PUBLIC NOTICE FEDERAL COMMUNICATIONS COMMISSION 1919 M STREET, N.W. WASHINGTON, D.C. 20554 DA 97-2287 News media information 202/418-0500 Fax-On-Demand 202/418-2830 Internet: http://www.fcc.gov ftp.fcc.gov CABLE SERVICES ACTION October 29, 1997 TCI CABLEVISION OF OAKLAND COUNTY, INC. City of Troy, MI Petition for Partial Reconsideration of Memorandum Opinion and Order, CSR-4790 "RESTRICTED PROCEEDINGS" RULES TO APPLY FOR EX PARTE PURPOSES On October 20, 1997, the City of Troy, Michigan filed, pursuant to 47 U.S.C.  405(a) and Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106, a petition for partial reconsideration in the matter of TCI CABLEVISION OF OAKLAND COUNTY, INC., Petition for Declaratory Ruling, Preemption and Other Relief Pursuant to 47 U.S.C.  541, 544(e) and 253, CSR-4790, Memorandum Opinion and Order, FCC 97-331 (released September 19, 1997) ("Troy Decision") . Under the Commission's rules for ex parte presentation purposes, proceedings are treated as "exempt" proceedings, in which ex parte presentations may be made freely ( 1.1204), "permit-but- disclose" proceedings, in which ex parte presentations to Commission decision-making personnel are permissible but subject to certain disclosure requirements ( 1.1206), and "restricted" proceedings in which ex parte presentations to and from Commission decision-making personnel are prohibited ( 1.1208). The limitations on such ex parte presentations are subject to certain general exceptions set forth in  1.1204(a). Where the public interest so requires in a particular proceeding, the Commission and its staff retain the discretion to modify the applicable ex parte rules by order, letter or public notice. 47 C.F.R.  1.1200. Amendment of 47 C.F.R.  1.1200 et seq. Concerning Ex Parte Presentations in Commission Proceedings, GC Docket No. 95-21, Report and Order, 12 FCC Rcd 7348 (1997). Pursuant to subsection 1.1206(a)(3) of the Commission's Rules, 47 C.F.R.  1.1206(a)(3), a petition for declaratory ruling is a non-restricted proceeding. Conversely, the TCI Petition as whole was originally characterized and treated as a Cable Special Relief proceeding, which was under the former ex parte rules, and remains under the revised rules, a restricted proceeding pursuant to section 1.1208. On October 2, 1996 the Cable Service Bureau (the "Bureau") issued a Public Notice in which it determined that, pursuant to its authority under Section 1.1200(a), the TCI Petition proceeding would be treated, for ex parte purposes, as a non-restricted proceeding, and subject to the "permit-but-disclose" requirements under Section 1.1206 of the Rules, 47 C.F.R.  1.1206 (1995). Public Notice, DA 96- 1655, Cable Services Action, TCI CABLEVISION OF OAKLAND COUNTY, INC., Petition for Declaratory Relief, Preemption and Other Relief Pursuant to 47 U.S.C.  541, 544(e) and 253 (released Oct. 2, 1996). The Bureau based this determination on the "novel and important questions raised by the pleadings filed in response to the TCI petition," and the view that "resolution of the issues in the proceeding could have a significant impact on a large number of persons across the county." In addition, the Bureau observed that "because of the various types of relief requested involve common issues, the parties have an interest in ensuring that the decisions on these common issues are based upon a record available to all interested parties." The Bureau concluded that, "for these reasons, we find the public interest would be served by modifying the ex parte procedures as applied to this matter to permit a broader range of views and participation on these issues and to provide for a fuller record upon which a final decision may be made." The City of Troy's ("the City") Petition for Partial Reconsideration "seeks reconsideration of only that part of the MO&O wherein the Commission found that Troy had violated Section 621(b)(3)(B) of the Communications Act, 47 U.S.C. Section 541(b)(3)(B)." The City claims that the Commission's conclusion that the City's inclusion of an endorsement on certain TCI right-of-way permits to upgrade its cable system violated section 621(b)(3)(B) of the Communications Act is without foundation because the Commission failed to explain how the City's exercise of its right-of-way management authority, in the form of construction permits issued pursuant to the City's Right-of-Way Ordinance, constitutes action taken under Title VI cable franchising authority. We do not believe that the same considerations which warranted our treating the initial proceeding as a "permit-but-disclose" proceeding obtain with respect to the issues raised in the City's Petition for Partial Reconsideration. At this point in the proceeding, having had the benefit of extensive public comment through the filing of formal comments and reply comments in response to the TCI Petition, the presentations and supplemental filings made in conjunction with the Rights-of-Way Management Public Forum conducted on December 16, 1996, and the submission of hundreds of ex parte letters and presentations, we believe it is appropriate to return the proceeding to its presumptive status as a restricted proceeding. Accordingly, we exercise our discretion pursuant to Section 1.1200(a), to return this Cable Special Relief proceeding to its previous status as a "restricted proceeding" for purposes of ex parte presentations. See 47 C.F.R.  1.1208. Parties who wish to respond to the City of Troy's Petition for Partial Reconsideration are encouraged to submit complete and accurate accounts of the relevant facts and law in their oppositions (or comments) to the petition. See 47 C.F.R.  1.106(g). Under the Commission's Rules, the date for the filing of such oppositions is November 4, 1997, and any such opposition must be served upon the petitioner and parties to the proceeding. Pursuant to Section 1.106(h), the Petitioner may reply to oppositions within seven days after the petition is filed, and any reply must be served upon parties to the proceeding. 47 C.F.R.  1.106(h). Under Section 1.1202(b) of the Commission's Rules, an "ex parte presentation" is defined as any presentation which: "(1) if written, is not served on the parties to the proceeding; or (2) if oral, is made without advance notice to the parties and without opportunity to be present." 47 C.F.R.  1.1202(b). Thus, under the Rules, parties and other interested persons may, if they wish, supplement the record at any time with written presentations in a restricted proceeding if the written presentation is served upon all parties to the proceeding, and may make oral presentations if advance notice and the opportunity to be present is given to the parties. Id. Because we determine, pursuant to Section 1.1200(a), that it would be unduly burdensome to require that every party to this proceeding be served with a copy of each additional written presentation, we will not require that parties or persons serve their additional written presentations on all parties to the proceeding, as would otherwise be required under Section 1.1202(b)(1), 47 C.F.R.  1.1202(b)(1). It will be sufficient for a party to file such written presentations with the Secretary of the Commission in accordance with the rule governing the filing of written ex parte presentations in "permit-but-disclose" proceedings pursuant to Section 1.1206(b)(1), 47 C.F.R.  1.1206(b)(1). Media Contact: Morgan Broman (202) 418-2358. Cable Services Bureau Contact: Barbara Esbin (202) 418-2361. --FCC--