 7 FCC Rcd at 32428.Z we have made no such finding with respect to independent programmers  xkproviding programming on a video transport service platform. Notice that MFS intended to  x\provide video dialtone service would therefore have been material to potential independent""f N,N(N(ZZ"  xprogramming providers. While we do not expressly hold, as we did with BellSouth's video  xZdialtone trial, that MFS was required to advertise its alleged video dialtone system to comply with  xthe Commission's video dialtone rules, we find the lack of any notice by MFS to the Commission  xZand interested programmers to be inconsistent with both the spirit and letter of our video dialtone  x[rules, and to militate against MFS' contention that it was an authorized video dialtone operator  X-under the Transition Order.  Xa- ` x29.` ` The Commission's rules required video dialtone service to include, at a minimum,  xa basic common carrier platform available to multiple video programmers on a nondiscriminatory  x]basis, and a means by which enduser subscribers could access any and all of the video  X - xprogramming offered.O  {O -ԍSecond Report and Order, 7 FCC Rcd at 5783; Video Dialtone Reconsideration Order, 10 FCC Rcd at 258. In examining whether MFS provided a basic platform through which  xenduser subscribers can access any and all of the video programming offered, we interpret this  xrequirement as necessitating that video dialtone operators provide an uninterrupted conduit for  X - x=all customer programmers from the headend to the enduser subscriber. P ZPn {O- xԍSee e.g., Bell Atlantic Order, 9 FCC Rcd at 3685 (video dialtone service is characterized by end user subscriber  {O-access to programming); Ameritech Order, 10 FCC Rcd at 4104 (same).  We note that MFS'  x[tariff obligates the customer to obtain and maintain all rights of way and conduit necessary for  x=the installation of cable and equipment used to provide network services to the customer from  X- xthe cable building entrance or property line to the location of the equipment space.OQ yO-ԍMFS FCC Tariff No. 2, Original Page 22.O Time  xKWarner argues that MFS' alleged video dialtone system is deficient in this regard and asserts that  xin many instances MFS' system ends at the curb and does not reach enduser subscribers. In its  xreply, MFS admits there are instances where it does not provide facilities directly to a customer's premises, stating:  ` pDXxX` ` In those instances where MFS does not provide facilities directly to the  ` pcustomer's premises, any video programmer will be able to extend its own  ` pcable from the point of presence [in a particular building] to its own end ` p users pursuant to whatever technical methodology and physical  ` parrangements it may be able to utilize just as RCN has done and must  ` p(continue to do in the future. . . . And to the extent that it may be  ` pDnecessary for one video programmer to utilize the cable of RCN or some  ` p5other video programmer to reach end users, each video programmer will  XP-be required by MFS to make such facilities available.;RPF yOG#-ԍMFS Reply at 2324.; `  X"- ` x30.` ` First, we find the above statement acknowledging that MFS does not provide  xfacilities directly to the customer's premises to be inconsistent with the Commission's intent that" R,N(N(ZZ"  X- xvideo dialtone be provided as an endtoend service.@S {Oy-ԍSee supra note 79.@ Second, MFS provides no evidence that  xit made any arrangements to enable potential programmers to utilize RCN's facilities to reach  xkenduser subscribers. MFS defends this system configuration relying on the Commission's  X- x[decision authorizing New York Telephone's ("NYT") video dialtone trial.:TZ yO-ԍMFS Reply at 21. : In that proceeding,  xTime Warner asserted that NYT was proposing "fibertothecurb" service, rather than video  x=dialtone service to end users, because NYT intended to use Liberty Cable's ("Liberty") coaxial  Xv- xcable drops to provide endtoend video dialtone service.Uv {O -ԍNew York Telephone Order, 8 FCC Rcd 4325 (1993); Order on Reconsideration, 10 FCC Rcd. 11548 (1995).Ğ The Commission found that NYT's  xuse of Liberty's coaxial drops was "an acceptable means of complying with the Commission's  XH- xvideo dialtone rules during a limited, oneyear trial."gV|H| yOu- xԍWith respect to NYT's trial, at least three other programmers in addition to Liberty subsequently reserved  x,capacity NYT allocated 80 direct access channels to Time Warner in two of the three buildings at issue, and 150  {O- xdirect access channels in the third. New York Telephone Reconsideration Order, 10 FCC Rcd  at 1155152. In  xaddition, the Commission required NYT to submit reports of the trial addressing how access by programmers to end  {O- xusers was accomplished. New York Telephone Order, 8 FCC Rcd at 432829. Since MFS never advised the  xCommission of its video dialtone service, the Commission was not in a position to require such information from MFS. g In addition, Liberty guaranteed that all  xvideo programmers would have access to coaxial facilities installed to each apartment at the trial  X - xsites at no extra charge.:W  {O-ԍId. at 4328.: This conflicts significantly with MFS's system, which, at least in some  xcases, ends at the point of presence within a building. Thereafter it is up to the individual  xNprogrammer to negotiate with RCN for use of its facilities, or install and maintain its own  xfacilities to serve enduser subscribers. That RCN has constructed facilities from MFS' point of  xpresence within buildings to enduser subscribers also indicates that MFS was not providing video  xdialtone service to RCN, because this configuration does not provide "[f]ull and fair access to .  X- x?. . end users, by multiple programmers. . . . "2XR  {O-ԍId. 2 Nor can MFS guarantee that the facilities  xinstalled by customer programmers to reach enduser subscribers will enable such subscribers to  Xb- xi"access any and all of the video programming offered" on MFS' system.Yb {O - xԍSee Pacific Bell Order, 10 FCC Rcd at 12456 (video dialtone service must include a means by which enduser  yO!-subscribers can access any and all of the video programming offered) .  Although it repeatedly  xrefused to endorse or require particular equipment or architecture in the various authorized video  x/dialtone trials and commercial applications, the Commission required that all video dialtone  xMsystems provide a basic platform through which multiple video programmers would receive  x-uninterrupted service from the headend to enduser subscribers. Because it fails to provide such  xa basic platform, we find that MFS' alleged video dialtone system is inconsistent with the  xCommission's regulations, and is inconsistent with MFS' claim to be an authorized video dialtone">Y,N(N(ZZ"  X-operator for purposes of the Transition Order.  X- ` }x31.` ` A further requirement of the Commission's video dialtone regulations was that the  X- xbasic platform must provide "sufficient capacity to serve multiple video programmers."Z\ {O6- x.ԍSecond Report and Order, 7 FCC Rcd at 5797;  See also Sprint Order, 10 FCC Rcd at 1584  (The video  {O- x;dialtone platform must provide sufficient capacity to serve multiple video programmers); Ameritech Order, 10 FCC  yO-Rcd at 4109 (same). In the  X- xBell Atlantic Order, we stated that in applying the capacity requirement, we would review each proposed video dialtone facility application on a casebycase basis, taking into consideration:  x(1) the initial capacity available; (2) the ability to expand this capacity; and (3) the demand for  Xc- xcapacity.^[c {O -ԍBell Atlantic Order, 9 FCC Rcd at 3685. ^ We find that MFS allocated the majority of its 110 analog channels to one  xprogrammer at the inception of its service. We are unable to determine adequately the demand  xzfor capacity on MFS' system, given that MFS has failed to provide or initiate procedures by  X - x\which video programmers could request channel capacity.\ ~ {OM- xԍSee e.g., Bell South Order, 11 FCC Rcd at 4410; Time Warner Opposition at 5, noting MFS did not claim to be video dialtone operator until June, 1996, well after the video dialtone regulations had been terminated. Indeed, MFS has provided no  xinformation that programmers other than RCN have sought carriage on its system. We find that  x?MFS' allocation of the majority of its initial capacity to RCN constitutes a failure to offer  xsufficient capacity to support multiple customer programmers. This is additional evidence of the inconsistencies between MFS' service and authorized video dialtone service.  X- ` x 32.` ` A further essential element of video dialtone was that the service be offered on a  X}- xynondiscriminatory basis.]} {O- xԍSecond Report and Order, 7 FCC Rcd at 5783. See also Ameritech Order, 10 FCC Rcd at 4114; Sprint Order,  yO-10 FCC Rcd at 1584 . The Commission's video dialtone rules precluded a video dialtone  xoperator from assigning more than fiftypercent of its analog capacity to a single customer  xLprogrammer. Where there was excess analog capacity available, a customer programmer could  x.exceed the fiftypercent limitation, provided the customer programmer agreed to relinquish the  X!- xjcapacity in excess of the fiftypercent limitation if necessary to meet future demand.R^!2  {O-ԍBellSouth Order, 11 FCC Rcd at 4413.R RCN, as  x-sole programmer in New York and Boston, consistently occupied more than fiftypercent of MFS'  X- xchannel capacity.z_  yOh"- xԍ We note information in our records that shows that RCN offers at least 100 analog channels of programming  {O0#- xon MFS' 110 channel capacity. See Time Warner Opposition, Exhibit 3 (Liberty Cable's New York marketing  yO#- xmaterials state that RCN offers 80 channels of basic cable service and 20 plus channels of premium options). MFS  yO$- xresponded that it will have 330 channels available when it becomes an open video system operator, at which time  yO%- xRCN will occupy less than onethird of available channel capacity. MFS Reply at 9, n.10. This representation as to future capacity does not address RCN's past and present occupancy of more than fiftypercent of MFS' system.z Cablevision argues that its programming affiliate, Rainbow Programming,  x=received no response to its inquiry regarding obtaining capacity on MFS' system. In its reply,">_,N(N(ZZ"  xMFS states that it answered Rainbow's inquiries regarding access but that its correspondence was  x<returned as undeliverable, and that in any event, it would have been reasonable to deny Rainbow  X-carriage on its Boston platform because Cablevision is a competing inregion cable operator.8` yOK-ԍMFS Reply at 11.8  X- ` 2x33.` ` We do not consider MFS' difficulty in sending correspondence to an established  x!business located within the same city a justified excuse for not providing the requested  Xv- xjinformation concerning access. More importantly, the Video Dialtone Reconsideration Order  xexpressly permitted inregion cable operators to participate as programmers in video dialtone  XJ- xplatforms.EaZJX {OS - xԍSee Video Dialtone Reconsideration Order, 10 FCC Rcd at 267, n.67. ("Consistent with the common carrier  x;nature of the basic video dialtone platforms, we do not preclude inregion cable operators from becoming customers on these platforms.").E One of the purposes of video dialtone was to guarantee "multiple service providers  X3- xto obtain equal access on a nondiscriminatory basis."b3z {O^-ԍSecond Report and Order, 7 FCC Rcd at 578788; Video Dialtone Reconsideration Order, 10 FCC Rcd at 259. Instead, MFS allocated RCN nearly all  x[of the capacity on its system and failed to offer sufficient capacity for multiple programmers as  x[required by our video dialtone rules. Again, we find this inconsistent with the requirements of  X - xvideo dialtone. In the Video Dialtone Reconsideration Order, the Commission stated that "one  xof the more significant actions" was to reaffirm that operators offering video dialtone could not  X - x-allocate all or substantially all analog capacity to a single "anchor programmer."fc  {O-ԍVideo Dialtone Reconsideration Order, 10 FCC Rcd at 247.f Moreover, the  x=Commission stated that it would expressly guard against "a telephone company . . . seeking to  xpresent ordinary common carrier channel service to a single video programmer and claiming that  xNsuch a construct is a sufficient video dialtone platform to enable it to provide to video  Xf-programmers unregulated enhanced services related to video programming."Ydf {O-ԍSecond Report and Order, 7 FCC Rcd at 5798.Y  X8- ` 3x34.` ` Finally, we believe MFS' tariff offers further evidence of the disparity between  X!- xthe service offered by MFS and authorized video dialtone service.eZ!0  yO- xԍWe note that MFS' tariff provides for special access video transport service, whereas the Commission has  xspecifically stated that video dialtone was a switched access service. MFS Tariff No. 2, Transmittal No. 27, 1st  {O -Revised Page 411 (filed November 7, 1995). See also Video Dialtone Reconsideration Order, 10 FCC Rcd at 336. The tariff filed by MFS contains the following service description: x` ` Video Transport Service ("VTS") provides transmission capacity to video x` ` programmers and information service providers ("customer programmers") x` ` for the delivery of their programming services to end user subscribers. x` ` Through VTS, multiple customer programmers are able to deliver their service x` ` to end user subscribers. . . ."R e,N(N(ZZP"Ԍ xԙWhile MFS was not required to call its service "Video Dialtone Service," we do not believe that  xits tariff is consistent with the policies underlying video dialtone and the tariffs filed with the  X-Commission pursuant to its rules.fF yOK- xԍFor example, Bell Atlantic's video dialtone tariff included a section containing a channel reservation deposit,  {O- xJwhile MFS' tariff contains no such mechanism for channel reservation. See Bell Atlantic Tariff No. 10, Transmittal  {O- xxNo. 830, Second Revised Pages 2022 (filed October 27, 1995); Bell Atlantic Telephone Companies, 10 FCC Rcd  {O- xK10831 (1995), Order Designating Issues For Investigation, 11 FCC Rcd 2024 (1995) (suspending Bell Atlantic's  xvideo dialtone tariff for one day, imposing an accounting order, and commencing an investigation). Bell Atlantic's  xtariff also contained an allocation plan if demand for channels exceeded the capacity of the system. Bell Atlantic  yO - x;Tariff No. 10, Transmittal No. 830, Second Revised Pages 2022 (filed October 27, 1995). MFS' tariff contains no such allocation plan.  X- ` _x35.` ` Based on our review of MFS' service and tariff, video dialtone precedents and the  xrecord in this matter, we find that MFS was not a video dialtone operator authorized pursuant to  xthe Commission's rules during the period from November 1995 to December 9, 1996 (the date  X_- xof MFS' open video system certification). The Transition Order addressed only converting from  xa video dialtone system to an open video system. Prior to enactment of the 1996 Act (February  xy8, 1996), MFS' provision of video distribution facilities to RCN appears to be more in the nature  xof traditional common carrier channel service rather than video dialtone service. Channel service  xiis the provision by a telephone company of video distribution facilities and services to franchised  X - xcable operators on a common carrier basis.2g  yOu- xԍTelephone CompanyCable Television CrossOwnership Rules, Sections 63.54 63.58, CC Docket No. 87266,  {O=- xFurther Notice of Inquiry and Notice of Proposed Rulemaking, 3 FCC Rcd 5849, 5870 n. 2; See also Second Report  {O- xand Order, 7 FCC Rcd at 5787, n.21(channel service facilities are deployed for the exclusive use of the franchised  {O- xicable operator); New York Telephone Reconsideration, 10 FCC Rcd 11552 n. 18 (channel service is the common  xcarrier provision by a local telephone company of video transport services to a cable operator holding a local cable franchise, from the cable operator's headend to the subscriber's premises).2 We note, however, that channel service provides  xfor service from the cable operator's headend to the subscriber's premises, which MFS' system  xjdoes not appear to do. Moreover, the 1996 Act eliminated video dialtone as a common carrier  x{offering and set out four options for video programming services provided by telephone  X- xcompanies.ThT  yO- xԍWith respect to section 651 in general, the Conference Report states: "Recognizing that there can be different  xistrategies, services and technologies for entering video markets, the conferees agree to multiple entry options to  x promote competition, to encourage investment in new technologies and to maximize consumer choice of services that  xbest meet their information and entertainment needs." Telecommunications Act of 1996 Conference Report, S. Rep. 104230 at 172 (Feb. 1, 1996).T Telephone common carriers such as MFS may (1) provide video programming  X{- xto subscribers through radio communication under Title III of the Communications Act;Ki{ yO0#-ԍCommunications Act 651(a)(1).K (2)  xprovide transmission of video programming on a common carrier basis under Title II of the"di,N(N(ZZJ"  X- xjCommunications Act;j yOy-ԍSection 651(a)(2) states:  ` eXxX` ` To the extent that a common carrier is providing transmission of video  ` Uprogramming on a common carrier basis, such carrier shall be subject to the  ` requirements of title II and section 652, but shall not otherwise be subject to the  ` 'requirements of this title. This paragraph shall not affect the treatment under section 602(7)(C) of a facility of a common carrier as a cable system.x`  yO- Communications Act  651(a)(2), 47 U.S.C. 571(a)(2). (3) provide video programming as a cable system under Title VI of the  X- xCommunications Act;^k {O2 -ԍId. at 651(a)(3), 47 U.S.C. 571(a)(3).^ or (4) provide video programming by means of an open video system  X- xjunder new Section 653 of the Communications Act.cl*  {O -ԍId. at 651(a)(3)(4), 47 U.S.C. 571(a)(3) (4).c Whether MFS' activities since February  x{1996 are encompassed within the Section 651(a)(2) common carrier transmission of video programming alternative is beyond the scope of this proceeding.  Xv-x` `  IV.CONCLUSION  X_-  XH- ` cx36.` ` Our review of MFS' election and motion for extension of time and the  xycircumstances under which MFS claims to have provided video dialtone service to its affiliated  xprogrammer, RCN, leads us to conclude that MFS was not an authorized video dialtone operator  X - xleligible to transition to an open video system under the Commission's Transition Order.  xAlthough there can be debate regarding MFS' right to provide video dialtone service as a  xcompetitive access provider and the regulatory process MFS needed to satisfy in order to provide  xsuch service, MFS was required to operate its system in compliance with the Commission's rules.  x At a minimum video dialtone service required: (1) notice to the Commission and interested  xprogrammers; (2) a basic common carrier platform to reach enduser subscribers; (3) sufficient  x<capacity to serve multiple customer programmers; and (4) service offered on a nondiscriminatory  x=basis to all programmers. MFS' system did not satisfy any of these criteria and is ineligible for relief under the Transition Order.  X- ` x37. ` ` This Order addresses only whether MFS is entitled to the election and relief  X- xrequested pursuant to the Transition Order. We decline to address comments by the City of  X- xBostonm  yO`"- x ԍBoston raises issues relating to MFS's payment to the city in lieu of a franchise fee and PEG access  yO(#-requirements. Boston Comments at 34. raising issues concerning certain obligations of open video system operators as beyond  X- x?the scope of this proceeding. We do not address comments by the City of New York#nX yO%- xԍThe City of New York requests that during any transition extension granted by the Commission, MFS be  xrequired to pay fees for use of rightsofway and provide PEG access channels and facilities. New York Comments at 5.#"4n,N(N(ZZ"  xrequesting that we condition any transition extension upon MFS meeting certain obligations of  xopen video system operators because this Order denies MFS' Notice of Election and Motion for  xExtension of Time. Because we limit our decision today to the issue of whether MFS is entitled  X- x to the election and relief requested pursuant to the Transition Order, we need not address  xcommenter's arguments that MFS is unlawfully operating a cable system without a franchise, or commence an investigation resulting in additional enforcement action.  Xa-x` `  V. ORDERING CLAUSES  X3- ` x38.` ` Accordingly, IT IS ORDERED that the Notice of Election and Motion for  xExtension of Time filed by Metropolitan Fiber Systems of New York, Inc. d/b/a MFS Telecom  X -of New York is DENIED .  X - ` x39.` ` It is FURTHER ORDERED that the Notice of Election and Motion for Extension  X -of Time filed by Metropolitan Fiber Systems/McCourt, Inc. is DENIED .  X- ` x40.` ` This action is taken by the Chief, Cable Services Bureau, pursuant to the authority  X{-delegated by Section 0.321 of the Commission's rules.=o{ yO-ԍ47 C.F.R.  0.321.= x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhJohn E. Logan x` `  hhDeputy Chief, Cable Services Bureau