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Federal Communications Comm'n., No. 96-1432,  {O'and City of Bogue, Kansas and City of Hill City, Kansas, No. 961498 at 2 (D.C. Cir. Jan. 14, 1997) (Order denying emergency petition). > In the same Order, the court, on its own motion,  X4vacated its December 20, 1996, Order granting expedited review of the Classic Telephone  X4Preemption Order and ordered that proceedings in the appeal of the Classic Telephone  X4Preemption Order be held in abeyance pending further order of the court. The court ordered the parties to file status reports concerning the Commission's proceedings on Classic's Petition for Emergency Relief, and directed the parties "to submit motions to govern further proceedings within 30 days after [the Commission] issues a final order in connection with  X74Classic's petition.":77o {O 'ԍId.:  X 48.` ` On February 7, 1997, Classic announced that it would not close its purchase and sale agreement with United to acquire the Hill City Exchange, citing its inability to obtain  X 4a local franchise. Z ~7o yO 'ԍLetter from John D. Seiver, Counsel for Classic, Cole, Raywid & Braverman, L.L.P., to William F.  {O'Caton, Acting Secretary, Federal Communications Commission, filed Feb. 18, 1997 (Classic's Feb. 18 ex parte letter).  The Cities, however, claim that Classic did not complete its purchase of  X 4the Hill City Exchange because it could not obtain financing. 7o yO'ԍLetter from Timothy E. Welch, Counsel for the Cities, Hill & Welch, to William F. Caton, Acting  {O'Secretary, Federal Communications Commission, filed Mar. 25, 1997 (Cities' Mar. 25 ex parte letter). The KCC subsequently held that its certification of Classic as a local exchange carrier in Kansas was contingent upon Classic's purchase of the Hill City Exchange from United, and concluded that Classic never  X4had an effective certificate of public convenience and necessity.O| 7o yO*'ԍThe KCC modified its previous Order in which it stated that it was decertifying Classic as a local  {O'exchange carrier in Kansas. Application of United Telephone Company of Kansas and Classic Telephone, Inc. for Permission for United to Cease Operating as a Telephone Public Utility in its Ellis, Hill City, Quinter and WaKeeney Exchanges, to Grant to Classic a Certificate of Public Convenience for the Ellis, Hill City, Quinter and WaKeeney Exchanges, and for Authority to Transfer the Franchise, Property, Plant and Equipment of United Located in the Ellis, Hill City, Quinter and WaKeeney Exchanges to Classic and Complete All Matters Incident  {O 'to the Transfer, Docket No. 192,521U 95CLST508COC, Order, at 710,  1924 (rel. Jun. 4, 1997).O Classic has applied to the  8#du^ ">0*%%99"  8#du^ KCC for certification as a competing local exchange carrier in Hill City and Bogue, and this  X4application is still pending.H7o {Ob'ԍSee Letter from John C. Dodge, Counsel for Classic, Cole, Raywid & Braverman, L.L.P., to William F.  {O,'Caton, Acting Secretary, Federal Communications Commission, filed Aug. 13, 1997 (Classic's Aug. 13 ex parte letter). Classic was granted certification by the KCC as a competing local exchange carrier for the service areas of Southwestern Bell Telephone Company and Sprint/United Telephone, which do not include the area served by  {O'the Hill City Exchange, on June 23, 1997. Application of Classic Telephone, Inc. for Certificates of Public Convenience to Provide Basic Local Telecommunications Services, Local Exchange Telecommunications Services,  {O'Exchange Access Services and Interexchange Telecommunications Services in Kansas, Docket No. 97CLST634-COC, Order and Certificate (rel. Jun. 23, 1997). 8#du_   X' 8#du_   III. POSITIONS OF THE PARTIES Đ\  X' A.Classic's Petition  X_49.` ` In its Petition for Emergency Relief, Classic argues that the Cities have refused  XH4to comply with the Classic Telephone Preemption Order and have not reconsidered Classic's  X34franchise applications as required by the Commission.37o {O'ԍClassic Petition at 1. Classic submits several attachments to its comments as evidence of this claim. Id. at 3, Exhibits A, B, and C. Classic alleges that the Cities' strategy in this proceeding "is to ignore the law long enough to deny Classic a real  X 4competitive opportunity in [the Cities]."G 2 7o yO'ԍClassic Petition at 9.G Classic contends that the Commission must direct the Cities to grant Classic's franchise applications or risk undermining the effectiveness of  X 4section 253 in removing state and local barriers to competition.g 7o {OJ'ԍId. at 910; see also TCG Comments at 34.g  X 4  10.` ` In its Petition, Classic contends that the Commission's authority under the 1996  X4Act "extends to the power to strike the [entry] barrier and issue injunctions." ^T 7o {O'ԍClassic Petition at 7 (citing, inter alia, 47 U.S.C.  154(i) and (j); Southwestern Cable Co. v. Federal  {Oa'Communications Comm'n, 392U.S. 157 (1994); and Policy and Rules Concerning Rates for Dominant Carriers,  {O+'CC Docket No. 87313, 3FCC Rcd 3195 (1988)); see ALTS Comments at 4. Classic requests that the Commission issue an emergency order enjoining the Cities from taking any action that interferes with Classic's provision of telecommunications services within their boundaries. Classic also requests that the Commission find that the Cities' inaction justifies  X64the issuance of an order granting Classic a franchise "and all other necessary authority for  8#du` "6z 0*%%99"  X4 8#du` Classic to engage in the provision of intrastate telecommunications service within the Cities."H!7o yOy'ԍClassic Petition at 10.H In addition, Classic asks that the Commission: (1) impose sanctions on the Cities, "including  X4but not limited to attorneys [sic] fees and costs[;]":"X7o {O'ԍId.: (2) notify the Cities of their "apparently willful violation of Section 253 of the Communications Act . . . and the Commission's Order in this proceeding and assess a forfeiture in an amount to be determined pursuant to Title V  X4and this Commission's rules and regulations[;]"D#7o {O( 'ԍId. at 1011.D (3) direct the Cities to show cause why the Commission should not initiate further proceedings to assess additional forfeitures for continued violations of the 1996 Act; and (4) grant any other relief that the Commission  XH4determines is appropriate.:$H|7o {Ou'ԍId.: Classic requests that the Commission grant the requested relief on  X14an expedited basis.@%17o {O'ԍId. at 5.@  X ' B.Comments and Replies  X 4 11.` ` Four parties, including the Cities, filed comments in response to Classic's  X 4petition.&X 7o yO'ԍParties filing comments in the instant proceeding include: the Association for Local Telecommunications Services (ALTS); AT&T Corp.; the Cities (Bogue and Hill City, Kansas); and Teleport Communications Group Inc. (TCG). Both Classic and the Cities filed reply comments. In addition, Classic and the  X 4Cities made ex parte presentations to the Commission staff. '6 N 7o {O'ԍSee Letter from John C. Dodge, Counsel for Classic, Cole, Raywid & Braverman, L.L.P., to William F. Caton, Acting Secretary, Federal Communications Commission, filed Jan. 14, 1997 (regarding Bogue's response  {O'to KCC's motion to decertify Classic) (Classic's Jan. 14 ex parte letter); Letter from Timothy E. Welch, Counsel for the Cities, Hill & Welch, to William F. Caton, Acting Secretary, Federal Communications Commission, filed  {O<'Jan. 22, 1997 (regarding ex parte meeting between counsel for the Cities and the senior legal advisor to Commissioner Ness); Letter from Timothy E. Welch, Counsel for the Cities, Hill & Welch, to William F. Caton,  {O'Acting Secretary, Federal Communications Commission, filed Jan. 24, 1997 (regarding ex parte meeting between counsel for the Cities and Common Carrier Bureau staff); Letter from Timothy E. Welch, Counsel for the Cities, Hill & Welch, to William F. Caton, Acting Secretary, Federal Communications Commission, filed Jan. 27, 1997  {O("'(supplement to January 24, 1997 filing) (Cities' Jan. 27 ex parte letter); Classic's Feb. 18 ex parte letter; Letter from John D. Seiver, Counsel for Classic, Cole, Raywid & Braverman, L.L.P., to William F. Caton, Acting  {O#'Secretary, Federal Communications Commission, filed Mar. 12, 1997 (regarding ex parte meeting between  {O$'counsel for Classic and Common Carrier Bureau staff); Cities' Mar. 25 ex parte letter; Letter from John D."$&0*%%V$" Seiver, Counsel for Classic, Cole, Raywid & Braverman, L.L.P., to William F. Caton, Acting Secretary, Federal Communications Commission, filed Apr. 4, 1997 (regarding Classic's petition for reconsideration of the KCC's  {O 'decertification of Classic as a local exchange company) (Classic's Apr. 4 ex parte letter); Letter from John D. Seiver, Counsel for Classic, Cole, Raywid & Braverman, L.L.P., to William F. Caton, Acting Secretary, Federal Communications Commission, filed May 23, 1997 (regarding Classic's application to KCC for certification as competing local exchange carrier); Letter from John D. Seiver, Counsel for Classic, Cole, Raywid & Braverman, L.L.P., to William F. Caton, Acting Secretary, Federal Communications Commission, filed June 2, 1997 (regarding Classic's application to KCC for certification as competing local exchange carrier); Letter from JohnD. Seiver, Counsel for Classic, Cole, Raywid & Braverman, L.L.P., to William F. Caton, Acting Secretary, Federal Communications Commission, filed June 24, 1997 (regarding KCC's denial of Classic's petition for reconsideration of KCC Order modifying KCC's previous decertification Order); Letter from John D. Seiver, Counsel for Classic, Cole, Raywid & Braverman, L.L.P., to William F. Caton, Acting Secretary, Federal Communications Commission, filed June 25, 1997 (regarding Classic's intention to file application with KCC for certification as competing local exchange carrier for the Cities and other service areas); Letter from Timothy E. Welch, Counsel for the Cities, Hill & Welch, to William F. Caton, Acting Secretary, Federal Communications  {OJ 'Commission, filed June 30, 1997 (regarding Classic's June 24 and June 25 ex parte letters); Classic's Aug. 13  {O'exparte letter.  8#dua " '0*%%99 "  X' 8#dub  1.` ` Supporting Comments  X4 12.` ` ALTS and TCG generally support Classic's position.j(7o {Oa'ԍSee, e.g., ALTS Comments at 3; TCG Comments at 36.j TCG argues that unless  X4the Commission enforces its original Order, it risks serious erosion of the effectiveness of  X4section 253.E)p7o yO'ԍTCG Comments at 34.E Thus, TCG urges the Commission to grant the relief requested by Classic.@*7o {OW'ԍId. at 4.@ ALTS also urges the Commission to "take whatever action is necessary to ensure that Classic  Xx4is no longer denied the right to provide service in [the Cities]."D+x7o yO'ԍALTS Comments at 3.D AT&T states that it supports the mandate of the 1996 Act, and the Commission's policy, that "all legal and regulatory  XJ4barriers to local services competition be eliminated."D,J"7o yO'ԍAT&T Comments at 2.D  X 4 13.` ` TCG also alleges that it faces regulatory delays and other barriers to entry by  X 4many state and municipal governments that prefer one service provider to another.C- 7o yOh"'ԍTCG Comments at 2.C TCG therefore asks that the Commission clarify that sections 253(b) and (c) of the Act do not grant  X 4new regulatory powers to states and localities, but rather preserve, subject to certain  8#duc " B-0*%%99 "  X4 8#duc conditions, preexisting powers held by the states or delegated to their political subdivisions.F.7o {Oy'ԍId. at 2, 910.F TCG also objects to the fact that in some states, new entrants must obtain franchises from both state and local authorities in order to provide local telephone service. In addition, TCG challenges the informal practice by many local officials of considering new entrants'  X4qualifications to provide service in other contexts even after a grant of a state franchise.+/Z7o {O'ԍId. at 1011. According to TCG, Kansas is the only state in which the state and local governments are  yOy'granted, by statute, dual franchising authority for telecommunications service. In several other states, however, TCG alleges that local governments have questioned TCG's qualifications to provide service despite the state commission's certification, with resulting delays in TCG's entry into their markets for telecommunications  {O 'services. Id.+ TCG therefore urges the Commission to clarify that for purposes of section 253, "a finding by a state [agency] that a telecommunications provider has the . . . qualifications to provide telecommunications statewide creates a strong presumption that those qualifications exist in  XH4every community in the state.":0H7o {O'ԍId.: In states that do not explicitly authorize local franchising of  X14telecommunications providers, TCG argues that the presumption should be conclusive.:117o {O'ԍId.: TCG  X 4also asks that the Commission clarify that section 635A of the Communications Act,E2 2 7o yO'ԍ47 U.S.C.  555a.E which insulates cable television franchising authorities from any monetary damages arising from claims related to the regulation of cable service, is not applicable to actions taken by local  X 4governments under the auspices of their telecommunications franchising authority.C3 7o yOH'ԍTCG Comments at 6.C  X ' 2.` ` Cities' Opposition  Xy4 14.` ` The Cities oppose Classic's Petition and urge the Commission to "terminate the  Xb4instant proceeding without taking any action against the Cities."G4bR 7o yOe'ԍCities' Comments at 4.G The Cities contend that the  XK4Commission concluded in the Classic Telephone Preemption Order that the 1996 Act "authorize[s] the Commission to review state telephone exchange franchise decisions and to issue orders to the [s]tates compelling them to follow certain procedures and to issue local  X4telecommunications exchange franchises."M57o {O$'ԍId., Attachment at 15.M The Cities argue that, when interpreted in this  8#dud " t50*%%99"  X4 8#dud fashion, the 1996 Act is unconstitutional as a violation of the Tenth Amendment.:67o {Oy'ԍId.: In support  X4of this position, the Cities rely on New York v. United States,k7XZ7o yO'ԍ505 U.S. 144 (1992) (holding that "while Congress has substantial power under the Constitution to encourage the States to provide for the disposal of the radioactive waste generated within their borders, the Constitution does not confer upon Congress the ability simply to compel the States to do so").k arguing that the Commission lacks constitutional authority to compel state and local governments to adopt regulatory  X4policies to further federal regulation of interstate commerce.T8z7o yO 'ԍCities' Comments, Attachment at 16.T  X415.` ` The Cities also assert that the Commission lacks jurisdiction to conduct the  Xx4instant proceeding, citing Greater Boston Television Corp. v. Federal Communications  Xc4Comm'n to the effect that "once a petition for review has been filed in court, the  XN4[Commission] has no authority to conduct further proceedings without the court's approval."9N 7o {O 'ԍId., Attachment at 5, citing Greater Boston Television Corp. v. Federal Communications Comm'n, 463F.2d 268, 283 (D.C.Cir.1971).  X74The Cities state that they are currently seeking review of the Classic Telephone Preemption  X" 4Order in the D.C. Circuit and that the issues before the court are the same issues raised in the  X 4present proceeding.@: d 7o {O"'ԍId. at 1.@ The Cities add that there is no evidence that the Commission has  X 4obtained such judicial approval for further proceedings.L; 7o {O'ԍId., Attachment at 6.L  X 416.` ` In addition, the Cities claim that the Commission's issuance of the Public  X 4Notice initiates an enforcement proceeding and thus "constitutes a clear abuse of discretion."S< 7o {O'ԍId. at 23, Attachment at 7.S The Cities claim that the Commission's decision to seek public comment on Classic's Petition is improper because it "appears calculated merely . . . to apply pressure on [the Cities] to cave  Xl4in on the constitutional argument . . . and to otherwise inconvenience [the Cities]."R=l7o {O7 'ԍId. at 2, Attachment at 13.R The Cities assert that the Commission has prejudged the issues raised in Classic's Petition for  X>4Emergency Relief, as evidenced by the Commission's statements to the effect that the Cities  8#dug "> =0*%%99"  X4 8#dug have violated the Communications Act and failed to comply with the Classic Telephone  X4Preemption Order in the Commission's December 19, 1996, Emergency Motion filed with the  X4D.C. Circuit.$>7o {OO'ԍId., Attachment at 8, citing Federal Communications Commission Emergency Motion for Expedited Review, No. 961432 (D.C. Cir. filed Dec. 19, 1996). The Commission's Emergency Motion for Expedited Review states that the Cities "apparently have taken no steps to remedy their violation of section 253 of the  {O'1996Act." Id. at 2. The Motion also refers to "Petitioners' continuing failure to reconsider Classic's franchise  {Os'applications." Id.$  X417.` ` Moreover, the Cities allege that the Commission improperly waived the ex  X4parte communication prohibition in the Public Notice without explanation, designating the  X~4instant proceeding as nonrestricted for purposes of the Commission's ex parte rules.Q?~~7o {O 'ԍId., Attachment at 912. Q The Cities argue that the present proceeding is properly classified as an adjudication, and that section 1.1208(c)(ii)(A) of the Commission's rules provides that adjudications are restricted,  X;4with ex parte communications prohibited. The Cities assert that classification of the pending  X& 4proceeding as nonrestricted "appears calculated to prejudice Petitioners unfairly."M@& 7o {O'ԍId., Attachment at 10.M They cite  X 4the burden of obtaining copies of the summaries of oral ex parte presentations,AA 7o {Ob'ԍId. at 12.A and state that  X 4they have experienced difficulty obtaining information from the Commission's public files.WB 4 7o {O'ԍCities' Jan. 27 ex parte letter.W  X 4The Cities argue that all ex parte filings in this proceeding should have been served on the  X 4Cities.TC 7o yOE'ԍCities' Comments, Attachment at 12.T  X418.` ` Finally, the Cities argue that "by filing petitions for review with the Court of Appeals, [the Cities] must necessarily have reconsidered their decisions denying Classic's  Xr4franchise applications."@DrV 7o {Oy'ԍId. at 2.@ The Cities expand on this point in their ex parte filings, claiming  X]4that Classic did not approach the Cities after release of the Classic Telephone Preemption  XH4Order, either to provide financial information which the Cities had previously requested or for  8#duh "3 D0*%%99"  X4 8#duh any other purpose related to reconsideration of Classic's franchise applications.YE7o {Oy'ԍCities' Jan. 27 ex parte letter. Y The Cities  X4therefore recommend that the Commission dismiss Classic's Petition for failure to prosecute.:FZ7o {O'ԍId.:  X' 3.` ` Replies  X419.` ` In its Reply, Classic argues that absent a stay by the Commission or the courts,  Xv4the Classic Telephone Preemption Order remains in full force pending action on appeal, and  Xa4that the Commission retains the authority to enforce the Classic Telephone Preemption  XL4Order.gGL7o {O 'ԍClassic Reply at 4; see also ALTS Comments at 3.g Classic also asserts that "[t]he issues concerning section 253 that the Cities selected  X74for appeal are not the same as the enforcement issues that Classic raised in its emergency  X" 4petition."FH" ~7o yOQ'ԍClassic Reply at 23.F Classic notes that the Cities could have sought to stay enforcement of the Classic  X 4Telephone Preemption Order in their Petition for Review, but did not do so.:I 7o {O'ԍId.:  X 420.` ` Classic asserts that the Classic Telephone Preemption Order is fully consistent  X 4with the Tenth Amendment,@J 7o {O'ԍId. at 5.@ and does not compel the Cities to adopt a regulatory scheme  X 4contrary to the dictates of New York v. United States.zK 2 7o {O'ԍId. at 7; see New York v. United States, 505 U.S. 144 (1992).z Instead, Classic argues that section  X4253 of the Act provides for federal preemption of state or local requirements.@L 7o {O'ԍId. at 6.@ Classic also contends that Commission action granting Classic a franchise would not be contrary to the Tenth Amendment because "[t]he federal government's authority to direct state officers to  X[4take or refrain from taking certain actions is well established."wM[V 7o {Ob 'ԍId. at 8, citing FERC v. Mississippi, 456 U.S. 742 (1982).w  X-421.` ` Classic views as insupportable the Cities' claims that they have been or will be  X4denied an opportunity to be heard on whether they violated the Classic Telephone Preemption  X4Order. Classic maintains that the Cities fully participated in the phase of the proceeding  X4leading up to the Classic Telephone Preemption Order, and that the Cities had the opportunity 8#duk " M0*%%99"  X4 8#dul to file comments and reply comments in the present enforcement phase of this proceeding.AN7o {Oy'ԍId. at 11.A Classic also argues that there is no basis for concluding that the Commission has prejudged  X4the issues in this proceeding.DOZ7o {O'ԍId. at 1213.D Moreover, Classic argues that the Commission's designation  X4of this proceeding as nonrestricted for purposes of ex parte communications is entirely proper, contending that the Cities misconstrue the Commission's rules regarding when a  X4proceeding is restricted.DP7o {O, 'ԍId. at 1415.D Classic states that the "permit but disclose procedures" allow the  Xx4Cities, as well as all other interested parties, to make ex parte presentations to Commission  Xc4staff, subject to appropriate disclosure requirements, and do not prejudice the Cities.EQc~7o {O 'ԍId. at 11, 16.E  X5422.` ` The Cities contend in their Reply that the Commission has admitted that  X 4section253 and the Classic Telephone Preemption Order are unconstitutional or, in the alternative, that the Commission has instituted the present proceeding "merely to abuse [t]he  X 4Cities."*RZ 7o {O'ԍCities' Reply at 1, citing Federal Communications Commission's Opposition to the Cities' "Emergency Petition for Writ in the Nature of Prohibition and Request for Ruling by January 10, 199[7]," No.961498 (D.C.Cir. filed Jan. 7, 1997).* In particular, the Cities assert that if the Classic Telephone Preemption Order does not compel them to implement a federal regulatory program, "there is no order for the Cities  X 4to violate.":S 2 7o {O'ԍId.: In that case, the Cities assert that "the Commission has instituted the present enforcement action merely to abuse the Cities in an attempt to get them to succumb to whatever expectation the Commission may hold visavis local telephone franchising  X4issues."@T 7o {O'ԍId. at 2.@ On the other hand, the Cities assert that if the Classic Telephone Preemption Order does require the Cities to comply with the federal regulatory program prescribed in  XU4section253, then the Order is invalid.:UUV 7o {O\ 'ԍId.:  X)423.` ` In addition, the Cities contend that neither section 253(d) of the  X4Communications Act nor section 1.282 of the Commission's rules gives the Commission  8#dum " U0*%%99"  X4 8#dum authority to conduct a proceeding to enforce the Classic Telephone Preemption Order.WV7o {Oy'ԍCities' Jan. 27 ex parte letter.W The Cities also assert that, pursuant to section 401(b) of the Communications Act, the Commission  X4may not conduct its own proceedings to enforce the Classic Telephone Preemption Order but,  X4rather, must seek an injunction from a federal district court.XWZ7o yO'ԍCities' Reply, Attachment at 34.X  X'C III. DISCUSSION  Xz4\  Xc424.` ` Contrary to the Cities' contentions, we find that the Commission has  XL4jurisdiction to address the present Petition despite the pending appeal of the Classic Telephone  X74Preemption Order. In its January 14, 1997, Order denying the Cities' Petition for Writ of Prohibition, the D.C. Circuit held in abeyance proceedings on the Cities' Petition for Review  X 4of the Classic Telephone Preemption Order. The court also directed the parties, including Classic, the Cities, and the Commission, "to submit motions to govern further proceedings within 30 days after [the Commission] issues a final order in connection with Classic's petition for emergency relief, sanctions, and investigation, which is currently pending before  X 4[the Commission]."=X\ 7o {OL'ԍCity of Bogue, Kansas and City of Hill City, Kansas v. Federal Communications Comm'n, No. 961432  {O'and City of Bogue, Kansas and City of Hill City, Kansas, No. 961498 (D.C. Cir. Jan. 14, 1997) (Order denying Cities' Emergency Petition).= Thus, the court's Order clearly contemplates that the Commission will act on Classic's Petition for Emergency Relief and is consistent with the general principle  X4that, absent a stay, an agency order remains operative pending appellate review.RY7o {OB'ԍSee 28 U.S.C.  2349(b).R  XU425.` ` We are not persuaded that the Commission's action in this proceeding is  X>4contrary to Greater Boston Television Corp. v. FCC,UZ>7o yO'ԍ463 F.2d 268 (D.C. Cir. 1971).U as argued by the Cities. Greater  X)4Boston required that the Commission obtain judicial approval for further proceedings in certain types of cases that are subject to pending petitions for review. Even if we assume that  X4this proceeding is the type of case to which Greater Boston should apply, the D.C. Circuit has effectively granted permission for Commission action on Classic's Petition for Emergency Relief by holding the review proceedings in abeyance pending Commission action on the Classic Petition. Moreover, we do not believe that this proceeding is the type of case to  X4which Greater Boston applies, since Classic has asked the Commission to enforce the Classic  X4Telephone Preemption Order, not reconsider our directives in that Order. Thus, we reject the  Xy4Cities' contention that the Commission lacks jurisdiction to examine the issues raised in the  8#dun "y0 Z0*%%99"  8#dun Petition for Emergency Relief merely because the Cities filed a Petition for Review of the  X4Classic Telephone Preemption Order.X[7o yOb'ԍCities' Comments at 2, Attachment at 6.X  X4  X426.` ` In the present circumstances, however, we decline to grant the relief requested by Classic. As noted above, Classic originally applied to the Cities for franchises to provide intrastate telecommunications services based on its agreement to purchase the Hill City Exchange from United. On February 7, 1997, however, Classic announced that it would not  Xa4complete the purchase, citing its inability to obtain a local franchise.\aX7o {Oj 'ԍCities' Feb. 18 ex parte letter, Enclosure, J. Merritt Belisle, CEO, Classic Communications, Inc., Press Release (Feb. 7, 1997) (announcing decision to abandon efforts to acquire Hill City Exchange).  Classic stated that it intends to provide telecommunications service in the Cities "utiliz[ing] other strategies and  X34facilities," for which Classic must obtain franchises from the Cities.@]37o {O'ԍId. at 2.@ Since Classic no longer proposes to provide service using the facilities described in its previouslyfiled franchise application, it appears that approval of the original franchise application would not constitute proper authority for Classic to provide service to the Cities under an alternative plan. Under these circumstances, there would be little point to favorable action on Classic's previouslyfiled franchise application.  X427.` ` We are very concerned that there may be merit to Classic's contention that it likely will face unreasonable delay by the Cities in the processing of any future franchise applications, given the Cities' past decision not to issue a written reconsideration order and  XM4reports concerning the views of Bogue and Hill City officials on this proceeding.^t MD7o {OB'ԍSee Classic's Jan. 14 ex parte letter ("'The [KCC] Staff should recognize that Bogue now has model  {O 'service and quit trying to force other companies on Bogue,'" quoting Bogue's Response to [KCC] Staff's Motion to Decertify Classic and Affirm United's Certificate and Motion for Expedited Order Declaring the Transfer  {O'Agreement Abandoned and Void, Docket No. 192,521U 95CLST508COC, 190,843U, 94RRLT569COC  {Oh'(rel. Jan. 2, 1997)); Classic's Apr. 4 ex parte letter ("'If Bogue is not successful in its appeal from the [Classic  {O2'Telephone Preemption Order], it will formally reconsider its decision and will offer many, many reasons [why]  {O'neither United or Classic should have access to its streets and public ways,'" quoting Brief for Plaintiff at 4, City  {O'of Bogue, Kansas v. The State Corporation Commission of the State of Kansas, No. 961082JTM (D. Kan. filed  {O'Feb. 27, 1997); Linda MoweryDenning, FCC Order No Worry to Hill City Officials, Salina Journal, October 9,  {OZ '1996, at A1, A7 ("Hill City Mayor Rod Radcliffe hasn't lost any sleep over the [Classic Telephone Preemption  {O$!'Order]. 'I'm not really concerned,' he said . . . . 'We have our new $7 million phone system up and running and it's absolutely fantastic.'"). At this time, however, we choose not to take action that would foreclose the Cities from having a reasonable opportunity to review and take action on new or amended franchise applications by  X4Classic in a timely fashion, consistent with the requirements of section 253 of the  8#duo "^0*%%99f"  8#duo Communications Act. Accordingly, we deny Classic's request that we enjoin the Cities and that we require the Cities to grant Classic a franchise "and all other authority necessary" to provide intrastate telecommunications service in the Cities. We also deny Classic's request that we impose sanctions on the Cities under the present circumstances.  X428.` ` We make clear, however, the Commission's serious concerns about the potential adverse effect on the development of local exchange competition caused by unreasonable delay by local governments in processing franchise applications and other permits. If a potential entrant is unable to secure the necessary regulatory approvals within a reasonable time, it may abandon its efforts to enter a particular market based solely on the inaction of the relevant government authority. Here it is notable that Classic alleges that it is declining to purchase the Hill City Exchange due to its inability to obtain a local franchise.  X 4Although we recognize that the Cities dispute Classic's allegation,H_ 7o {Oe 'ԍSee supra  8.H we also note that regulatory delays may threaten the viability of financing arrangements for new entry or transactions for the purchase of existing facilities. Such results would seriously undermine the development of local competition, and run counter to Congress' procompetitive goals in the 1996 Act. More specifically, in certain circumstances a failure by a local government to process a franchise application in due course may "have the effect of prohibiting" the ability of the applicant to provide telecommunications service, in contravention of section 253.  X4429.` ` We are especially troubled, moreover, by the Cities' failure to reconsider Classic's franchise applications in a meaningful fashion before Classic abandoned its plans to purchase the Hill City Exchange from United on February 7, 1997. The Cities claim that they reconsidered their decisions denying Classic's franchise applications, as evidenced by their  X4filing of a Petition for Review of the Classic Telephone Preemption Order with the D.C.  X4Circuit.G`Z7o yO'ԍCities' Comments at 2.G Even assuming that the Cities' claim is valid, the Cities' decision not to issue written orders reexamining their decisions on Classic's franchise applications effectively precludes Commission review and a determination of whether the reasoning articulated in support of a denial satisfies the requirements of section 253(b) or (c) of the Act. We can conclude at most that by filing a Petition for Review with the D.C. Circuit, the Cities have reaffirmed, without additional explanation, the very franchise denials that the Commission previously preempted.  X 430.` ` Accordingly, we wish to make clear that if the Cities fail to act on any new or revised franchise applications filed by Classic within a reasonable period of time, the Commission, upon appropriate request and after an opportunity for comment by interested  X 4parties, will consider whether to take further action pursuant to section 253 or other provisions 8#dur " `0*%%99H"  8#dus of the Communications Act. Possible actions which might be considered include, for example, preemption of the Cities' franchising requirements as they apply to Classic. Any decision on whether to take further action and, if so, what action is warranted, would be based on the facts and circumstances as well as the legal and policy arguments reflected in the record before the Commission at that time.  Xv431.` ` We find it unnecessary to address the remaining issues raised by Classic and the Cities in light of our decision to deny Classic's Petition, although we will address briefly the Cities' charges concerning the propriety of our handling of Classic's Petition for  X14Emergency Relief and the application of our ex parte rules in this proceeding.  X 432.` ` Contrary to the Cities' apparent understanding, the Commission routinely issues public notices to allow interested parties to comment on petitions requesting action by the Commission. The purpose of issuing the Public Notice in response to Classic's request for relief was to give all interested parties, including the Cities, an opportunity to respond to the issues raised by Classic. In issuing a public notice that establishes a pleading cycle on a filing, the Commission does not indicate a view on the merits of the issues involved. Rather, the Commission seeks to obtain a complete and accurate record on which to resolve the issues. We therefore find baseless the Cities' contention that the Commission abused its discretion or somehow prejudged the issues by issuing a public notice requesting comment on Classic's Petition for Emergency Relief. We also conclude that the statements of Commission counsel in the Emergency Motion for Expedited Review cannot reasonably be construed as prejudgment of the issues raised by Classic's Petition. Although in that court filing, Commission counsel very briefly noted that the Cities apparently had not reconsidered Classic's franchise applications, this should not be interpreted to mean that the Commission would refuse to consider subsequentlyfiled comments addressing this issue.  X4 33.` ` We also conclude that the designation of this proceeding as nonrestricted, so  X~4that ex parte presentations are generally permissible but subject to disclosure, is a reasonable exercise of the Commission's broad and wellestablished authority under sections 4(i) and (j) of the Communications Act to conduct its proceedings "as will best conduce to the proper  X;4dispatch of business and to the ends of justice,"Ma;7o yO'ԍ47 U.S.C.  154(j).M and to "issue such orders, not inconsistent  X$4with this Act, as may be necessary in the execution of its functions."Mb$X7o {O-!'ԍId.  154(i).M The Commission's  8#dut "$b0*%%99"  X4 8#dut exparte rules also permit us to modify ex parte requirements,Oc|7o yOy'ԍSection 1.1200(a) of the Commission's rules, which applied to this proceeding prior to June 2, 1997, provides that "[w]here the public interest so requires in a particular proceeding, the Commission retains the discretion to issue public notices setting forth modified or more stringent ex parte procedures."  yO'47C.F.R.1.1200(a) (1996). The recently amended section 1.1200(a), which became effective June 2, 1997,  {O'provides the Commission and its staff with similar authority. See Amendment of 47 C.F.R.  1.1200 et seq.  {Oc'Concerning Ex Parte Presentations in Commission Proceedings, GC Docket No. 9521, Report and Order, FCC9792, Appendix B (rel. March 19, 1997) (codified at 47 C.F.R.  1.1200(a)).O and the Commission has frequently designated proceedings involving broad policy issues for nonrestricted treatment in the belief that this facilitates the compilation of a complete record. Although Classic's Petition is in many respects adjudicatory in nature, it is also the first request for Commission enforcement of a preemption order under section 253(d) of the Communications Act, and thus also raises broad policy issues of future applicability commonly found in rulemaking proceedings. Our action designating this proceeding as nonrestricted and giving all parties  Xa4full and fair notice of the applicable ex parte procedures in our December 13, 1996, Public  XL4Notice is reasonable. Our intention in permitting ex parte presentations was to facilitate the compilation of a complete record and to foster a full exploration of the issues raised by  X 4Classic's Petition. All parties were given a full opportunity to make ex parte presentations, subject to disclosure, and both Classic and the Cities have done so. We therefore conclude that the Cities' claims that the fairness of this proceeding has been compromised by the  X 4Commission's administration of its ex parte rules is without merit. Even if our action in this regard did constitute error, it is clearly harmless to the Cities given the outcome of our decision on Classic's Petition for Emergency Relief.  X4!34.` ` We decline to resolve most of the broader issues raised by TCG on the grounds that they are beyond the scope of this proceeding. Despite this, we conclude that it is appropriate to note certain general concerns that we have regarding local telecommunications  X>4regulation. As we recently stated in our TCI Cablevision Order,.d\> 7o {O'ԍTCI Cablevision of Oakland County, Inc. Petition for Declaratory Ruling, Preemption and Other Relief  {O'Pursuant to 47 U.S.C.  541, 544(e), and 253; CSR4790, Memorandum Opinion and Order, FCC 97331 (rel.Sept. 19, 1997).. we are concerned that some local governments "appear to be reaching beyond traditional rightsofway matters and  X4seeking to impose a redundant 'third tier' of telecommunications regulation"Ge0 7o {O'ԍId. at  105.G on top of traditional state and federal regulation consistent with the Communications Act, as amended. This "third tier" of local regulation "aspires to govern the relationships among  X4telecommunications providers, or the rates, terms and conditions under which  8#duu " e0*%%99"  X4 8#duu telecommunication service is offered to the public."Hf7o {Oy'ԍId. The types of activities that fall within the sphere of appropriate rightsofway management include coordination of construction schedules, determination of insurance, bonding and indemnity requirements, establishment and enforcement of building codes, and keeping track of the various systems using the  {O'rights-of-way to prevent interference between them. See Classic Telephone Preemption Order, 11 FCC Rcd  {O'at13103, 39, citing 141 Cong. Rec. S8172 (daily ed. June 12, 1995) (statement of Sen. Feinstein, quoting  {Og'letter from the Office of the City Attorney, City and County of San Francisco); Implementation of Section 302  {O1'ofthe Telecommunications Act of 1996 Open Video Systems; CS Docket No. 9646, Second Report and Order, 11FCC Rcd 18223, 18330,  20910 (1996); Third Report and Order and Second Order on Reconsideration,  yO'11FCC Rcd 20227, 2030911,  19397 (rel. Aug. 8, 1996).H Such regulations are difficult to justify as "within the scope of permissible local rightsofway management authority or other  X4traditional municipal concerns."Yg7o {O% 'ԍTCI Cablevision Order at  105.Y We are concerned that local telecommunications regulations that vary from community to community will very likely discourage the development of competition. We also share TCG's concern with the possible discriminatory application of telecommunications regulation by state and local governments, and its effect on the development of competition. Thus, attempts to impose a "third tier" of telecommunications regulation at the local level "will be met with close scrutiny by the  XH4Commission.":hH4 7o {O-'ԍId.: At the same time, we recognize that "interpreting the 1996 Act is not an  X14easy task,"Gi1 7o {O'ԍId. at  110.G and requires the combined efforts of state and local governments, as well as this Commission. We must all remain mindful, however, of the fundamental purpose of the Act: "to promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid  X 4deployment of new telecommunications technologies.":j X 7o {O'ԍId.:  8#duv " j0*%%99u "  X4 8#duv   ! IV. ORDERING CLAUSES ă  X4"35.` ` Accordingly, pursuant to section 253 of the Communications Act, 47U.S.C.253, IT IS ORDERED that the Petition for Emergency Relief, Sanctions and Investigation IS DENIED. ` `  hhCFEDERAL COMMUNICATIONS COMMISSION ` `  hhCWilliam F. Caton ` `  hhCActing Secretary