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(1) (a) (i) 1) a)D )DDDFrfQq 2uKlKnK8qKs"i~'^09]SS999S]+9+/SSSSSSSSSS99]]]Sxnxxng?Snxgx]nxxxxn9/9aS9S]I]I9S]/9]/]S]]I?9]SxSSIC%CW9+Wa999+999999S9]/xSxSxSxSxSxxInInInInI>/>/>/>/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""Commission and interested programmers with notice of the availability of its video dialtone  Xm- xservice, MFS asserts that the Bureau Order "completely ignores the fact that the most basic and  xfundamental form of notice of the availability of a common carrier service is a tariff filed at the  XA- xCommission."9 A {O%-ԍId. at 34.9 MFS states that it acted in good faith and according to its understanding of the  xCommission's Common Carrier rules and video dialtone requirements when it tariffed its Video  xTransport Service, "an action which signaled the availability of a service to transmit video" ,N(N(ZZ"  X- x=programming."7  {Oy-ԍId. at 4.7 MFS argues that its Video Transport Service tariff filing was sufficient notice  X- xKto the Commission and interested programmers and that the "expanded notice" requirement relied  xKupon by the Bureau is not found in any Commission rule or discussed by the United States Court  X- xof Appeals for the District of Columbia Circuit in National Cable Television Association v. FCC  X- xK("NCTA") reviewing the Commission's video dialtone regulations. Z {O-ԍId. at 45, citing National Cable Television Association v. FCC, 33 F.3d 66 (D.C. Cir. 1994). MFS asserts that the Bureau  X- x>Order cites only the Commission's BellSouth Telecommunications video dialtone decision  X|- x\("BellSouth Order") which required expanded notice to potential programmers and that the  Xg- xBellSouth Order does not indicate that this requirement was intended by the Commission to be  XR-generally applicable to all video dialtone providers.{ R {O -ԍId. at 5, citing BellSouth Telecommunications, 11 FCC Rcd 4404 (1995). {  X$ - ` _x7.` ` MFS maintains that application of an expanded notice requirement would limit the  X - xavailability of video dialtone service from carriers such as MFS that do not restrict service to any particular location:  ` pXxX` ` Requiring MFS to observe the same notice procedures as [video dialtone]  ` pSproviders that build ubiquitous network capacity in discrete geographic  X- ` p%locations would foreclose MFS's nationallyfocused, demanddriven mode  ` pof providing [video dialtone] service and thereby limit its availability. .  ` p. . Application of the Order's notice "rule," as it expands the  ` p'Commission's common carrier tariff notice requirements, would have  ` pdrequired MFS to analyze the fiber capacity in all of its networks in  ` pSadvance of knowing what the demand for [video dialtone] service might  ` ppbe. Had such a notice rule been applied, customers (both programmers and  ` pRend users) who might otherwise have seen competition develop in a [video  X-dialtone] configuration would have been denied such an opportunity.9~ {O-ԍId. at 56.9 `  X- ` x8.` ` With regard to the second requirement that a video dialtone operator provide a  xbasic common carrier platform available to multiple video programmers and a means by which  xxend user subscribers could access any and all of the video programming offered, MFS argues that  Xo- xthe Bureau Order incorrectly finds that MFS' system does not provide a video dialtone platform  xbecause MFS facilities terminate at the point of presence in a building, rather than at the end  XC- xuser's premises.7C {O%-ԍId. at 6.7 MFS asserts that the Bureau Order incorrectly ignored MFS' claim that it had  xmade arrangements with Residential Communications Network ("RCN") to connect programmers  xMfrom the termination of MFS' system at the point of presence in a building and the end user",N(N(ZZ" subscriber, stating that:  ` pXxX` ` . . . as a condition of service, MFS specified that, in instances where it  X- ` pDused the facilities of another entity to reach end users, it will do so only  ` pif that entity does not object to affording other programmers  ` pnondiscriminatory access to its inbuilding facilities. If RCN had refused  ` pto provide nondiscriminatory access to its intrabuilding facilities (which  ` pit did not do), MFS would not have carried RCN's programming and  ` pinstead would have served only those end user locations to which its  X1-networks in Boston and New York terminate.71 {O -ԍId. at 7.7 `  xMFS cites a Commission order approving the New York Telephone ("NYT") video dialtone trial  xin which the Commission permitted the video dialtone trial to use the coaxial drops of a satellite  X - xmaster antenna television ("SMATV") operator to reach end users.\ Z {O- xzԍId., citing Application of New York Telephone Company for Authority pursuant to Section 214 of the  xCommunications Act of 1934, as amended, to construct, operate, own, and maintain, facilities and equipment to test  {Or-video dialtone service in portions of New York City, 8 FCC Rcd 4325, 4328 (1993). MFS argues that the only  X - xidifference between MFS' system and the trial approved by the Commission in Application of New  X - xkYork Telephone Company ("NYT Order") is that the SMATV operator's promise to provide  X-nondiscriminatory access to other programmers appeared on the record in that proceeding.7~ {O-ԍId. at 8.7  Xh- ` x9.` ` In addressing the third video dialtone requirement, that MFS has sufficient capacity  xto serve multiple video programmers, MFS argues that the Bureau incorrectly determined that  X:- xRCN occupied the majority of MFS' 110 channel initial capacity.1: {O-ԍId.1 MFS states that "[t]his  X#- xconclusion, which ignores the evidence presented by MFS, is simply wrong."2# {Ov-ԍId. 2 MFS states that  x=the record in this proceeding clearly establishes that at no time did RCN use more than 50% of  X- xthe fiber capacity available from MFS' Video Transport Service.[4  {O -ԍId. at 89, citing MFS' Election Reply at 10.[ Moreover, MFS states that  X- xthe Bureau Order failed to consider the expandability of MFS' network, arguing that initial  X- xcapacity is irrelevant if additional capacity is readily available.7  {O@$-ԍId. at 9.7 MFS asserts that the Bureau  X- x<cannot find that MFS is unable to expand the capacity of its networks either by constructing new  xfiber or by modifying its electronic equipment because there is no evidence to that effect on the"X ,N(N(ZZ"  X-record before the Bureau.1 {Oy-ԍId.1  X- ` Qx10.` ` Finally, in addressing the fourth video dialtone requirement, that MFS offer its  X- x]video dialtone service on a nondiscriminatory basis, MFS argues that the Bureau Order  xjincorrectly found that RCN occupied more than 50% of the capacity of MFS's system, and that  xMFS discriminated against a programmer requesting information regarding carriage on MFS'  Xx- xsystem.8xZ {O -ԍId. at 10.8 MFS argues that it responded to the programmer by mailing information to the  xyprogrammer's "established business address," and the letter was returned by the United States  XJ- x-Postal Service as "undeliverable."1J {O -ԍId.1 MFS asserts that it "immediately" sent a second letter to the  xLsame address the Postal Service previously deemed undeliverable. The second letter was also  X - xreturned to MFS as undeliverable.1 ~ {OK-ԍId.1 MFS argues that these circumstances clearly demonstrates  X -that MFS acted in "good faith" and with any "apparent discriminatory motive."x  {O- x,ԍId. Although the Bureau did not rely on the discussion contained in the Bureau Order regarding whether video  xdialtone was a regulatory option available to MFS in determining whether MFS was an authorized video dialtone  {OX- xoperator under the Transition Order, MFS argues at length that video dialtone was a regulatory option available to  {O"- xMFS. Id. at 1115. Because we affirm the Bureau's conclusion that MFS failed to satisfy any of the four indicia  xof video dialtone service and that MFS was therefore not an authorized video dialtone operator for purposes of the  {O-Transition Order, we need not address arguments not relied upon by the Bureau in reaching its conclusion. x  X - xB.` ` Oppositions  X - ` Qx11.` ` Time Warner argues that the Bureau's analysis in this proceeding was "far too  xindulgent of MFS' claims" and that upon concluding that MFS failed to seek or obtain video  x.dialtone authorization pursuant to Section 214 of the Communications Act, the Bureau should  Xd- xhave ended its inquiry.ed  {O- xԍTime Warner Opposition at 4. Although discussed in the Bureau Order, the Bureau did not rely upon lack of  xSection 214 authorization in resolving MFS' Election. Because we affirm the Bureau's conclusion that MFS failed  xto satisfy any of the four indicia of video dialtone service and that MFS was therefore not an authorized video  {O - xhdialtone operator for purposes of the Transition Order, we need not address arguments not relied upon by the Bureau in reaching its conclusion. e Time Warner asserts that, without notice of the availability of a video  xdialtone operator's service, interested programmers have insufficient opportunity to gain access  X6- xxto the platform, and such access is a "crucial tenet" of video dialtone.86D {O+%-ԍId. at 12.8 Time Warner also asserts  X- xthat, in addition to the BellSouth Order, the Commission imposed notice requirements on",N(N(ZZG"  X-numerous other video dialtone programs. {Oy- xԍId. at 13, citing Southern New England Telephone Co., 9 FCC Rcd 7715 (1994); Puerto Rico Telephone Co.,  {OC-10 FCC Rcd 156 (1994); Contel of Virginia, Inc., 10 FCC Rcd 12672 (1995). Time Warner argues that:  ` pXxX` ` MFS' claim that its "Video Transport Service" tariff provided sufficient  ` pnotice that it was offering [video dialtone] is disingenuous. The  ` pCommission's rules require that tariff language be "clear and  ` ppunambiguous." MFS' assertions illustrate why such requirement is in place  ` ppԩ to curb confusion and abuse. Where, as here, "Video Transport Service"  ` p4has a common meaning that does not include [video dialtone], prospective  ` pprogrammers and the Commission could not reasonably have known that  X1-MFS contemplated [video dialtone].i1$ {O -ԍId. at 16 (footnotes omitted), quoting 47 C.F.R. 61.2. i `  X - ` x12.` ` In responding to MFS' argument that it provides a basic common carrier platform  x=for its video dialtone service, Time Warner asserts that MFS' facilities are effectively closed to  X - xall programmers except for its affiliated programmer, RCN.7  {O<-ԍId. at 6.7 Time Warner states that other  xkprogrammers cannot access subscribers over the facility since MFS' facilities do not deliver  x[programming to end users, but rather, terminate at the point of presence of certain select MDU  X- xbuildings.9!H {O-ԍId. at 67.9 Time Warner observes that, MFS' statement that in those instances where MFS does  xnot provide facilities directly to the customer's premises, any video programmer will be able to  x<extend its own cable from the point of presence to its own end users is "completely at odds" with  xthe Commission's video dialtone rules, as well as the mandate of the Telecommunications Act  x[of 1996 (the "1996 Act") that open video system operators may not "discriminate among video  X- xprogrammers with regard to carriage."z" {O-ԍId. at 7, quoting 47 U.S.C. 573(b)(1)(A) (open video system provisions).z Time Warner also states that MFS' "selfserving  xstatement" that it has the right to require a given video programmer to make its cable link to end  X- xusers available as necessary to other video programmers is unsupported by any contract language  X- xor evidence, and should not be given any weight by the Commission.7#l  {O -ԍId. at 8.7 Time Warner also  X- xyquestions MFS' comparison to the video dialtone trial approved by the Commission in the NYT  X- xOrder.7$  {O[$-ԍId. at 9.7 Time Warner observes that NYT specifically pledged that all programmers would be  X- xable to use the inbuilding coaxial drops at no charge.1%  {O&-ԍId.1 In addition, Time Warner observes that""%,N(N(ZZ"  X- x[the arrangement approved by the Commission in the NYT Order was only a video dialtone trial as opposed to MFS' fullscale commercial service, noting the Commission's statement:  ` pXxX` ` we find that a trial, by definition, is not generally susceptible to the same  ` plevel of precision as an actual offering. We emphasize, however, that the  ` pCommission expects a greater level of specificity in applications for actual  Xx-service offerings, as opposed to trials.[&x {O-ԍId. at 10, quoting NYT Order at 26.[ `  XJ- ` x13.` ` With regard to the issue of whether MFS offered sufficient capacity to serve  x-multiple customer programmers, Time Warner states that MFS has acknowledged that essentially  X - xyall capacity on its facilities was dedicated solely to RCN's 100 channels.8' Z {O' -ԍId. at 18.8 In response to MFS'  x/claim that the Commission applied only the first factor in determining whether MFS offered  X - xsufficient capacity to serve multiple programmers, Time Warner states that the Bureau Order did  X - xconsider other factors, but could not judge the demand for capacity due to MFS' own failures.8(  {Ov-ԍId. at 19.8  x.Time Warner argues that the Bureau identified three elements necessary for "adequate" video  X - xdialtone capacity and concluded that MFS failed to meet at least one of the elements and did not  X- xtake enough steps to allow the Bureau to even judge whether it met another of the elements.1)~ {O-ԍId.1  X}- xTherefore, Time Warner asserts that it is irrelevant whether MFS has met the third element.1*} {O>-ԍId.1  xTime Warner also states that, MFS's claim that RCN did not use more that 50% of the fiber  XO- x=capacity available from MFS' Video Transport Service, is based on MFS' assertion that "in the  X:- xnear future, MFS will have 330 channels available."r+: {O-ԍId. (emphasis Time Warner's), quoting MFS Election Reply at 9, n.10.r Time Warner states that whether MFS  xxcould in the future have enough capacity to qualify as video dialtone, well after the video dialtone  X-rules have been repealed, is irrelevant.2,4  {O-ԍId. 2  X-  X- ` x14.` ` With regard to the issue of nondiscrimination, Time Warner states that RCN  xoccupied all or substantially all of MFS' channel capacity and that this fact alone disqualifies  X- xMFS' facilities as a video dialtone system.8-  {O)%-ԍId. at 21.8 Moreover, Time Warner argues that "[o]ne element  X- x|of a nondiscriminatory platform is the ability of end users to have access to all video"X -,N(N(ZZ"  X- xprogramming offered over the platform.";. {Oy-ԍId. at 2122.; Time Warner states that, because MFS prohibited  xMprogrammers other than RCN from reaching subscribers without building their own internal  xdistribution infrastructure within each building, MFS failed to provide nondiscriminatory access  X-to its alleged video dialtone system.8/Z {O-ԍId. at 22.8  X- ` #x15.` ` Cablevision opposes MFS' Petition stating that nothing therein refutes, or in any  Xv- xway alters, the findings contained in the Bureau Order.D0v yO -ԍCablevision Opposition at 5.D With regard to MFS' claim that the  x>Commission has never required that a video dialtone operator provide the Commission and  xinterested programmers sufficient notice of its alleged video dialtone system, Cablevision states  X3-that:  ` pSXxX` ` . . . the entire premise of the video dialtone framework that unaffiliated  X - ` pprogrammers could offer service directly to consumers would be  ` pnonsensical if the system operator were not required to notify these  ` pprogrammers of the existence of the video dialtone platform by which they  X -could reach customers.71 | {O-ԍId. at 6.7 `  X-  xLCablevision states that, given the basic difference between video transport and video dialtone  xservices, there is nothing in MFS' Video Transport Service tariff provision which would lead a  XM-video programmer to believe that MFS was an authorized video dialtone operator.2^M {O - xԍId. Cablevision also notes that the Commission's Second Competition Report did not identify MFS as an  {O- xauthorized video dialtone operator. Id. at 6, n.12, citing Annual Assessment of the Status of Competition in the Market  {O-for the Delivery of Video Programming, Second Annual Report, 10 FCC Rcd 2060, 20972110, 21742178 (1995).  X- ` x16.` ` With regard to whether MFS' alleged video dialtone system provided sufficient  xcapacity for multiple programmers, Cablevision argues that MFS' claim that it provided sufficient  xcapacity should be rejected because MFS never provided the Bureau with record evidence to  X- xdemonstrate that its system could accommodate more than 110 channels of capacity.g3\4  {O!- x,ԍId. at 9. Cablevision states that "[s]ignificantly, MFS' Petition appears to indicate that MFS had to construct  {O"- xxadditional capacity on its network simply to transport RCN's channel capacity over its network." Id. at 9, n.22, quoting MFS' Petition at 56.g In  xresponding to MFS' claim that its system was readily expandable to serve additional  xprogrammers, Cablevision states that the Commission has required that all video dialtone  X- xoperators demonstrate, upon authorization of their video dialtone platforms, that: (1) they would  xmake available sufficient capacity to serve multiple video programmers upon the inception of"~ X 3,N(N(ZZP"  X- xxoperations.4 {Oy-ԍId. at 9, n.23, citing New Jersey Bell Telephone Co., 9 FCC Rcd 3677, 368081 (1994). Cablevision also argues that the Commission correctly determined that MFS did not  X- xlmake its alleged video dialtone system available on a nondiscriminatory basis.B5\Z {O- xԍId. at 10. Cablevision also argues that MFS never obtained the necessary authorization to operate a video  {O- xidialtone system pursuant to Section 214 of the Communications Act. See supra n.29 (discussing the Section 214 issue). B Finally,  xCablevision argues that the Commission should order the immediate cessation of MFS' unlawful  X-cable operations and impose fines and penalties upon MFS.6~ {O - xԍCablevision Opposition at 1213. The Bureau Order determined that "[b]ecause we limit our decision today  {O - xJto the issue of whether MFS is entitled to the election and relief requested pursuant to the Transition Order, we need  xnot address commenter's arguments that MFS is unlawfully operating a cable system without a franchise, or  {OF - xxcommence an investigation resulting in additional enforcement action." Bureau Order at 37. The scope of this  {O - x<proceeding is restricted to our review of the underlying Bureau Order. Accordingly, this Order on Review is not  x the appropriate procedural venue in which to petition for the cessation of MFS' operations and the imposition of fines and penalties.   X- ` Qx17.` ` MCTC supports the Bureau Order.  MCTC addresses specifically the issue of  Xx- xZwhether MFS provided sufficient notice to the Commission and interested programmers.=7x  yO-ԍMCTC Opposition at 2.= MCTC  xargues that the Commission is in the best position to determine whether MFS provided adequate  XJ- xnotice and the Commission determined that MFS did not provide such notice.98JV  {OQ-ԍId. at 23.9 MCTC also  x-asserts that, even assuming that the Commission could somehow divine that MFS was providing  xvideo dialtone service, it is difficult to imagine how unaffiliated programmers could reach a  X -similar determination.79  {O-ԍId. at 4.7  X - xC.` ` MFS' Reply  X - ` ox 18.` ` MFS argues in its reply that nothing in Time Warner, Cablevision and MCTC's  xZoppositions contradicts MFS' claim that it was an authorized video dialtone operator, and that the  X{- xBureau Order should be reversed. With regard to the issue of notice, MFS asserts that the only  xexpress notice requirements applicable to video dialtone were applied by the Commission to  x.certain incumbent dominant LECs and that those incumbent carriers are, by definition, subject  X8- xto more specific notice requirements generally than nondominant carriers such as MFS.7:8z yOc$-ԍMFS Reply at 4.7 MFS  xZalso states that "[u]nder the construct implemented by MFS in its tariff, MFS notified prospective  xcustomers of the availability of Video Transport Service wherever MFS' network capacity and"  :,N(N(ZZ("  X- x=sufficient demand exist."7; {Oy-ԍId. at 5.7 Next, MFS argues that Time Warner's verb tense argument, that all  xof MFS' representations regarding its arrangement with RCN refer to future arrangements, is  X- xnothing more than "semantical gamesmanship."b<Z {O-ԍId. at 6, discussing Time Warner Opposition at 68. b MFS also maintains that Cablevision's  x^explanation of its affiliated programmer's failure to pursue carriage on MFS' system is  X- xunpersuasive.9= {OA -ԍId. at 67.9 Finally, MFS reiterates its assertion that "at no time has RCN's programming  X- xoccupied more than 50% of the fiber optic capacity allocated by MFS to this service."r>\~ {O - xԍId. at 7. MFS claims that the statement that its system had 110 channels ". . . applied only to active fiber optic  xcapacity. MFS' network contains substantial dark fiber that was unused throughout the events that are the subject  {ON -of this proceeding." Id. at 7, n.7.r Even  xif this were not the case, MFS asserts that it is permissible for a video dialtone provider to  xallocate more than 50% of its capacity to a programmer if that party is willing to surrender  XH-capacity when subsequently requested by another programmer.7?H {O-ԍId. at 7.7  X - IV.xDISCUSSION  X - ` x19.` ` At the outset, we note that, except for the transition periods specifically authorized  X - xby the Commission under the Transition Order, video dialtone service is no longer a permissible  xregulatory option for any entity. Congress repealed the Commission's video dialtone regulations  X - xas part of the 1996 Act._@ 4  {O-ԍSee Telecommunications Act of 1996 302(b)(3)._ We first address MFS' contention that the Bureau erred in concluding  xthat MFS failed to provide sufficient notice to the Commission and interested programmers that  X{- xjit was operating a video dialtone system. The Bureau Order noted that the notice requirement  xwas commonly satisfied when a LEC filed for Section 214 authorization for its video dialtone  xsystem, and that MFS could have, but did not accomplish such notice through its alleged video  X8- x=dialtone tariff filing.KA8  {O-ԍBureau Order at 27, n.75.K In its Petition, MFS argues that the Video Transport Service tariff that it  xfiled with the Commission constituted sufficient notice to the Commission and interested  xyprogrammers. The Bureau properly concluded that MFS' Video Transport Service tariff did not  x-provide the Commission and interested programmers with notice that MFS was operating a video  xdialtone system. Time Warner correctly states that the Commission's rules require that "[i]n  xorder to remove all doubt as to their proper application, all tariff publications must contain clean  X- xand explicit explanatory statements regarding the rates and regulations.";BX  yO&-ԍ47 C.F.R. 61.2.; That MFS" B,N(N(ZZ"  xdenominated, without further explanation, its purported video dialtone service as "Video Transport  X- xService," a term which has a common meaning, although not that of video dialtone service, is  x]determinative that MFS' tariff provision did not contain a "clean and explicit explanatory  X- xstatement" providing notice to the Commission and interested programmers that MFS was  X- xoffering video dialtone service.ICx yO- xԍMFS' comparison of its Video Transport Service tariff provision with that of Bell Atlantic is not persuasive.  xMFS emphasizes the inaptness of the comparison by its own statement that "Bell Atlantic's tariff defines Video  xYDialtone Service as. . ." At a minimum, Bell Atlantic's tariff identified to the Commission that it was offering video  xjdialtone service. MFS also ignores the context and wording of Bell Atlantic's tariff. Bell Atlantic's tariff was  xyadopted as part of an extensive and widelypublicized Section 214 authorization proceeding that provided the  x,Commission and interested programmers with ample notice of Bell Atlantic's intention to establish a video dialtone system. I The finding that MFS did not provide any notice to the  xCommission and interested programmers renders unnecessary the task of addressing MFS' claim  x.that, as a nondominant common carrier, MFS was subject to less specific notice requirements  X_-than dominant common carriers.AD_ {O-ԍSee MFS Reply at 4.A  X1- ` Ax20.` ` MFS also argues that there is no support, either in the Commission's decisions or  X - xthe District of Columbia Circuit Court's NCTA decision, to support the expanded notice  X - xrequirement imposed upon MFS. MFS incorrectly interprets the Bureau Order as creating an  X - xexpanded notice requirement. The Bureau cited the BellSouth Order as an example of the  X - ximportance of notice in the video dialtone context, and the lack of notice provided by MFS.E"  yO&- xԍIn authorizing BellSouth's video dialtone trial, the Commission, responding to concerns regarding the lack of  xZawareness of BellSouth's trial among potential programmers, held that BellSouth "must take reasonable measures  xto inform potential customerprogrammers of any enrollment period, such as by placing an announcement in industry  {O~-trade journals." BellSouth Order, 11 FCC Rcd at 4413.  X -The Bureau Order stated:  ` pXxX` ` While we do not expressly hold, as we did with BellSouth's video dialtone  ` ptrial, that MFS was required to advertise its alleged video dialtone system  ` pto comply with the Commission's video dialtone rules, we find the lack of  ` pany notice by MFS to the Commission and interested programmers to be  X<-inconsistent with both the spirit and letter of our video dialtone rules. . . GF<  {Oq -ԍBureau Order at 28. G `  X- ` ~ x21.` ` MFS also argues that requiring MFS to observe the same notice procedures as  xjvideo dialtone providers that build sitespecific video dialtone systems "would foreclose MFS'  xnationallyfocused, demanddriven mode of providing [video dialtone] service and thereby limit  X- xits availability. . . .":G yO&-ԍMFS Petition at 6.: This argument has no legal premise and is unpersuasive. The Bureau  X- xyOrder conveyed the responsibility of a video dialtone operator to provide the Commission and" G,N(N(ZZp"  xinterested programmers with notice of its ability to provide video dialtone service. Such a requirement does not foreclose in any way MFS's ability to provide video dialtone service.  X- ` x22.` ` MFS' arguments do not persuade us that the Bureau erred in concluding that MFS  x.failed to provide the Commission and interested programmers with adequate notice that it was  xoperating a video dialtone system. While this conclusion is sufficient for the Commission to  Xv-affirm the Bureau Order, we also address MFS' remaining contentions.  XJ- ` x23.` ` MFS contends that the Bureau erred in concluding that MFS failed to provide a  X3- xbasic common carrier platform. We observe that MFS does not disagree with the Bureau's  x]conclusion that "[t]he Commission's rules required video dialtone service to include at a  xminimum, a basic common carrier platform available to multiple video programmers on a non xdiscriminatory basis, and a means by which enduser subscribers could access any and all of the  X - xvideo programming offered."EH  {OP-ԍBureau Order at 29.E We affirm this conclusion. Instead, MFS argues that the Bureau  x.erred in ignoring MFS' claim that it had made arrangements with RCN to connect programmers  x(in those buildings already served by RCN) from the termination of MFS' system at the point of  X- x<presence in a building to the end user subscriber.:IZ yO-ԍMFS Petition at 7.: Other than its facial assertion, MFS provided  x.no evidence to the Bureau in its Election, and provides no evidence here, that it has made any  xLarrangements with RCN to enable potential programmers to utilize RCN's facilities to reach end user subscribers. MFS has not described the parameters and terms of such "arrangements."  X- ` x24.` ` MFS' comparison of its system to the NYT video dialtone trial is misplaced. As  X-noted in the Bureau Order:  ` pXxX` ` The Commission found that NYT's use of Liberty's coaxial drops was "an  ` pCacceptable means of complying with the Commission's video dialtone rules  ` pduring a limited, oneyear trial." In addition, Liberty guaranteed that all  ` p4video programmers would have access to coaxial facilities installed to each  ` papartment at the trial sites at no extra charge. This conflicts significantly  ` pTwith MFS' system, which, at least in some cases, ends at the point of  XR- ` ppresence within a building. Thereafter it is up to the individual  ` pprogrammer to negotiate with RCN for use of its facilities, or install and  X$-maintain its own facilities to serve enduser subscribers.ZJ$ {O"-ԍBureau Order at 30 (footnotes omitted). Z `  xMFS provides no evidence that its circumstances even approach those found in the oneyear NYT  xvideo dialtone trial approved by the Commission. As noted by the Bureau, NYT's video dialtone  X - xysystem was operated only as a oneyear trial and all programmers would have access to coaxial  xfacilities installed to each apartment at the trial site at no extra charge. Conversely, MFS' system "! |J,N(N(ZZ "  xKwas a permanent commercial operation which failed to guarantee programmers access to enduser  x subscribers. In addition, MFS' claimed arrangement with RCN fails to resolve how, if MFS'  xysystem terminates at the point of presence within a building, individual programmers reach end  X- xuser subscribers.K@ yO4- xԍMFS' claim (MFS Petition at 7) that "if RCN had refused to provide nondiscriminatory access to its intra xbuilding facilities (which it did not do), MFS would not have carried RCN's programming and instead would have  xserved only those end user locations to which its networks in Boston and New York terminate" contradicts any  xcontention that MFS was providing video dialtone service. It is not RCN's obligation to provide the final component  xof MFS' video dialtone system. MFS' statement that it would refuse to transmit RCN's programming due to RCN's  xrefusal to permit other customer programmers to utilize RCN's facilities is contrary to a video dialtone operator's  xobligations. MFS, not RCN, is the entity alleging to provide customers with an endtoend common carrier video dialtone service.  The Bureau correctly concluded that video dialtone operators must provide  xa basic platform through which multiple video programmers would receive uninterrupted service  xZfrom the headend to end user subscribers. MFS fails to demonstrate how its system satisfied this requirement.  XH- ` x25.` ` Next, MFS argues that it had sufficient capacity to serve multiple video  X1- xLprogrammers, that the Bureau Order incorrectly determined that RCN occupied the majority of  xMFS' 110 channel initial capacity, and that the Bureau failed to consider the expandability of  x]MFS' network in making its determination. In reviewing proposed video dialtone facility  X - xapplications, the Bureau Order identified three elements which are used to evaluate sufficient  x>capacity: (1) the initial capacity available; (2) the ability to expand this capacity; and (3) the  X - xdemand for capacity.L  {OC-ԍBureau Order at 31, citing New Jersey Telephone, 9 FCC Rcd at 3685.Ă The Bureau Order noted that RCN offers at least 100 analog channels  X - xof programming on MFS' 110 channel capacity and MFS does not demonstrate to the contrary.vM b  {O-ԍId. at 32, n.95, citing Time Warner Election Opposition, Exhibit 3.v  X- x>The Bureau Order found that MFS allocated the majority of its 110 analog channels to one  X- xMprogrammer, RCN, at the inception of its service.1N  {O&-ԍId.1 In its Petition for Reconsideration, MFS  xclaims for the first time that there is an unspecified amount of "dark fiber" available to expand  XS- xits system to accommodate additional programmers.O S  yO- xԍMFS Petition at 10, n.12; MFS Reply at 7, n.7. MFS does not specify whether this excess capacity would be  xavailable to all of MFS' subscribers. In addition, in those buildings in which RCN allegedly provides the final  xKcomponent of MFS' system, MFS fails to assert whether RCN's facilities can accommodate this purported excess capacity. The expandability of MFS' system,  xalthough probative of whether MFS' system would have had sufficient capacity to serve multiple  xprogrammers in the future, does not address the ability of MFS to serve multiple video  X- xprogrammers at the inception of its alleged video dialtone service. Moreover, MFS provides no  x]evidence that it could or would reallocate channel capacity between RCN and interested  X- xjprogrammers. The record was insufficient for the Bureau to determine the demand for capacity  xon MFS' system because MFS neither provided nor initiated procedures where programmers other"nO,N(N(ZZ"  X-than RCN could have sought carriage on its system.EP {Oy-ԍBureau Order at 32.E   X- ` ox26.` ` MFS also asserts that the Bureau Order was incorrect in its determination that  xMFS did not offer its video dialtone service on a nondiscriminatory basis. MFS disputes the  xlBureau's finding that RCN, the only programmer ever to lease channels on MFS' system,  X- xoccupied more than 50% of the capacity of MFS' system and argues that the Bureau Order erred  xZin finding that MFS discriminated against a programmer requesting information regarding carriage  Xc- x.on MFS' system. Despite this contention, MFS never expressly states what percentage of the  XL- xplatform RCN occupied. This failure, combined with MFS' failure to provide evidence that it  xhad procedures through which it would require RCN to cede capacity to interested programmers,  xindicates that MFS did not demonstrate that its system was available on a nondiscriminatory  xbasis. Finally, MFS argues that it attempted twice to respond to a programmer requesting  X - xycarriage information, but that its responses were returned as undeliverable.Q Z yO- xZԍThe fact that MFS finds unpersuasive Cablevision's explanation for the failure of its affiliated programmer's  {O-interest in carriage on MFS' system is irrelevant to this proceeding. See MFS Reply at 67 MFS' difficulty in  xsending correspondence to a recognized programmer at an established business location within  X - xthe same city is not a justified excuse for not providing the requested information.FR  {O'-ԍBureau Order at 33.F The Bureau  X - x[Order correctly determined that MFS failed to provide nondiscriminatory access to its alleged video dialtone system.  Xj- ` 2x27.` ` In summary, MFS had the burden of demonstrating that its system complied with  xzthe policies of the Commission's video dialtone rules. The Bureau's decision that it failed to  X<- xmeet this burden is correct. MFS has raised no new arguments, nor has it introduced new  X%- x>evidence which brings into question the Bureau Order denying its Election. In light of the  xzforegoing, we find that MFS' Petition for Reconsideration fails to raise issues which warrant  X-reconsideration under Section 1.106 of the Commission rules.<SF yO-ԍ47 C.F.R. 1.106.< "S,N(N(ZZ"  X- V.xORDERING CLAUSES  X- ` ^x28.` ` Accordingly, IT IS ORDERED that the Petition for Reconsideration of the Bureau  X- xyOrder denying the Election of Open Video System Option and Motion for Extension of Time to  xComplete Open Video System Transition filed by Metropolitan Fiber Systems/New York, Inc.  X-d/b/a/ MFS Telecom of New York and Metropolitan Fiber Systems/McCourt, Inc. IS DENIED.  Xc- ` x29.` ` IT IS FURTHER ORDERED that, pursuant to Section 0.445 of the  x[Commission's rules, the Cable Services Bureau mail a copy of this Order on Reconsideration to  X5-each of the parties.<T5 yO -ԍ47 C.F.R. 0.445.< x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@William F. Caton x` `  hh@Acting Secretary