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("Notice") regarding open  Sr- xzvideo systems. Based upon the record developed in response to the Notice, the Commission adopted  SL - xImplementation of Section 302 of the Telecommunications Act of 1996, Open Video Systems@ L  yO-ԍ11 FCC Rcd 18223 (1996).@ ("Second  S& - xReport and Order") in which it prescribed rules and policies establishing streamlined regulations  x=governing open video system certification and operation. In response to petitions for reconsideration of  S - xthe Second Report and Order, the Commission adopted Implementation of Section 302 of the  S - xkTelecommunications Act of 1996, Open Video Systems@ `  yO-ԍ11 FCC Rcd 20227 (1996).@ ("Third Report and Order") which addressed  xissues raised in those petitions and also addressed the definition of "affiliate" in the context of open video  Sd-systems. ^d  {O- xԍThe Commission sought comment on the definition of "affiliate" in the Order and Notice of Proposed  {O- xRulemakingĠin CS Docket No. 9685 (Implementation of the Cable Act Reform Provisions of the  {O-Telecommunications Act of 1996) ("Cable Reform Proceeding"), 11 FCC Rcd 5937 (1996).  S<-  S- ` Px3.` ` Based upon the Commission's experiences in open video system certification proceedings,  S- x{the Fourth Report and Order was adopted to revise "procedures for both the filing of certification  xapplications and the filing of comments and oppositions to provide for the most efficient processing of  x[applications for open video system certification, given the limited 10day statutory deadline for deciding  Sv- xcertification applications."Z v {O,#-ԍFourth Report and Order, 12 FCC Rcd at 7546.Z The Fourth Report and Order did not modify substantive open video system  SP- xobligations. Rather, the Fourth Report and Order instructed open video system certification applicants  S*- xto provide a properly formatted computer diskette along with their Form 1275 applicationsQ* {Or&-ԍId., 12 FCC Rcd at 75467547.Q and required  xopen video system applicants to indicate clearly on the mailing envelope and in a cover sheet whether the":,`(`(88a"  S- xopen video system filing is a certification application, Notice of Intent, or channel carriage complaint. {Oh- xhԍId., 12 FCC Rcd at 75467547, 7549. See also 47 C.F.R.  76.1503 (an open video system operator is required  yO2- x,to file with the Commission a Notice of Intent which states the operator's projected channel capacity, service area,  xmanner of soliciting and determining the level of demand for carriage on its system and other technical information)  xand 47 C.F.R.  76.1513(e) (any party aggrieved by an open video system operator's conduct with regard to rates, terms and conditions of carriage may file a complaint).   xZThe order further required that comments and oppositions to an open video system certification application  xbe filed simultaneously with the Office of the Secretary and the Chief of the Cable Services Bureau,  S- xwithin five calendar days of the date of filing of the open video system application.Lz {O -ԍId., 12 FCC Rcd at 7547, 7548.L The Commission  xalso modified filing procedures by stating that intermediate holidays will be counted in determining the due date for filing of comments and oppositions.  S- III .x THE PARTIES  S- ` ox4.` ` Time Warner is a cable system operator and provider of video programming services to  Sp- xopen video systems.vp  {O-ԍSee Time Warner Cable, DA 98798, (Cab. Serv. Bur. rel. April 28, 1998).v Bell Atlantic, through its subsidiary, has been certified to operate an open video  SH - xsystem in Dover Township, New Jersey.H  {O-ԍSee Bell AtlanticĩNew Jersey, Inc., DA 962040 (Cab. Serv. Bur. rel. Dec. 2, 1996). NYNEX is a regional bell operating company operating in the  S - xNortheast region of the country.D 0  {O-ԍSee n. 5, supra.D RCN, through its subsidiaries, has been certified to operate open video  xsystems in the City of New York, including the boroughs of Manhattan, Brooklyn, Queens, Staten Island,  S - xand the Bronx  {O2-ԍSee Residential Communications Network of New York, Inc., DA 97453 (Cab. Serv. Bur. rel. Feb. 27, 1997). and in the City of Boston, Massachusetts and fortyseven surrounding Massachusetts  S -communities.v T  {O-ԍSee RCNBETG, LLC, DA 97454 (Cab. Serv. Bur. rel. Feb. 27, 1997).v  SX- IV.xPOSITIONS OF THE PARTIES  S- ` x5.` ` Time Warner asserts that the Commission should modify its open video system  xcertification procedures to require an applicant to: (1) demonstrate that it will provide a nondiscriminatory  x=open video system platform that will be accessible to unaffiliated video programming providers and that  S- xlit will serve all potential customers within a defined open video system service area;6 yO#-ԍPetition at 3.6 (2) provide  x[documentation that it has obtained prior approval from local authorities to construct facilities occupying  S@- x<public rightsofway;8@v {OV&-ԍId. at 14.8 (3) disclose the precise boundaries of the territory it proposes to serve;:@ {O-ԍId. at 11.: (4) submit"@Z,`(`(88"  S- xa detailed construction timetable and facility route map;2Z {O-ԍId. 2 (5) file its Notice of Intent within ten days after  S- xthe date the open video system certification is granted;8 {Od-ԍId. at 12.8 (6) permit video programming providers to enroll  S- x/in its system even if the operator's initial period for such enrollment has ended;8~ {O-ԍId. at 13.8 (7) provide unused  xchannel capacity available to video programming providers on an 18month basis rather than on a three S`- x>year basis as currently required by the Commission's rules;2` {O -ԍId. 2 and (8) impose public, educational, and  S8- xgovernmental ("PEG") obligations that automatically will apply where an open video system applicant,  xprior to filing an open video system certification application, has been unable to reach agreement with the  S-relevant local authorities regarding PEG access.9 {O*-ԍId. at 20. 9 x  S- ` x6.` ` Time Warner maintains that the revisions it requests to the open video system certification  x=process will reduce, and not increase, the administrative burdens on Commission staff and on all parties.  xTime Warner further maintains that its proposals will only require the open video system applicant to  xattach appropriate documentation to its application which evidences approval by the appropriate local  S - xauthority or authorities, agreement on franchise fee and PEG access obligations, and agreement on a  xconstruction timetable and buildout requirements. Time Warner argues that delaying such approvals and  x[agreements until after open video system certification invites postcertification disputes and delay in the  S -provision of open video system service.@  S0- ` ~x7.` ` In further support of its argument, Time Warner states that the Commission's previous  S- xgrants of open video system certification to Metropolitan Fiber Systems of New York, Inc. ("MFS")\4  {O- x=ԍMetropolitan Fiber Systems of New York, Inc., d/b/a MFS Telecom of New York and Metropolitan Fiber  {O- xSystems/McCourt, Inc., 11 FCC Rcd 20896 (1996), Metropolitan Fiber Systems of New York, Inc., d/b/a MFS Telecom of New York and Metropolitan Fiber Systems/McCourt, Inc. are jointly referred to as "MFS." and  S- xyto Digital Broadcasting OVS, Inc. ("DBOVS")X  {O- xxԍDigital Broadcasting OVS Certification to Operate an Open Video System, DA 961703, 11 FCC Rcd 12854  {O -(1996) ("DBOVS Order"). demonstrate that the information requirements contained  S- xin the open video system certification application are inadequate. X yO #- xԍPetition at 9. To the extent that Time Warner believes that MFS, RCN, and DBOVS are violating Commission  xrules governing open video system operations, the Commission has in place complaint procedures pursuant to Section 653(a)(2) of the 1996 Act and Section 76.1513 of the Commission's rules, 47 C.F.R.  76.1513.  With regard to MFS, Time Warner  xalleges that MFS denies access to its open video system to unaffiliated programmers pursuant to its  xarrangement with affiliate Residential Communications Network which MFS uses as its sole programming  xsource. Time Warner further asserts that MFS chose to provide open video system service to a relatively"@ ,`(`(88"  S- xsmall number of multiple housing units within its open video system service area, i.e, New York City and  xBoston, which are more likely to be occupied by highincome residents. With regard to DBOVS, Time  x=Warner alleges that DBOVS has no plans to construct open video system facilities to service any homes in the areas in which DBOVS has been certified to provide open video system service.  S:- ` 3x 8.` ` In opposition, RCN argues that Time Warner seeks a backdoor reconsideration of the  S- xCommission's initial order implementing its open video system regulations (the Second Report and Order)  xand, consequently, the Commission should dismiss Time Warner's petition as timebarred because the  xperiod for a timely petition for reconsideration of that order ended in July 1996. RCN alternatively argues  S- xthat, to the extent Time Warner's petition seeks reconsideration of the Fourth Report and Order, it should  Sv- xbe dismissed because it raises issues that are outside the scope of the matters addressed in that order. For  xyexample, RCN points out that with regard to Time Warner's proposal that open video system applicants  xobtain prior local governmental approval, the Commission specifically rejected prior approval as a  S - x/condition of open video system certification in the Second Report and Order.~!  {Oh -ԍId. at 7 citing Second Report and Order, 11 FCC Rcd at 18247. ~  RCN states that the  xCommission is without authority to consider the issues raised by Time Warner's petition because they  S - xdirectly address substantive open video system operating requirements while the Fourth Report and Order  S -addresses only procedural open video system application requirements.=" Z yO-ԍRCN Opposition at 10.=   S<- ` x9.` ` RCN further argues that if Time Warner's petition is granted the Commission would  S- xviolate Section 553(b)(A) of the Administrative Procedures Act ("APA").A# yO-ԍ5 U.S.C.  553 (b)(A).A Under Section 553(b)(A),  xcertain proceedings which relate to agency organization, procedure or practice are exempt from notice and  S- x\comment requirements.1$z {O-ԍId.1 RCN states that the Commission found that the procedures adopted in the  S- xFourth Report and Order "are purely ministerial and do not alter the rights of the parties."{%  {OH-ԍRCN Opposition at 2 citing Fourth Report and Order, 12 FCC Rcd at 7546.{ RCN  x>maintains that Time Warner seeks to alter the substantive obligations of open video systems and not  xmerely the manner in which existing open video system certification requirements are met, and that this would require the initiation of a notice and comment rulemaking proceeding.  S- ` x10.` ` In opposition to Time Warner's petition, Bell Atlantic/NYNEX argue that Time Warner  S- xdoes not seek reconsideration of any of the issues raised by the Commission in the Fourth Report and  S- xOrder.L& yO"-ԍBell Atlantic/NYNEX Opposition at 1.L Rather, Bell Atlantic/NYNEX assert that the rules which Time Warner seeks to change were  Sb-promulgated by the Commission in the Second Report and Order and in the Third Report and Order.'b.  {O0%- xԍId. at 2. Bell Atlantic/NYNEX state that petitions for reconsideration of those orders were due on July 5, 1996 and September 20, 1996, respectively. "< ',`(`(88"Ԍ S- ` _x11.` ` In its consolidated reply, Time Warner asserts that its petition is responsive to the Fourth  S- xReport and Order because it suggests procedural modifications in addition to those adopted in that order.3( yOB-ԍReply at 3.3  S- x]Time Warner further asserts that the Commission's statement that the Fourth Report and Order's  xprocedural modifications were based on recent experiences of open video system certification proceedings  xmakes Time Warner's petition timely because it would have been impossible to raise these issues prior to the grant of an open video system certification by the Commission.  S- ` `x12.` ` Time Warner further states that both RCN and Bell Atlantic/NYNEX imply that Time  S- xWarner is without standing to file a petition for reconsideration of the Fourth Report and Order. Time  S- xWarner argues that Section 553(e) of the APA=)X yO -ԍ5 U.S.C.  553(e).= permits petitions for reconsideration of all agency  xrulemakings, even if notice and comment were not required in the initial rulemaking, where all interested  SP - x.parties have received proper notice and have been afforded an opportunity to comment.*P  yO- xZԍReply at 6. Section 553(e) of the APA states that "each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule." Time Warner  xfurther argues that its petition for reconsideration finds support in Section 405(a) of the Communications  S - xAct and Section 1.429(a) of the Commission's rules,v+X @ yO- xԍCommunications Act  405(a), 47 U.S.C.  405(a) (any party or aggrieved person may file a petition for  xreconsideration of an agency order, or action made or taken in any proceeding). 47 C.F.R.  1.429(a) (any interested person may file a petition for reconsideration of agency final action).v both of which provide for reconsideration of agency action. x` `  S - V.x DISCUSSION  S8- ` x13.` ` Time Warner argues that the Commission's Fourth Report and Order should be modified  x0to incorporate substantive changes in the obligations imposed on open video system certification  S- xZapplicants. The purpose underlying the Fourth Report and Order, however, was not to modify substantive  xLopen video system certification obligations, but solely to address certain procedural requirements. In its  xpetition, Time Warner does not contest any of the revised open video system certification application  St- x=procedures adopted in the Fourth Report and Order. Instead, Time Warner argues that the Commission  xshould significantly modify the substantive obligations of open video system operators which are outside  S&- xthe scope of the Fourth Report and Order. The Commission's rules and Federal court precedent clearly  xLestablish that the subject matter of petitions for reconsideration of Commission action must relate to the"` +,`(`(88"  x[ scope of the matters addressed in the underlying proceeding. Section 1.429(c) of the Commission's rules provides that:  `  ` ` The petition for reconsideration shall state with particularity the respects  S`-in which petitioner believes the action taken should be changed.,\`D {O- xԍ47 C.F.R.  1.429(c) (emphasis added); see also 47 C.F.R.  1.106(b)(1) ("any party to the proceeding, or any  xKother person whose interests are adversely affected by any action taken by the Commission or by the designated  {OZ-authority, may file a petition requesting reconsideration of the action taken"). (emphasis added).  ` `    xL The United States Court of Appeals for the District of Columbia Circuit, in discussing the proper scope of reconsideration proceedings, has stated that:  ` pXxX` ` If the petitioners want the [Federal Communications] Commission to reconsider  ` pqthe rationale underlying its use of the prime rate for [Allowance for Funds Used  ` pSDuring Construction] AFUDC generally, then they must petition the agency to  ` pTinitiate a rulemaking in the usual manner. The petitioners cannot require the  ` pdCommission to expand the scope of its proceeding through a petition for  ` pbreconsideration. For the court to countenance the petitioners' attempt to secure  ` preview of a policy mentioned only tangentially, in a proceeding that does not  ` pscomprehend the possibility of changing that policy, would be to join in a  ` pprocedural entrapment too clever by half. The result would be a novel form of  ` pjudicial review unbounded by facts or record; indeed there is no record  ` pwhatsoever in this proceeding on the propriety of the prime rate, and the carriers  ` pSdid not seek before the agency to make one. Obviously, we too must decline to  S-consider the merits of the petitioners' arguments on this subject.M-\ {OF- xԍIllinois Bell Telephone Co. v. FCC, 911 F.2d 776, 783 (D.C. Cir. 1990). In this regard, Time Warner may  {O- xfile a petition for rulemaking proposing modifications to the Commission's open video system regulations.  See 47 C.F.R.  1.401.M `  SB- ` ox14.` ` Specifically, Time Warner argues that the Fourth Report and Order should be modified  xto require open video system certification applicants to provide additional information and documentation  S- xknot currently required by the Commission's rules. The  Fourth Report and Order did not address the  xsubstantive portions of Section 76.1502 of the Commission's rules which prescribes the specific  xyinformation which must be provided and the representations that must be made by an applicant for open  S~- xvideo system certification.>.~ yO.!-ԍ47 C.F.R. 76.1502.> Time Warner further argues that the Fourth Report and Order should be  x0modified to revise the rules governing the carriage of video programming providers on open video  S0- xsystems. The Fourth Report and Order did not address the substantive portions of Section 76.1503 of  xythe Commission's rules which governs the notification to and enrollment of video programming providers  S- xon open video systems>/ yO"&-ԍ47 C.F.R. 76.1503.> or Section 76.1504 which governs the rates, terms, and conditions for carriage"0 /,`(`(88."  S-of video programming on open video systems.>0 yOh-ԍ47 C.F.R. 76.1504.>  S- ` x15.` ` Time Warner next argues that the Fourth Report and Order should be modified to amend  xthe Commission's rules governing local approval requirements, franchise fees, and PEG access obligations  Sb- xof open video system operators.  The Fourth Report and Order did not address Section 76.1505 which  S<- xpertains to PEG access obligations>1<X yO4-ԍ47 C.F.R. 76.1505.> or Section 76.1511 which pertains to franchise fee obligations of open  S- xvideo system operators.>2 yO -ԍ47 C.F.R. 76.1511.> With regard to prior local approvals, as RCN and Bell Atlantic/Nynex have  xpointed out, the Commission specifically rejected prior approval as a condition of open video system  S- x0certification in its Second Report and Order.E3x {O -ԍSee n. 33, supra.E The Fourth Report and Order did not address the  S-Commission's position regarding such prior local approvals.   x  SP - ` x16.` ` Thus Time Warner's petition for reconsideration relates exclusively to matters wholly  S( - xLoutside the scope of the Fourth Report and Order. Its petition for reconsideration of that order must be  S -denied.e4Z  yO- x;ԍWe agree with RCN and Bell Atlantic/NYNEX that Time Warner's petition for reconsideration relates directly  {Ot- xto the subject matter of the Commission's Second Report and Order and Third Report and Order. Time Warner did not seek reconsideration of those orders. e` `  S - VI. x ORDERING CLAUSE  Sb- ` x17.` ` Accordingly, IT IS ORDERED, pursuant to Section 1.429 of the Commission's rules, 47  S:- xC.F.R.  1.429, that the petition for reconsideration of the Implementation of Section 302 of the  S- xTelecommunications Act of 1996, Open Video Systems, FCC 97130, filed by Time Warner Cable, IS DENIED. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@Magalie Roman Salas x` `  hh@Secretary