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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of: ) ) ) TCI CABLEVISION OF OAKLAND ) COUNTY, INC. ) ) CSR-4790 ) Petition for Declaratory Ruling,) Preemption and Other Relief ) Pursuant to 47 U.S.C.  541, 544(e),) and 253 ) ORDER ON RECONSIDERATION Adopted: August 31, 1998 Released: September 4, 1998 By the Commission: I. INTRODUCTION 1. On September 19, 1997, the Commission resolved, by declaratory ruling, the dispute arising under Title VI of the Communications Act ("the Act") between the franchised cable operator, TCI Cablevision of Oakland County, Inc. ("TCI") and the City of Troy, Michigan ("Troy"). On October 20, 1997, the City filed a Petition for Partial Reconsideration ("Reconsideration Petition"), seeking reconsideration of only that part of the Troy Decision in which the Commission found that Troy had violated section 621(b)(3)(B) of the Communications Act. Troy asserts that the Commission's conclusion that the endorsement on the cable construction permits in question violates section 621(b)(3)(B) is contrary to the pertinent facts and relevant law. 2. On reconsideration, we conclude that Troy has failed to raise any legal or factual issues that support reconsideration of the Troy Decision's conclusion that the City violated section 621(b)(3)(B) when it sought to impose its "not for telecommunications purposes" endorsement on two of TCI's cable construction permits. A municipal government's cable franchising authority is not wholly separate and distinct from its right-of-way management authority. The City's right-of-way management authority vis-a-vis the construction and operation of a cable system must be exercised pursuant to the limitations and restrictions contained within Title VI, regardless of whether the City chooses to enact separate local ordinances to govern the franchising and construction permit aspects of this authority. 3. The Troy Decision does not overlook the differences between local franchising and local construction permitting, as the City argues. The City cannot exercise its right-of-way management authority with respect to cable systems in a manner that is inconsistent with the terms and conditions of Title VI. Among those terms and conditions is the limitation on the local franchising authority's ability to impose telecommunications conditions or regulations upon cable operators under Title VI. The City cannot circumvent this Title VI limitation on its authority over cable systems by claiming that its authority over cable system construction and operation derives from a state-granted non-Title VI right-of-way management authority. In addition, we find no factual errors warranting reconsideration. We therefore reject the City's request that we partially reconsider the Troy Decision's legal conclusion under section 621(b)(3)(B). II. BACKGROUND 4. Permit Conditions. TCI's petition requested that the Commission examine certain aspects of the City's regulation of both cable and telecommunications services. By virtue of a cable franchise it holds from the City, TCI maintains cable facilities under and along public rights-of-way throughout the City and offers cable service to its residents. From time to time, the maintenance and upgrade of these cable facilities requires TCI to engage in construction activities within the public rights-of-way. City regulations establish a permitting process by which TCI obtains specific authority to disrupt the rights-of-way each time such activity is planned. This matter arises out of the City's treatment of two construction permit applications submitted by TCI. 5. By its first permit application (the "Royal Oak" permit application), filed in October, 1995, TCI sought to install fiber optic facilities in an area of the City where it did not currently provide cable service. While the stated purpose of the installation was to interconnect three cable headends, the proposed route was not the most direct route between the headends. The City apparently suspected that TCI intended to use the fiber optic facilities to offer telecommunications services in the City. While TCI is franchised to offer cable service, it does not hold a franchise or other authorization for the provision of telecommunications services. Although TCI maintained that it did not intend to provide telecommunications services in Troy, TCI agreed in writing that any construction permits issued by the City would be for the provision of cable service only, and would not authorize the provision of telecommunications services until TCI had obtained all lawful requisite authorizations pursuant to federal, state and local requirements. The City instructed its City Engineer that all permits that appeared to be usable for services other than cable should be endorsed with "not for telecommunications purposes" language, consistent with the terms of its agreement with TCI. 6. Thereafter, in December, 1995, the City enacted an ordinance ("Telecommunications Ordinance") consisting of a broad array of regulations governing the provision of telecommunications service. TCI submitted the second construction permit application (the "Livernois Road" permit application) to install aerial cable along two other rights of way in February, 1996, for the purpose of upgrading an institutional network (I-NET) and improving cable service to a local school. The City eventually granted the Livernois Road application, subject to the condition that the facilities installed pursuant to the permit not be used for telecommunications purposes other than the I-NET. The City then asked TCI to amend the Royal Oak permit application to correct what the City claimed were some technical problems in the application, including the indirect route between headends, and the need for TCI, as a potential telecommunications provider, to obtain a telecommunications franchise pursuant to the City's Telecommunications Ordinance. TCI re-submitted that application in May, 1996, with information that TCI claims meets the City's stated concerns about the installation route, but without agreeing to the inclusion of the endorsement language sought by the City. The City did not grant TCI's Royal Oak permit application, contending that not all of its concerns have been addressed. The City offered to grant the permit application if TCI agrees to route the upgraded facilities along the most direct route between the headends that TCI seeks to interconnect, and agrees to the inclusion of the "not for telecommunications purposes" endorsement. 7. On February 8, 1996, the Telecommunications Act of 1996 became law. Through this comprehensive amendment to the Communications Act of 1934 ("Communications Act" or "Act"), Congress sought to establish "a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all markets to competition." Congress thus rejected the historic paradigm of telecommunications services provided by government-sanctioned monopolies in favor of a new paradigm that encourages the entry of efficient competing service providers into all telecommunications markets. The emergence of robust competition among multiple service providers in all industry segments, would, over time, permit the supplanting of regulation of monopoly providers with competition as a regulating force, the ultimate goal of the 1996 Act. 8. To accomplish these ends, the 1996 Act arms new entrants into previously closed telecommunications markets, as well as this Commission and state regulators, with powerful tools to dismantle the legal, operational, and economic barriers that frustrated competitive entry in the past. Congress specifically enacted section 253 to ensure that no state or local authority could erect legal barriers to entry to telecommunications markets that would frustrate the 1996 Act's explicit goal of opening local markets to competition. Section 253 directs the Commission, subject to certain limited exceptions, to preempt any state or local statute, regulation or legal requirement that "prohibit[s] or [has] the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." Section 253 ensures that no new entrant is inhibited from entering a telecommunications market because of any state law, regulation or legal requirement unless such measure is necessary to advance the public interest objectives enumerated in section 253(b) and is competitively neutral. In the Texas Preemption Decision, we noted that, under section 253(c), "irrespective of section 253(a), a state or local government may manage the public rights-of-way, and may require fair and reasonable compensation from telecommunications providers for the use of such rights-of-way on a competitively neutral and nondiscriminatory basis." 9. Preemption Petition. TCI's Petition raised a series of related claims regarding the permissible scope of local franchising authority over cable operators and their provision of telecommunications services under both Titles VI and II of the Communications Act. First, the Petition alleged that by conditioning or refusing to grant the two construction permits, the City had interfered with TCI's operation of its cable system in a manner that violates several sections of Title VI. The cited sections place limits on the power of a local franchising authority to impose telecommunications-related requirements on a cable operator under Title VI, or to dictate the type of transmission technology used by the cable operator to deliver its cable signal. Second, the Petition alleged that the Telecommunications Ordinance violates section 253 of the Communications Act. Section 253(a) restricts the authority of state and local governments to impose regulations that prohibit, or that have the effect of prohibiting, the ability of any entity to provide any interstate or intrastate telecommunications service. TCI also alleged that the City lacked authority under state law to enact or enforce the Telecommunications Ordinance. The City argued that its actions comply fully with federal and state law. Further, the City maintained that the Commission lacks jurisdiction to determine the validity of its Telecommunications Ordinance under section 253. 10. Troy Decision. In the Troy Decision, the Commission noted that sections 621(b)(3)(A), (b)(3)(B), (b)(3)(D) and 624(e), each place certain limitations on the power of a local franchising authority with respect to the provision of telecommunications services by a cable operator. Section 621(b)(3)(A) states that a cable operator or affiliate "engaged in the provision of telecommunications services - (i) . . . shall not be required to obtain a franchise under this title for the provision of telecommunications services . . . ." Similarly, section 621(b)(3)(B) states: A franchising authority may not impose any requirement under this title that has the purpose or effect of prohibiting, limiting, restricting, or conditioning the provision of a telecommunications service by a cable operator or an affiliate thereof. Section 621(b)(3)(D), states: Except as otherwise permitted by sections 611 and 612, a franchising authority may not require a cable operator to provide any telecommunications service or facilities, other than institutional networks, as a condition of the initial grant of a franchise, a franchise renewal, or a transfer of a franchise. The final provision of Title VI at issue in the Troy Decision, section 624(e), provides, in pertinent part: "No State or franchising authority may prohibit, condition, or restrict a cable system's use of any type of subscriber equipment or any transmission technology." 11. The Troy Decision found that Troy had violated section 621(b)(3)(B) by insisting on placing a telecommunications condition on its grant of cable permits. Section 621(b)(3)(B) states that a franchising authority "may not impose any requirement under this title [VI] that has the purpose or effect of prohibiting, limiting, restricting, or conditioning the provision of a telecommunications service by a cable operator or an affiliate thereof." The Troy Decision concluded that "the City clearly was acting under Title VI when it endeavored to condition the grant of the building permits at issue, and the subject matter of the condition was not related to the cable service TCI provides." Troy's attempt to require TCI, a franchised cable operator, to "agree to obtain a telecommunications franchise in the future before it could receive a permit to upgrade its cable system for the purpose of providing cable service" was found to be just the type of action that section 621(b)(3)(B) was intended to prohibit. 12. The Troy Decision further found that the telecommunications condition "impermissibly blurred the distinction, mandated by section 621(b)(3)(B), between regulation of telecommunications services and regulation of cable services." The Troy Decision reasoned that, by inclusion of these provisions in Title VI, Congress clearly intended to separate the functions of cable franchising from the regulation of telecommunications services. The City's insistence on inclusion of its telecommunications condition in a cable permit was found to impermissibly mix these separate spheres. 13. The Commission in the Troy Decision did not agree with TCI's claim that the City's actions violate section 621(b)(3)(A) of the Communications Act. That provision applies by its terms only "[i]f a cable operator or affiliate thereof is engaged in the provision of telecommunications services." The Commission found that, by its own admission, TCI was not so engaged in the City of Troy. In addition, the Troy Decision found that TCI failed to properly claim a violation of the terms of section 621(b)(3)(D). TCI did not allege or show that Troy had required TCI to provide telecommunications services. 14. The Troy Decision also held that the City has not violated section 624(e), as claimed by TCI. That section eliminates the authority of franchising authorities to interfere with a cable operator's choice of the subscriber equipment and transmission technology to be used in its cable system. The Troy Decision found that the City has not sought to restrict the discretion granted to TCI in this regard by its actions with respect to TCI's cable permit applications. 15. The Troy Decision observed that Congress amended Title II by adding section 253 to ensure that no state or local authority could erect legal barriers to entry to telecommunications markets that would frustrate the 1996 Act's explicit goal of opening local markets to competition. Section 253(d) directs the Commission to preempt the enforcement of such legal barriers, upon a proper finding. 16. The Commission determined that the Troy Decision's treatment of TCI's claims arising under Title VI resolved the controversy between TCI and Troy. The Commission noted that, while TCI advanced the additional claim that it should preempt the Telecommunications Ordinance as a barrier to entry under section 253, TCI stated that it had no present intention of offering telecommunications services in the City. Any resolution of the claims made by TCI under section 253 would have no impact on TCI's interests given its position that it did not intend to offer telecommunications services in the City. The Commission therefore declined to issue, in the Troy Decision, a declaratory or advisory ruling as to whether the Troy Telecommunications Ordinance should be preempted, in whole or in part, under section 253(d). III. ISSUES A. Legal Basis Supporting Section 621(b)(3)(B) Violation 1. Reconsideration Petition 17. According to the City, the Commission did not recognize that the City issues right-of-way construction permits pursuant to an ordinance separate from the City's cable franchise ordinance, and that the issuance of such permits is a function of the City's right-of-way management authority, not an exercise of its cable franchising authority. 18. The City argues that section 621(b)(3)(B) applies only to a requirement imposed under Title VI, and that for purposes of Title VI the term "franchise" means "an initial authorization, or renewal thereof . . . which authorizes the construction or operation of a cable system." The Act defines a "franchising authority" as "any governmental entity empowered by Federal, State or local law to grant a franchise." Thus, argues the City, for an action to potentially fall within the ambit of section 621(b)(3)(B), it must be undertaken by the governmental entity authorized to grant a franchise, i.e., the initial authorization for or renewal of a cable system. In the case of Troy, the City Council is the franchising authority. The City contends that the Troy Decision provides no explanation as to how the City's Engineer's issuance of a right-of-way construction permit under the City's Right-of-Way Ordinance, constitutes a requirement imposed by a "franchising authority." 19. The City also challenges statements in the Troy Decision to the effect that the City's franchising authority over cable operators derives from Title VI of the Act, and therefore that the City was "clearly acting under Title VI" when it endeavored to condition the grant of the building permits at issue. The City argues that this conclusion is a "non sequitur" that "fails the reasoned decision making standard which the Commission is required to meet" under Permian Basin Area Rate Cases, 390 U.S. 747, 792, rehearing denied, 392 U.S. 917 (1968). 20. The City argues that the Commission erred both in its conclusion that Troy's cable franchising authority derives from Title VI, and in its conclusion that there was any connection between the issuance of a right-of-way permit under Troy's Right-of-Way Ordinance and cable franchising authority as defined in Title VI. As to the former, the City asserts that local government franchising authority, under which a party is permitted to use the public rights-of-way on terms and conditions set to protect the public interest in the rights- the-way, preceded, and is independent of, Title VI. That portion of the Act, according to Troy, merely established national standards for and limits on the exercise of that preexisting authority. 21. Even if its cable franchising authority derives from Title VI, the City asserts that it does not follow that the City Engineer's issuance of right-of-way construction permits under Troy's Right-of-Way Ordinance derives from Title VI. Troy maintains that because of the absence of a "rational connection" between the issuance of a right-of-way construction permit under Chapter 33 and cable franchising as defined in Title VI of the Act, the Commission's conclusions in the Troy Decision are not based on a consideration of the relevant facts or law. 22. The City also contends that the Commission failed to reconcile its conclusion with section 621(d)(2), which the City maintains "takes precedence over" section 621(b)(3)(B). In addition, the City argues that the Commission's conclusion is irreconcilable with Congressional intent set forth in the Conference Report that accompanied the 1996 Act and section 621(b)(3). Section 621(d)(2) provides that, "[n]othing in this title [VI] shall be construed to affect the authority of any State to regulate any cable operator to the extent that such operator provides any communication service other than cable service, whether offered on a common carrier or private contract basis." The legislative history cited by the City with respect to amendments to section 621(b)(3) states: The conferees intend that, to the extent permissible under State and local law, telecommunications services, including those provided by a cable company, shall be subject to the authority of a local government to, in a nondiscriminatory and competitively neutral way, manage its public rights- of-way and charge fair and reasonable fees. 23. The City claims that the right-of-way permit endorsement, and the separate regulatory requirements it reflects, is an exercise of non-Title VI authority that is preserved by, and protected under, section 621(d)(2). Further, the City argues that these regulatory requirements are an exercise of right-of-way management authority consistent with explicit Congressional intent with respect to section 621(b)(3). The City maintains that, "the Commission's discussion of the section 621(b)(3)(B) issue, and particularly the Royal Oak permit, is predicated on mistakes of fact and includes improper conclusions about the City's motives and the status of TCI's Royal Oak permit application which are contrary to the record evidence, rendering the Commission's conclusions arbitrary and capricious." 24. PROTEC supports Troy's Petition for Partial Reconsideration on the grounds that the construction permits upon which the Commission relies in the Troy Decision are not cable franchises and are not issued pursuant to the City's cable franchising authority within the meaning of section 621(b)(3). 2. TCI's Opposition/Reply to PROTEC Statement 25. TCI responds that Troy's Reconsideration Petition provides no legal or factual basis for the Commission to reconsider its Troy Decision. TCI argues that the City's right-of-way management authority is not "separate and distinct" from its cable franchising authority and there is clearly a "rational connection" between the City's Title VI franchising authority and its power to grant permits to its franchisee to use the public rights-of-way to provide cable services. In fact, TCI states, its cable franchise agreement with Troy expressly requires TCI to obtain from Troy all the necessary permits, authorizations, or registrations for construction of its cable system." 26. TCI further maintains that the Troy Right-of-Way Ordinance is not separate from, but rather is an integral element of, the City's exercise of its Title VI authority to regulate cable communications. TCI contends that Troy's argument, if accepted by the Commission, would enable municipalities to nullify the statutory requirement separating local regulation of cable and telecommunications services by using the cover of generic rights-of-way legislation to impose unlawful conditions on cable operators' construction permits. 27. TCI submits that it is through its cable franchising power that Troy subjects TCI to its rights- of-way authority. Cable franchising authority historically derived from municipal police power over rights-of- way, according to TCI, as both Congress and the Commission have repeatedly recognized. For example, TCI notes that Congress has explicitly recognized that rights-of-way management is a fundamental element of the regulatory authority that cities exercise over cable systems under Title VI, by excluding from the Title VI franchising requirement facilities that serve subscribers without using any public rights-of-way. 28. Under this regulatory framework, TCI argues, Troy's Right-of-Way Ordinance applied to TCI only because it filed the Livernois Road and Royal Oak permit applications in order to provide cable services in Troy. As Troy itself noted in its original comments in this proceeding, "when TCI submits a building permit application to Troy to upgrade its cable system, its does so under the authority granted in its cable franchise to use the city's rights-of-way for its cable service." TCI notes that the Commission correctly found that TCI is not now engaged in the provision of telecommunications services, and has no present intention to provide such services in the City of Troy. Therefore, TCI argues, the only way Troy could reach TCI to impose its "not for telecommunications purposes" condition was through its power over TCI as the cable franchising authority. 29. TCI avers that the City's arguments are no more than an attempt to elevate form over substance. The fact that the City placed its authority to issue franchises and to issue permits in separate ordinances does not alter the fact, according to TCI, that the reason it was seeking a permit was to provide cable service pursuant to its cable franchise. TCI contends that if the Commission adopted Troy's reasoning, it would allow Troy to accomplish indirectly what it is forbidden from doing directly, i.e., "impermissibly blurr[ing] the distinction, mandated by section 621(b)(3), between the regulation of telecommunications services and regulation of cable services." TCI urges that the Commission not permit cities to adopt separate ordinances as a means of avoiding the prohibition against mixing the distinct spheres of cable and telecommunications regulation. 30. Troy's argument that the Commission failed to acknowledge the continued authority of States to regulate non-cable communications services provided by cable operators is irrelevant, argues TCI, since TCI is only providing cable services in the City. 31. Because TCI is not providing any services other than cable service in Troy, it argues that the City's contentions regarding section 621(d)(2) "protecting" its permit endorsements are irrelevant to this proceeding. Even if it were providing telecommunications service, TCI argues, section 621(d)(2) would not confer any telecommunications regulatory authority on the City. TCI maintains that the record demonstrates that Michigan cities lack such authority under Michigan law. In any event, TCI argues that the Commission's decision that a city may not place a condition related to a cable operator's provision of telecommunications service in a cable permit issued pursuant to the city's cable franchising authority in no way derogates lawful State authority over non-cable communications services offered by cable operators. TCI contends that if and when it begins to provide telecommunications service in Michigan, the State's ability to regulate TCI will be unimpeded by the Troy Decision. 32. TCI maintains that even if Troy had the authority to require TCI to obtain a telecom- munications franchise under its Telecommunications Ordinance (which TCI disputes), nothing in the Troy Decision would detract from such authority, if and when TCI began to provide telecommunications service. TCI states that the Troy Decision merely prevents Troy from using TCI's status as a cable operator and its consequent need for permits to use the rights-of-way to provide cable service as the basis for imposing on TCI impermissible restrictions governing its provision of telecommunications service. Finally, TCI argues that, to the extent the Commission finds that Troy's imposition of the condition on TCI's permit implicates the City's telecommunications authority, the Commission should reconsider its decision not to rule on the validity of Troy's Telecommunications Ordinance, and hold that the ordinance is unlawful under section 253 of the Communications Act. 33. In its Reply to PROTEC, TCI states that PROTEC's Statement should be disregarded because it merely repeats the legal arguments set forth in the City's Reconsideration Petition and fails to raise any new factual arguments. 3. Troy Reply to Opposition 34. Troy argues in its Reply that TCI's Opposition fails to address several of the key reasons Troy set forth in its Reconsideration Petition demonstrating why the Troy Decision's conclusion that the endorsements violated section 621(b)(3)(B) is flawed, and that TCI's response to the issues it does address fails to provide a rational basis for denying Troy's Reconsideration Petition. Troy argues that, contrary to TCI's claims, the Troy Right-of-Way Ordinance applied to TCI because TCI wanted to construct facilities in the City's rights-of-way, regardless of the use TCI intended to make of the facilities. Troy cites examples in several other states where a city may have right-of-way management authority, but lack cable franchising authority in support of its argument that the issuance of a right-of-way permit for a specific construction project is distinct from the exercise of franchising authority. Troy maintains that the authority to issue right-of- way permits does not derive from franchising authority, whether it is for cable, telecommunications, or any other service, but rather, that the reverse is true. Under the City's interpretation, the Title VI definition of cable franchising authority represents only a limited aspect of the broader right-of-way authority that state and local governments possess. 35. Troy submits that, even if the endorsement on the permits did not exist, TCI would still need to comply with applicable legal requirements before providing telecommunications service. The City maintains that the endorsement places no restrictions or conditions on TCI's use of the facilities identified in a right-of- way permit that do not exist independent of that permit, but rather delineates the separate requirements (whether state or local) that apply to the use of the rights-of-way for cable and telecommunications. The City argues that the separate telecommunications requirements applicable to TCI are consistent with and preserved under section 621(d)(2), and that its telecommunications franchising authority is within the scope of that provision, as delegated authority under Michigan's Constitution. 36. In response to TCI's argument that section 621(d)(2) is irrelevant to this proceeding because TCI is not now providing telecommunications service in Troy, the City argues that the ability to regulate a cable operator's provision of non-cable service under section 621(d)(2) "is preeminent over section 621(b)(3)(B)." According to Troy, this provision does not require the operator to first provide service before a regulation or legal requirement is adopted. 4. Discussion 37. We do not agree with the City's contention that the Troy Decision erred in its conclusion that the City's insistence upon including its "not for telecommunications purposes" endorsement in TCI's cable con- struction permits violates section 621(b)(3)(B). 38. Section 621(b)(3)(B) states that a franchising authority "may not impose any requirement under this title [VI] that has the purpose or effect of prohibiting, limiting, restricting, or conditioning the provision of a telecommunications service by a cable operator or an affiliate thereof." The Commission found, and the City does not challenge, that in enacting this provision, Congress mandated the separate regulation of cable and telecommunications services. Cities were no longer to rely upon their Title VI cable franchising authority in their efforts to impose regulation on the telecommunications services provided by franchised cable operators. Rather, they would have to rely upon some non-Title VI source of telecommunications regulatory authority for such actions. 39. The City asserts that its actions were taken pursuant to its state-granted authority to manage the public rights-of-way, which is separate and distinct from its cable franchising authority. We do not agree that the City's state-granted authority to manage the public rights-of-way may be exercised in a manner that is expressly prohibited under Title VI. This is particularly the case with respect to service limitations such as the "not for telecommunications purposes" endorsement at issue here. The two disputed construction permits were for the construction of portions of TCI's franchised cable system. TCI's cable franchise requires the operator to submit such permit applications for construction within the City's rights-of-way. The City's state- granted authority to franchise and regulate cable system construction and operation through the franchise process is subject to, and specifically limited by, Title VI. Section 621(a)(2) specifically provides that, "[a]ny franchise shall be construed to authorize the construction of a cable system over public rights-of-way and through easements which have been dedicated to compatible uses . . . ." 40. The legislative history of the 1984 Cable Act confirms that the purpose of Title VI was to establish a national policy clarifying the then-current system of local, state and Federal regulation of cable television. "This policy continues reliance on the local franchising process as the primary means of cable regulation, while defining and limiting the authority that a franchising authority may exercise through the franchise process." The 1984 Act "establishes the authority of local governments to regulate cable television through the franchise process." The House Report clearly states, with respect to section 621, that the provision "grants a franchising authority the authority to award one or more franchises within its jurisdiction. This grant of authority to a franchising authority to award a franchise establishes the basis for state and local regulation of cable systems." In addition, the House Report reiterates that "[s]ubsection 621(a)(2) specifies that any franchise issued to a cable system authorizes the construction of a cable system over public rights-of- way, and through easements, which have been dedicated to compatible uses." 41. Where, as here, TCI the franchised cable operator is seeking permission to use the public rights-of-way to construct or upgrade construction on its cable system in order to provide cable services, Title VI acts as a limitation upon the scope of the City's exercise of its rights-of-way management authority. Cable franchising authority historically derived from municipal police power over public rights-of-way, as both Congress and the Commission have repeatedly recognized. For example, Congress has explicitly recognized that rights-of-way management is a fundamental element of the regulatory authority that cities exercise over cable systems under Title VI, by excluding from the Title VI franchising requirement facilities that serve subscribers without using any public rights-of-way. 42. We have previously observed that the "dual federal-local jurisdictional approach to regulating cable television service is largely premised on the fact that cable systems necessarily involve extensive physical facilities and substantial construction upon and use of public rights-of-way in the communities they serve." More recently, we stated, "through the policies enumerated by the Communications Act [regarding cable systems], the definitions reflecting these policies, and the Commission's decisions, the cable franchise requirement of section 621(b) is inextricably linked to the use of the public rights-of-way." We do not dispute the City's contention that it possesses rights-of-way management authority over users of the public rights-of- way that are separate from its Title VI cable franchising authority. But we do not agree that the City may rely on this source of authority to avoid the clear directions of Title VI when seeks to impose a telecommunications service limitation in the construction permits it grants its franchised cable operator. 43. We recognize that the public rights-of-way construction permit process serves as a crucial first step in the local rights-of-way management scheme, by, inter alia, alerting city officials as to the precise location of the planned construction activity and protecting the facilities of existing users of the public rights- of-way. However, the scope of local rights-of-way management authority is not unlimited, and cannot be exercised in a manner that conflicts with the express directives of Title VI. Local authority to pursue legitimate management concerns regarding uses of the public rights-of-way which might unduly burden the right-of-way at issue, or construction that would cause needless disruption of a particular public right-of-way when reasonable alternative routes are available, is undisturbed by the Troy Decision's findings with regard to Troy's actions on TCI's construction permit applications under section 621(b)(3)(B). 44. Although the Troy "not for telecommunications purposes" endorsement was developed and applied in the context of TCI's cable construction permits, substantively, it is a service limitation that cannot be imposed consistent with section 621(b)(3)(B). Troy's Right-of-Way Ordinance applied to TCI only because it filed the Livernois Road and Royal Oak permit applications in order to provide cable services in Troy. As Troy itself noted in its original comments in this proceeding, "when TCI submits a building permit application to Troy to upgrade its cable system, its does so under the authority granted in its cable franchise to use the city's rights-of-way for its cable service." 45. The City's arguments regarding the confusion of its franchising and permitting authority are not persuasive. That the City placed its authority to issue cable franchises and to issue right-of-way construction permits in separate ordinances is not dispositive of whether it violated section 621(b)(3)(B) with respect to TCI's permits. TCI sought the two permits at issue to upgrade cable facilities used to provide cable service pursuant to its cable franchise. The City's adoption of separate ordinances as a means of carrying out its regulatory authority over communications companies that use the public rights-of-way to construct their systems cannot serve as the premise to overcome the law's prohibition against mixing the distinct spheres of cable and telecommunications regulation. 46. The City also argues that the Commission erred by concluding that the City's franchising authority derives from Title VI, but that even if it did, the actions of the City Engineer vis-a-vis TCI's construction permits were not taken under Title VI. The City claims that section 621(b)(3)(B) only applies to actions undertaken by the governmental entity authorized to grant a franchise, which, in the case of Troy, is the City Council. The City claims that the Troy Decision fails to explain how the City Engineer's issuance of a right-of-way construction permit under the City's right-of-way ordinance constitutes a requirement imposed by a "franchising authority." 47. We disagree with the City's interpretation of section 621(b)(3)(B). The City may delegate its regulatory authority over cable systems to various departments and officials, but may not avoid the consequences of such delegations by attempting to distance itself retroactively from the actions of its subordinate departments or officials. The record in this case demonstrates that the "not for telecommunications purposes" endorsement was first created pursuant to a January 1995 Letter Agreement between TCI and the City of Troy, and that the City Attorney, Peter Letzmann, "advised the City Engineer that all permits that appeared to be usable for services other than cable should be endorsed with 'not for telecommunications purposes' language consistent with the terms of the Agreement with TCI." The record evidence demonstrates that, as to TCI's two disputed construction permits, the Troy City Attorney specifically, and with notice to the Troy City Manager, directed the Troy Engineering Department to review TCI's permit applications to insure that they are "consistent with not only the letter of the [January 1995 Letter Agreement] but also the spirit of that agreement." 48. The record contains no evidence supporting a finding that, with respect to the matter of TCI's Livernois Road and Royal Oak cable construction permit applications, the City Attorney and the City Engineer were not acting pursuant to the instructions of the local franchising authority, the Troy City Council. Nor do we see how they could otherwise be construed. The franchising authority of the City is intertwined with its authority to manage the use of the public rights-of-way by cable operators. The City has not demonstrated that reconsideration of this aspect of the Troy Decision is warranted on the ground that the actions of the City Engineer with respect to the inclusion of the disputed telecommunications endorsement cannot be attributed to the local franchising authority for section 621(b)(3)(B) purposes. 49. We also do not agree with the City that the Troy Decision's conclusion that the City violated section 621(b)(3)(B) was inconsistent with section 621(d)(2) and congressional intent. The City claims that the imposition of the right-of-way permit endorsement, and the separate regulatory requirements it reflects, is an exercise of non-Title VI authority that is preserved in section 621(d)(2), and an exercise of right-of-way management authority consistent with explicit Congressional intent with respect to section 621(b)(3). As it did in its initial comments, the City contends that its Telecommunications Ordinance is consistent with and pursuant to Article VII, Section 29 of the Michigan Constitution. That Ordinance requires any entity, including TCI, to obtain a separate franchise prior to using the City's rights-of-way to transact telecommunications business. The City asserts that the Commission's conclusions under section 621(b)(3)(B) are therefore irreconcilable with section 621(d)(2) and Congressional intent. 50. Section 621(d)(2) provides that, "[n]othing in this title [VI] shall be construed to affect the authority of any State to regulate any cable operator to the extent that such operator provides any communica- tion service other than cable service, whether offered on a common carrier or private contract basis." The legislative history cited by the City with respect to amendments to section 621(b)(3) states: The conferees intend that, to the extent permissible under State and local law, telecommunications services, including those provided by a cable company, shall be subject to the authority of a local government to, in a nondiscriminatory and competitively neutral way, manage its public rights- of-way and charge fair and reasonable fees. 51. The Troy Decision correctly concluded that the endorsement was imposed upon the cable operator by the local franchising authority under its Title VI authority, and that the service limitation violated section 621(b)(3)(B)'s prohibition against the imposition of telecommunications regulation on cable operators under Title VI. Again, the Commission found, and no party contests, that TCI was not, and had no intention to begin, providing telecommunications services in the City of Troy. Because TCI is not providing any services other than cable service in the City of Troy, the City's contentions regarding section 621(d)(2) are not germane to this proceeding. 52. Even if section 621(d)(2) were relevant, the Commission's decision that a city may not place a condition related to a cable operator's provision of telecommunications service in a cable construction permit issued pursuant to the city's franchising authority does not affect lawful state authority over non-cable communications services offered by cable operators. The legislative history of section 621(d)(2) states that: The Committee does not intend that the authority of a state or the FCC to regulate non-cable communications services shall be limited to the authority to require the informational tariffs described in subsection (d). It is the intent of subsection (d) that, with respect to non-cable communications services, both the power of any state public utility commissions and the power of the FCC be unaffected by the provisions of Title VI. Thus, Title VI is neutral with respect to such authority. 53. The Troy Decision is similarly neutral with respect to any non-Title VI authority the City of Troy may possess under Michigan law with respect to non-cable communications services offered by any provider over its public rights-of-way. The Commission's decision did not decide on the validity of specific sections of the Troy Telecommunications Ordinance under section 253. Even if Troy has the authority it claims to regulate telecommunications service providers within the City, nothing in the Troy Decision would detract from the legitimate exercise of such authority, consistent with section 253 of the Act. The Troy Decision prevents Troy from using TCI's status as a franchised cable operator and its consequent need for permits to construct facilities within the rights-of-way to provide cable service as the basis for imposing on TCI impermissible restrictions governing its provision of telecommunications services. B. Factual Basis Supporting Section 621(b)(3)(B) Violation 1. Reconsideration Petition 54. The City argues that, in addition to their legal infirmity, the Commission's conclusions are predicated on certain mistakes of fact. First, the City states that the Troy Decision erroneously concludes that the City entered into the January 1995 Letter Agreement with TCI, endorsed the Livernois Road permit, and stated that it would include an endorsement on the Royal Oak permit, on the basis of TCI's status as a cable operator. This is not correct, the City argues, because these actions were "based on the fact that TCI had early on indicated an interest in providing telecommunications service but had never obtained or applied for the appropriate state and local authority to do so. . . ." 55. Second, the City claims that the Commission's discussion of the Royal Oak permit in paragraphs 72-76 of the Troy Decision mischaracterizes several facts regarding the City's treatment of the permit application itself, including a series of letters between TCI and Troy regarding the Royal Oak and Livernois Road permits, as well as mischaracterizes Troy's motives. Third, the City argues that the Commission was wrong to blame the City for leaving the permit application dormant for ten months when in fact, its dormancy was due to TCI's failure to provide additional information that might clarify or resolve the routing issue. 56. The City also claims that it never sought to impose the condition that TCI obtain a telecommunications franchise pursuant to Troy's Telecommunications Ordinance on TCI's Royal Oak permit application. Rather, the need to receive a telecommunications franchise was merely "a matter that Mr. Linquist [the City Engineer] requested TCI to address as one of several matters requiring clarification before Troy could process the application." The City maintains that, as reflected in the March 11 Letzmann Letter, the only endorsement it proposed with respect to Royal Oak permit is the endorsement that TCI needs to obtain any necessary legal consents prior to using the installed facilities for telecommunications. 57. The City concludes by arguing that because much of the Commission's discussion of the section 621(b)(3)(B) issue, and virtually the entirety of its discussion of the Royal Oak permit, "is premised on incorrect factual assertions and unfounded conclusions, the section 621(b)(3)(B) discussion in the MO&O is arbitrary and capricious, and must be corrected." 2. TCI Opposition 58. TCI states that the conclusions reached in the Troy Decision were amply supported by the facts before the Commission at the time. TCI explains that it did not resubmit its Royal Oak permit application, or seek to file a new application to serve the area originally proposed because the City continued to insist upon inclusion of the disputed "not for telecommunications purposes" endorsement on any permit issued. In addition, TCI states that it had determined that by upgrading its facilities along an alternative route previously authorized by the City it could connect the two cable headends as it originally attempted to do in the Royal Oak permit application. 3. Discussion 59. The City raises several issues regarding the Commission's interpretation of various aspects of the factual record of this proceeding. The City claims that because much of the Troy Decision's discussion of the section 621(b)(3)(B) issue is premised upon these allegedly incorrect factual assertions and unfounded conclusions, that part of the decision is "arbitrary and capricious and must be corrected." We do not agree. 60. The Commission, over the course of the proceeding, confronted what ultimately became an evolving record. In legitimate attempts to provide supplementary factual information that gave the Commission insight into what happened to TCI's construction permit applications, all parties sought to use the additional information to their advantage. This required the Commission to balance the original and supplemental documentary information with the advocacy accompanying it. Troy has submitted no information to make us question that our interpretation of the significance of the information contained in the record as whole was reasonable. None of the alleged "factual errors" provides any basis for reconsideration of the Troy Decision. In each case, the Commission's factual findings are amply supported by the record in this proceeding. Any inferences drawn from the documents cited by the City were permissible inferences, supported by a reasonable reading of the primary source materials. 61. The central legal issue upon which the Troy Decision rests is whether the City's actions violated section 621(b)(3)(B) by impermissibly seeking to regulate, under Title VI, the prospective provision of telecommunications services by a cable operator. The Troy Decision's disposition of this issue was premised upon: (i) TCI's status as a cable operator, (ii) the City's status as a local franchising authority under Title VI, (iii) the City's imposition of a "not for telecommunications purposes" condition on TCI's cable construction permits, which were filed with the City pursuant to a requirement in TCI's cable franchise as well as pursuant to the City's Right-of-Way Ordinance, (iv) that TCI was not pursuing telecommunications entry in the Troy market, and (v) the plain language of the statute. It did not rest upon the subsidiary interpretive and inferential issues upon which the City attempts to construct its reconsideration request. C. Significance of Alleged Newly Discovered Facts 1. Reconsideration Petition 62. Troy argues that recent events have raised new issues questions concerning TCI's motives and intent with respect to its provision of communications services in the City. In June 1997, the City avers, it first learned that TCI is leasing to TCG Detroit approximately 16 miles of fiber optic cable in Troy. The City states that TCG is using this fiber optic cable to provide telecommunications service, and that the City has determined that more than four miles of this fiber optic cable was installed in the City's rights-of-way in violation of Chapter 33 because no permit was ever sought or issued for this construction by either company. Consequently, the City argues, TCI has no authority to occupy these rights-of-way, and it is apparently trespassing in the rights-of-way. The City claims that TCI has sought permits to install facilities in Troy's rights-of-way that it did not intend for the provision of cable service, but that it intended to lease out to others, or use for itself, for the provision of telecommunications service. The City claims that these facts raise serious questions whether TCI has been fully forthcoming with Troy and the Commission during the course of this proceeding. 63. On the basis of the newly alleged facts contained in the City's Reconsideration Petition, PROTEC argues the Commission should deny any declaratory relief to TCI "because of TCI's unclean hands." 2. TCI Opposition/Reply to PROTEC Statement 64. TCI argues that none of the allegedly "new" facts raised by Troy in its Reconsideration Petition undermine the Commission's conclusions, and therefore, the public interest does not require consideration of these new allegations. Because Troy did not previously present these facts to the Commis- sion, TCI asserts, its Reconsideration Petition may be granted only if the facts relate to events that have occurred or circumstances that have changed since the last opportunity to present such matters, or if the facts were unknown to Troy until after its last opportunity to present such matters and could not, with ordinary diligence, have been learned prior to such an opportunity. TCI argues that, contrary to Troy's claims that "recent events have raised further questions concerning TCI's motive and intents," the accusations that Troy has now injected into the present proceeding are based upon facts that have been known to the City for over three years. 65. TCI challenges the City's raising, for the first time on reconsideration, allegations based on TCI's lease of excess capacity to TCG Detroit. TCI asserts that Troy's claim that it first learned in June 1997 that TCI leased certain of its facilities to TCG Detroit is demonstrably false. According to TCI, the City and the cable operator have been engaged in discussions regarding TCI's lease of capacity to TCG Detroit since July 1995. TCI cites series of letters in which it responds to letter from the City's Director of Parks and Recreation in the spring of 1995 inquiring as to whether TCI was leasing capacity on its cable system for the provision of telephone service, and TCI's response explaining that it leases some of its capacity to TCG for voice communications. Before that, TCI maintains, TCG had disclosed its intent to provide telecommunications services in Michigan by leasing facilities from affiliated and non-affiliated cable companies. Neither TCI nor TCG Detroit has ever attempted to conceal this activity from the City. 66. TCI contests Troy's claim that TCI installed more than four miles of fiber optic cable in its rights-of-way without authority. It also asserts that the circumstances underlying this accusation were known to Troy almost a month before the Commission issued the Troy Decision. TCI states that it first became aware of these claims in August 1997, when articles appeared in several Michigan newspapers in which Mr. Letzmann made similar allegations. According to TCI, although Troy never formally contacted TCI about its concerns, TCI sent a letter to Mr. Letzmann on September 5, 1997, explaining that nothing in the four mile loop in question was new underground construction. 67. TCI explains that various segments of the loop were installed pursuant to its annual maintenance permit, under previously authorized and constructed routes, or pursuant to a 1994 permit for aerial construction, or pursuant to a permit issued by the Michigan Department of Transportation. One segment contains no fiber, but only coaxial cable in underground conduits that have existed, according to TCI, for approximately six years. In light of the City's concerns reported in the press, TCI submitted a permit application to Troy for the last segment of this route on October 21, 1997. TCI maintains that, although this segment could have been upgraded under its annual maintenance permit, TCI decided to seek this additional authorization out of an abundance of caution. 68. TCI contends that these facilities were upgraded, not, as the City asserts, for non-cable purposes, but in order to ensure the continued quality and reliability of TCI's cable service in compliance with TCI's franchise, and to connect the headends as it originally sought to do in the Royal Oak permit application. TCI argues that the TCI facilities in question are primarily used in the provision of cable service, and that TCI is not using the rights-of-way to provide telecommunications service, either inside or outside the City. TCI maintains that its lease of excess capacity on its cable system to TCG Detroit is not subject to regulation by Troy under Michigan law because the lease of capacity on TCI's cable system is neither a cable service nor a telecommunications service, and in any event does not impose any new burdens on the public rights-of-way. Even if TCI's lease of excess capacity on its cable system to TCG Detroit was subject to regulation by Troy under Michigan law, TCI argues it would not justify the City's attempt to mingle the regulation of cable and telecommunications services. Nor, TCI argues, do the City's allegations call into question the soundness of the Troy Decision's conclusion that the City may not bootstrap its way into regulation of telecommunications though its cable franchising authority. 69. TCI contends that Troy's Reconsideration Petition improperly alleges "new facts" about TCI that were known to Troy prior to the issuance of the Troy Decision, and that, in any event, the "new" facts provide no basis for the Commission to reconsider the Troy Decision. TCI urges that, if the Commission now determines that Troy's efforts to subject TCI to the Troy Telecommunications Ordinance are permissible under section 621(b)(3), then it must also address the validity of the Ordinance, and preempt it under section 253 for the reasons set forth in the pleadings and ex parte presentations by TCI and numerous other parties in this proceeding. 70. TCI asserts that PROTEC's contention that the Commission should dismiss TCI's request for relief because of TCI's alleged "unclean hands" is merely a restatement of the City's untimely argument that the Troy Decision was based on mistakes of fact. TCI states that it has clearly demonstrated that Troy's allegedly new facts were known to the City for at least three years and are not properly before the Commission now. Even if they were newly discovered, TCI argues that it has clearly shown that the allegations do not undermine the conclusions reached in the Troy Decision. Moreover, TCI contends, PROTEC has no independent knowledge of the facts in this case, and therefore, its arguments as to the facts in the case should carry no weight. 3. Troy Reply to Opposition 71. Troy maintains in its reply that Troy city officials had no prior knowledge of TCI's arrangement with TCG Detroit and that TCI's statements in this proceeding were, "at a minimum, disingenuous." Troy further asserts that TCI has both concealed from Troy the installation of telecommunications facilities in the city's rights-of-way, and, referring to the TCI/TCG Detroit lease of capacity, "has been less than candid with the Commission in not revealing the full extent of its activities in Troy's rights-of-way." In support of this allegation, Troy submits the Declarations of Mr. Peter Letzmann and Mr. Roger Kowalski, both of whom disavow having prior knowledge of TCG's lease of TCI's facilities to provide telecommunications service in Troy. The City explains that, with respect to TCI's Mr. Cleland's letter to Mr. Kowalski (Exhibit 4A to TCI's Opposition), the reference to TCG's lease of a portion of the cable system "is contained in one sentence in the middle of a paragraph towards the end of the letter." The City notes that Mr. Cleland does not state that TCG is providing telecommunications service in Troy, but rather, states he has no knowledge in this regard, and confirms that TCI has complied the January 1995 Letter Agreement with the City. Troy states that, "[h]ad Troy's City Attorney know of TCG's lease of portions of TCI's system for the purpose of providing telecommunications in the City, Troy would have raised this matter with the Commission when it first responded to TCI's original petition. 72. Troy asserts that based on the newly discovered facts regarding the TCI/TCG Detroit lease, the City believes that TCI sought a ruling from the Commission that might justify after-the-fact the unauthorized construction and use of Troy's rights-of-way to provide facilities for TCI's affiliate's use to provide telecommunications service. Troy urges that the Commission stop tolerating TCI's "disregard of basic requirements of candor," and render a decision on the accurate record the City has now produced. 73. Troy also states that favorable action on its Reconsideration Petition does not require the Commission to revisit other aspects of the Troy Decision. The City argues that TCI did not file a timely petition for reconsideration, and should not be permitted to bootstrap a belated request for reconsideration of issues outside the scope of the City's Reconsideration Petition. 4. Discussion 74. We do not find that the City has made a proper case for consideration of these alleged newly discovered facts on reconsideration of the Troy Decision. Moreover, we are not convinced that, even if they were eligible for consideration under our procedural rules, these facts would lend any further support to the City's request for partial reconsideration of the Troy Decision. 75. Under Section 1.106(c) of the Commission's rules, a petition for reconsideration which relies upon facts not previously presented to the Commission may be granted only under the following circumstances: (1) the facts fall within one or more of the categories set forth in Section 1.106(b)(2); or (2) the Commission determines that consideration of the facts relied on is required in the public interest. Section 1.106(b)(2) requires that one or more of the following circumstances be present for consideration of new facts: (i) the petition relies upon facts which relate to events which have occurred or circumstances which have changed since the last opportunity to present such matters; or (ii) the petition relies upon facts that were unknown to petitioner until after its last opportunity to present such matters, and which could not, with ordinary diligence, have been learned prior to such an opportunity. 76. In its Opposition, TCI demonstrates that the alleged new facts occurred, and were known to the City, as early as 1995 and certainly no later than one month prior to the adoption and release of the Troy Decision. TCI has shown that the City was on notice that TCI was subleasing excess capacity on its cable system to TCG Detroit as early as 1995. The City's Reply to TCI's Opposition does not dispute that this information was contained in a letter sent from TCI to the City. Rather, the City claims that only one City official read the letter, and that the information was contained in a later paragraph of the letter. We note that the letter in question was less than one and one half pages in length, and contains TCI's response to inquiries by the City's Director of Parks & Recreation regarding the utilization of TCI's cable plant for telecommunications purposes since TCI entered into the January 1995 Letter Agreement with the City. Beginning at the top of page two, the sentence TCI relies upon states: "Additionally, we lease some of our capacity to TCG for voice communications although I'm not sure if they serve any customers within the city of Troy." We do not find the reasons advanced by the City for failing to comprehend the meaning or significance of this sentence persuasive. 77. In view of the foregoing, there is no basis in the record to support a finding that the City has met the "exercise of ordinary diligence" portion of the test for permitting consideration of newly discovered facts under Section 1.106(b)(2)(ii). Because the City has not demonstrated that its newly discovered facts qualify for consideration under Section 1.106(c)(1) we will not consider the City's alleged "new facts" regarding TCI's construction of facilities in the City of Troy that were not initially part of the record in this proceeding. In this case, we conclude that the public interest does not require consideration of "newly discovered" facts. 78. Even assuming arguendo that the City had adequately demonstrated that its allegations met the two standards of section 1.106(c)(1), the facts alleged provide no basis upon which reconsideration of the Troy Decision can be based. The substantive issues of whether TCI was subleasing capacity on its cable system to TCG Detroit for that company's use in the provision of telecommunications services, and the significance of such a sublease, are irrelevant to the legal issue upon which the City seeks reconsideration. Even if TCI's lease of excess capacity on its cable system to TCG Detroit was subject to regulation by Troy under Michigan law, it would not justify the City's attempt to mingle the regulation of cable and telecommunications services. Nor do the City's allegations call into question the soundness of the Troy Decision's conclusion that the City may not bootstrap itself into the regulation of telecommunications through its cable franchising authority. We fail to find that consideration of the new facts is required in the public interest, and therefore decline to consider these facts under Section 1.106(c)(2). IV. CONCLUSION 79. The City has failed to raise any legal or factual issues that support reconsideration of the Troy Decision's conclusion that the City violated section 621(b)(3)(B) when it sought to impose its "not for telecommunications purposes" endorsement on two of TCI's cable construction permits. The City is incorrect as a legal matter that its cable franchising authority is wholly separate and distinct from its right-of-way management authority. The City's right-of-way management authority vis-a-vis the construction and operation of a cable system for the purpose of providing cable services must be exercised pursuant to the limitations and restrictions contained within Title VI, regardless of whether the City chooses to enact separate local ordinances to govern the franchising and construction permit aspects of this authority. 80. The Troy Decision did not overlook the differences between local franchising and local construction permitting, as the City argues. Rather, it is pursuant to Title VI that its right-of-way management authority with respect to cable systems, currently exists, and that it must exercise all aspects of its authority with respect to cable systems pursuant to the terms and conditions established by Congress. Among those terms and conditions is the limitation on the local franchising authority's ability to impose telecommunications conditions or regulations upon cable operators under Title VI. This important Title VI limitation on local authority over cable systems is not changed by assertions of authority over cable system construction and operation derives from state-granted non-Title VI right-of-way management authority. These sources of authority are one and the same as to cable systems. We deny the City's Request for Partial Reconsideration of the Troy Decision. 81. In addition, we deny PROTEC's request that the Commission deny any declaratory relief to TCI "because of TCI's unclean hands." PROTEC's Statement does nothing more than repeat the claims contained in the City's Reconsideration Petition. We agree with TCI's observation that, as to these matters, PROTEC has no independent knowledge of the facts, and therefore its factual contentions are denied, for the same reasons that the City's factual contentions are denied. 82. Finally, TCI had requested that if the Commission reconsiders the Troy Decision's conclusion that the City violated section 621(b)(3)(B), and concludes that the City's efforts to subject TCI to the Troy Telecommunications Ordinance are permissible under section 621(b)(3)(B), then it must also address the validity of the Ordinance, and preempt it under section 253 for the reasons set forth in the pleadings and other submission by TCI and numerous other parties in the proceeding. Because we deny the City's Reconsideration Petition, TCI's request is moot. V. ORDERING PARAGRAPHS 83. Accordingly, IT IS ORDERED, pursuant to section 621(b)(3)(B) of the Communications Act of 1934, as amended, 47 U.S.C.  541(b)(3)(B), and section 1.106 of the Commission's rules, 47 C.F.R.  1.106, that the Petition for Partial Reconsideration filed by the City of Troy IS DENIED. 84. IT IS FURTHER ORDERED that the request that the Commission dismiss the TCI Petition for Declaratory Ruling in its entirety for "want of clean hands" contained in PROTEC's Statement in Support of the City of Troy's Petition for Partial Reconsideration IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary