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The Commission did not reach the additional issue raised by TCI regarding  xthe ability of local franchising authorities to require a cable operator to use fiber optic facilities to meet franchise requirements for a specific number of channels in their cable systems.y  S- ` x  15.` ` The Troy Decision observed that Congress amended Title II by adding section 253 to  xensure that no state or local authority could erect legal barriers to entry to telecommunications markets  S- xthat would frustrate the 1996 Act's explicit goal of opening local markets to competition.N0 (] {Op-ԍ Troy Decision at paras. 9798.N Section 253(d) directs the Commission to preempt the enforcement of such legal barriers, upon a proper finding.  S(- ` Qx16.` ` The Commission determined that the Troy Decision's treatment of TCI's claims arising  S- xunder Title VI resolved the controversy between TCI and Troy.J (] {Od#-ԍ Troy Decision at para. 99.J The Commission noted that, while TCI  xadvanced the additional claim that it should preempt the Telecommunications Ordinance as a barrier to  x<entry under section 253, TCI stated that it had no present intention of offering telecommunications services  xin the City. Any resolution of the claims made by TCI under section 253 would have no impact on TCI's  xinterests given its position that it did not intend to offer telecommunications services in the City. The"bT ,`(`(88"  S- xCommission therefore declined to issue, in the Troy Decision, a declaratory or advisory ruling as to  xwhether the Troy Telecommunications Ordinance should be preempted, in whole or in part, under section  S-253(d).3(] {O-ԍ Id.3  S-. III. ISSUES ă  Sb-  S:- A.x   Legal Basis Supporting Section 621(b)(3)(B) Violation  S-x1.` ` Reconsideration Petition x  S- ` }x17.` ` According to the City, the Commission did not recognize that the City issues rightofway  xconstruction permits pursuant to an ordinance separate from the City's cable franchise ordinance, and that  xthe issuance of such permits is a function of the City's rightofway management authority, not an exercise  S" -of its cable franchising authority.J" Z(] yO-ԍ Reconsideration Petition at 23.J  S - ` x18.` ` The City argues that section 621(b)(3)(B) applies only to a requirement imposed under  xTitle VI, and that for purposes of Title VI the term "franchise" means "an initial authorization, or renewal  S - xthereof . . . which authorizes the construction or operation of a cable system."F (] yO -ԍ 47 U.S.C.  522(9).F The Act defines a  x"franchising authority" as "any governmental entity empowered by Federal, State or local law to grant a  S2- xfranchise."G 2z(] yOL-ԍ 47 U.S.C.  522(10).G Thus, argues the City, for an action to potentially fall within the ambit of section  x621(b)(3)(B), it must be undertaken by the governmental entity authorized to grant a franchise, i.e., the  xNinitial authorization for or renewal of a cable system. In the case of Troy, the City Council is the  S- xfranchising authority.}! (] yOd-ԍ Reconsideration Petition at 6, citing Troy Code, Chapter 63, Article II, Section 4.} The City contends that the Troy Decision provides no explanation as to how the  xCity's Engineer's issuance of a rightofway construction permit under the City's RightofWay Ordinance,  Sl-constitutes a requirement imposed by a "franchising authority.";"l(] {O-ԍ Id. at 67.; x` `  S- ` x19.` ` The City also challenges statements in the Troy Decision to the effect that the City's  xfranchising authority over cable operators derives from Title VI of the Act, and therefore that the City was  S- x"clearly acting under Title VI" when it endeavored to condition the grant of the building permits at issue.q#, (] {O"-ԍ Reconsideration Petition at 7, quoting Troy Decision at para. 69.q  xjThe City argues that this conclusion is a "non sequitur" that "fails the reasoned decision making standard  S~- xwhich the Commission is required to meet" under Permian Basin Area Rate Cases, 390 U.S. 747, 792,  SX-rehearing denied, 392 U.S. 917 (1968).9$X (] {O&-ԍ Id. at 7.9 "0P $,`(`(88"Ԍ S- ` Cx20.` ` The City argues that the Commission erred both in its conclusion that Troy's cable  x.franchising authority derives from Title VI, and in its conclusion that there was any connection between  xthe issuance of a rightofway permit under Troy's RightofWay Ordinance and cable franchising  x/authority as defined in Title VI. As to the former, the City asserts that local government franchising  xauthority, under which a party is permitted to use the public rightsofway on terms and conditions set to  xjprotect the public interest in the rightstheway, preceded, and is independent of, Title VI. That portion  x[of the Act, according to Troy, merely established national standards for and limits on the exercise of that  S-preexisting authority. %(] {OP- xwԍ Reconsideration Petition at 7 n.7, citing Cable Communications Policy Act of 1984, Public Law 98549; H.R. Rep. No. 934, 98th Cong., 2d Sess. at 19 (1984) (respectively, "1984 Cable Act," and "House Report").   S- ` x21.` ` Even if its cable franchising authority derives from Title VI, the City asserts that it does  x[not follow that the City Engineer's issuance of rightofway construction permits under Troy's Rightof x!Way Ordinance derives from Title VI. Troy maintains that because of the absence of a "rational  xconnection" between the issuance of a rightofway construction permit under Chapter 33 and cable  xfranchising as defined in Title VI of the Act, the Commission's conclusions in the Troy Decision are not  S -based on a consideration of the relevant facts or law.& "(] {O- xԍ Reconsideration Petition at 78, citing Bowman Transportation v. ArkansasBest Freight System, 419 U.S. 281,  {O\-285 (1974); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 401, 414 (1971).  S -  S - ` _x22.` ` The City also contends that the Commission failed to reconcile its conclusion with section  xy621(d)(2), which the City maintains "takes precedence over" section 621(b)(3)(B). In addition, the City  xargues 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).  xSection 621(d)(2) provides that, "[n]othing in this title [VI] shall be construed to affect the authority of  xzany State to regulate any cable operator to the extent that such operator provides any communication  S- xservice other than cable service, whether offered on a common carrier or private contract basis."C'~(] yO-ԍ 47 U.S.C.  541(d)(2).C The legislative history cited by the City with respect to amendments to section 621(b)(3) states:  ` dXxX` ` 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  Sx-rightsofway and charge fair and reasonable fees.(x(] {O&!-ԍ Reconsideration Petition at 3; quoting H.R. Cong. Rep. No. 458, 104th Cong., 2d Sess. 180 (1996).x`  S(- ` `x23.` ` The City claims that the rightofway permit endorsement, and the separate regulatory  xrequirements it reflects, is an exercise of nonTitle VI authority that is preserved by, and protected under,"(,`(`(88\"  S- xsection 621(d)(2).)\(] {Oh- x<ԍ Id. at 910. The City also states that even if the Troy Telecommunications Ordinance did not exist, TCI  xZwould still need to comply with state requirements for obtaining a license prior to providing telecommunications  {O-service. "Thus, the endorsement would still serve a purpose." Id. at n.9. Further, the City argues that these regulatory requirements are an exercise of rightof S- xxway management authority consistent with explicit Congressional intent with respect to section 621(b)(3).*"(] {Od- xԍ Reconsideration Petition at 10, citing H.R. Conf. Rep. No. 458, 104th Cong., 2d Sess. 180 (1996) ("The  xxconferees intend that, to the extent permissible under State and local law, telecommunications services, including  xthose 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 rightsofway and charge fair and reasonable fees").  xThe City maintains that, "the Commission's discussion of the section 621(b)(3)(B) issue, and particularly  x-the Royal Oak permit, is predicated on mistakes of fact and includes improper conclusions about the City's  xjmotives and the status of TCI's Royal Oak permit application which are contrary to the record evidence,  S8-rendering the Commission's conclusions arbitrary and capricious."J+8(] yO -ԍ Reconsideration Petition at 34.J  S- ` x24.` ` PROTEC*,f (] yO- xԍ The "Michigan Coalition to Protect Public RightsofWay From Telecommunications Encroachments"  x.("PROTEC") is a coalition of local governments in the State of Michigan. PROTEC's Board of Directors is  xcomprised of representatives from the cities of Dearborn, Livonia, and Southfield, Michigan. PROTEC became a  xparty to this proceeding upon filing a motion to dismiss or deny TCI's original petition. PROTEC's Statement in Support at 1 n.1.* supports Troy's Petition for Partial Reconsideration on the grounds that the  S- xconstruction permits upon which the Commission relies in the Troy Decision are not cable franchises and  x[are not issued pursuant to the City's cable franchising authority within the meaning of section 621(b)(3).  SJ - x2.` ` TCI's Opposition /Reply to PROTEC Statement  S - ` x25.` ` TCI responds that Troy's Reconsideration Petition provides no legal or factual basis for  S - xthe Commission to reconsider its Troy Decision. TCI argues that the City's rightofway management  xyauthority is not "separate and distinct" from its cable franchising authority and there is clearly a "rational  xconnection" between the City's Title VI franchising authority and its power to grant permits to its  xfranchisee to use the public rightsofway to provide cable services. In fact, TCI states, its cable franchise  xagreement with Troy expressly requires TCI to obtain from Troy all the necessary permits, authorizations,  S -or registrations for construction of its cable system."- (] {O- xԍ TCI Opposition at 34, citing The City of Troy Cable Communications Franchise Agreement at  11(c), relevant excerpts attached to TCI Opposition as Exhibit 1.  S- ` `x26.` ` TCI further maintains that the Troy RightofWay Ordinance is not separate from, but  xrather is an integral element of, the City's exercise of its Title VI authority to regulate cable communica xtions. TCI contends that Troy's argument, if accepted by the Commission, would enable municipalities  xto nullify the statutory requirement separating local regulation of cable and telecommunications services"D p-,`(`(88c"  x=by using the cover of generic rightsofway legislation to impose unlawful conditions on cable operators'  S-construction permits.@.(] yO@-ԍ TCI Opposition at 12.@ x  S- ` ~x27.` ` TCI submits that it is through its cable franchising power that Troy subjects TCI to its  xrightsofway authority. Cable franchising authority historically derived from municipal police power over  S8- xrightsofway, according to TCI, as both Congress and the Commission have repeatedly recognized./8X(] {O0- xԍ TCI Opposition at 4, citing S. Rep. 9867 at 67 (1983)(explaining that the premise for local regulation of  yO- xcable was its use of local streets and rightsofway):  Amendment of Part 76 of the Commission's Rules and  x,Regulations Relative to an Inquiry on the Need for Additional Rules in the Area of Duplicative and Excessive Over xRegulation of Cable Television, Report and Order, 54 FCC 2d 855, 861, 863 (1975) (describing "reasonable regulations regarding use of the streets and rightsofway as within state jurisdiction). For  xexample, TCI notes that Congress has explicitly recognized that rightsofway management is a  xfundamental element of the regulatory authority that cities exercise over cable systems under Title VI, by  x\excluding from the Title VI franchising requirement facilities that serve subscribers without using any  S-public rightsofway.0 (] {OB- xwԍ TCI Opposition at 4 n.6; 47 U.S.C.  522(7)(B). See also H.R. Rep. 98934 at 59 (1984)(listing rightofway management issues as among the matters to be addressed by state and local regulation of cable systems).  SH - ` #x28.` ` Under this regulatory framework, TCI argues, Troy's RightofWay Ordinance applied to  xTCI only because it filed the Livernois Road and Royal Oak permit applications in order to provide cable  xservices in Troy. As Troy itself noted in its original comments in this proceeding, "when TCI submits  xa building permit application to Troy to upgrade its cable system, its does so under the authority granted  S - xmin its cable franchise to use the city's rightsofway for its cable service."1 d (] {O- xzԍ TCI Opposition at 4, quoting Comments of the City of Troy, filed September 4, 1996 at 8 ("Troy Comments"). TCI notes that the  xCommission correctly found that TCI is not now engaged in the provision of telecommunications services,  xand has no present intention to provide such services in the City of Troy. Therefore, TCI argues, the only  xway Troy could reach TCI to impose its "not for telecommunications purposes" condition was through its  S-power over TCI as the cable franchising authority.@2 (] yOf-ԍ TCI Opposition at 45.@  S- ` x29.` ` TCI avers that the City's arguments are no more than an attempt to elevate form over  xsubstance. The fact that the City placed its authority to issue franchises and to issue permits in separate  xordinances does not alter the fact, according to TCI, that the reason it was seeking a permit was to provide  xcable service pursuant to its cable franchise. TCI contends that if the Commission adopted Troy's  S- x>reasoning, it would allow Troy to accomplish indirectly what it is forbidden from doing directly, i.e.,  x"impermissibly blurr[ing] the distinction, mandated by section 621(b)(3), between the regulation of  S- xtelecommunications services and regulation of cable services.">3N (] yO%-ԍ TCI Opposition at 5.> TCI urges that the Commission not" 3,`(`(88"  xpermit cities to adopt separate ordinances as a means of avoiding the prohibition against mixing the  S-distinct spheres of cable and telecommunications regulation.>4(] yO@-ԍ TCI Opposition at 6.>  S- ` ox30.` ` Troy's argument that the Commission failed to acknowledge the continued authority of  xStates to regulate noncable communications services provided by cable operators is irrelevant, argues TCI,  S8-since TCI is only providing cable services in the City.>58X(] yO0-ԍ TCI Opposition at 6.>  S-  S- ` x31.` ` Because TCI is not providing any services other than cable service in Troy, it argues that  xthe City's contentions regarding section 621(d)(2) "protecting" its permit endorsements are irrelevant to  xMthis proceeding. Even if it were providing telecommunications service, TCI argues, section 621(d)(2)  xwould not confer any telecommunications regulatory authority on the City. TCI maintains that the record  SH - xdemonstrates that Michigan cities lack such authority under Michigan law.>6H (] yO-ԍ TCI Opposition at 7.> In any event, TCI argues that  xthe Commission's decision that a city may not place a condition related to a cable operator's provision  xof telecommunications service in a cable permit issued pursuant to the city's cable franchising authority  xin no way derogates lawful State authority over noncable communications services offered by cable  xoperators. TCI contends that if and when it begins to provide telecommunications service in Michigan,  S -the State's ability to regulate TCI will be unimpeded by the Troy Decision.47 x(] {O-ԍ Id. 4  S2- ` x32.` ` TCI maintains that even if Troy had the authority to require TCI to obtain a telecom S - xmunications franchise under its Telecommunications Ordinance (which TCI disputes), nothing in the Troy  S- xDecision would detract from such authority, if and when TCI began to provide telecommunications  S- xservice. TCI states that the Troy Decision merely prevents Troy from using TCI's status as a cable  xoperator and its consequent need for permits to use the rightsofway to provide cable service as the basis  xfor imposing on TCI impermissible restrictions governing its provision of telecommunications service.  xFinally, TCI argues that, to the extent the Commission finds that Troy's imposition of the condition on  xTCI's permit implicates the City's telecommunications authority, the Commission should reconsider its  xydecision not to rule on the validity of Troy's Telecommunications Ordinance, and hold that the ordinance  S-is unlawful under section 253 of the Communications Act.E8 (] yOz-ԍ TCI Opposition at 8 & n.17.E  S- ` Bx 33.` ` In its Reply to PROTEC, TCI states that PROTEC's Statement should be disregarded  x.because it merely repeats the legal arguments set forth in the City's Reconsideration Petition and fails to  S0-raise any new factual arguments.O90(] yOj$-ԍ TCI Reply to PROTEC's Statement at 1.O "0 * 9,`(`(88"Ԍ S-:řx 3.` ` Troy Reply to Opposition  S- ` Ax!34.` ` Troy argues in its Reply that TCI's Opposition fails to address several of the key reasons  S- xyTroy set forth in its Reconsideration Petition demonstrating why the Troy Decision's conclusion that the  x:endorsements violated section 621(b)(3)(B) is flawed, and that TCI's response to the issues it does address  xfails to provide a rational basis for denying Troy's Reconsideration Petition. Troy argues that, contrary  x/to TCI's claims, the Troy RightofWay Ordinance applied to TCI because TCI wanted to construct  S- x.facilities in the City's rightsofway, regardless of the use TCI intended to make of the facilities.J:(] yOR-ԍ Troy Reply to Opposition at 34.J Troy  xcites examples in several other states where a city may have rightofway management authority, but lack  x\cable franchising authority in support of its argument that the issuance of a rightofway permit for a  xspecific construction project is distinct from the exercise of franchising authority. Troy maintains that the  xauthority to issue rightofway permits does not derive from franchising authority, whether it is for cable,  S" - xtelecommunications, or any other service, but rather, that the reverse is true.J;" X(] yO-ԍ Troy Reply to Opposition at 45.J Under the City's  xinterpretation, the Title VI definition of cable franchising authority represents only a limited aspect of the  S -broader rightofway authority that state and local governments possess.H< (] yOZ-ԍ Troy Reply to Opposition at 5.H  S -  S - ` x"35.` ` Troy submits that, even if the endorsement on the permits did not exist, TCI would still  xneed to comply with applicable legal requirements before providing telecommunications service. The City  xmaintains that the endorsement places no restrictions or conditions on TCI's use of the facilities identified  xin a rightofway permit that do not exist independent of that permit, but rather delineates the separate  xrequirements (whether state or local) that apply to the use of the rightsofway for cable and  S- x=telecommunications.H=x(] yO-ԍ Troy Reply to Opposition at 6.H The City argues that the separate telecommunications requirements applicable to  xTCI are consistent with and preserved under section 621(d)(2), and that its telecommunications franchising  Sj-authority is within the scope of that provision, as delegated authority under Michigan's Constitution.H>j(] yO-ԍ Troy Reply to Opposition at 7.H  S- ` x#36.` ` In response to TCI's argument that section 621(d)(2) is irrelevant to this proceeding  xybecause TCI is not now providing telecommunications service in Troy, the City argues that the ability to  xMregulate a cable operator's provision of noncable service under section 621(d)(2) "is preeminent over  xsection 621(b)(3)(B)." According to Troy, this provision does not require the operator to first provide  Sz-service before a regulation or legal requirement is adopted.[?z(] yO"-ԍ Troy Reply to Opposition at 78. hh [ "R ( ?,`(`(88"Ԍ S-:x 4.` ` Discussion  S- ` x$37.` ` We do not agree with the City's contention that the Troy Decision erred in its conclusion  xthat the City's insistence upon including its "not for telecommunications purposes" endorsement in TCI's :cable construction permits violates section 621(b)(3)(B).  S- ` Ax%38.` ` Section 621(b)(3)(B) states that a franchising authority "may not impose any requirement  x=under this title [VI] that has the purpose or effect of prohibiting, limiting, restricting, or conditioning the  S- xyprovision of a telecommunications service by a cable operator or an affiliate thereof."F@(] yO* -ԍ 47 U.S.C.  541(b)(3)(B).F The Commission  xfound, and the City does not challenge, that in enacting this provision, Congress mandated the separate  xkregulation of cable and telecommunications services. Cities were no longer to rely upon their Title VI  xcable franchising authority in their efforts to impose regulation on the telecommunications services  xjprovided by franchised cable operators. Rather, they would have to rely upon some nonTitle VI source of telecommunications regulatory authority for such actions.  S - ` x&39.` ` The City asserts that its actions were taken pursuant to its stategranted authority to  x=manage the public rightsofway, which is separate and distinct from its cable franchising authority. We  x.do not agree that the City's stategranted authority to manage the public rightsofway may be exercised  S2- xin a manner that is expressly prohibited under Title VI.A2X(] {O*-ԍ Hines v. Davidowitz, 312 U.S. 52, 67 (1941); see also NARUC v. FCC, 880 F.2d 422, 431 (D.C. Cir. 1989). This is particularly the case with respect to  xservice limitations such as the "not for telecommunications purposes" endorsement at issue here. The two  xdisputed construction permits were for the construction of portions of TCI's franchised cable system.  xTCI's cable franchise requires the operator to submit such permit applications for construction within the  xCity's rightsofway. The City's stategranted authority to franchise and regulate cable system  xconstruction and operation through the franchise process is subject to, and specifically limited by, Title  x VI. Section 621(a)(2) specifically provides that, "[a]ny franchise shall be construed to authorize the  xNconstruction of a cable system over public rightsofway and through easements which have been dedicated to compatible uses . . . ."  S- ` x'40.` ` The legislative history of the 1984 Cable Act confirms that the purpose of Title VI was  xto establish a national policy clarifying the thencurrent system of local, state and Federal regulation of  xcable television. "This policy continues reliance on the local franchising process as the primary means  x>of cable regulation, while defining and limiting the authority that a franchising authority may exercise  S- xthrough the franchise process."B(] yO - xxԍ House Report, 98th Congress 2d Session, Report 98934, Cable Franchise Policy and Communications Act of 1984 at 19 ("House Report"). The 1984 Act "establishes the authority of local governments to regulate  S- xcable television through the franchise process."3CB(] {O#-ԍ Id.3 The House Report clearly states, with respect to section  x621, that the provision "grants a franchising authority the authority to award one or more franchises within  xits jurisdiction. This grant of authority to a franchising authority to award a franchise establishes the basis" C,`(`(88"  S- xfor state and local regulation of cable systems."=D(] yOh-ԍ House Report at 59.= In addition, the House Report reiterates that  x="[s]ubsection 621(a)(2) specifies that any franchise issued to a cable system authorizes the construction  xof a cable system over public rightsofway, and through easements, which have been dedicated to  S-compatible uses."=EX(] yO-ԍ House Report at 59.=  S8- ` x(41.` ` Where, as here, TCI the franchised cable operator is seeking permission to use the public  xyrightsofway to construct or upgrade construction on its cable system in order to provide cable services,  x{Title VI acts as a limitation upon the scope of the City's exercise of its rightsofway management  xauthority. Cable franchising authority historically derived from municipal police power over public rights S- xjofway, as both Congress and the Commission have repeatedly recognized.F(] yO - xZԍ House Report at 59; S. Rep. 9867 at 67 (1983)(explaining that the premise for local regulation of cable  yO - xwas its use of local streets and rightsofway):  Amendment of Part 76 of the Commission's Rules and Regulations  xRelative to an Inquiry on the Need for Additional Rules in the Area of Duplicative and Excessive OverRegulation  xof Cable Television, Report and Order, 54 FCC 2d 855, 861, 863 (1975) (describing "reasonable regulations  yO@-regarding use of the streets and rightsofway as within state jurisdiction). ģ For example, Congress has  xexplicitly recognized that rightsofway management is a fundamental element of the regulatory authority  xthat cities exercise over cable systems under Title VI, by excluding from the Title VI franchising  S -requirement facilities that serve subscribers without using any public rightsofway.G\ (] {OX- xԍ See Section 602(7)(B) (excluding from the definition of "cable system" a facility "that serves subscribers  {O"- xiwithout using any public rightofway"). See also House Report at 59 (listing rightofway management issues as among the matters to be addressed by state and local regulation of cable systems).  S - ` Cx)42.` ` We have previously observed that the "dual federallocal jurisdictional approach to  xregulating cable television service is largely premised on the fact that cable systems necessarily involve  x/extensive physical facilities and substantial construction upon and use of public rightsofway in the  SX- xcommunities they serve."HX (] {O- xxԍ In the Matter of Definition of a Cable Television System, MM Docket No. 8935, Report and Order, 5 FCC Rcd 7638, 7639 (1990). More recently, we stated, "through the policies enumerated by the  xCommunications Act [regarding cable systems], the definitions reflecting these policies, and the  xCommission's decisions, the cable franchise requirement of section 621(b) is inextricably linked to the use  S- xof the public rightsofway."I(] {O - xYԍ In the Matter of: Entertainment Connections, Inc., Motion for Declaratory Ruling, Memorandum Opinion and Order, FCC 98111 (released June 30, 1998) at para. 52. We do not dispute the City's contention that it possesses rightsofway  xMmanagement authority over users of the public rightsofway that are separate from its Title VI cable  S- xfranchising authority. J( p(] {O$- xԍ See Classic Telephone, Inc. Petition for Preemption, Declaratory Ruling and Injunctive Relief, Memorandum  {Oj%- xOpinion and Order, File No. CCBPol 9610, 11 FCC Rcd 13082, 13103 (1996) (Classic Telephone Decision); Classic  {O4&- xJTelephone, Inc., Petition for Emergency Relief, Sanctions and Investigation, CCBPol 9610, Memorandum Opinion  {O&- xand Order, FCC 97335 (released September 24, 1996), petition for review held in abeyance, City of Bogue, Kansas"&I,`(`(%'"  {O- xxand City of Hill City, Kansas v. FCC, No. 961432 (D.C. Cir. Jan. 14, 1997)(denying petitioner's motion for writ  {OZ- xof prohibition and sua sponte holding petition in abeyance), citing 141 Cong. Rec. S8172 (daily ed. June 12, 1995)  x(statement of Sen. Feinstein, quoting letter from the Office of the City Attorney, City and County of San Francisco);  xImplementation of Section 302 of the Telecommunications Act of 1996; Open Video Systems, CS Docket No. 9646,  {O- xJFCC 96312, Second Report and Order and First Order on Reconsideration, 11 FCC Rcd 18223, 18330 (1996) (OVS  {O~- xSecond Report); Third Report and Order and Second Order on Reconsideration (OVS Third Report and  {OH- xReconsideration), CS Docket 9646, FCC 96334 (released Aug. 8, 1996), (referred to collectively as "OVS Orders"),  {O- xJappeal pending, sub nom. City of Dallas, Texas, et al., v. FCC, United States Court of Appeals for the Fifth Circuit,  xNos. 9660502 (and consolidated cases); Fourth Report and Order, CS Docket No. 9646, FCC 97130 (released April  x;15, 1997)(modifying certain procedural rules relating to the filing and disposition of OVS certification applications,  yOl - xFCC Form 1275), Order on Reconsideration, CS Docket No. 9646, FCC 98172 (released Aug. 4, 1998). The  {O4 - xClassic Telephone Decision and OVS Second Report address the scope of a municipality's authority to manage the  xpublic rightsofway, including matters such as coordination of construction schedules, determination of insurance,  x-bonding and indemnity requirements, establishment and enforcement of building codes, and keeping track of the various systems using the rightsofway to prevent interference between them. But we do not agree that the City may rely on this source of authority to avoid"V J,`(`(88"  xthe clear directions of Title VI when seeks to impose a telecommunications service limitation in the construction permits it grants its franchised cable operator. x  S- ` Px*43.` ` We recognize that the public rightsofway construction permit process serves as a crucial  S`- x\first step in the local rightsofway management scheme, by, inter alia, alerting city officials as to the  xprecise location of the planned construction activity and protecting the facilities of existing users of the  S- xpublic rightsofway.KV (] {O- xԍ See McQuillin, Eugene, The Law of Municipal Corporations, Third Edition, 1995 Revised Vol. 12, Chap. 34, Franchises,  34.76. Street Excavations. However, the scope of local rightsofway management authority is not unlimited,  S- x0and cannot be exercised in a manner that conflicts with the express directives of Title VI.PL(] {O:-ԍ Troy Decision at paras. 78, 105.P Local  xkauthority to pursue legitimate management concerns regarding uses of the public rightsofway which  x[might unduly burden the rightofway at issue, or construction that would cause needless disruption of a  Sr- xparticular public rightofway when reasonable alternative routes are available, is undisturbed by the Troy  SL - xDecision's findings with regard to Troy's actions on TCI's construction permit applications under section 621(b)(3)(B).  S - ` x+44.` ` Although the Troy "not for telecommunications purposes" endorsement was developed and  xapplied in the context of TCI's cable construction permits, substantively, it is a service limitation that  xcannot be imposed consistent with section 621(b)(3)(B). Troy's RightofWay Ordinance applied to TCI  x>only because it filed the Livernois Road and Royal Oak permit applications in order to provide cable  xservices in Troy. As Troy itself noted in its original comments in this proceeding, "when TCI submits  xa building permit application to Troy to upgrade its cable system, its does so under the authority granted  S-in its cable franchise to use the city's rightsofway for its cable service."}MB(] yO#-ԍ  Comments of the City of Troy, filed September 4, 1996 at 8 ("Troy Comments").}  S- ` x,45.` ` The City's arguments regarding the confusion of its franchising and permitting authority  x[are not persuasive. That the City placed its authority to issue cable franchises and to issue rightofway  xyconstruction permits in separate ordinances is not dispositive of whether it violated section 621(b)(3)(B)"FM,`(`(88E"  xwith respect to TCI's permits. TCI sought the two permits at issue to upgrade cable facilities used to  x\provide cable service pursuant to its cable franchise. The City's adoption of separate ordinances as a  xmeans of carrying out its regulatory authority over communications companies that use the public rights x=ofway 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.  S- ` x-46.` ` The City also argues that the Commission erred by concluding that the City's franchising  xauthority derives from Title VI, but that even if it did, the actions of the City Engineer visavis TCI's  xZconstruction permits were not taken under Title VI. The City claims that section 621(b)(3)(B) only applies  xto actions undertaken by the governmental entity authorized to grant a franchise, which, in the case of  Sp- xTroy, is the City Council. The City claims that the Troy Decision fails to explain how the City Engineer's  x issuance of a rightofway construction permit under the City's rightofway ordinance constitutes a requirement imposed by a "franchising authority."  S - ` nx.47.` ` We disagree with the City's interpretation of section 621(b)(3)(B). The City may delegate  xits regulatory authority over cable systems to various departments and officials, but may not avoid the  xconsequences of such delegations by attempting to distance itself retroactively from the actions of its  xsubordinate departments or officials. The record in this case demonstrates that the "not for  x<telecommunications purposes" endorsement was first created pursuant to a January 1995 Letter Agreement  xibetween TCI and the City of Troy, and that the City Attorney, Peter Letzmann, "advised the City Engineer  xthat all permits that appeared to be usable for services other than cable should be endorsed with 'not for  S- xtelecommunications purposes' language consistent with the terms of the Agreement with TCI."NN(] {O"-ԍ Troy Decision at paras. 1213.N The  xrecord evidence demonstrates that, as to TCI's two disputed construction permits, the Troy City Attorney  xzspecifically, and with notice to the Troy City Manager, directed the Troy Engineering Department to  x<review TCI's permit applications to insure that they are "consistent with not only the letter of the [January  S-1995 Letter Agreement] but also the spirit of that agreement."OZ(] yO- xԍ TCI Petition, Exh. 6, Letter dated October 31, 1995 from Peter A. Letzmann, City Attorney, to Mr. James Alexander, Foster, Swift, Collins & Smith, (counsel for TCI).  S- ` x/48.` ` The record contains no evidence supporting a finding that, with respect to the matter of  xTCI's Livernois Road and Royal Oak cable construction permit applications, the City Attorney and the  xCity Engineer were not acting pursuant to the instructions of the local franchising authority, the Troy City  xCouncil. Nor do we see how they could otherwise be construed. The franchising authority of the City  S*- xyis intertwined with its authority to manage the use of the public rightsofway by cable operators.hPx*(] yO| - xԍ For example, section 622 authorizes local franchising authorities to require any cable operator under the terms  xof any franchise to pay a franchise fee, subject to the limitations contained in subsection (b). Section 622(b) states  xthat for any twelve month period, the franchise fee paid by any cable operator with respect to any cable system shall  xnot exceed 5 percent of such cable operator's gross revenues derived in such period from the operation of the cable  xsystem to provide cable services. 47 U.S.C.  542(a) & (b). The legislative history of this provision states that:  x"Each local franchising authority may assess the cable operator a fee for the operator's use of public ways." House Report at 26.h The  S- xCity has not demonstrated that reconsideration of this aspect of the Troy Decision is warranted on the  xground that the actions of the City Engineer with respect to the inclusion of the disputed" P,`(`(88."  xtelecommunications endorsement cannot be attributed to the local franchising authority for section 621(b)(3)(B) purposes.  S-  S- `  x049.` ` We also do not agree with the City that the Troy Decision's conclusion that the City  Sb- xjviolated section 621(b)(3)(B) was inconsistent with section 621(d)(2) and congressional intent. The City  xclaims that the imposition of the rightofway permit endorsement, and the separate regulatory  xrequirements it reflects, is an exercise of nonTitle VI authority that is preserved in section 621(d)(2), and  xan exercise of rightofway management authority consistent with explicit Congressional intent with  S- x2respect to section 621(b)(3).Q"(] {O* - xԍ Reconsideration Petition at 10, citing H.R. Conf. Rep. No. 458, 104th Cong., 2d Sess. 180 (1996) ("The  xxconferees intend that, to the extent permissible under State and local law, telecommunications services, including  xthose 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 rightsofway and charge fair and reasonable fees"). As it did in its initial comments, the City contends that its  xTelecommunications Ordinance is consistent with and pursuant to Article VII, Section 29 of the Michigan  xConstitution. That Ordinance requires any entity, including TCI, to obtain a separate franchise prior to  x{using the City's rightsofway to transact telecommunications business. The City asserts that the  x.Commission's conclusions under section 621(b)(3)(B) are therefore irreconcilable with section 621(d)(2)  S -and Congressional intent.HR (] yOL-ԍ Reconsideration Petition at 9.H  S - ` `x150.` ` Section 621(d)(2) provides that, "[n]othing in this title [VI] shall be construed to affect  xthe authority of any State to regulate any cable operator to the extent that such operator provides any  x.communication service other than cable service, whether offered on a common carrier or private contract  S2-basis."CS2B(] yO-ԍ 47 U.S.C.  541(d)(2).C The legislative history cited by the City with respect to amendments to section 621(b)(3) states:  ` dXxX` ` 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  SB-rightsofway and charge fair and reasonable fees.TB(] {O-ԍ Reconsideration Petition at 3; quoting H.R. Cong. Rep. No. 458, 104th Cong., 2d Sess. 180 (1996).x`  S- ` 2x251.` ` The Troy Decision correctly concluded that the endorsement was imposed upon the cable  xkoperator by the local franchising authority under its Title VI authority, and that the service limitation  xviolated section 621(b)(3)(B)'s prohibition against the imposition of telecommunications regulation on  x=cable operators under Title VI. Again, the Commission found, and no party contests, that TCI was not,  xand had no intention to begin, providing telecommunications services in the City of Troy. Because TCI  xis 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.  S- ` Qx352.` ` Even if section 621(d)(2) were relevant, the Commission's decision that a city may not  xplace a condition related to a cable operator's provision of telecommunications service in a cable"d T,`(`(88"  xZconstruction permit issued pursuant to the city's franchising authority does not affect lawful state authority  xover noncable communications services offered by cable operators. The legislative history of section 621(d)(2) states that:  ` (XxX` ` The Committee does not intend that the authority of a state or the FCC  ` )to regulate noncable communications services shall be limited to the  ` 7authority to require the informational tariffs described in subsection (d).  ` It is the intent of subsection (d) that, with respect to noncable  `  communications services, both the power of any state public utility  ` Fcommissions and the power of the FCC be unaffected by the provisions  Sp-of Title VI. Thus, Title VI is neutral with respect to such authority.=Up(] yO -ԍ House Report at 63.=x`  S - ` _x453.` ` The Troy Decision is similarly neutral with respect to any nonTitle VI authority the City  x[of Troy may possess under Michigan law with respect to noncable communications services offered by  S - xany provider over its public rightsofway.VZ X(] {O- x<ԍ See Troy Decision at para. 99 n.259 (citing as an additional reason not to address the validity of the Troy  xJTelecommunications Ordinance the existence of an open question under Michigan state law regarding whether there has been a delegation of authority to Troy sufficient to support its adoption of the Ordinance). The Commission's decision did not decide on the validity  S - xof specific sections of the Troy Telecommunications Ordinance under section 253.JW z(] {O-ԍ Troy Decision at para. 99.J Even if Troy has the  S - x=authority it claims to regulate telecommunications service providers within the City, nothing in the Troy  S\- x=Decision would detract from the legitimate exercise of such authority, consistent with section 253 of the  S6- xAct.=X6 (] yO-ԍ 47 U.S.C.  253.= The Troy Decision prevents Troy from using TCI's status as a franchised cable operator and its  xconsequent need for permits to construct facilities within the rightsofway to provide cable service as the  xbasis for imposing on TCI impermissible restrictions governing its provision of telecommunications services.  Sp- B.xFactual Basis Supporting Section 621(b)(3)(B) Violation  S -x 1.` ` Reconsideration Petition  S- ` Bx554.` ` The City argues that, in addition to their legal infirmity, the Commission's conclusions  S- x\are predicated on certain mistakes of fact.IY(] yO!-ԍ Reconsideration Petition at 10.I First, the City states that the Troy Decision erroneously  xconcludes that the City entered into the January 1995 Letter Agreement with TCI, endorsed the Livernois  xRoad permit, and stated that it would include an endorsement on the Royal Oak permit, on the basis of  S2- xTCI's status as a cable operator.IZ2, (] yO%-ԍ Reconsideration Petition at 11.I This is not correct, the City argues, because these actions were "based"2 Z,`(`(88"  xon the fact that TCI had early on indicated an interest in providing telecommunications service but had  S-never obtained or applied for the appropriate state and local authority to do so. . . .":[(] {O@-ԍ Id. at 11.:  S- ` x655.` ` Second, the City claims that the Commission's discussion of the Royal Oak permit in  S`- xparagraphs 7276 of the Troy Decision mischaracterizes several facts regarding the City's treatment of the  S:- xjpermit application itself, including a series of letters between TCI and Troy regarding the Royal Oak and  S- xzLivernois Road permits, as well as mischaracterizes Troy's motives.L\Z(] yO -ԍ Reconsideration Petition at 1116.L Third, the City argues that the  xCommission was wrong to blame the City for leaving the permit application dormant for ten months when  xin fact, its dormancy was due to TCI's failure to provide additional information that might clarify or  S-resolve the routing issue.R](] yO$ -ԍ Reconsideration Petition at 1214.R  SJ - ` Rx756.` ` The City also claims that it never sought to impose the condition that TCI obtain a  xtelecommunications franchise pursuant to Troy's Telecommunications Ordinance on TCI's Royal Oak  xpermit application. Rather, the need to receive a telecommunications franchise was merely "a matter that  xMr. Linquist [the City Engineer] requested TCI to address as one of several matters requiring clarification  xbefore Troy could process the application." The City maintains that, as reflected in the March 11  xLetzmann Letter, the only endorsement it proposed with respect to Royal Oak permit is the endorsement  x1that TCI needs to obtain any necessary legal consents prior to using the installed facilities for  S2-telecommunications.I^2z(] yOL-ԍ Reconsideration Petition at 15.I  S- ` x857.` ` The City concludes by arguing that because much of the Commission's discussion of the  xsection 621(b)(3)(B) issue, and virtually the entirety of its discussion of the Royal Oak permit, "is  x=premised on incorrect factual assertions and unfounded conclusions, the section 621(b)(3)(B) discussion  Sj-in the MO&O is arbitrary and capricious, and must be corrected."I_j (] yO-ԍ Reconsideration Petition at 18.I  S-x 2.` ` TCI Opposition  S- ` x958.` ` TCI states that the conclusions reached in the Troy Decision were amply supported by  x=the facts before the Commission at the time. TCI explains that it did not resubmit its Royal Oak permit  xapplication, or seek to file a new application to serve the area originally proposed because the City  xcontinued to insist upon inclusion of the disputed "not for telecommunications purposes" endorsement on  xLany permit issued. In addition, TCI states that it had determined that by upgrading its facilities along an  xalternative route previously authorized by the City it could connect the two cable headends as it originally  S-attempted to do in the Royal Oak permit application.`(] {O&- xԍ TCI Opposition at 10, citing Declaration of Russell Anthony, attached thereto as Exhibit 3 ("Anthony Declaration")." `,`(`(88L"Ԍ S-ԙx 3.` ` Discussion  S- ` } x:59.` ` The City raises several issues regarding the Commission's interpretation of various aspects  S- xof the factual record of this proceeding. The City claims that because much of the Troy Decision's  xLdiscussion of the section 621(b)(3)(B) issue is premised upon these allegedly incorrect factual assertions  S:- xand unfounded conclusions, that part of the decision is "arbitrary and capricious and must be corrected."Ia:(] yO-ԍ Reconsideration Petition at 18.I We do not agree.  S- ` x;60.` ` The Commission, over the course of the proceeding, confronted what ultimately became  xan evolving record. In legitimate attempts to provide supplementary factual information that gave the  x.Commission insight into what happened to TCI's construction permit applications, all parties sought to  xuse the additional information to their advantage. This required the Commission to balance the original  xjand supplemental documentary information with the advocacy accompanying it. Troy has submitted no  xinformation to make us question that our interpretation of the significance of the information contained  x]in the record as whole was reasonable. None of the alleged "factual errors" provides any basis for  S - xreconsideration of the Troy Decision. In each case, the Commission's factual findings are amply  xsupported 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.  S - ` x<61.` ` The central legal issue upon which the Troy Decision rests is whether the City's actions  xviolated section 621(b)(3)(B) by impermissibly seeking to regulate, under Title VI, the prospective  S- xprovision of telecommunications services by a cable operator. The Troy Decision's disposition of this  x.issue was premised upon: (i) TCI's status as a cable operator, (ii) the City's status as a local franchising  xauthority under Title VI, (iii) the City's imposition of a "not for telecommunications purposes" condition  xon TCI's cable construction permits, which were filed with the City pursuant to a requirement in TCI's  xcable franchise as well as pursuant to the City's RightofWay Ordinance, (iv) that TCI was not pursuing  xtelecommunications entry in the Troy market, and (v) the plain language of the statute. It did not rest  xMupon the subsidiary interpretive and inferential issues upon which the City attempts to construct its reconsideration request.  SX- C.xSignificance of Alleged Newly Discovered Facts  S-x 1.` ` Reconsideration Petition  S-  S- ` Ax=62.` ` Troy argues that recent events have raised new issues questions concerning TCI's motives  xand intent with respect to its provision of communications services in the City. In June 1997, the City  xavers, it first learned that TCI is leasing to TCG Detroit approximately 16 miles of fiber optic cable in  xTroy. The City states that TCG is using this fiber optic cable to provide telecommunications service, and  xjthat the City has determined that more than four miles of this fiber optic cable was installed in the City's  xrightsofway in violation of Chapter 33 because no permit was ever sought or issued for this construction  xyby either company. Consequently, the City argues, TCI has no authority to occupy these rightsofway,  S"- xand it is apparently trespassing in the rightsofway.Ib"X(] yO&-ԍ Reconsideration Petition at 17.I The City claims that TCI has sought permits to  xinstall facilities in Troy's rightsofway that it did not intend for the provision of cable service, but that"x#b,`(`(88%"  S- xit intended to lease out to others, or use for itself, for the provision of telecommunications service.Rc(] yOh-ԍ Reconsideration Petition, Exh. 3 at 12.R The  xCity claims that these facts raise serious questions whether TCI has been fully forthcoming with Troy and  S-the Commission during the course of this proceeding.:dX(] {O-ԍ Id. at 17.:  S`- ` x>63.` ` On the basis of the newly alleged facts contained in the City's Reconsideration Petition,  xPROTEC argues the Commission should deny any declaratory relief to TCI "because of TCI's unclean  S-hands."Oe(] yO -ԍ PROTEC's Statement in Support at 12.O  S-x 2.` ` TCI Opposition /Reply to PROTEC Statement  Sp- ` x?64.` `  TCI argues that none of the allegedly "new" facts raised by Troy in its Reconsideration  x Petition undermine the Commission's conclusions, and therefore, the public interest does not require  S - x\consideration of these new allegations.gf z(] {O:-ԍ TCI Opposition at 9, citing 47 C.F.R.  1.106(c)(2).g Because Troy did not previously present these facts to the  xCommission, TCI asserts, its Reconsideration Petition may be granted only if the facts relate to events that  xhave occurred or circumstances that have changed since the last opportunity to present such matters, or  x[if the facts were unknown to Troy until after its last opportunity to present such matters and could not,  S - xwith ordinary diligence, have been learned prior to such an opportunity.gg (] {O,-ԍ TCI Opposition at 9, citing 47 C.F.R.  1.106(c)(1).g TCI argues that, contrary to  x[Troy's claims that "recent events have raised further questions concerning TCI's motive and intents," the  xaccusations that Troy has now injected into the present proceeding are based upon facts that have been  S-known to the City for over three years.lh(] {OF-ԍ TCI Opposition at 9, quoting Reconsideration Petition at 17.l  S- ` ox@65.` ` TCI challenges the City's raising, for the first time on reconsideration, allegations based  xon TCI's lease of excess capacity to TCG Detroit. TCI asserts that Troy's claim that it first learned in  xJune 1997 that TCI leased certain of its facilities to TCG Detroit is demonstrably false. According to TCI,  x/the City and the cable operator have been engaged in discussions regarding TCI's lease of capacity to  S- xLTCG Detroit since July 1995.ai0 (] {O -ԍ TCI Opposition at 11, citing Anthony Declaration.a TCI cites series of letters in which it responds to letter from the City's  xDirector of Parks and Recreation in the spring of 1995 inquiring as to whether TCI was leasing capacity  xon its cable system for the provision of telephone service, and TCI's response explaining that it leases  S- xsome of its capacity to TCG for voice communications.sjX (] yO%- xԍ TCI Opposition at 11 n.26. Letter from Michael Cleland, General Manager of TCI, to Roger Kowalski,  xjDirector of Parks and Recreation for the City of Troy (July 7, 1995); Letter from Roger Kowalski to Russell Anthony, TCI (May 22, 1995). Both letters are attached to TCI's Opposition as Exhibit 4.s Before that, TCI maintains, TCG had disclosed  xits intent to provide telecommunications services in Michigan by leasing facilities from affiliated and non"xj,`(`(88"ԫ xaffiliated cable companies. Neither TCI nor TCG Detroit has ever attempted to conceal this activity from  S-the City.k(] {O@- xԍ TCI Opposition at 11, citing Application of TCG Detroit Before the Michigan Public Service Commission, filed Nov. 10, 1994, prepared testimony at 8.  S- ` xA66.` ` TCI contests Troy's claim that TCI installed more than four miles of fiber optic cable in  xits rightsofway without authority. It also asserts that the circumstances underlying this accusation were  S8- xjknown to Troy almost a month before the Commission issued the Troy Decision. TCI states that it first  xbecame aware of these claims in August 1997, when articles appeared in several Michigan newspapers  S- xMin which Mr. Letzmann made similar allegations.l"(] {O - xԍ TCI Opposition at 11 & n.28, citing Douglas Ilka, "Cable TV Lines Illegal, Troy Says," Detroit News, Aug.  {Ov - x27, 1995 at D5; Mary McDonough, "TCI Leasing Underground Cable for Telephone Service Without Franchise,"  {O@ - x,Aug. 28, 1997 at A1; Susan Steinmueller, "Letzmann Launches New Fight with TCI," The Eccentric (Troy Edition),  {O - xAug. 31, 1997 at A1; and Douglas Ilka, "City Accuses Troy Cable Firm of Letting Phone Company Use Wires," Detroit News, Sept. 4, 1997 at E5. According to TCI, although Troy never formally  xcontacted TCI about its concerns, TCI sent a letter to Mr. Letzmann on September 5, 1997, explaining  S-that nothing in the four mile loop in question was new underground construction.m(] {O- xhԍ TCI Opposition at 12, citing Letter from Russell Anthony, Vice President of the North Central Region, TCI, to Peter Letzmann, Troy City Attorney (Sept. 5, 1997), attached thereto as Exhibit 5 ("Sept. 1997 Anthony Letter").  SJ - ` xB67.` ` TCI explains that various segments of the loop were installed pursuant to its annual  xmaintenance permit, under previously authorized and constructed routes, or pursuant to a 1994 permit for  xLaerial construction, or pursuant to a permit issued by the Michigan Department of Transportation. One  x\segment contains no fiber, but only coaxial cable in underground conduits that have existed, according  xjto TCI, for approximately six years. In light of the City's concerns reported in the press, TCI submitted  xja permit application to Troy for the last segment of this route on October 21, 1997. TCI maintains that,  xalthough this segment could have been upgraded under its annual maintenance permit, TCI decided to seek  S2-this additional authorization out of an abundance of caution.?n24 (] yO-ԍ TCI Opposition at 12.?  S- ` ~xC68.` ` TCI contends that these facilities were upgraded, not, as the City asserts, for noncable  xypurposes, but in order to ensure the continued quality and reliability of TCI's cable service in compliance  xwith TCI's franchise, and to connect the headends as it originally sought to do in the Royal Oak permit  xapplication. TCI argues that the TCI facilities in question are primarily used in the provision of cable  xservice, and that TCI is not using the rightsofway to provide telecommunications service, either inside  xor outside the City. TCI maintains that its lease of excess capacity on its cable system to TCG Detroit  x>is not subject to regulation by Troy under Michigan law because the lease of capacity on TCI's cable  xjsystem is neither a cable service nor a telecommunications service, and in any event does not impose any  S- xnew burdens on the public rightsofway.oZ (] {O%- xZԍ TCI Opposition at 13 n.32, citing Cable TV Fund 14A, LTD, d/b/a Jones Intercable v. City of Naperville,  xyCase No. 96C5962 (N.D. Ill. July 25, 1997)(holding that cable operator did not require approval from local franchising authority in order to lease fiber for telecommunications purposes to third party). Even if TCI's lease of excess capacity on its cable system  xto TCG Detroit was subject to regulation by Troy under Michigan law, TCI argues it would not justify"zo,`(`(88"  xthe City's attempt to mingle the regulation of cable and telecommunications services. Nor, TCI argues,  S- x=do the City's allegations call into question the soundness of the Troy Decision's conclusion that the City  S-may not bootstrap its way into regulation of telecommunications though its cable franchising authority.Bp(] yO-ԍ TCI Opposition at 1314.B  Sb- ` xD69.` ` TCI contends that Troy's Reconsideration Petition improperly alleges "new facts" about  S:- xTCI that were known to Troy prior to the issuance of the Troy Decision, and that, in any event, the "new"  S- x]facts provide no basis for the Commission to reconsider the Troy Decision. TCI urges that, if the  xKCommission now determines that Troy's efforts to subject TCI to the Troy Telecommunications Ordinance  xare permissible under section 621(b)(3), then it must also address the validity of the Ordinance, and  S- xypreempt it under section 253 for the reasons set forth in the pleadings and ex parte presentations by TCI  Sx-and numerous other parties in this proceeding.@qxX(] yOp -ԍ TCI Opposition at 2. @  S( - ` xE70.` ` TCI asserts that PROTEC's contention that the Commission should dismiss TCI's request  xfor relief because of TCI's alleged "unclean hands" is merely a restatement of the City's untimely  S - x-argument that the Troy Decision was based on mistakes of fact. TCI states that it has clearly demonstrated  xthat Troy's allegedly new facts were known to the City for at least three years and are not properly before  xythe Commission now. Even if they were newly discovered, TCI argues that it has clearly shown that the  Sb- xzallegations do not undermine the conclusions reached in the Troy Decision. Moreover, TCI contends,  xPROTEC has no independent knowledge of the facts in this case, and therefore, its arguments as to the  S-facts in the case should carry no weight.Qr(] yO-ԍ TCI Reply to PROTEC's Statement at 12.Q  S- x3.` ` Troy Reply to Opposition  S-x  St- ` x F71.` ` Troy maintains in its reply that Troy city officials had no prior knowledge of TCI's  x{arrangement with TCG Detroit and that TCI's statements in this proceeding were, "at a minimum,  S$- xdisingenuous."Js$x(] yO<-ԍ Troy Reply to Opposition at 12.J Troy further asserts that TCI has both concealed from Troy the installation of  xtelecommunications facilities in the city's rightsofway, and, referring to the TCI/TCG Detroit lease of  xcapacity, "has been less than candid with the Commission in not revealing the full extent of its activities  xin Troy's rightsofway." In support of this allegation, Troy submits the Declarations of Mr. Peter  xLetzmann and Mr. Roger Kowalski, both of whom disavow having prior knowledge of TCG's lease of  S\- xyTCI's facilities to provide telecommunications service in Troy.tBX\(] {O"- xyԍ Troy Reply to Opposition at 9, citing Declaration of Peter A.Letzmann, Exhibit 1 ("Letzmann Reply  xDeclaration"), and Declaration of Roger Kowalski, Exhibit 3 ("Kowalski Reply Declaration"), respectively. In his  xhDeclaration, Mr. Letzmann states that he was unaware that TCG was utilizing the TCI cable television system in the  x;City of Troy for telephone purposes until he received a copy of a letter from Charles A. Polzin dated June 6, 1997.  xKIn addition, Mr. Letzmann states that he did not recall ever having discussed the July 7, 1995 Cleland letter with  xRoger Kowalski or anyone else. Letzmann Reply Declaration at paras. 6,7. Mr. Kowalski states that he was satisfied  x,with Cleland's response that he had no knowledge of any telecommunications activities by TCG in the City of troy,  xand therefore did not pursue the matter further. He did not remember whether he gave copies of the Cleland letter"~'s,`(`('"  xor advised anyone else in the City of Troy about the content of that letter. Mr. Kowalski claims that he first learned  xthat such activities were occurring in Troy when he read the disclosure by TCG's attorney, Charles H. Polzin, in his June 6, 1997 letter to Neil Lehto. Kowalski Reply Declaration at paras. 57. The City explains that, with respect to"\t,`(`(88"  xTCI's Mr. Cleland's letter to Mr. Kowalski (Exhibit 4A to TCI's Opposition), the reference to TCG's  x=lease of a portion of the cable system "is contained in one sentence in the middle of a paragraph towards  xthe end of the letter." The City notes that Mr. Cleland does not state that TCG is providing telecom x[munications service in Troy, but rather, states he has no knowledge in this regard, and confirms that TCI  S`- xhas complied the January 1995 Letter Agreement with the City.Hu`(] yO-ԍ Troy Reply to Opposition at 9.H Troy states that, "[h]ad Troy's City  xAttorney know of TCG's lease of portions of TCI's system for the purpose of providing  xtelecommunications in the City, Troy would have raised this matter with the Commission when it first  S-responded to TCI's original petition.Hvx(] yO -ԍ Troy Reply to Opposition at 9.H  S- ` xG72.` ` Troy asserts that based on the newly discovered facts regarding the TCI/TCG Detroit lease,  xthe City believes that TCI sought a ruling from the Commission that might justify afterthefact the  xunauthorized construction and use of Troy's rightsofway to provide facilities for TCI's affiliate's use  xyto provide telecommunications service. Troy urges that the Commission stop tolerating TCI's "disregard  xof basic requirements of candor," and render a decision on the accurate record the City has now  S -produced.w\ (] yOx- xԍ Troy Reply to Opposition at 10. Troy is referring to the Commission's having "tolerated TCI's initial  {O@- xmisstatements about Troy's handling of its permit applications (e.g., alleging the City denied the permits when one  {O -was granted and the other was pending)." Id.   S - ` xH73.` ` Troy also states that favorable action on its Reconsideration Petition does not require the  SX- xyCommission to revisit other aspects of the Troy Decision. The City argues that TCI did not file a timely  xpetition for reconsideration, and should not be permitted to bootstrap a belated request for reconsideration  S -of issues outside the scope of the City's Reconsideration Petition.Ix , (] yO-ԍ Troy Reply to Opposition at 10.I x  S-x 4.` ` Discussion  Sj- ` xI74.` ` We do not find that the City has made a proper case for consideration of these alleged  SB- xnewly discovered facts on reconsideration of the Troy Decision. Moreover, we are not convinced that,  xjeven if they were eligible for consideration under our procedural rules, these facts would lend any further  S-support to the City's request for partial reconsideration of the Troy Decision.  S- ` QxJ75.` ` Under Section 1.106(c) of the Commission's rules, a petition for reconsideration which  xrelies upon facts not previously presented to the Commission may be granted only under the following  xcircumstances: (1) the facts fall within one or more of the categories set forth in Section 1.106(b)(2); or  S.- x(2) the Commission determines that consideration of the facts relied on is required in the public interest.Ky. (] yO'-ԍ 47 C.F.R.  1.106(c)(1) & (2).K ".L y,`(`(88{"  xjSection 1.106(b)(2) requires that one or more of the following circumstances be present for consideration  xof new facts: (i) the petition relies upon facts which relate to events which have occurred or  x[circumstances which have changed since the last opportunity to present such matters; or (ii) the petition  xrelies upon facts that were unknown to petitioner until after its last opportunity to present such matters,  S`-and which could not, with ordinary diligence, have been learned prior to such an opportunity.Oz`(] yO-ԍ 47 C.F.R.  1.106(b)(2)(i) & (ii).O  S- ` 2xK76.` ` In its Opposition, TCI demonstrates that the alleged new facts occurred, and were known  xto the City, as early as 1995 and certainly no later than one month prior to the adoption and release of  S- x=the Troy Decision. TCI has shown that the City was on notice that TCI was subleasing excess capacity  xon its cable system to TCG Detroit as early as 1995. The City's Reply to TCI's Opposition does not  xdispute that this information was contained in a letter sent from TCI to the City. Rather, the City claims  xthat only one City official read the letter, and that the information was contained in a later paragraph of  xthe letter. We note that the letter in question was less than one and one half pages in length, and contains  xTCI's response to inquiries by the City's Director of Parks & Recreation regarding the utilization of TCI's  x.cable plant for telecommunications purposes since TCI entered into the January 1995 Letter Agreement  S - xwith the City.B{ X(] yO-ԍ TCI Opposition, Exh. 4A.B Beginning at the top of page two, the sentence TCI relies upon states: "Additionally,  x=we lease some of our capacity to TCG for voice communications although I'm not sure if they serve any  SZ- xzcustomers within the city of Troy."3|Z(] {O-ԍ Id.3 We do not find the reasons advanced by the City for failing to comprehend the meaning or significance of this sentence persuasive.  S- ` xL77.` ` In view of the foregoing, there is no basis in the record to support a finding that the City  x has met the "exercise of ordinary diligence" portion of the test for permitting consideration of newly  x\discovered facts under Section 1.106(b)(2)(ii). Because the City has not demonstrated that its newly  xdiscovered facts qualify for consideration under Section 1.106(c)(1) we will not consider the City's alleged  x"new facts" regarding TCI's construction of facilities in the City of Troy that were not initially part of the  xrecord in this proceeding. In this case, we conclude that the public interest does not require consideration of "newly discovered" facts.  S- ` xM78.` ` Even assuming arguendo that the City had adequately demonstrated that its allegations  xmet the two standards of section 1.106(c)(1), the facts alleged provide no basis upon which reconsideration  ST- xof the Troy Decision can be based. The substantive issues of whether TCI was subleasing capacity on its  xcable system to TCG Detroit for that company's use in the provision of telecommunications services, and  xthe significance of such a sublease, are irrelevant to the legal issue upon which the City seeks reconsidera xtion. Even if TCI's lease of excess capacity on its cable system to TCG Detroit was subject to regulation  xby Troy under Michigan law, it would not justify the City's attempt to mingle the regulation of cable and  S- xtelecommunications services. Nor do the City's allegations call into question the soundness of the Troy  Sh- xDecision's conclusion that the City may not bootstrap itself into the regulation of telecommunications  SB- xthrough 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). " z|,`(`(88t""Ԍ S- `IV. C ONCLUSION ă  S- ` xN79.` ` The City has failed to raise any legal or factual issues that support reconsideration of the  S- x[`Troy Decision's conclusion that the City violated section 621(b)(3)(B) when it sought to impose its "not  xyfor telecommunications purposes" endorsement on two of TCI's cable construction permits. The City is  xincorrect as a legal matter that its cable franchising authority is wholly separate and distinct from its right xofway management authority. The City's rightofway management authority visavis the construction  xand operation of a cable system for the purpose of providing cable services must be exercised pursuant  xto the limitations and restrictions contained within Title VI, regardless of whether the City chooses to  xenact separate local ordinances to govern the franchising and construction permit aspects of this authority.  SJ - ` 3xO80.` ` The Troy Decision did not overlook the differences between local franchising and local  xconstruction permitting, as the City argues. Rather, it is pursuant to Title VI that its rightofway  xmanagement authority with respect to cable systems, currently exists, and that it must exercise all aspects  xof its authority with respect to cable systems pursuant to the terms and conditions established by Congress.  x.Among those terms and conditions is the limitation on the local franchising authority's ability to impose  x=telecommunications conditions or regulations upon cable operators under Title VI. This important Title  xVI limitation on local authority over cable systems is not changed by assertions of authority over cable  x\system construction and operation derives from stategranted nonTitle VI rightofway management  xMauthority. These sources of authority are one and the same as to cable systems. We deny the City's  S-Request for Partial Reconsideration of the Troy Decision. x  S- ` #xP81.` ` In addition, we deny PROTEC's request that the Commission deny any declaratory relief  xto TCI "because of TCI's unclean hands." PROTEC's Statement does nothing more than repeat the claims  xcontained in the City's Reconsideration Petition. We agree with TCI's observation that, as to these  xmatters, 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.  S- ` %xQ82.` ` Finally, TCI had requested that if the Commission reconsiders the Troy Decision's  xconclusion that the City violated section 621(b)(3)(B), and concludes that the City's efforts to subject TCI  xyto the Troy Telecommunications Ordinance are permissible under section 621(b)(3)(B), then it must also  xaddress the validity of the Ordinance, and preempt it under section 253 for the reasons set forth in the  xLpleadings 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. "|,`(`(88"  S- V. ORDERING PARAGRAPHS  S- ` # xR83.` ` Accordingly, IT IS ORDERED, pursuant to section 621(b)(3)(B) of the Communications  x 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.  S- ` xS84.` ` IT IS FURTHER ORDERED that the request that the Commission dismiss the TCI  xPetition for Declaratory Ruling in its entirety for "want of clean hands" contained in PROTEC's Statement  S-in Support of the City of Troy's Petition for Partial Reconsideration IS DENIED.xx x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@Magalie Roman Salas x` `  hh@Secretary