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)^ `> XifQ ` Advanced Legal WordPerfect II Learning Guide   x )^ `> XifQ Advanced Legal WordPerfect II Learning Guide   j-n )^ `> XifQ    Copyright  Portola Systems, Inc. 1987, 1988`6 >Page  jBX )^ `> XifQ    Page ` Copyright  Portola Systems, Inc. 1987, 1988 Style 3oDutch Roman 11.5 with Margins/Tabs )a [ PfQO  ddn  # c0*b, oT9 !Style 4 PSwiss 8 Point with MarginsDq Co> PfQ  dddd  #  2 |MiStyle 1.5Dutch Roman 11.5 Font4h )a [ PfQO  dddn Style 2Dutch Italic 11.5$ )^ `> XifQ Style 5Dutch Bold 18 Point$RH$L T~> pfQ_  )a [ PfQO Style 7Swiss 11.5$$V )ao> PfQ ]  )a [ PfQO 2;Style 6Dutch Roman 14 Point$$N w [ PfQ   )a [ PfQO Style 10oInitial Codes for Advanced U )a [ PfQK  dddn  ##  [[ b, oT9 !b, oT9 !n )^ `> XifQ ` Advanced Legal WordPerfect Learning Guide   f )^ `> XifQ Advanced Legal WordPerfect Learning Guide   Q" )^ `> XifQ    Copyright  Portola Systems, Inc. 1987, 1988`6 >Page  QN~ )^ `> XifQ    Page ` Copyright  Portola Systems, Inc. 1987, 1988 Style 8PfInitial Codes for Beginninggi )a [ PfQK  dddn  # X` hp x (#%'b, oT9  [ &e )^ `> XifQ ` Beginning Legal WordPerfect Learning Guide   d )^ `> XifQ Beginning Legal WordPerfect Learning Guide   jH )^ `> XifQ    Copyright  Portola Systems, Inc. 1987, 1988`6 >Page  j )^ `> XifQ    Page ` Copyright  Portola Systems, Inc. 1987, 1988 Style 9Initial Codes for Intermediate )a [ PfQK  dddn  # X` hp x (#%'b, oT9 Њ [ e )^ `> XifQ ` Intermediate Legal WordPerfect Learning Guide   3 )^ `> XifQ Intermediate Legal WordPerfect Learning Guide   jf )^ `> XifQ    Copyright  Portola Systems, Inc.`+ >Page  jX )^ `> XifQ    Page ` Copyright  Portola Systems, Inc. 1987, 1988 2| p6qeUpdateInitial Codes for Update Module )a [ PfQK  dddn  #  [ X` hp x (#%'b, oT9 !n )^ `> XifQ ` Legal WordPerfect 5.0 Update Class Learning Guide   f )^ `> XifQ Legal WordPerfect 5.0 Update Class Learning Guide   Q" )^ `> XifQ    Copyright  Portola Systems, Inc. 1987, 1988`7 CPage  jN~ )^ `> XifQ    Page ` Copyright  Portola Systems, Inc. 1987, 1988 33`O5hT(G2PDocument Style&^aO5h.K+&,$@`O5Bȗ+&>` ` ` 34`O5iT(G2PDocument Style&^aO5i.K+&,$@`O5Bȗ+&>  . 35`O5jT(G2PDocument Style&^aO5j.K+&,$@`O5Bȗ+&>  2 ep 36`O5kT(G2PDocument Style&^aO5k.K+&,$@`O5Bȗ+&>  37`O5lT(G2PDocument Style&^aO5l.K+&,$@`O5Bȗ+&>*   38`O5mT(G2PDocument Style&^aO5m.K+&,$@`O5Bȗ+&>` ` ` 39`O5nT(G2PRight-Aligned Paragraph NumbersK+&,$@`O5Bȗ+&>8@   2V Ku K K 40`O5oT(G2PRight-Aligned Paragraph NumbersK+&,$@`O5Bȗ+&>A@` `  ` ` ` "i~'^5>M\\>>>\}0>03\\\\\\\\\\>>}}}\rryrr>Qygyrr\grrggF3FM\>\\Q\Q3\\33Q3\\\\FF3\QyQQFI3Ic>0cM>>>0>>>>>>\>\3r\r\r\r\r\yyQrQrQrQrQ>3>3>3>3y\\\\\\\\\gQr\\\\gQ\r\r\r\r\yQyQycyQnrQrQrQrQ\\\c\c\>3>\>>>\\ccyQg3gBg>g;g3y\jy\y\\\yrFrFrF\F\F\FccgBg3gM\\\\\\ygcgFgFgF\g>y\\Fg>g\n0\\=(=WddddddddddddddddddddddddddddddddddddddddNBnnB_\F\\\\\\3;\7;\7>>gg\??n\\pBnnBb\\>g\7"yyyy\njc\}nn\"i~'^ %,77\V%%%7>%7777777777>>>0eOIIOD>OO%*ODaOO>OI>DOOgOOD%%37%07070%777V7777%*77O77055;%;3%%%%%%%%%%%7O0O0O0O0O0aHI0D0D0D0D0%%%%O7O7O7O7O7O7O7O7O7O7O0O7O6O7O7O7>7O0O0O0I0I0I;I0OED0D0D0D0O7O7O7O;O7O;O7%%7%%%7M>;;O7DD,D%D%DO7AO7O7O7O7aOI%I%I%>*>*>*>;D.DD3O7O7O7O7O7O7gOO;D0D0D0O7D%O7>*D%O7E77%%WMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN(BB(37%07777j7#TT7!#TT7T!%%007n&&Bn77lCTn(nBB(A\\>>n%07\n!"IIIITTenn7TnB@;7>lBBn7"i~'^"(22TN"""28"2222222222888,\HBBH>8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN' x^ ԍId. at 457273. The alternative video programming service provider is free to reimburse the subscriber for the  {O'cost of the home wiring. Id. at n.52.  xIf, on the other hand, the subscriber declines to purchase the home wiring, the operator has seven business  S 'days to remove the wiring or make no subsequent attempt to remove it or restrict its use.: (] {OJ'ԍId. at 4574.:  S ' e =9.` ` In the Inside Wiring Notice, we sought comment on "whether and how our wiring rules  xVcan be structured to promote competition both in the markets for multichannel video programming  S6' xdelivery and in the market for telephony and advanced telecommunications services."Z6h (] {O>'ԍInside Wiring Notice, 11 FCC Rcd at 275556.Z In particular, we  xkrequested comment on whether and where the Commission should establish a common demarcation point  xfor wireline communications networks, whether we should continue to establish demarcation points based  xon the services provided over facilities (i.e., telephony or cable), or whether we should create demarcation  xppoints based upon the nature of the facilities ultimately used to deliver the service (i.e., narrowband  Sn' xtermination facilities or broadband termination facilities).1n (] {O 'ԍId.1 We noted that we "recognize that numerous  xgother factors may affect the proper location of the cable network's demarcation point, as well as one's  S' xMcontrol over cable inside wiring and cable service generally.": (] {OJ#'ԍId. at 2757.: We also sought comment on the "legal  xand practical impediments faced by telecommunications service providers in gaining access to  S'subscribers.":(] {O&'ԍId. at 2775.: ",`(`(885"Ԍ S' "ԙ III.XFURTHER NOTICE ON CABLE INSIDE WIRING IN MULTIPLE DWELLING UNIT BUILDINGS(#  S'A.` ` Comments in Response to Inside Wiring Notice  S8' e  10.` ` The main purpose of this Further Notice is to solicit comment on a procedural framework  xfor the disposition of cable home run wiring in MDUs. This home run wiring has already been the subject  S' xof substantial debate in this proceeding. In the Inside Wiring Notice, we sought comment on, among other  x things, moving the cable demarcation point to encompass the cable home run wiring within our cable  S' xhome wiring rules.^(] {O 'ԍSee Inside Wiring Notice, 11 FCC Rcd at 275657.^ Since the comments received regarding the cable demarcation point are relevant to  xIunderstanding the proposed procedural framework on which we seek additional comment, we will summarize those comments briefly.  S ' e # 11.` ` Many commenters argue that the current cable demarcation point in MDUs (at or about  xN12 inches outside of where the cable wire enters the subscriber's individual dwelling unit) is  xanticompetitive. These commenters assert that, as a physical matter, the cable wiring at the demarcation  xpoint is often embedded in brick, plaster, or cinder blocks, or encased in conduits or moldings, particularly  S\' x^in older MDUs.\Z(] {OV' xD ԍSee, e.g., OpTel Reply Comments at 6; Media Access Project/CFA Comments at 57; Liberty Comments at 2; WCA Comments at 11. These commenters state that, as a practical matter, a large majority of property owners  xrefuse to allow installation of a second set of cable wires in their buildings due to the risk of property  S ' xdamage, space limitations (] {O`' x* ԍSee WCA Comments at 13 (space limitations often place a de facto cap on the number of competing service  x providers that may serve an MDU property, such that a property owner often cannot give an alternative service  {O' x provider the space necessary to compete in the building); see also Multimedia Development Comments at 15; Riser  x Mgmt. Comments at 4 (stating that "there are many buildings in which conduits, riser shafts, entrances links, or crawl  x space are already crowded to the point that limits access" or that makes the "installation of separate systems by each [provider] physically impossible"). and aesthetic concerns. 0 (] {O' xD ԍSee, e.g., ICTA Comments at 21 ("Virtually all property owners refuse to allow installation of a second set of  x separate cable wires . . . [because] . . . [p]ostwiring a building generally negatively impacts the appearance of the  x property because [the wiring] cannot be hidden without tampering with the structure of the building."); DIRECTV  x Comments at 2 ("The MDU owners and tenants are typically unreceptive to assuming the cost and inconvenience of overbuild installations, which causes an intractable barrier to entry for new service providers."). Alternative MVPDs contend that property owners  xroutinely insist that a competitor to the incumbent cable operator may only provide service to the  S' xgconsumers residing in the MDU if the competitor uses the existing wiring within the building.=(] yO>"'ԍICTA Comments at 21. = These  x commenters assert that, given the growing number of MDU residents, this is a significant nationwide  Sl'problem.Xlr(] yO~%' x ԍLiberty cites the U.S. Bureau of the Census in describing data that MDUs accounted for 28% of the entire U.S.  x housing market in 1990, and that the number of dwelling units in MDUs in the U.S. increased by 51% between 1980  xk and 1990, while the number of households and single family residences grew by only 14% and 15%, respectively. "',`(`('"  {O' x Liberty Comments at Tables 1 and 2, Figures 12; see also DIRECTV Comments at 2 (stating that MDUs constitute "roughly onefourth of the United States' TV households")."l",`(`(88"Ԍ S' e ԙ 12.` ` Alternative providers make several different proposals. Most commenters urge the  xCommission to establish a new cable demarcation point at the point at which the wiring becomes solely  xdedicated to an individual subscriber e.g., at the lockbox, where the riser cable connects to each unit's  S' xdedicated home run wiring._"(] {OJ' x ԍSee, e.g., GTE Comments at 4; USTA Comments at 3; ICTA Comments at 2024; Multimedia Development  x^ Comments at 1314; MultiTechnologies Services Comments at 2; RCN Comments at 2; OpTel Comments at 1011;  xZ Media Access Project/CFA Comments at 1011; U S West Comments at 5; New Jersey BPU Comments at 67;  x7 Compaq Comments at 36; WCA Comments at 1012; AT&T Comments at 78; NYNEX Comments at 7; DIRECTV Comments at 78; PacTel Comments at 35; Ameritech Comments at 8; Liberty Comments at 23._ Other proposals include: (1) placing the cable demarcation point at the  S`' xminimum point of entry, as it typically is located in the telephone context;`(] {O ' xp ԍSee, e.g., CEMA Comments at 45; Ameritech Comments at 56 ("[I]n a converging marketplace where  x! telephone companies and cable operators are providing a variety of broadband services . . . different regulations for  xU premises wire based on the identity of the provider no longer are reasonable or necessary, especially where different  x services are provided over the same wire."); Bell Atlantic Reply Comments at 1214 (recommending that the  x minimum point of entry be established as the common demarcation point for buildings that are built or substantially  x rewired after January 1, 1998, which would prevent premises owners from having to give up valuable corridor space  x for multiple feeder cables, and would maximize the amount of wiring that can be provided by companies other than  xx the service providers); AT&T Comments at 3; Tandy Comments at 6; GTE Comments at 7; Circuit City Comments  x at 1415; Cincinnati Bell Comments at 2; Media Access Project/CFA Comments at 4; GTE Comments at 3; Riser Comments at 3; California PUC Comments at 12.  (2) moving the cable  xdemarcation point to a location near the entry to the building, such as a basement, telephone vault or  S' xframeroom; "n(] yO' x ԍBuilding Owners, et al., Comments at 38. Many commenting property managers and owners state that  x "[d]epending on the type of property, the demarcation point should be outside the building or outside of the premises  {O' x of each resident." See, e.g., 1st Lake Comments at 1; Community Associations Institute Comments at 1; Real Estate Board of New York, Inc. Comments at 2. and (3) placing the cable demarcation point within the MDU's common areas where existing  S'wiring is first readily accessible to competitors. !(X(] {O' x ԍDIRECTV Comments at 78; Liberty Petition for Reconsideration of the Cable Wiring Order at 1; WJBTV  {O' x Limited Partnership Response to Petitions for Reconsideration of the Cable Wiring Order at 3; WCA Reply  {Ot' x Comments to Petitions for Reconsideration of Cable Wiring Order at 7; USTA Supporting Statement on Petitions  {O>'for Reconsideration of Cable Wiring Order at 2.   S' e  13.` ` Alternative service providers argue that moving the cable demarcation point to the point  x+where the wiring becomes dedicated to an individual unit will promote competition in the video  xmarketplace. They assert that adopting their proposal would allow an alternative service provider, upon  xtermination of the incumbent provider's service by a subscriber, to attach its network quickly and easily  S ' xto the wiring solely dedicated to the individual subscriber's use.r" H(] {O$'ԍLiberty Petition for Reconsideration of the Cable Wiring Order at 2.r They also argue that this new  xdemarcation point would permit a second entrant to provide service without disrupting hallway walls or" ",`(`(88 "  S' xgceilings, or installing additional hallway molding in order to conceal a second set of home run wiring.1#(] {Oh' x ԍSee OpTel Reply Comments at 6; Media Access Project/CFA Comments at 6; Ameritech Comments at 34;  x3 New Jersey BPU Comments at 67; GTE Comments at 4; WCA Comments at 1112; NYNEX Comments at 78;  x@ PacTel Comments at 3; USTA Comments at 3; RCN Comments at 5 & n.5; Riser Comments at 5; AT&T Reply  x Comments at 6; Liberty Comments at 23; DIRECTV Comments at 8; OpTel Comments at 1011; Multimedia Development Comments at 1314; AT&T Comments at 7.1  xThese commenters contend that this would greatly increase property owners' willingness to allow them  S'to enter the building and compete, thereby fostering competition and enhancing consumer choice.$"z(] {O' x ԍSee Ameritech Reply Comments at 2; AT&T Comments at 48; TIA Comments at 7; Media Access  x Project/CFA Comments at 610; Circuit City Comments at 15; GTE Comments at 2; DIRECTV Comments at 12;  x ITI Comments at 3; NYNEX Comments at 78; RTE Comments at 2; MFS Comments at 2; Multimedia Development Comments at 2.  S`' e  14.` ` Some commenters that advocate moving the cable demarcation point to the "solely  xdedicated" point, as described above, urge the Commission to deem the MDU property owner the  xt"subscriber" for purposes of Section 624(i) and to allow the property owner to purchase the home run  S' x<wiring upon termination of the cable service.%Xd (] yO' xQ ԍOpTel Comments at 1213; ICTA Comments at 11, n.4. ICTA states that this approach is consistent with the  x legislative history of Section 624(i), which indicates that the provision was enacted to protect the interests of property owners in avoiding damage to their property from a cable operator's removal of wiring. ICTA Comments at 10.  These commenters argue that to permit a tenant to  S' xpurchase the wiring would constitute an impermissible taking of the property owner's property,?& (] yO'ԍICTA Comments at 1119.? would  S' xbe beyond the Commission's authority under Section 624(i),'Z(] {OL' x ԍSee id. at 810 (arguing that the Commission only has authority under Section 624(i) over cable "within the  x subscriber's premises," and that the Commission therefore does not have the authority to extend the demarcation point further from the rental unit if the tenants are given the option of purchasing the wiring). and would not be sound policy since only  Sp'the MDU owner has a long term interest in the property and the services available to the MDU.(zp6(] {OF' x ԍSee id. at 2526; OpTel Comments at 1214; WCA Comments at 1516; Multimedia Development Comments  x at 1415 (stating that "[t]he interests of an MDU property owner, whether it is a condominium association or  xo landlord, closely parallels those of its building residents regarding building services," and that in order to attract and  x retain residents, a premises owner "seeks to provide the best possible building environment at the most reasonable  x/ cost."); Building Owners, et al., Reply Comments at iii (stating that "the real estate business is extremely  x; competitive, and landlords have very strong incentives to meet their tenants' needs. Over the long run, the building operators that do so will succeed, and those that do not will fail, because the real estate industry is not a monopoly.").   S ' e 15.` ` As an alternative to moving the cable demarcation point, ICTA proposes that the  S ' xCommission adopt a procedural mechanism that it argues would accomplish many of the same objectives. ) x(] {O$' x ԍICTA Comments at 29; see also Ex Parte Letter from Treg Tremont, Winston & Strawn, on behalf of ICTA, to William F. Caton, Acting Secretary, Federal Communications Commission (April 16, 1997) ("ICTA Proposal").   xICTA's proposal would apply to MDUs where the entire building converts to the service of a new  xprovider and where the MDU owner does not already own the wiring in the building by operation of law" ),`(`(88 "  S' xor pursuant to private contractual arrangements.S*(] {Oh'ԍSee ICTA Proposal, supra, at 2.S Under ICTA's proposal, an MDU owner would provide  xwritten notice of the conversion to the incumbent provider at least 90 days prior to the date of the  x conversion. Within 30 days of the receipt of notice, the incumbent video provider in turn would give  xwritten notice to the owner that it has elected one of the following three options: (1)removal of the inside  xwiring, except the wiring within each individual unit and that portion extending twelve inches outside  xthereof, which either the tenant (under the Commission's existing rules) or the owner (under ICTA's  xproposal) will have purchased; (2)abandonment of such inside wiring without disabling it; or (3)sale of such inside wiring to the owner or the new provider.  S' e 16.` ` If the incumbent chooses to sell the wiring, it would then have 30 days to negotiate the  xZsale with the MDU owner or new provider. If the parties are unable to agree to terms for the sale, the  xDincumbent must choose between the other two options (i.e., removal or abandonment) and disconnect its  x}feeder lines (without disabling the wiring) at the end of the failed negotiation period or complete the  xremoval of the wiring within 30 days from that date. ICTA states that its model would only work if the  xCommission establishes an enforcement mechanism to ensure that the incumbent provider adheres to its  xinitial election, acts within the specified time frames and abides by whatever terms may be negotiated for  xa sale of the wiring. ICTA's proposal does not specify the form such an enforcement mechanism would  SX'take.+DXZ(] {OR' x ԍId. ICTA's current proposal differs somewhat from the initial version of this alternative. In its comments,  x ICTA proposed that the cable operator make an election to remove the wiring within seven business days after  x* receiving notice of service termination. If the operator declines to remove the wiring or fails to make an election,  x ICTA proposed that the wiring be deemed abandoned. In contrast, if the operator elected to remove the wiring,  xb ICTA proposed that the operator be required to remove the wiring (without disabling) within ten business days after  x the termination date. If the operator fails to remove the wiring in a timely manner after electing to do so, ICTA  xD proposed that the operator will be deemed to have abandoned the wiring and will be liable to the property owner  {O'for damages. See generally ICTA Comments at 3031.  S' e 17. ` ` ICTA also stated that a modified version of its proposal could apply in those situations  xwhere there are two providers serving an MDU and a tenant intends to switch from its current provider  S' xto the other provider, such as might arise in an access state,f (] yO' x| ԍIn "access" or "mandatory access" states, cable operators and/or other MVPDs have a statutory right of access to property in order to provide service. or where an MDU owner has determined that  S' xthere should be two providers.S- (] {O'ԍSee ICTA Proposal, supra, at 2.S In that instance, ICTA proposes that the tenant would notify the other  xprovider of its intent to receive that provider's service, either orally or in writing. Within seven days of  xthat notice, the other provider would notify the tenant's current provider of the request. The current  xprovider then would have seven days in which to negotiate a sale, with the tenant or owner, of that portion  xof the inside wiring dedicated to that tenant's unit, excluding the cable home wiring which either the  xtenant will already have purchased pursuant to the Commission's existing cable home wiring rules under  xSection 624(i) or the owner will have purchased as empowered under the ICTA model. ICTA proposed  xZthat, if the providers are unable to reach agreement on the terms of the sale, the current provider must  xeither formally abandon and disconnect this wiring (without disabling) at the end of the failed negotiation"P P -,`(`(88"  x@period, or remove the wiring within seven days. The current provider would be required to notify the  S'other provider in writing of which election it has chosen.1.(] {O@'ԍId.1  S' e 18.` ` Cable operators generally argue that the Commission should not modify the current cable  S`' x demarcation point in MDUs.a/X`Z(] yOZ' x ԍAdelphia Comments at 12 ; CATA Comments at 67; Time Warner Comments at 68; Continental/Cablevision  x Comments at 610; Charter/Comcast Comments at 17; Guam Cable TV Comments at 34; Joint Cable Parties Comments at 89; NCTA Comments at 45; TCI Comments at 45; TKR Comments at 10.a Some cable operators argue that the alternative service providers have  xQfailed to support their assertions that the current cable demarcation point is often inaccessible and that the  S' xcost of installing additional home run wiring is prohibitive.V0z(] {O* ' x& ԍSee, e.g., Cox Reply Comments at 1011; Joint Cable Parties Reply Comments at 7; see also Time Warner  x* Comments at 1718 (asserting that, contrary to claims by Liberty and NYNEX, only approximately two percent of  x| MDUs in New York City have home runs that are inaccessible to competitors because the wiring is concealed behind  xx old plaster walls or ceilings, and that even in those cases, "true" inside wiring is available at the wall plates of the individual dwelling units). V Cable operators contend that they often are  xthe second entrant into an MDU, and that in such circumstances they install their own inside wiring,  S' xxincluding home runs.'1@, (] yO' xc ԍCox Reply Comments at 1011 (citing Charter/Comcast Comments at 1819 (arguing that postwiring a  x condominium building costs less than $10,000)). Guam Cable TV states that MDU subscribers in Guam are able  xU to receive multiple services from multiple providers because: (1)most contractors use large interior conduit together  x. with miniature coaxial cable; (2)premises owners insist that service providers leave in a pull cord for use by the next  x provider; and (3)wiring is often concealed in unobtrusive exterior moldings on older buildings. Guam Cable TV  x Comments at 45. Cable operators argue that Guam's experience proves that the costs of installing additional wire  x is not an impediment to new providers, and add that, "if building owners wish it, as the Congress does, subscribers can have a real choice of MVPDs." Joint Cable Parties Reply Comments at 9; CATA Reply Comments at 6.' In addition, some cable operators assert that alternative service providers typically  xassuage concerns of landlords through compensation for access to the MDU, which they claim cable  Sp' xoperators may be precluded by law from doing.a2p4(] {OD'ԍSee, e.g., Charter/Comcast Comments at 17 and n.28.a Alternatively, Charter/Comcast urges the Commission  xQto move the demarcation point for broadband services inside the customer's premises, such as to the wall  S 'plate.3Z (] {O' x ԍCharter/Comcast Comments at 15; see also CEMA Comments at 5 (stating that consumers are likely to want  x multiple services from multiple providers, and that the most suitable location for the sophisticated electronics and other equipment that will be necessary in these situations is inside the customer's premises).  S ' e ~19.` ` Cable operators argue that moving the cable demarcation point would restrict their ability  x to compete to provide telephony and other telecommunications services, such as Internet access, if a  S ' xsubscriber chose a competitor's video services.4"  (] {O%' x ԍSee, e.g., Ex Parte Letter from Arthur H. Harding, Fleischman & Walsh, counsel for Time Warner  x Entertainment Company, L.P., to William F. Caton, Acting Secretary, Federal Communications Commission  yO&' x (February 21, 1995) at 2; Cox Comments at 22. Time Warner also argues that the home run wiring is never truly  x "dedicated" because: (1) even after a subscriber terminates cable service, the operator must retain its entire endto"b'3,`(`(k'"ԫ xH end distribution system so that other services can be offered to that unit; (2) a home run often serves more than one  x unit through splitters; and (3) a home run may be redirected for use by another unit. Time Warner thus asserts that  x the only wiring that is "dedicated" to an individual subscriber's use is the wiring within the premises of each unit. Time Warner Comments at 11. They assert that consumers would benefit from additional" 4,`(`(88N "  xkbroadband wires to their premises, since they could then have the flexibility of receiving different services  S' xfrom different providers, rather than simply choosing among service providers.5B(] {O(' x ԍSee Time Warner Comments at 11 (a consumer, for instance, may want basic cable service from the incumbent  xx cable operator, expanded basic service from a DBS provider, and telephone service from a local exchange carrier);  x Adelphia Comments at 2; NCTA Comments at 79; Joint Cable Parties Comments at 1314; Continental/Cablevision  x Comments at 1421 (moving the demarcation point would "thwart both competition and consumer choice in MDU  x units"). Time Warner states that, contrary to the assertions of the Media Access Project/CFA, multiple sets of  x broadband wires extending to a particular dwelling unit are never "redundant" because the cable operator always will  xx need the wire connection to the subscriber in order to offer noncable services. Time Warner Reply Comments at 34 (citing Media Access Project/CFA Comments at 5). Cable operators argue  xthat they should be permitted to maintain control over their wire in order to compete to provide such  S'services, rather than have to relinquish their wire to a competitor and be forced to rewire in the future.w6 (] {O'ԍSee, e.g., NCTA Comments at 7; Continental/Cablevision Comments at 1421.w  S8' e m20.` ` Cable operators also argue that allowing competitors to take over the cable operators'  S' xexisting plant would undercut their incentives to upgrade and deploy endtoend broadband networks.7L (] yO' x ԍCox Comments at 20; Joint Cable Parties Comments at 56; Continental/Cablevision Reply Comments at 10  x (allowing alternative service providers to take over the existing network would undermine "the present marketplace  x incentives that are spurring cable operators to make new investments to upgrade and expand their broadband  x7 capacity"); Time Warner Reply Comments at 1718 (arguing that moving the demarcation point would contradict  xQ the intent of Congress expressed in the Telecommunications Act of 1996 to promote private sector investment in  x advanced telecommunications facilities and infrastructure development) (citing H.R. Conf. Rep. No. 104458, 104th  x Cong., 2d Sess. 113 (1996) ("1996 House Report")); NCTA Comments at 2223 (stating that cable operators have  x. invested huge resources in upgrading their networks with fiber optic technology, and that requiring cable operators  x* to forfeit ownership or control over and rebuild this portion of their facilities will eliminate their continued ability to use these facilities to offer cable service and reap the benefits of their efforts).   xCox states that it is not surprising that telephone companies and other alternative service providers favor  xa rule that allows them to take over the cable operator's plant, since this allows them to reduce costs while  xalso protecting them from competition from cable operators in the provision of telephony, video and data  Sp' xservices.8"p(] {O' x3 ԍCox Comments at 2122; see also Time Warner Comments at 8 (the end result will be that fewer wires will  x be installed to subscribers); Continental/Cablevision Comments at 10 (stating that such an approach would reward  x those entities that have been unwilling to invest in their own distribution networks while harming providers that have undertaken the risk and expense of such construction). Some cable commenters contend that moving the cable demarcation point would slow network  xupgrades in areas with a high concentration of MDUs and disadvantage those subscribers residing in  S 'MDUs visavis subscribers residing in single family homes.9\ (] {O%' x ԍSee generally Time Warner Reply Comments at 21. Others argue that, given the impending competition to  x cable operators from telephone companies, DBS providers and others, a potential change in the cable demarcation  {O ''point could not come at a worse time. See, e.g., Continental/Cablevision Comments at 1011." 9,`(`(88 "Ԍ S' e ԙ21.` ` The end result of moving the cable demarcation point in MDUs, according to cable  xoperators, would be a "onewire world" in which the MDU owner or manager would become the  x+"gatekeeper" with the power to determine which services and service providers have access to  S' xsubscribers.:Z(] yO' x ԍCox Comments at 20. Cox further states that, even in those states where cable operators have a mandatory  xU right to access an MDU, an operator will have no incentive to reenter the building since there is nothing to stop the  {O'premises owner from expropriating its wiring again for use by yet another competitor. Id. at 2021. Some cable commenters believe that the premises owner will generally promote its own  S`' xginterests at the expense of subscribers residing in the building.;`(] yO' x ԍJoint Cable Parties Comments at 78 (citing cases in which premises owners have evicted franchised cable  x operators in order to provide exclusive access to an affiliated SMATV or one that promises a "kickback" to the  xx developer); Continental/Cablevision Comments at 2122. Joint Cable Parties contend that forcing cable operators  {OB ' xx to turn over their wiring to competitors would "create de facto exclusive arrangements for MDUs, even where the  x provider has not contracted for exclusivity, by transforming the cable operator into little more than a contractor for wiring installation." Joint Cable Parties Reply Comments at 9. These parties believe that, rather than  xgenhancing property owners' power to control access to MDUs, the property owners' power should be  S'minimized, in order to promote competition and enhance consumer choice.<d (] yO' xg ԍJoint Cable Parties Reply Comments at 10; Continental/Cablevision Comments at 2122; Charter/Comcast Comments at 17; CATA Reply Comments at 3; Cox Reply Comments at 11.  S' e 22.` ` In reply, GTE disputes the claim that moving the demarcation point necessarily "would  S' xlead to a onewire world and would discourage the offering of new services."@= (] yO'ԍGTE Reply Comments at 6.@ GTE states that, if a  xbuilding owner wants to allow service providers to duplicate the wiring that exists in its structure, there  xis nothing in the current rules preventing this. Similarly, ICTA argues that moving the demarcation point  xwould not discourage investment because a cable operator may protect itself by obtaining a property  xQowner's agreement guaranteeing the operator access to the property for a period of time sufficient for the  S 'operator to recoup its investment in the wiring and make a reasonable profit.`> L (] yO'ԍICTA Reply Comments at 7 (citing Cox Comments at 2021).`  S ' e  23.` ` Alternative service providers also dispute the cable industry's argument that moving the  xcable demarcation point would impair cable operators' ability to offer additional services because the  x<operator will no longer control the existing home run wiring. WCA asserts that this is a consumer  xdecision and that MDU subscribers will do what all consumers do when choosing among providers i.e.,  xevaluate the options and determine which one will provide the highest quality service at the lowest price.  xWCA believes it would be anticompetitive for the cable operator to hold a subscriber hostage to the  xoperator's video programming service only because the cable operator may offer telephony or other  Sh' x services in the future.D?h(] yO#'ԍWCA Reply Comments at 1819.D In addition, ICTA argues that the cable industry should not be able to use its"h l?,`(`(88"  xcompetitive advantage with respect to video programming, which results from its control over inside  S'wiring, to inhibit competition in other markets as well.@(] yO@' x ԍICTA Reply Comments at 56 (the cable industry ignores the fact that many alternative video service providers  x are capable of, and currently offer, voice, video and data to subscribers); GTE Reply Comments at 6 (the cable  x operators' arguments are "selfserving" and clearly demonstrate that the cable industry opposes any change to the  {O' x cable wiring rules in order to preserve its monopoly status); see also USTA Reply Comments at 3 (the cable operators' arguments ignore realworld obstacles to access to MDUs).  S' e =24.` ` Finally, some commenters contest cable operators' arguments that property owners will  xZfunction as anticompetitive gatekeepers if the cable demarcation point is changed. First, these parties  xstate that the cable industry's arguments ignore property owners' incentives to act in tenants' best interests  S' x}if the owners want to avoid vacancies in their buildings.xAZz(] {O* ' x3 ԍICTA Reply Comments at 7; WCA Reply Comments at 1517; see also generally Building Owners, et al.,  x Comments at 1823 (stating that a property owner's interest in reducing turnover and attracting new residents provide incentives to provide residents with whatever amenities the property can afford).x These parties add that the cable industry  xignores the "thousands of times" landlords seek to act in the best interests of their tenants but are  x"hamstrung" by cable operators' assertions of ownership over wiring, even after the cable operator's  S' xservice has been terminated.mB(] {O'ԍICTA Reply Comments at 7; see also WCA Reply Comments at 1618.m Second, some commenters argue that the issue is not whether there will  xMbe or should be a gatekeeper to an MDU, but whether the property owner or the cable operator would  xmake a better gatekeeper. Ameritech, for instance, believes that given cable operators' incentives to  xpreclude competition as compared with property owners' incentives to maintain and attract tenants, the  S 'property owners are the better candidates to act in the tenants' interests.C . (] {O' xD ԍAmeritech Reply Comments at 78; see also CEMA Reply Comments at 12 (stating that property owners can also provide cost savings to tenants by negotiating better service rates than a subscriber could individually).  S 'X B.` ` The Competitive Landscape (#  SX' e 25.` ` The evidence in this proceeding leads us to conclude that more is needed to foster the  x&ability of subscribers who live in MDUs to choose among competing service providers. Based on the  xrecord evidence, we believe that one of the primary competitive problems in MDUs is the difficulty for  xsome service providers to obtain access to the property for the purpose of running additional home run  xwires to subscribers' units. The record indicates that MDU property owners often object to the installation  x of multiple home run wires in the hallways of their properties, for reasons including aesthetics, space  Sh' xplimitations, the avoidance of disruption and inconvenience, and the potential for property damage.DBh (] {O!' x ԍSee, e.g., OpTel Reply Comments at 6; Media Access Project/CFA Comments at 57; Liberty Comments at 27;  x WCA Comments at 11, 13 (stating that space limitations often place a de facto cap on the number of competing  x video service providers that may serve an MDU property, such that a property owner often cannot give an alternative  x video service provider the space necessary to compete in the building); Multimedia Development Comments at 15;  x ICTA Comments at 21 (stating that incumbent cable operators typically refuse to let an alternative video service  x! provider share a hallway molding that contains the home run so that the alternative video service provider need not  xD install a second molding); DIRECTV Comments at 2 ("The MDU owners and tenants are typically unreceptive to  x; assuming the cost and inconvenience of overbuild installations, which causes an intractable barrier to entry for new" 'C,`(`(&" service providers."). "h XD,`(`(88"  xkAccording to ICTA, "[v]irtually all property owners refuse to allow installation of a second set of separate  xZcable wires . . . [because] . . . [p]ostwiring a building generally negatively impacts the appearance of  S'the property because [the wiring] cannot be hidden without tampering with the structure of the building.">EX(] yO'ԍICTA Comments at 21. >  S`' e 26.` ` We believe that property owners' resistance to the installation of multiple sets of home  xrun wiring in their buildings may deny MDU residents the ability to choose among competing service  S' xproviders, thereby contravening the purposes of the Communications Act,Fz(] {O ' x ԍSee, e.g., Communications Act, 1, 47 U.S.C.  151 (Commission created "so as to make available, so far as  x possible, to all people of the United States . . . a rapid, efficient, Nationwide, and worldwide wire and radio  x communications service"); Telecommunications Act of 1996 Conf. Report, S. Rep. 104230 (Feb. 1, 1996) ("1996  x7 Conference Report") at 1 (providing for "a procompetitive, deregulatory national policy framework designed to  x7 accelerate rapidly private sector deployment of advanced telecommunications and information technologies and  x services to all Americans by opening all telecommunications markets to competition"); Communications Act,  601(6), 47 U.S.C.  521(6) (one of the purposes of Title VI is to promote competition in cable communications). and particularly Section 624(i),  xwhich was intended to promote consumer choice and competition by permitting subscribers to avoid the  xZdisruption of having their home wiring removed upon voluntary termination and to subsequently utilize  S' xthat wiring for an alternative service.G^* (] {Ob' xV ԍSee H.R. Rep. No. 628, 102d Cong., 2d Sess. (1992) ("1992 House Report") at 118; S.Rep. No. 92, 102d  {O,' x Cong., 1st Sess., (1991) ("1992 Senate Report") at 23; see also Cable Home Wiring Further Notice, 11 FCC Rcd  {O'at 4570 (citing Cable Wiring Order, 8 FCC Rcd at 1435). We believe that the impact is substantial. As of 1990, there were  x7almost 31.5 million MDUs in the United States, comprising approximately 28% of the nationwide housing  SH ' xmarket.HH P (] {O8'ԍSee Liberty Comments at Tables 14 (citing 1990 Data from the Bureau of the Census). Moreover, the trend between 1980 and 1990 indicates that the number of MDUs is growing at  S ' xga much faster rate than the number of single family dwellings.1I (] {O'ԍId.1 Data also shows that MDUs make up  x7between 32% and 84% of the housing market in cities with the greatest numbers of households receiving  S 'cable service.zJ t(] {O'ԍId. at 5 (citing 1 Cable & Broadcasting Yearbook 1995 at D75 (1995)).z  S ' e 27.` ` Although some cable operators argue that the current demarcation rules should be  SX' xDmaintained in order to encourage property owners to permit the installation of multiple sets of wires,YKX(] {O!'ԍSee, e.g., Time Warner Reply Comments at 3.Y the  xrecord does not demonstrate that the current cable home wiring rules, having been in place for four years,  xprovide adequate incentives for MDU property owners to permit the installation of multiple home run  x@wires. Time Warner submitted information seeking to support the proposition that competition within  xMDUs is steadily growing in Manhattan. Time Warner states that in 1992, prior to adoption of the current  x@demarcation rules, only 17 MDUs received services from both Liberty (a SMATV operator) and Time"K,`(`(88;"  xWarner (a cable operator), and that this number grew to 57 in 1993, to 91 in 1994, to 120 in 1995, and  S'finally to 143 buildings in 1996.>LX(] yO@' x ԍEx Parte Letter from Arthur H. Harding, Fleischman & Walsh, counsel for Time Warner Cable, to Meredith  x J. Jones, Chief, Cable Services Bureau, Federal Communications Commission (October 28, 1996) ("Time Warner October 1996 Ex Parte Letter") at 4.>  S' e z28.` ` We believe that the presence of multiple wires in 143 buildings in Manhattan does not  xkdemonstrate that our rules provide adequate incentives to MDU owners to permit multiple home run wires  x3in their buildings. While Time Warner's letter did not state the total number of MDUs in Manhattan, it  S' xappears that 143 MDUs represent only a small fraction of the total.M"(] yO ' xb ԍFor instance, based on available census data, we estimate that the 143 buildings cited by Time Warner represent  {O` ' xg only 2%4.5% of the number of MDUs in Manhattan. See 1996 New York City Housing and Vacancy Survey,  x Census Bureau, Series 1B (April 1997) at 33. For this purpose, each of the five boroughs was allocated an equal pro rata share of the total number of MDUs.  Moreover, while Time Warner  xalleges an overall increase in the number of buildings with at least two providers, the number of new  xbuildings being served by both providers has declined each successive year since 1993 i.e., from 40 new  xbuildings between 1992 and 1993, to 34 between 1993 and 1994, to 29 between 1994 and 1995, to only  Sp'23 new competitive buildings between 1995 and 1996.Np(] yO' x ԍSimilarly, between 1994 and 1995, 18,330 new MDU consumers were exposed to competitive services, while only 9,755 such subscribers were added between 1995 and 1996.  S ' e 29.` ` In addition, the 143 MDUs served by both Time Warner and Liberty may also stem from  xunique circumstances. First, as Time Warner itself has argued in our cable home wiring docket, Liberty  S ' xmay have enjoyed certain advantages over other alternative service providers in gaining access to MDUs.O * (] {O' xt ԍSee Ex Parte Letter filed in MM Docket No. 92260 from Arthur H. Harding, Fleischman & Walsh, counsel  x for Time Warner Entertainment Company, L.P., to William F. Caton, Acting Secretary, Federal Communications  x Commission (January 27, 1995) at 3 (the alleged inability of competing MVPDs to obtain permission from landlords  xk to install their facilities is vastly overstated, noting that Liberty, for example, is owned by the Milstein family, one of the largest landlords and property management conglomerates in New York City).  xSimilarly, Time Warner's ability to install wiring in Manhattan MDUs already served by Liberty may  S ' xresult in part from Time Warner's mandatory access rights under New York state law.P (] {O' xt ԍSee New York Pub. Service Law 228 (1972) ("No landlord shall (a) interfere with the installation of cable television facilities upon his property or premises . . . . "). Under New York  x<law, an MDU owner cannot deny Time Warner access to its property in order to serve the MDU's  xresidents. Liberty, and other noncable video service providers do not enjoy such mandatory access rights  S' xZin New York.1Q6(] {O"'ԍId.1 Nationally, fewer than 20 states have enacted some form of mandatory access statute  x(most of which appear to benefit only the franchised cable operator). Notably, Time Warner cites only  xone example of twowire competition in the states in which it operates without the benefit of mandatory  xaccess statutes. Time Warner's evidence of twowire competition in MDUs outside of Manhattan consists  xof "approximately a dozen" apartment complexes in Harrisonburg, Virginia, which are served by both"hQ,`(`(88"  S' xTime Warner Cable and a wireless cable provider.dR(] {Oh'ԍTime Warner October 1996 Ex Parte Letter, supra, at 4.d Time Warner Cable operates 18 systems in  xCalifornia, 17 systems in Louisiana, 57 systems in North Carolina, 28 systems in South Carolina and 45  S' xsystems in Texas,xSZ(] {O'ԍSee Television and Cable Factbook, Warren Publishing, Inc. (1997 edition).x none of which have state mandatory cable access laws, and yet Time Warner cites no examples of twowire competition in these states.  S8' e ~30.` ` An ex parte submission from Cablevision, another cable operator, appears to support our  S' xbelief. T(] {O ' xp ԍSee Ex Parte Letter from Frank W. Lloyd, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, on behalf of Cablevision, to William F. Caton, Acting Secretary, Federal Communications Commission (January 30, 1997).  Cablevision lists 353 MDUs in its service areas in which two broadband wires have been  S' xinstalled.FUF(] {O 'ԍId. at Exhibits 1 and 2.F Of these 353 MDUs, Cablevision was the second entrant in 338 (over 95% of the cases).  xThus, noncable MVPDs have overbuilt Cablevision in only 15 MDUs in the same areas in which  S' xICablevision has overbuilt noncable video service providers 338 times.V(] yO' xx ԍOf these 15 noncable overbuilds, seven were overbuilds by Liberty and one was a new construction project being wired by both Cablevision and SNET (which has a cable franchise in Connecticut). Cablevision states that its  x7installation of second wires in these MDUs is part of its franchise obligation to serve all residences where  xthere is a request for service. We note, however, that Cablevision's examples of MDU overbuilds are all  xQfrom New York, Connecticut, Massachusetts and New Jersey, all of which have cable mandatory access  xVstatutes. Cablevision has cited no instances of overbuilds in the states in which it operates without  xmandatory access statutes, such as Alabama (25 systems), Kentucky (17 systems), Missouri (40 systems)  S ' xand North Carolina (17 systems).yW 0 (] {Ox'ԍSee Television and Cable Factbook, Warren Publishing, Inc. (1997 edition). y Based on the foregoing, we believe that the presence of multiple wires  xin the MDUs cited by Cablevision is substantially due to the existence of state mandatory access statutes  xand not to a desire for multiwire competition on the part of property owners. Accordingly, we find that  xthe record does not demonstrate that our current rules are adequate to promote competition and consumer choice in MDUs by encouraging property owners to install multiple home run wires.  S' e 31.` ` We believe that disagreement over ownership and control of the home run wire  xsubstantially tempers competition. The record indicates that, where the property owner or subscriber seeks  xDanother video service provider, instead of responding to competition through varied and improved service  S@' xofferings, the incumbent provider often invokes its alleged ownership interest in the home run wiring. X@ (] {O!' x ԍSee Ex Parte Letter from Henry Goldberg, Goldberg, Godles, Wiener & Wright, on behalf of OpTel, to Reed E. Hundt, Chairman, Federal Communications Commission (February 4, 1997) ("OpTel February 4, 1997 Letter").   S' xQIncumbents invoke written agreements providing for continued service,Y(] yO$' x& ԍEx Parte Submission by Terry S. Bienstock and Philip J. Kantor, Bienstock & Clark, counsel for Comcast ("Comcast Ex Parte Submission"). perpetual contracts entered into"tY,`(`(88"  S' xby the incumbent and previous owner,Z(] yOh' x ԍEx Parte Letter from Henry Goldberg, Goldberg, Godles, Wiener & Wright, on behalf of OpTel, to Meredith Jones, Chief, Cable Services Bureau, Federal Communications Commission (July 23, 1996). easements emanating from the  S' xincumbent's installation of the wiring,[ (] {O' x^ ԍSee Ex Parte Letter from Philip J. Kantor, Bienstock & Clark, to Lawrence A. Walke, Attorney, Policy & Rules Division, Cable Services Bureau, Federal Communications Commission (January 31, 1997). assertions that the wiring has not become a fixture and remains  S' xthe personal property of the incumbent,1\z(] {O'ԍId.1 or that the incumbent's investment in the wiring has not been  S' xrecouped, and oral understandings regarding the ownership and continued provision of services.] (] {O4 ' xk ԍSee Ex Parte Letter from Alexandra M. Wilson, Chief Policy Counsel, Cox Enterprises, Inc., to Reed E. Hundt, Chairman, Federal Communications Commission (February 14, 1997). Written  xagreements are frequently unclear, often having been consummated in an era of an accepted monopoly,  xMand state and local law as to their meaning is vague. Invoking any of these reasons, incumbents often  x@refuse to sell the home run wiring to the new provider or to cooperate in any transition. The property  xowner or subscriber is frequently left with an unclear understanding of why another provider cannot  x7commence service. The litigation alternative, an option rarely conducive to generating competition, while  xtypically not pursued by the property owner or subscriber, can be employed aggressively by the  Sp'incumbent.c^pf (] yOv'ԍOpTel February 4, 1997 Letter; Comcast Ex Parte Submission.c The result is to chill the competitive environment.  S 'X C.` ` Disposition of Home Run Wiring (#  S ' e J32.` ` We propose to establish procedures for buildingbybuilding disposition of the home run  xkwiring (where the MDU owner decides to convert the entire building to a new video service provider) and  xfor unitbyunit disposition of the home run wiring (where an MDU owner is willing to permit two or  xmore video service providers to compete for subscribers on a unitbyunit basis) where the MDU owner  xpwants the alternative provider to be able to use the existing home run wiring. We believe that these  xprocedural mechanisms will not create or destroy any property rights, but will promote competition and  xZconsumer choice by bringing order and certainty to the disposition of the MDU home run wiring upon termination of service.  Sh' e  33.` ` In today's marketplace, alternative video service providers have no timely and reliable way  S@' xof ascertaining whether they will be able to use the existing home run wiring upon a change in service.I_@ (] {O 'ԍSee ICTA Comments at 3132.I  xAs explained above, MDU owners are similarly unsure of their legal rights. Because of this uncertainty,  xan MDU owner seeking to change providers may be confronted with choosing among: (1)allowing the  x alternative provider to install duplicative home run wiring before it knows whether the incumbent will  xgabandon the existing home run wiring when it leaves; (2)waiting to see what the incumbent does with  xthe home run wiring when it leaves the building, risking a potential disruption in service to its residents;  x(3)staying with the incumbent provider; or (4) allowing the alternative provider to use the home run  x7wiring and risking litigation. The proposed procedures are intended to provide all parties sufficient notice  xand certainty of whether and how the existing home run wiring will be made available to the alternative" _,`(`(88["  x video service provider so that a change in service can occur efficiently. We tentatively conclude that  xestablishing rules governing the disposition of the MDU home run wiring will represent a substantial step toward increased competition in the MDU video programming service marketplace.  S`' e !34.` ` We propose that the procedural mechanisms described below would apply only where the  xincumbent provider no longer has an enforceable legal right to remain on the premises against the will  S' xof the MDU owner.`(] yOx' x ԍThe term "MDU owner" herein includes whatever entity owns the common areas of an apartment building,  x condominium or cooperative. According to the Community Associations Institute, "[i]n a cooperative association,  x the association owns the common areas. In a condominium, the unit owners own common areas as tenantsin {O ' x common, but the association manages these areas." See Ex Parte Letter from Robert M. Diamond, President,  x Community Associations Institute, to Rick C. Chessen, Assistant Chief, Policy and Rules Division, Cable Services Bureau, Federal Communications Commission (October 31, 1996) at 1. In other words, these procedures would not apply where the incumbent provider  x7has a contractual, statutory or common law right to maintain its home run wiring on the property. In the  xtbuildingbybuilding context, the procedures below would not apply where the incumbent provider has  xa legally enforceable right to maintain its home run wiring on the premises against the MDU owner's  xwishes and prevent any third party from using the wiring; in the unitbyunit context, the procedures below  xwould not apply where the incumbent provider has a legally enforceable right to keep a particular home  xrun wire dedicated to a particular unit (not including the wiring on the subscriber's side of the demarcation  xpoint) on the premises against the property owner's wishes. We are not proposing to preempt an  x*incumbent's ability to rely upon any rights it may have under state law. We seek comment on the impact  xof this condition on the efficacy of our proposal, and how any adverse effects should be addressed. In  xparticular, we seek comment on whether the Commission can and should create any presumptions or other  xmechanisms regarding the relative rights of the parties if the incumbent's right to maintain its home run  xQwiring on the premises is disputed. For example, we seek comment on a presumption that the incumbent  xdoes not possess an enforceable legal right to maintain its home wiring on the premises (and therefore that  xour proposed procedures would apply), unless the incumbent can adduce a clear contractual or statutory right to remain.  Sh'` ` 1. BuildingbyBuilding Disposition of Home Run Wiring  S' e  "35.` ` We seek comment on the following proposal: where the incumbent service provider owns  xthe home run wiring in an MDU and does not (or will not at the conclusion of the notice period) have  xa legally enforceable right to remain on the premises, and the MDU owner wants to be able to use the  x&existing home run wiring for service from another provider, the MDU owner may give the incumbent  xservice provider a minimum of 90 days' notice that the provider's access to the entire building will be  SP' xterminated. aPB(] yO2!' x7 ԍAn MDU owner may, of course, choose to terminate the incumbent provider's access rights pursuant to the terms of a contractual agreement between the parties, rather than pursuant to the procedures we propose herein.  The incumbent provider would then have 30 days to notify the MDU owner in writing of  xits election to do one of the following for all the home run wiring inside the MDU: (1) to remove the  xwiring and restore the MDU to its prior condition by the end of the 90day notice period; (2) to abandon  S' xand not disable the wiring at the end of the 90day notice period;b(] yO&' x ԍUnder our proposal, if the incumbent elects to abandon the wiring, its ownership will be determined as a matter of state law. or (3) to sell the wiring to the MDU" b,`(`(88"  x owner. If the incumbent provider elects to remove or abandon the wiring, and it intends to terminate  xgservice before the end of the 90day notice period, the incumbent provider would be required to notify  x@the MDU owner at the time of this election of the date on which it intends to terminate service. If the  xMDU owner refuses to purchase the home run wiring, the alternative video service provider may purchase it.  S' e 0#36.` ` We are concerned that an incumbent provider may initially elect to remove its home run  xwiring and then decide to abandon it. Such conduct could put the alternative service provider to the  x^unnecessary burden and expense of installing a second set of home run wires when the incumbent has no  xxintention of removing the existing wiring. We seek comment on whether to adopt penalties for incumbent providers that elect to remove their home run wiring and then fail to do so.  S ' e d$37.` ` Where the incumbent provider elects to sell the home run wiring, our preference is to let  x7the parties negotiate the price of the wiring. We seek comment on whether market forces would provide  x*adequate incentives for the parties to reach a reasonable price. If market forces are insufficient, we seek  xcomment on how a reasonable price should be established. For instance, we seek comment on whether:  x(1) the Commission should establish broad guidelines within which negotiations would occur (e.g., a  xreasonable price should be more than a nominal amount but should not include the incumbent provider's  xlost opportunity costs); (2) the price should be left to negotiations between the parties but the Commission  xtshould establish a default price if the parties cannot reach an agreement; or (3) the Commission should  xRestablish a general rule or formula for determining a reasonable price. If parties believe that the  xCommission should establish guidelines, a default price, a general rule or formula, we seek comment on the type of guidelines, default price, general rule or formula that should be established.  S@' e 0%38.` ` We propose that, if the parties negotiate a price, they would have 30 days from the date  xof election to negotiate a price for the home run wiring. The parties could also negotiate to purchase  x}additional wiring (e.g., riser cables) at their option. If the parties are unable to agree on a price, the  xZincumbent would be required to elect one of the other two options (i.e., abandonment or removal) and  xnotify the MDU owner at the time of this election if and when it intends to terminate service before the  x3end of the 90day notice period. If the incumbent service provider elects to abandon its wiring at this  xtpoint, the abandonment would become effective at the end of the 90day notice period or upon service  xtermination, whichever occurs first. Similarly, if the incumbent elects to remove its wiring and restore  xthe building to its prior condition, it would have to do so by the end of the 90day notice period. If the  xincumbent failed to comply with any of the deadlines established herein, it would be deemed to have  S'elected to abandon its home run wiring at the end of the 90day notice period.c(] yO' x ԍSee Appendix B for a time line summary of the proposed procedures for the disposition of MDU inside wiring on a buildingbybuilding basis.  S`'` ` 2. UnitbyUnit Disposition of Home Run Wiring  S ' e &39.` ` We also seek comment on the following proposal for unitbyunit disposition of home run  x*wiring. Where the incumbent video service provider owns the home run wiring in an MDU and does not  xZ(or will not at the conclusion of the notice period) have a legally enforceable right to maintain its home"! c,`(`(88 "  S' xxrun wiring on the premises,{dX(] yOh' xH ԍFor example, we believe that if a state mandatory access statute only gives a provider access rights to an MDU  x7 if a resident requests service, once the resident no longer requests that provider's service, the provider's right to maintain a home run wiring dedicated to that subscriber would be extinguished.{ the MDU owner may permit multiple service providers to compete headto S' xchead in the building for the right to use the individual home run wires dedicated to each unit.e(] yO`' x ԍTo the extent that, as Time Warner alleges, a home run wire serves multiple units through the use of splitters, the wire would not be dedicated to a single subscriber and such wiring would not be covered by these procedures. We  xpropose that, where an MDU owner wishes to permit such headtohead competition, the MDU owner  xmust provide at least 60 days' notice to the incumbent provider of the owner's intention to invoke the  S`' xfollowing procedure.fZ`@(] yO@ ' x ԍThe MDU owner would also be required to notify the incumbent provider at this time as to whether the MDU  x owner or the alternative provider will purchase the home wiring within each individual dwelling unit if and when  {O 'a subscriber declines to purchase the home wiring under our rules. See Section III.D. below. The incumbent service provider would then have 30 days to provide the MDU  xowner with a written election as to whether, for all of the incumbent's home run wires dedicated to  xindividual subscribers who may later choose the alternative provider's service, it will: (1) remove the  S' xtwiring and restore the MDU to its prior condition; (2) abandon the wiring without disabling it;gb (] yO'ԍAgain, if the incumbent elects to abandon the wiring, its ownership will be determined by state law. or (3)  S' xsell the wiring to the MDU owner.h (] yOR' x^ ԍAs in the buildingbybuilding situation, we propose to allow the alternative provider to purchase the home run wiring if the MDU owner refuses to purchase it. In other words, the incumbent service provider would be required  xto make a single election for how it will handle the disposition of individual home run wires whenever  xQa subscriber wishes to switch video service providers; that election would then be implemented each time  xan individual subscriber switches service providers. The alternative service provider would be required  xto make a similar election within this same 30day period for any home run wiring that the alternative  xDprovider subsequently owns (i.e., after the alternative provider has purchased the wiring from the current  xincumbent provider) and that is solely dedicated to a subscriber who switches back from the alternative  x^provider to the incumbent. We also tentatively conclude that it would streamline and expedite the process  xto permit the alternative service provider or the MDU owner to act as the subscriber's agent in providing  SX' xnotice of a subscriber's desire to change services.i&XJ (] {OB' xg ԍThis is consistent with our decision in the Cable Home Wiring Further Notice, in which we stated: "By  x referring to 'subscriber' herein, we do not intend to prohibit a subscriber from delegating to an agent the task of  {O' x. terminating service and authorizing the purchase of home wiring on his or her behalf." Cable Home Wiring Further  {O'Notice, 11 FCC Rcd at 4572.  We tentatively conclude that unauthorized changes  xin service (i.e., "slamming") are unlikely to occur in this context; if slamming does occur, however, we would propose to take additional steps to protect consumers, such as requiring proof of agency.  S' e d'40.` ` As with the proposed buildingbybuilding procedures, we would prefer to let the parties  xnegotiate for the sale of the home run wiring, and we seek comment on whether market forces will  xproduce a reasonable price. If market forces are not adequate, we seek comment on the appropriate  xmechanism for establishing a reasonable price for the home run wiring. We propose that, if one or both  xof the video service providers elects to negotiate for the sale of the home run wiring, the parties have 30  x@days from the date of such election to reach an agreement. During this 30day negotiation period, the"8i,`(`(88n"  xincumbent, the MDU owner and/or the new provider could also work out arrangements for an upfront  x^lump sum payment in lieu of a unitbyunit payment. An upfront lump sum payment would permit either  xservice provider to use the home run wiring to provide service to a subscriber without the administrative  x*burden of paying separately for each home run wire every time a subscriber changes providers. We also  x^propose that, if the parties cannot agree on a price, the incumbent provider would be required to elect one  xxof the other two options (i.e., abandonment or removal). If the incumbent fails to comply with any of the  x<deadlines established herein, we propose to treat the home run wiring as abandoned and permit the alternative provider to use the home run wiring immediately to provide service.  S' e (41.` ` We propose that, after completion of this initial process, a provider's election would be  xcarried out if and when the provider is notified either orally or in writing that a subscriber wishes to  xterminate service and that an alternative service provider intends to use the existing home run wire to  xQprovide service to that particular subscriber. At that point, a provider that has elected to remove its home  xrun wiring would have seven days to do so and to restore the building to its prior condition. We  xtentatively conclude that seven days is adequate for removal because we believe that, unlike in the  xbuildingbybuilding context, the provider would only be required to remove a single home run wire. If  x the current service provider has elected to abandon or sell the wiring, the abandonment or sale would  x@become effective seven days from the date it receives a request for service termination or upon actual  x^service termination, whichever occurs first. We would propose that, if the incumbent provider intends to  xDterminate service prior to the end of the sevenday period, the incumbent would be required to inform the  xsubscriber or the subscriber's agent (whichever is notifying the incumbent that the subscriber wishes to  xterminate service) at the time of the request for service termination of the date on which service will be  xDterminated. In addition, we would propose to require the incumbent provider to disconnect the home run  x^wiring from its lockbox and to leave it accessible for the new provider by the end of the sevenday period or within 24 hours of actual service termination, whichever occurs first.  S' e )42.` ` We base the above procedures on the assumption that the alternative service provider will  xhave an incentive to ensure that the incumbent is notified that the alternative service provider intends to  xuse the existing home run wire to provide service. To the extent this assumption is inaccurate, we seek  xcomment on how the incumbent's election regarding the home run wiring in the unitbyunit context  xshould be triggered efficiently and so as to minimize disruption of service. If the subscriber's service is  xsimply terminated without any indication that a competing service provider wishes to use the home run  xwiring, the incumbent service provider would not be required to carry out its election to sell, remove or  xabandon the home run wiring. This might occur, for instance, where an MDU tenant is moving out of  xZthe building. In such cases, we do not believe that it would be appropriate to require the incumbent to  xZsell, remove or abandon the home run wiring when it might have every reasonable expectation that the  xnext tenant will request its service. We would propose, however, that the incumbent provider would be  xrequired to carry out its election with regard to the home run wiring if and when it receives notice from  xa subsequent tenant (either directly or through an alternative provider) that the tenant wishes to use the  S 'home run wiring to receive a competing service.j (] yOP#' x ԍSee Appendix C for a time line summary of the proposed procedures for the unitbyunit disposition of wiring inside MDUs.  S"' e q*43.` ` Moreover, even where the incumbent receives a request for service termination but does  xnot receive notice that an alternative provider wishes to use the home run wiring, we would still propose  xkto require the incumbent to follow the procedures set forth in our cable home wiring rules e.g., to offer"H$ j,`(`(88""  xto sell to the subscriber any cable home wiring that the incumbent provider otherwise intends to remove.  xFirst, the required notice in the unitbyunit context may be effected in two stages (i.e., the subscriber may  xgcall to terminate service and the alternative provider may separately notify the incumbent that it wishes  xto use the home run wiring). In order for the home run wiring and the home wiring to be disposed of in  xa coordinated manner, we therefore believe that our cable home wiring rules must apply upon any  xMtermination of service. In addition, we believe that subscribers should have the right to purchase their  xQhome wiring to protect themselves from unnecessary disruption associated with removal of home wiring, regardless of whether they intend to subscribe to an alternative service.  S'` ` 3. Ownership of Home Run Wiring  SH ' e +44.` ` In both the buildingbybuilding and unitbyunit approaches, we propose to give the MDU  x/owner the initial option to negotiate for ownership and control of the home run wiring because the  xproperty owner is responsible for the common areas of a building, including safety and security concerns,  x&compliance with building and electrical codes, maintaining the aesthetics of the building and balancing  S ' xthe concerns of all of the residents.ak (] {O'ԍSee, e.g., Building Owners, et al., Comments at 18.a Moreover, vesting ownership of the home run wiring in the MDU  x^owner, as opposed to the alternative service provider, will reduce future transaction costs since the above  xprocedures will not need to be repeated if service is subsequently switched again. Nevertheless, we  S0' x&recognize that some MDU owners may not want to own the home run wiring in their buildings;@l0Z(] {O*'ԍCf. id. at 25, 33.@ we propose that in such cases the alternative service provider should be permitted to purchase the wiring.  S' e ,45.` ` We do not believe that individual subscribers would be disadvantaged by having the MDU  xowner own the home run wiring. If a subscriber has the ability to choose between multiple service  xZproviders in the unitbyunit context, the MDU owner has already concluded that it is willing to permit  xmultiple service providers on the premises in order to compete for subscribers. Given that the MDU  xowner would have voluntarily opened its building to multiple competitors, we do not believe that the  xtMDU owner would deny a resident the ability to use the home run wiring for the resident's provider of  xchoice. Furthermore, we believe that, if the alternative service provider purchases the home run wiring,  xthat provider would not be able to act as a bottleneck and the individual subscriber would continue to be  xprotected because, as described herein, the alternative service provider would also be subject to these same procedures if and when the alternative provider's service is terminated.  S'XX` ` 4.X Impact on Incumbent Video Service Providers (#  S' e -46.` ` We tentatively conclude that cable operators' argument that the loss of their home run  xQwiring eliminates their ability to provide other telecommunications services is misplaced. Cable operators'  x*ability to compete in the telephony market should be largely unaffected. The procedures proposed herein  xapply where the incumbent has no legally enforceable right to remain on the premises and the MDU  x&owner and/or the individual subscriber has selected another provider's package notwithstanding the  xincumbent's other telecommunications services. Given MDU owners' resistance to the installation of  xmultiple home run wires, we tentatively conclude that affording consumers a choice among various  xpackages offered by multiple service providers is better than the current situation, in which MDU residents  xoften have no choice at all. Under our proposal, MDU owners would remain free to implement the type"p#l,`(`(88T""  xtof multiplewire model advocated by the cable industry by requiring all service providers to install their own home run wires.  S' e .47.` ` Cable operators also complain that property owners often act as "gatekeepers" in selecting  S`' xa service provider and pursue their own interests rather than the interests of their residents.m`(] {O'ԍSee, e.g., Joint Cable Parties Comments at 78; Continental/Cablevision Comments at 2122. While we  xacknowledge how these circumstances can exist, we tentatively conclude that where the real estate market  S' xis competitive it will discourage MDU owners from ignoring their residents' interests.]nZ(] {O 'ԍSee Building Owners, et al., Comments at 1718.] In addition, the  x}rules we propose do not grant MDU owners any additional rights, but simply establish a procedural  xmechanism for MDU owners to enforce rights they already have. Moreover, in the unitbyunit context, the MDU owner would be expanding its residents' choices, not restricting them.  SH 'XX` ` 5.X Application of Procedural Framework (#  S ' e /48.` ` In both the buildingbybuilding and unitbyunit contexts, one of our goals is to promote  x/competition and consumer choice by minimizing any potential disruption in service to a subscriber  xswitching video service providers. To that end, we have proposed certain rules herein designed to give  xthe subscriber reasonable notice if and when his or her service will be terminated prior to the end of the  xMapplicable notice period. In addition, we would propose to adopt a general rule requiring the parties to  xDcooperate to ensure as seamless a transition as possible. We seek comment on whether it is necessary to  xpromulgate such a rule, or whether a provider's desire to win the subscriber back will compel the provider to cooperate during the transition period.  S' e 049.` ` We also propose that the above procedural mechanisms would apply regardless of the  xidentity of the incumbent video service provider involved. While initially this incumbent would  xcommonly be a cable operator, it could also be a SMATV provider, an MMDS provider, a DBS provider or others.  S'` ` 6. Statutory Authority (#  Sx'` `  a.Background  S(' e 0150.` ` Throughout the record of this proceeding, commenters have presented widely disparate  xtviews on the Commission's authority to address a range of proposals regarding inside wiring. Most of  xthese comments are directed at the Commission's authority to move the cable demarcation point in MDUs. We therefore only briefly summarize them here.  S`' e 251. ` ` In general, cable operators argue that Congress expressed its preference for twowire,  xgfacilitiesbased competition in the 1996 Act, and that any Commission rule that forces a cable operator  xto relinquish ownership or control over the home run portion of its network is inconsistent with the" n,`(`(88"  S' xTelecommunications Act of 1996 (the "1996 Act"). o(] {Oh' xV ԍPub. L. No. 104104 (1996); see NCTA Comments at 67; Continental/Cablevision Comments at 6; Cox  x Comments at 19, 21; Time Warner Comments at 78; Joint Cable Parties Comments at 3. TCI argues that Congress  x intended to promote headtohead facilitiesbased competition in the 1996 Act, and to accomplish this result, relied  x on "regulatory asymmetry, rather than regulatory harmony." TCI Comments at 34 (citing (1) Section 271 of the  x Communications Act, which requires the Bell Operating Companies to provide unbundled network access and  x interconnection to a facilitiesbased provider of local exchange service as a precondition to their entry into the  xH interexchange business within their service areas; (2) Section 302(b)(1) of the 1996 Act, which repealed the statutory  xZ ban on a telephone company's provision of video programming in the company's telephone service area; and  x (3)Section 652 of the Communications Act, which restricts a local exchange carrier from purchasing a cable company within its service area and a cable operator's ability to purchase a LEC within its franchise area).  In addition, cable operators argue that Section 652  xof the Communications Act, which generally promotes facilitiesbased competition by prohibiting a local  xexchange carrier ("LEC") from purchasing a cable company within its service area and a cable operator  xfrom purchasing a LEC within its franchise area, contains a "Joint Use" Provision that strengthens their  S`' xclaim that Congress intended that they retain control over the home run wiring.p`b (] yOb'ԍ Specifically, Section 652(d)(2) provides:  e  XX` ` Notwithstanding subsection (c) [the prohibition on joint ventures], a local  e   exchange carrier may obtain, with the concurrence of the cable operator on the  e - rates, terms and conditions, the use of that part of the transmission facilities of  e a a cable system extending from the last multiuser terminal to the premises of the  e a end user, if such use is reasonably limited in scope and duration, as determined by the Commission.x` 47 U.S.C.  572(d)(2). Cable operators contend  xpthat the plain language of Section 652 clearly permits a LEC to use a portion of the cable operator's  xVfacilities from the last multiuser terminal to the subscriber's premises, but only with the operator's  S' xgconsent, and only for a short period of time.q"(] yO' x ԍNCTA Comments at 1011 (asserting that Congress understood that the "drop" wire portion of cable facilities  x. must continue to "belong" to the cable operator or it would not have permitted a cable operator to set the terms and  {O' xV conditions of a LEC's use of the wire); see also Time Warner Comments at 16; CATA Comments at 4; Cox Comments at 14; Joint Cable Parties Comments at 4; Continental/Cablevision Comments at 2829. Finally, cable operators contend that the Commission's  xauthority under Section 624(i), which directs the Commission to "prescribe rules concerning the  xdisposition, after a subscriber to a cable system terminates service, of any cable installed by the cable  xMoperator within the premises of such subscriber," is limited to wiring within the apartment of an MDU  SH 'subscriber.KrZH (] {O ' xt ԍ47 U.S.C. 544(i); see Time Warner Comments at 1112; Adelphia Comments at 2; CATA Comments at 2;  xk Continental/Cablevision Comments at 27; Cox Comments at 13; NCTA Comments at 12; TCI Comments at 4; TKR Comments at 10 (all citing the 1992 Cable Act).K  S ' e  352.` ` In response, some commenters challenge the cable operators' implication that facilities xbased competition requires alternative providers to install redundant and unnecessary cables all the way" r,`(`(88 "  S' xto subscribers' individual dwelling units, including "every last item down to the nail and the staple."s (] yOh' x ԍUSTA Reply Comments at 35 (arguing that this would result in unnecessary costs being passed on to the  x public, and that Congress' intent with respect to facilitiesbased competition "is much more rationally contemplated  x if one envisions a system which allows other service providers access to the wiring at the point where the line becomes dedicated to an individual customer's use").  xIn addition, alternative service providers argue that the cable operators misinterpret the Joint Use Provision  S' xas limiting the Commission's authority to relocate the cable demarcation point in MDUs.t"(] {O' x ԍBartholdi Reply Comments at 910; see also WCA Comments at 14; ICTA Reply Comments at 5; OpTel Reply  x Comments at 8 ("Section 652(d)(2) provides local exchange carriers with access to the cable wire running from the  x street . . . up to the point at which the wire becomes subscriber inside wire. Section 652(d)(2) does not help to define that point."); USTA Reply Comments at 4; ICTA Comments at 2829. Bartholdi  xstates that Congress intended the Joint Use Provision to: (1)apply only to those cable facilities that are  S`' xplocated between the street and the home;u* `(] yO ' x* ԍBartholdi notes that the Joint Use Provision in the 1996 Act is nearly identical to the provision contained in  x the U.S. House of Representatives' version of the 1996 Act (H.R. 1555). With respect to the Joint Use Provision in H.R. 1555, the House Report states:  e  XX` ` the exemption would permit a carrier to obtain, by contract with a cable operator,  {O' e  use of the "drop" from the curb to the home that is controlled by the cable  e  company, if such use was reasonably limited in scope and duration as determined by the Commission. x`  x 1996 House Report at 173 (emphasis added by Bartholdi). Bartholdi contends that the emphasized language indicates  x that the House intended the exemption to cover only cable facilities that begin at the curb and end at the physical  x structure where the subscriber resides. Bartholdi argues that it is quite a stretch to suggest that "from the curb to the home" is intended to mean from the lockbox in an MDU stairwell or hallway to an apartment.  and (2)allow telephone companies to share use of such  xfacilities without violating the prohibition against joint ventures contained in Section 652 of the 1996  S' xAct.v(] {O<' x ԍ1996 House Report at 173 (emphasis added by Bartholdi); see also WCA Comments at 14 (Section 652 addresses only the extent to which a telephone company may use a cable operator's wiring). Moreover, alternative service providers state that the Joint Use Provision merely describes the  xcircumstances in which a telephone company may share a cable operator's wire, whereas Section 624(i)  S'addresses the disposition of the wiring after a cable operator's service has been terminated.Uwz(] {OF' x ԍSee Bartholdi Reply Comments at 1011 (arguing that if Congress had intended the Joint Use Provision to limit  x the application of the Commission's cable home wiring rules, it would have placed the provision together with the  xo other wiring provisions in Section 624(i) of the Communications Act, rather than in the section concerning telephone  x companycable system buyouts and joint ventures); ICTA Reply Comments at 35 (noting that the title of the  xH provision "Joint Use" clearly indicates that Congress intended to address situations where a cable operator and  x a telephone company share a single wire, rather than situations where the cable operator's service has already been terminated).U  Sp' e 453.` ` Finally, several commenters assert that the Commission's authority to regulate cable inside  SH ' xwiring is not limited by Congress' enactment of the 1992 Cable Act, including Section 624(i).FxH ((] yO''ԍBartholdi Reply Comments at 4.F Section"H x,`(`(881 "  xM624(i) mandates the Commission to establish rules for the disposition of "cable installed...within the  S' xpremises of such subscriber."py(] yO@'ԍCommunications Act,  624(i), 47 U.S.C.  544(i) (emphasis added).p These commenters note that "premises" is not defined in the  xCommunications Act and urge the Commission to define the term to encompass wiring that is solely  xdedicated to an individual dwelling unit. Such a definition, they argue, would further the goals of the  Sb'1992 Cable Act, which include fostering competition in the monopolistic cable marketplace.zbX(] yOZ' x  ԍBartholdi Reply Comments at 67 (citing 1992 Cable Act  (2)(a)(6), (b)(12); 1992 House Report at 118);  {O"'see also AT&T Comments at 1014; Compaq Comments at 4450; Media Access Project/CFA Comments at 12.  S'` `  b.Discussion  S' e 554.` ` We believe that the Commission has authority under Sections 4(i) and 303(r) of the  xlCommunications Act to establish procedures for the disposition of MDU home run wiring upon  xtermination of service. Section 4(i) permits the Commission to "perform any and all acts, make such rules  xand regulations, and issue such orders, not inconsistent with this Act, as may be necessary in the execution  S" ' xof its functions."]{" (] yOt'ԍCommunications Act,  4(i), 47 U.S.C.  154(i).] The Commission may properly take action under Section 4(i) even if such action is  xnot expressly authorized by the Communications Act, as long as the action is not expressly prohibited by  x3the Act and is necessary to the effective performance of the Commission's functions. We propose to  xinvoke Section 4(i) here because the law does not expressly prohibit the Commission from adopting  x}procedures regarding the disposition of home run wiring and because affording the widest range of  SZ'competitive opportunities is necessary to effectuate the purposes of the Communications Act._|ZZB(] {O<' x ԍSee also Communications Act,  303(r), 47 U.S.C.  303(r) (Commission has authority to "[m]ake such rules  x% and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this Act....")._  S ' e ~655.` ` Section 4(i) has been held to justify various Commission regulations that were not within  S' xexplicit grants of authority.6 } d (] {O' x ԍSee, e.g., New England Telephone & Telegraph Co. v. FCC, 826 F.2d 1101, 110709 (D.C. Cir. 1987)  x& (affirming an FCC order requiring telephone companies to refund charges they had collected in excess of the  x. authorized rate of return, even though the Act's only provision explicitly authorizing refunds "does not apply to the  x^ circumstances of this case," because refunds were necessary to remedy the violation of the Commission's rate of  {O' x/ return order); North American Telecomm. Ass'n v. FCC, 772 F.2d 1282, 129293 (7th Cir. 1985) (affirming a  xZ Commission order pursuant to Section 4(i) requiring the Bell holding companies to file capitalization plans for  x^ subsidiary companies organized to sell telephone equipment, even though the Act conferred no authority on the  x| Commission over holding companies (and the legislative history of the Act suggested that Congress had considered  x granting such authority but ultimately denied it) because such a requirement "was necessary and proper to the  x effectuation of" the Commission's functions; "Section 4(i) empowers the Commission to deal with the unforeseen  xD ԩ even if that means straying a little way beyond the apparent boundaries of the Act to the extent necessary to  {O$' x regulate effectively those matters already within the boundaries."); Lincoln Telephone Co. v. FCC, 659 F.2d 1092,  x 110809 (D.C. Cir. 1981) (holding that Section 4(i) granted the Commission the authority to require a tariff filing  x by a telephone company that arguably qualified as a "connecting carrier," where the only provision in the Act  {O&' x expressly requiring carriers to file tariffs specifically exempted connecting carriers); Nader v. FCC, 520 F.2d 182,"&|,`(`(&"  x 204 (D.C. Cir. 1975) (holding that an FCC order prescribing a rate of return for AT&T allowed the public to receive  x the benefit of the protection inherent in the Commission's authorization to prescribe just and reasonable charges, and  x therefore "was in the public interest, necessary for the Commission to carry out its functions in an expeditious  x manner, and within its section 4(i) authority" even though the Act makes no mention of any authority to prescribe  {O' xk a rate of return); see also Southwestern Cable Co., 392 U.S. 157, 180 n.46 (1968) (recognizing Section 4(i) as basis  yOz'for Commission's authority to regulate CATV ).6 In these cases, the courts found that the Commission's regulations were not"B},`(`(88t"  xinconsistent with the Communications Act because they did not contravene an express prohibition or  xMrequirement of the Act, and were reasonably "necessary and proper" for the execution of the agency's  S' x7enumerated powers. Most recently, in Mobile Communications Corp. v. FCC,~B(] {O 'ԍ77 F.3d 1399 (D.C. Cir. 1996) ("Mtel"), cert. denied, 117 S. Ct. 81 (1996). the United States Court  xof Appeals for the District of Columbia Circuit acknowledged the Commission's authority under Section  x34(i) to regulate even where the Communications Act does not explicitly authorize such action. In that  x3case, the D.C. Circuit held that the Commission had authority under 4(i) to require Mtel, which held a  xpioneer's preference, to pay for a narrowband personal communications service ("PCS") license, despite  xthe fact that the Act did not specifically authorize the Commission to charge a price for a license granted  S' xto a pioneer's preference holder.8D(] yO6' xV ԍThe Commission granted Mtel a pioneer's preference in 1993. Later that year Congress amended the  xQ Communications Act to allow the Commission to use auctions for allocation of some kinds of licenses (including  {O' x PCS licenses) when "mutually exclusive applications are accepted for filing." See Omnibus Budget Reconciliation  x Act of 1993, Pub. L. No. 10366, Section 6002 (codified at 47 U.S.C.  309(j)). The Commission subsequently  x reversed its decision that Mtel would not have to pay for its license, in part, because of the Commission's "clearer  xH understanding of the interdependence of the nationwide narrowband PCS licenses and the potential anticompetitive  x effects that the free award of one of these licenses may have on the PCS market as well as the auction process."  {O'In Re Application of Nationwide Wireless Network Corp., 9 FCC Rcd 3635, 3640 (1994). 8 The court denied Mtel's argument that the Commission's action was  x^inconsistent with the Communications Act and therefore not within the Commission's Section 4(i) power.  xMtel argued that Congress' explicit grant of authority to the Commission to collect certain fees and to  SJ ' x7conduct auctions for specified types of licenses denied the Commission authority to impose other fees.DJ (] {O'ԍMtel, 77 F.3d at 1404.D  S" ' xThe court found Mtel's reliance on the expressio unius maxim that the expression of one is the exclusion  x*of other misplaced. According to the court, "[t]he maxim 'has little force in the administrative setting,'  x where we defer to an agency's interpretation of a statute unless Congress has "'directly spoken to the  S ' x^precise question at issue.'" r(] {O' x3 ԍMtel, 77 F.3d at 140405 (citing Texas Rural Legal Aid, Inc. v. Legal Serv. Corp., 940 F.2d 685, 694 (D.C.  {O'Cir. 1991) (quoting Chevron v. NRDC, 467 U.S. 837 (1984))). The court also denied Mtel's argument that, in the absence of an affirmative  xstatutory mandate to support the payment requirement, the Commission's action was not "necessary in the  S\'execution of [the Commission's] functions," as required by Section 4(i).\zZ\(] yO"' x@ ԍThe Commission had argued that in imposing the payment requirement it relied on its duty to determine  x "whether the public interest, convenience, and necessity will be served" by the granting of a license application as  x required by Section 309(a). The court found that "in light of that requirement, the payment condition would be  x 'necessary in the execution of [the Commission's] functions' under Section 4(i) so long as the Commission properly  x found it necessary to "ensure the achievement of the Commission's statutory responsibility' to grant a license only  {O&' x where the grant would serve the public interest, convenience, and necessity." Mtel, 77 F.3d at 1406 (citations  xQ omitted). The court found that the concerns alluded to by the Commission in its Licensing Decision, specifically"|',`(`(v'"  xD "the unjust enrichment of Mtel from a free license while, under the new auction regime, others would be required  x to pay," or "the prospect of predation by Mtel," "would support a finding that the payment requirement is 'necessary  {O 'in the execution of [the Commission's] functions.'" Id. \"\,`(`(88"Ԍ S' e `ԙ756.` ` Applying these principles here, we conclude that the Commission is authorized under  xSection 4(i) to establish procedures regarding the disposition of MDU home run wiring upon termination  xof service. First, establishing rules regarding the disposition of the home run wiring upon termination is  xMnecessary to the execution of the Commission's functions. As noted above, Section 624(i) directs the  xCommission to prescribe rules regarding the disposition of wiring within a subscriber's premises in order  xto promote consumer choice and competition by permitting subscribers to avoid the disruption of having  xtheir home wiring removed upon voluntary termination and to subsequently utilize that wiring for an  x*alternative service. We believe that, under our current rules, we cannot fully meet those objectives in the  xMDU context because, as described above, MDU owners often will not permit multiple home run wires  xto be installed in their buildings. In order to promote consumer choice and competition, we therefore  xppropose to prescribe additional rules regarding the disposition of the existing home run wiring upon termination of service.  S ' e 857.` ` Further, we propose to premise our decision to establish procedures regarding the  xRdisposition of home run wiring in MDUs on the Communications Act's fundamental purpose of  x"regulating interstate and foreign commerce in communication by wire and radio so as to make available,  xso far as possible, to all people of the United States ...a rapid, efficient, Nationwide, and worldwide  SX' xwire and radio communications service...."WX(] yO'ԍCommunications Act,  1, 47 U.S.C.  151.W Moreover, we propose to premise our decision on the  xpervasive regulatory structure Congress established regarding cable communications, the goal of which  xis to replicate or encourage competitive conditions. Section 601 of the Communications Act states that  S' xgone of the purposes of Title VI is to promote competition in cable communications._z(] yO'ԍCommunications Act,  601(6), 47 U.S.C.  521(6)._ Due to the lack  S' xof competitive alternatives in multichannel video programming services,c (] {Ob'ԍSee, e.g., S.12, 102d Cong., 2d Sess. at 820 (1992).c Congress has authorized the  S' xCommission to ensure that basic cable services, including equipment, are available at reasonable rates,_(] yO'ԍCommunications Act,  623(b), 47 U.S.C.  543(b)._  Sh' xto ensure that cable programming service rates are not unreasonable,_h, (] yO4'ԍCommunications Act,  623(c), 47 U.S.C.  543(c)._ and to establish standards whereby  S@'cable operators fulfill customer service requirements._@ (] yO!'ԍCommunications Act,  632(b), 47 U.S.C.  552(b)._  S' e 958.` ` We believe that establishing procedures regarding the disposition of MDU home run  xwiring will assist the Commission in discharging its statutory obligations under Section 623(b) and its  S' xoverall responsibility to pursue Congress' preference for competition stated in the 1992 Cable Act._L (] yO&'ԍCommunications Act,  623(a), 47 U.S.C.  543(a)._  xSection 623(b) of the Communications Act requires the Commission to prescribe rules to ensure that rates"x,`(`(88"  xfor basic cable service are "reasonable" and that such regulations "shall include standards to establish, on  xAthe basis of actual cost, the price or rate for... installation and lease of equipment used by  S' x^subscribers...."e(] yO'ԍCommunications Act,  623(b)(1), 47 U.S.C.  543(b)(3).e The regulations authorized by Section 623(b) cover "equipment used by subscribers  x to receive the basic cable service tier, including... equipment as is required to access  S`' xprogramming...."1`X(] {OX'ԍId.1 The term "equipment" under Section 623(b) includes cable inside wiring.K`(] {O'ԍSee 47 C.F.R.  76.923(a).K This extensive authority seeks to foster enhanced services to the subscriber at reasonable prices.  S' e :59.` ` We believe that establishing the above procedures regarding the disposition of MDU home  xMrun wiring is necessary to fulfill Section 623(b)'s mandate of reasonable basic cable rates. We believe  x<that these procedures will provide advance certainty for property owners, alternative video service  xproviders and subscribers regarding the disposition of the home run wiring when the existing service is  xterminated, thereby alleviating current circumstances that deter the property owner from considering  xZalternative service providers and fostering competition among service providers. We believe that such  xcompetitive choice will exert a restraining influence on rates as service providers compete for the opportunity to serve the entire building or individual subscribers.  S ' e z;60.` ` Moreover, in the 1992 Cable Act, Congress specifically embraced a "[p]reference for  SX' xcompetition" over regulation in setting rates for cable services._X|(] yOt'ԍCommunications Act,  623(a), 47 U.S.C.  543(a)._ Fostering competition among service  x+providers through the adoption of rules regarding the disposition of MDU home run wiring is a  xfundamental means to ensure that cable service rates remain "reasonable." The legislative history of  xSection 623(b) states that Congress agreed that "[r]ather than requiring the Commission to adopt a formula  xto establish the price for equipment, the Commission is given the authority to choose the best method of  S' xaccomplishing the goals of this legislation."E (] yO<'ԍ1992 Conference Report at 63.E We therefore find that it is within our scope of authority  xunder the 1992 Cable Act to establish procedural mechanisms that encourage reasonable rates through a competitive environment rather than a regulatory one.  S' e <61.` ` Finally, we believe that our proposed approach would help to fulfill Congress' mandate  xtin the 1996 Act to "provide for a procompetitive, deregulatory national policy framework designed to  xaccelerate rapidly private sector deployment of advanced telecommunications and information technologies  Sx' xand services to all Americans."Dx(] yO"'ԍ1996 Conference Report at 1.D We believe that adoption of the above procedural mechanisms would  SP'enhance competition, fostering the deployment of innovative technologies and expanded services.WP, (] {O%'ԍSee, e.g., Ameritech Reply Comments at 6.W "( ,`(`(88~"Ԍ S' e =62.` ` We believe that the above provisions authorize the Commission not only to establish  x7regulations duplicating the behavior of a competitive market, but to take actions that prompt the evolution  S' xQof a true competitive environment. Based on the record before us,G(] {O'ԍSee Section III.A. above.G we find that failing to establish such  xprocedures would continue existing barriers to competitive choice for individuals residing in MDUs.  xIndividuals residing in MDUs often are currently limited to receiving service from only one provider.  x^Although we recognize that subscriber choice would be enhanced by the use of multiple wires, we do not  S' xbelieve that requiring MDU owners to permit multiple wires is a viable option at this point in time.5Z(] {O 'ԍSee id.5 We  xtbelieve that the inability of the MDU owner to use the existing home run wiring deters consideration of  x@alternative providers, and that providing certainty with regard to the disposition of the MDU home run wiring provides a reasonable means of increasing choice and promoting competition.  SH ' e >63.` ` We also conclude that, in accordance with the second part of Section 4(i), the procedural  xmechanisms we are proposing are not inconsistent with any provision of the law. Nothing in the language  xof Section 624(i) prohibits the Commission from adopting rules concerning wiring outside the subscriber's  S ' xpremises.tX (] yO\' x ԍThis approach is consistent with assertions by certain parties that Section 624(i) should be read as the  x minimum, not maximum, level of authority the Commission may exercise over cable inside wiring. Media Access Project/CFA Comments at 12; Bartholdi Reply Comments at 45; ICTA Reply Comments at 8.t This is not a circumstance where the general canon of statutory construction, the "specific  S ' xgoverns the general,"} (] {OT'ԍSee, e.g., Morales v. Trans World Airlines, Inc., 112 S. Ct. 2031, 2037 (1992).} applies. The courts have found this canon applicable only where there "is an  S ' xZ'inescapable conflict' between the specific provision and the general provision."} (] {O'ԍAeron Marine Shipping Co. v. United States, 695 F.2d 567, 576 (D.C. Cir. 1982).} Section 624(i) does  xnot expressly prohibit the Commission from adopting rules affecting home run wiring. Thus, we  x tentatively conclude that there is no "inescapable conflict" between Section 624(i) and the procedures  S' xdiscussed below. $0 (] {O' x ԍSee, e.g., New England Telephone & Telegraph Co. v. FCC, 826 F.2d 1101, 1107 (D.C. Cir. 1987), cert.  {O' x denied, 490 U.S. 1039 (1989) (the "wideranging source of authority" found in Section 4(i) adequately supports the  x Commission's orders requiring refunds as a result of rate reductions, despite the fact that the only provision of the Act that mentions refunds does not apply to the circumstance of the case).  To the contrary, as described above, we believe that the rules we are proposing will  xfurther promote Section 624(i)'s underlying purpose of promoting consumer choice and competition by  xpermitting subscribers to use their existing home wiring to receive an alternative video programming  S' xservice. Finally, as the Mtel court found, the expressio unius maxim that the expression of one is the  xexclusion of other "'has little force in the administrative setting,' where we defer to an agency's  SB' xIinterpretation of a statute unless Congress has "'directly spoken to the precise question at issue.'"B(] {O#' x  ԍMtel, 77 F.3d at 140405 (citing Texas Rural Legal Aid, Inc. v. Legal Serv. Corp., 940 F.2d 685, 694 (D.C.  {O$'Cir. 1991) (quoting Chevron v. NRDC, 467 U.S. 837 (1984))). "Bx,`(`(88"  S' xIndeed, the Mtel court stated: "[W]e think the nature of Congress's auction authorization more supports  S'than undermines the Commission's decision here."v\(] {OB' xZ ԍMtel, 77 F.3d at 1405 (quoting Texas Rural Legal Aid, 940 F.2d at 694 ("[A] congressional prohibition of  {O ' x; particular conduct may actually support the view that the administrative entity can exercise its authority to eliminate a similar danger.") (emphasis in original)). v  S' e ?64.` ` While the legislative history of Section 624(i) indicates that Congress was concerned about  Sb' xthe potential for theft of serviceyXb(] yO' x* ԍThe 1992 House Report states: "The Committee is concerned about the potential for theft of service within  x apartment buildings. Therefore, this section limits the right to acquire home wiring to the cable installed within the interior premises of a subscriber's dwelling unit." 1992 House Report at 118.y and signal leakage,1b (] {O 'ԍId.1 we believe that the rules we are proposing would  xnot have an adverse impact on those concerns. First, we do not believe that the procedural mechanisms  xwe are proposing will increase the frequency of service theft; a provider's control over its network security  xcis unaffected by our rules. Our proposed rules do not give the MDU owner, the alternative service  xprovider or the subscriber access to the incumbent's riser cable or lockbox. Second, our proposed rules  x3would not affect the service provider's signal leakage responsibilities. It would remain the duty of the  xprovider to protect against signal leakage while it is providing service, regardless of who owns the home  SJ 'run wiring in the building.NJ (] {O'ԍ47 C.F.R.  76.601, et seq. N  S ' e @65.` ` We also think that cable operator reliance on the "Joint Use" provision of the 1996 Act  x (codified at Section 652(d)(2) of the Communications Act) as evidence of Congress' intent that cable  xoperators retain ownership and control of the home run wiring is misplaced. Section 652(d)(2) provides  xgenerally that a LEC may obtain permission from the cable operator to use that part of the transmission  x@facilities extending from the last multiuser terminal to the premises of the end user, and that such use  S2' xmust be reasonably limited in scope and duration.A20 (] yO'ԍ47 U.S.C.  572(d)(2).A Cable operators assert that this provision invests them  x&with ownership and control of all cable wiring outside the subscriber demarcation point, including the  xhome run wiring, even after a subscriber terminates service, as Congress otherwise would not have  xlestablished rules allowing cable operators to set the terms and conditions for a LEC's use of the  S'facilities. (] {O'ԍSee, e.g., NCTA Comments at 1011; Time Warner Comments at 16; CATA Comments at 4.  SB' e SA66.` ` We disagree. Notably, Section 652(d)(2) is entitled "Joint Use," indicating Congress'  xintent for the provision to govern only the joint use of the facilities by a cable operator and a local  xexchange carrier. It is an exception to the general prohibition in Section 652(c) on joint ventures or  xDpartnerships between cable operators and LECs that serve the same market area. We believe that Section  x652(d)(2) does not constrain our authority to establish procedures governing the disposition of the home  xrun wiring because the provision only addresses use of the wiring while the cable operator continues to  xown or use the facilities. Here, the procedural mechanisms would not apply until the cable operator has"RR ,`(`(88"  xno legally enforceable right to remain on the premises and the MDU owner and/or subscriber terminates the operator's service.  S' e B67.` ` Additionally, we believe that had Congress intended the "Joint Use" provision to govern  xcable wiring, it would have placed the provision in Section 624, which sets forth the existing wiring  x!provisions, rather than in Section 652, which concerns telephone companycable television crossownership  xkrestrictions. We also agree with alternative video service providers that Congress would have enumerated  x&additional types of potential users of cable operators' wiring, other than telephone companies, if it had  xintended this provision to cover uses of the wiring other than the limited situation of wiring being shared  S'between a LEC and a cable operator.[(] {O 'ԍSee, e.g., Bartholdi Reply Comments at 1011.[  SH ' e C68.` ` We believe that we have authority to apply all our cable inside wiring rules to all MVPDs,  xand not just to cable operators. Section 303(r) of the Communications Act authorizes the Commission,  xas required by public convenience, interest, or necessity, to promulgate rules and restrictions, not  S ' xinconsistent with law, as may be necessary to carry out the provisions of the Act.i Z(] {O'ԍSee Communications Act,  303(r), 47 U.S.C.  303(r).i We believe that  x applying these rules to overtheair video service providers would be in the public interest. The same  xcompetitive concerns described above exist regardless of whether a cable operator or some other video  xservice provider initially installed a subscriber's or an MDU's inside wiring. In addition, we believe that  xapplying our cable home wiring rules to MVPDs that are radio licensees would not be inconsistent with  xSection 624(i) and would further its purposes, since subscribers could use their existing inside wiring to  xreceive an alternative service. Further, for similar reasons to those discussed above in proposing  xprocedures for disposition of the home run wiring in MDUs for cable operators, such procedures would not be inconsistent with Section 624(i) if applied to MVPDs that are radio licensees.  S@' e D69.` ` In addition, we tentatively conclude that we have the authority under Sections 201 to 205  x@of the Communications Act to extend our cable inside wiring rules to common carriers engaged in the  S' xtransmission of video programming.M(] {O|'ԍSee 47 U.S.C.  201205.M We tentatively conclude that Section 4(i) also invests the  xCommission with authority to expand our rules in this manner with regard to MVPDs that are neither  x7radio licensees nor common carriers. Again, we tentatively conclude that the same competitive concerns  xare present regardless of the type of service provider that initially installs the broadband inside wiring.  xIn addition, we tentatively conclude that such an extension of our rules is necessary in the execution of  xour functions and is not inconsistent with the Communications Act, as described above. To promote parity  xMamong broadband competitors and to fulfill the directives of the 1992 Cable Act and the 1996 Act, we propose to apply our cable inside wiring rules to all MVPDs.  S'` ` 7. Constitutional Arguments  S8'` `  a.Background  S ' e E70.` ` As with the statutory authority issue, most commenters raised constitutional arguments in  xthe context of a proposal to move the cable demarcation point. Generally, cable operators contend that"! ~,`(`(88 "  xkmoving the cable demarcation point would constitute a taking under the Fifth and Fourteenth amendments  S' xto the U.S. Constitution.(] {O@' xx ԍSee, e.g., NCTA Comments at 36 (citing Loretto v. Teleprompter Manhattan CATV Co., 458 U.S. 419 (1982));  {O 'see also NCTA Reply Comments at 1113. According to Cox and other cable operators, because the Communications Act  x*limits the Commission's authority over cable wiring to wiring "within the premises of the subscriber," the  S' xCommission may not effectuate a taking of the home run wiring.$(] {OL'ԍCox Comments at 1617 (citing Bell Atlantic Tel. Cos. v. FCC, 24 F.3d 1441, 144647 (D.C. Cir. 1994). In addition, cable operators assert that  S`' x"simply adopting a 'just compensation' formula is not the answer here."<`(] yO 'ԍNCTA Comments at 36.< NCTA argues that the  xQCommission cannot provide for adequate compensation to a cable operator for the "lost opportunity costs  S' xresulting from this unlawful seizure."^F(] {O ' x ԍId. NCTA adds that just compensation would have to be determined in an adjudicatory proceeding that is  {O ' x subject to judicial review. Id. (citing Florida Power Corp. v. FCC, 772 F.2d 1537, 1546 (11th Cir. 1985), rev'd on  {O'other grounds, 480 U.S. 245 (1987)); see also CATA Reply Comments at 3. Paying the cable operator for the "replacement cost" of the wiring  xwould not compensate the operator for its lost opportunity to compete in the provision of  S'telecommunications services, and would contradict the policy of fostering facilitiesbased competition.l (] {O' x7 ԍId.; see also Time Warner Comments at 2021; CATA Comments at 68; Continental/Cablevision Comments at 12 n.19; TKR Comments at 4; Joint Cable Parties Reply Comments at 2022.  Sp' e `F71.` ` Alternative service providers state that the Commission has already rejected the cable  x&operators' takings argument with respect to the wiring within the individual subscriber's unit, and that  xmoving the demarcation point farther from the individual dwelling unit is irrelevant to any further takings  S ' xanalysis.XZ (] {O^' xD ԍSee Bartholdi Reply Comments at 12 n.31 (citing Cable Home Wiring Further Notice at para. 9 and Loretto,  x 458 U.S. at 43637 ("[C]onstitutional protection for the rights of private property [do not] depend on the size of the area permanently occupied.")).X Alternative service providers also state that relocating the demarcation point would not be an  ximpermissible taking because the cable operator always has the right and opportunity to remove the wiring  S ' xbefore it is forfeited and the cable operator would be compensated for its wiring. (] {O0' xM ԍSee 47 C.F.R.  76.802; Bartholdi Reply Comments at 1213 (the cable home wiring rules "merely regulate the manner in which [cable] wiring is sold, removed, or abandoned upon voluntary termination of service"). Alternative service  xproviders also dispute the cable operators' claim that "just compensation" must include lost opportunity  xpcosts, arguing that any lost opportunities arise from the subscriber's decision to terminate the cable  S0' xoperator's service, not as a matter of law.;0B(] yO"'ԍWCA Comments at 20.; In addition, these parties state that cable operators typically installed the wiring many years earlier, and have more than fully recouped their investment. "!,`(`(88"  S'` `  b.Discussion  S' e G72.` ` We tentatively conclude that the procedural mechanisms we have proposed do not  S' x7constitute an impermissible "taking" under the Fifth Amendment.(] yO' xI ԍThe Fifth Amendment provides that private property shall not be "taken for public use, without just compensation." U.S. Const. amend. V. First, there is no forced taking of the  xincumbent's physical property, since the incumbent has a reasonable opportunity to remove, abandon, or  xsell the wiring. If the incumbent fails to act within the reasonable periods set forth and its wiring is  x3deemed abandoned, it is the operator's failure to act, not the Commission's rule, that would extinguish  S' xQthe cable operator's rights._ (] {O ' x ԍSee United States v. Locke, 471 U.S. 84, 107 (1985) (rejecting Fifth Amendment taking claim where the  x7 plaintiff failed to comply with statutory requirement for filing mining claim that would have indicated its intent to  {O: ' x^ retain property right); see also Texaco v. Short, 454 U.S. 516, 530 (1982) (noting that the Court has never required  x| compensation to a private property owner who fails to take reasonable actions imposed by law for the consequences of his own neglect)._ The Fifth Amendment cannot be construed to allow a service provider with  x no contractual or other legal right to remain on a person's property to leave its wiring on the property  xindefinitely and prohibit the property owner from using it. In addition, there can be no taking of the  xincumbent's access rights because the procedures expressly apply only where the incumbent does not have  SH ' xa contractual, statutory or other legal right to maintain its wiring on the premises.H (] {O' xt ԍSee Cable Investments, Inc. v. Woolley, 867 F.2d 151 (3d Cir. 1989) (cable operator has no general right to access property against landlord's wishes). We seek comment on these tentative conclusions.  S ' D.` ` Disposition of Cable Home Wiring   S ' e H73.` ` We believe that fostering competitive choice in MDUs requires the coordinated disposition  xof two segments of cable wiring: (1) the home run wiring from the point where the wiring becomes  xdevoted to an individual unit to the cable demarcation point; and (2)the cable home wiring from the  x7demarcation point to the subscriber's television set or other customer premises equipment. Without clear  xand predictable rules for the disposition of each of these segments, an alternative provider's ability to  x7convince an MDU owner or individual subscriber to switch services could be significantly compromised.  xThe procedural framework proposed above addressed the disposition of MDU home run wiring. Here,  x*we set forth a specific proposal on how to address certain issues regarding the disposition of MDU cable  xZhome wiring. We believe that these rules will promote competition and consumer choice by providing a comprehensive and workable framework for the disposition of MDU cable wiring.  S' e mI74.` ` As in the context of home run wiring, we propose that these home wiring procedural  xmechanisms apply regardless of the identity of the incumbent video service provider involved. While  xinitially this incumbent would commonly be a cable operator, it could also be a SMATV provider, an  xMMDS provider, a DBS provider or others. We tentatively conclude that we have the same authority to  xapply these home wiring rules to other video service providers described in Section III.C.6. above. We request comment on this proposal. "". ,`(`(88"  S'` ` 1. BuildingbyBuilding Disposition of Home Wiring  S' e 'J75.` ` In the Cable Home Wiring Further Notice, we requested comment on, among other issues,  xwhether, in order to promote the goals of Section 624(i) and our rules thereunder, the subscriber (on a  xnonloopthrough wiring configuration) or the building owner (with a loopthrough wiring configuration)  xshould be given the opportunity to purchase the cable home wiring when the MDU owner terminates cable  S' xDservice for the entire building.c(] {Oz'ԍCable Home Wiring Further Notice, 11 FCC Rcd at 4582.c For the most part, alternative service providers support having the cable  x"home wiring procedures apply where the building owner terminates service on behalf of the entire  S' xbuilding.RZZ(] yO ' x3 ԍAmeritech MM Docket No. 92260 Comments at 8; Bell Atlantic MM Docket No. 92260 Comments at 3;  {O ' x NYNEX MM Docket No. 92260 Comments at 4. But see Building Owners, et al., MM Docket No. 92260 Comments at 1; CATA MM Docket No. 92260 Comments at 5.R Some commenters believe that when the building owner terminates service the individual  S' xsubscriber should be given the opportunity to purchase the home wiring;~Z|(] yO' x ԍNew York City MM Docket No. 92260 Comments at 7 (other than bulk arrangements, only subscribers should  {O~' x/ have the opportunity to purchase the home wiring); see also GTE MM Docket No. 92260 Comments at 7 (Commission should deregulate wiring and give subscribers full control over home wiring).~ others believe only the building  Sr' x3owner should have that right.Qzr(] yO' x ԍICTA MM Docket No. 92260 Comments at 4 (building owner should have the right to purchase regardless  x of who terminates; requiring option to purchase only when tenant terminates is inconsistent with congressional  x& intent); OpTel MM Docket No. 92260 Comments at 8; PacTel MM Docket No. 92260 Comments at 3 (owner  x should be given the right to purchase and occupant should be given the right to control, e.g., to choose video service  {O' x^ providers). But see Building Owners, et al., MM Docket No. 92260 Comments at 45 (Commission does not have  x authority over landlords because they are neither subscribers nor cable operators); Time Warner MM Docket No. 92260 Reply Comments at 78.Q GTE asserts that cable "subscriber" should be defined as the one that  SJ ' xcontracts or arranges for service.J (] {O' xc ԍGTE MM Docket No. 92260 Comments at 7. But see Building Owners, et al., MM Docket No. 92260 Comments at 45 (landlord is not a subscriber as defined in 47 C.F.R.  76.5(ee)). Bell Atlantic contends that the building owner may be acting as the  xsubscriber's authorized agent if the subscriber agrees in its lease agreement that the landlord may terminate  S ' xservice.[ :(] yO'ԍBell Atlantic MM Docket No. 92260 Comments at n.3.[ Building Owners, et al., oppose applying the Commission's rules under Section 624(i) when  x3service for the entire building is terminated, allegedly because much of the building wiring is not cable  S 'home wiring and because a landlord is not a "subscriber" under the Commission's rules.f (] yO!'ԍBuilding Owners, et al., MM Docket No. 92260 Comments at 45.f  SZ' e K76.` ` We tentatively conclude that, if the MDU owner has the legal right, either by law or by  xcontract, to terminate the subscriber's cable service, the owner terminating service for the entire building  S ' x"is effectively voluntarily terminating service on the subscribers' behalf.e Z(] {O&'ԍSee Bell Atlantic MM Docket No. 92260 Comments at n.3.e We therefore tentatively  xconclude that our home wiring rules would be triggered when an MDU owner terminates service for the"#,`(`(88"  xentire building. We tentatively conclude that providing the cable operator a single point of contact (i.e.,  xthe MDU owner) would further the statutory purposes of minimizing disruption and facilitating the transfer  x@of service to a competing video service provider. Because we believe that it would be impractical and  xinefficient for the incumbent provider to deal with each individual subscriber regarding the disposition of  xDhis or her cable home wiring when the entire MDU is switching providers, we propose to deem the MDU  xowner to be acting as the terminating "subscriber" for purposes of the disposition of the cable home wiring  xwithin the individual dwelling unit where the cable home wiring is not already owned by a resident. We  x<request comment on this proposal. Similarly, with regard to bulk service contracts, we tentatively  xconclude that it is logical for the landlord to be deemed the subscriber, and thus for the landlord to have  xthe right to purchase the wiring as provided in our general rules. We tentatively conclude, however, that  xZthis rule should not override a bulk service contract that specifically provides for the disposition of the wiring upon termination of the contract.  S ' e L77.` ` We propose that, when an MDU owner provides an incumbent provider with its minimum  xof 90 days notice that the incumbent provider's access to the entire building will be terminated and that  xthe MDU owner seeks to use the home run wiring for another service, the incumbent provider must, in  x accordance with our current home wiring rules, (1) offer to sell to the MDU owner any home wiring  xwithin the individual dwelling units which the incumbent provider owns and intends to remove, and (2)  S0' xZprovide the MDU owner with the total perfoot replacement cost of such home wiring.H0(] {O'ԍSee 47 C.F.R.  76.802.H As with the  xthome run wiring, if the MDU owner declines to purchase the cable home wiring not already owned by  xa resident, the alternative service provider could elect to purchase it upon service termination under our rules.  Sh' e =M78.` ` We propose to require that the MDU owner decide whether it or the alternative provider  xgwill purchase the cable home wiring and so notify the incumbent provider no later than 30 days before  xthe termination of access to the building will become effective. We propose to modify our current home  xwiring rules to allow the incumbent provider 30 days, rather than the current seven, to remove all of the  xVcable home wiring for the entire building. We believe this is appropriate given the amount of home  xMwiring that may need to be removed from an entire building. We propose that, if the MDU owner and  xthe alternative service provider decline to purchase the home wiring, the incumbent provider would not  xMbe permitted to remove the home wiring until the date of actual service termination, i.e., likely 90 days  x@after the building owner notified the incumbent that its access to the entire building will be terminated.  xUnder these circumstances, we would propose that if the incumbent provider fails to remove the home  xwiring within 30 days of actual service termination, it could make no subsequent attempt to remove the wiring or restrict its use. We request comment on this proposal.  S`'` ` 2. UnitbyUnit Disposition of Home Wiring  S ' e N79.` ` In the unitbyunit context, we propose to continue to apply our rules permitting  xterminating subscribers (or their agents) to purchase the cable home wiring up to a point approximately  S!' x*12 inches outside their individual units.X!Z(] yO%' x ԍOur current rules require a cable operator, if the operator owns the wiring and intends to remove it, to give  x a terminating subscriber an opportunity to purchase the wiring on the subscriber's side of the demarcation point (at  x or about 12 inches outside the customer's premises). If the subscriber declines to acquire the wiring, the operator"J',`(`(Z'"  {O' xx must remove it within seven business days or make no subsequent attempt to remove it or restrict its use.  See 47 C.F.R.  76.802(a).  We continue to believe that this is consistent with the purposes"!$",`(`(88 "  x3of Section 624(i) to promote consumer choice and competition by permitting subscribers to avoid the  xZdisruption of having their home wiring removed upon voluntary termination and to subsequently utilize  S' xthat wiring for an alternative service."(] {Or' x ԍSee 1992 House Report at 118; 1992 Senate Report at 23; see also Cable Home Wiring Further Notice, 11  {O<'FCC Rcd at 4570 (citing Cable Wiring Order, 8 FCC Rcd at 1435). We do, however, propose to modify our rules in two ways. First,  xQas discussed below, we propose to permit the MDU owner or the alternative service provider to purchase  xthe cable home wiring within each unit if the subscriber declines, provided that the building owner timely  xnotifies the incumbent provider that it or the alternative provider wants to purchase the home wiring  xQwhenever a subscriber declines. Second, we propose to change the time in which an incumbent provider  xmust remove the home wiring or make no further effort to use it or restrict its use from seven business  x*days to seven calendar days after the individual subscriber terminates service. We believe that this minor  x/change is sufficient time for removal of a single unit's cable home wiring, and will avoid customer  xconfusion by having the time permitted for the provider to remove the home wiring within the individual  xunit run concurrently with the time permitted for the provider to remove, sell or abandon the home run wiring outside the unit.  S ' e [O80.` ` In the Cable Home Wiring Further Notice, we requested comment on whether the premises  xIowner should have the right to purchase the cable home wiring when a subscriber who voluntarily  S ' xterminates cable service does not own the premises and elects not to purchase the wiring.c ~(] {O'ԍCable Home Wiring Further Notice, 11 FCC Rcd at 4583.c Alternative  xservice providers contend that the premises owner should have the right to purchase the cable home wiring  S2' xwhen the individual subscriber declines to purchase it, if not at all times.2(] yO' x ԍAmeritech MM Docket No. 92260 Comments at 9; Bell Atlantic MM Docket No. 92260 Comments at 23;  x ICTA MM Docket No. 92260 Comments at 5 (premises owner should always have the right to purchase, not only  x if subscriber declines); OpTel MM Docket No. 92260 Comments at 2, 78 (because owner has long term investment  x in building and services available to it, owner should always be allowed to purchase wiring when subscriber is merely  x* renting); PacTel MM Docket No. 92260 Comments at 4 (building owner should have the right to purchase while  {O'tenant should have the right to use); see also New York City MM Docket No. 92260 Comments at 8. ICTA claims that this  xarrangement would promote competition and, consistent with Section 624(i), would avoid damage, cost  S' xgand inconvenience to the owner's property. (] {O ' x ԍICTA MM Docket No. 92260 Comments at 5; see also Ameritech MM Docket No. 92260 Reply Comments at 89. Building Owners, et al., claim that only owner residents  S' x(as opposed to tenants) should have the right to purchase cable home wiring in the first place.lX(] yO>"' x ԍBuilding Owners, et al., MM Docket No. 92260 Comments at 6, 8, 1819 (Commission's home wiring rules  xk should not apply to apartment or cooperative residents; current rules adequately address condominium situation because condominium owners should be treated like single dwelling unit owners).l  xpAccording to Building Owners, et al., apartment residents are transient and do not have a long term  Sj' x&financial interest in the property.uj(] {O''ԍId. at 7; see also OpTel MM Docket No. 92260 Comments at 2, 78.u In addition, Building Owners, et al., contend that it is essential for"j%,`(`(88"  x/the building owner to have full control over its property, including the wiring, subject only to state  S' xproperty law, a lease or other contract.(] {O@' x ԍBuilding Owners, et al., MM Docket No. 92260 Comments at 67, 9; see also id. at 1011 (only building owner or service provider should own the wiring). Time Warner claims that Congress did not confer benefits or  S' xopportunities on landlords.Y"(] yOr'ԍTime Warner MM Docket No. 92260 Comments at 67.Y NCTA asserts that the wiring should be available to subsequent residents  S'unless the operator removes the wiring.P(] yO'ԍNCTA MM Docket No. 92260 Comments at 5.P  S8' e JP81.` ` We tentatively conclude that an MDU owner should be permitted to purchase the wiring  S' x&within an individual dwelling unit based on the perfoot replacement costHB(] {O 'ԍSee 47 C.F.R.  76.802.H if the individual subscriber  xcdeclines to do so. This approach would preserve the current subscriber's rights, and still allow the  xbuilding owner to act on behalf of future tenants, thus promoting competition and consumer choice. As  xwith the home run wiring, if the MDU owner declines to purchase the cable home wiring, the alternative  xservice provider would be permitted to purchase it. Except with respect to the buildingbybuilding  x*procedure described above, we would not require that the building owner or the alternative provider have  x&the opportunity to purchase the wiring before the subscriber has the opportunity to do so because we  xbelieve that Congress intended for Section 624(i) to promote individual subscriber choice whenever  xpossible. Our preference is therefore for the subscriber to control its own home wiring, and only when that is not reasonable or efficient, for the building owner or alternative provider to control it.  SX' e =Q82.` ` We propose that the MDU owner should notify the incumbent provider of its election to  xpurchase or to allow the alternative provider to purchase the home wiring at the same time as the MDU  xowner provides the incumbent provider with 60 days notice that it intends to allow headtohead  xVcompetition within its building. Thus, the MDU owner would be required to inform the incumbent  x&provider one time for the entire building. If the MDU owner fails to provide the incumbent with such  xnotice, the incumbent would be under no obligation to sell the home wiring to the MDU owner or the  xMalternative provider when an individual subscriber terminates and declines to purchase the wiring. We request comment on this proposal.  S'X E.X` ` Alternatives to Procedural Framework (#`  S' e R83. ` ` Recently, RCN argued that some MDU owners do not object to a second set of home run  Sx' xwires but to the installation of a second set of hallway molding or conduits.x(] {O!' xM ԍSee Ex Parte Letter from Jean L. Kiddoo, Swidler & Berlin, on behalf of RCN, to William F. Caton, Acting Secretary, Federal Communications Commission (July 18, 1997) ("RCN Ex Parte Letter"). RCN asserts that in some  xcases there is room in the molding or conduit for it to install its home run wiring without interfering with  S(' xthe incumbent's wiring.XZ(. (] {O%' xH ԍId. RCN proposes that, if space is not available in the conduit/molding, and the demarcation point is otherwise  x inaccessible, the incumbent provider occupying space needed by another provider to serve a subscriber must elect to sell, remove or abandon unused drops.X We propose to permit the alternative service provider to install its wiring"(&P ,`(`(88~"  x^within the existing molding or conduit, even over the incumbent provider's objection, where there is room  xin the molding or conduit and the MDU owner does not object. We seek comment on whether and how  xQto allow compensation for the alternative service provider's use of the molding or conduit. We tentatively  xconclude that such a rule would promote competition and consumer choice and would not constitute a  xtaking of the incumbent provider's private property without just compensation under the Fifth Amendment.  xWe seek comment on these tentative conclusions. We also seek comment on whether and how this rule  xgwould apply in the situation where an incumbent provider has an exclusive contractual right to occupy the molding or conduit.  S' e S84.` ` Several commenters also point out that the current cable demarcation point can be  xxphysically inaccessible. We tentatively conclude that where the cable demarcation point is truly physically  xinaccessible to an alternative service provider (e.g., embedded in brick, metal conduit or cinder blocks,  xnot simply within hallway molding), the demarcation point should be moved back to the point at which  xit first becomes physically accessible. We seek comment on this tentative conclusion and on how to  xdefine "physically inaccessible." We also seek comment on the percentage of installations in which the  xdemarcation point would be deemed physically inaccessible. Finally, we seek comment on our authority to adopt, and any other legal implications of, this proposed modification.  S0' e T85.` ` We also seek comment on whether we should adopt a rule requiring video service  xgproviders to transfer to the MDU owner upon installation ownership of the home wiring and home run  xwiring installed in MDUs under contracts entered into on or after the effective date of any rules we may  xadopt. Such a rule might increase competition and consumer choice in future installations by permitting  xMDU owners to control access to the home run wiring from the start. We seek comment on the  xQappropriate mechanism for effecting such a transfer, whether the price for the wiring should be regulated  xDor left to private negotiations, and whether and how our rules should address the issue of an MDU owner  xthat does not want to own the home run wiring in its building. In addition, we seek comment on our authority to adopt, and any other legal implications of, such a rule.  S' e U86.` ` Finally, we seek comment on any other proposals to promote MVPD competition and  Sx' xconsumer choice in MDUs that have not already been previously raised and commented on in the Inside  SR' xWiring Notice and the Cable Home Wiring Further Notice. In particular, we ask commenters to address the legal, policy and practical implications of any such proposals.  S' IV.XINITIAL REGULATORY FLEXIBILITY ACT ANALYSIS (#  S' e V87.` ` As required by Section 603 of the Regulatory Flexibility Act, 5 U.S.C.  603, ("RFA"),  x_the Commission has prepared an Initial Regulatory Flexibility Analysis ("IRFA") of the expected  S<' xsignificant impact on small entities by the policies and rules proposed in this Further Notice of Proposed  S ' x@Rulemaking. Written public comments are requested on the IRFA. These comments must be filed in  xDaccordance with the same filing procedures as other comments in this proceeding, but they must be have  xga separate and distinct heading designating them as responses to the IRFA. The Secretary shall send a  S"' xQcopy of the Further Notice, including the IRFA, to the Chief Counsel for Advocacy of the Small Business  Sz#' xMAdministration in accordance with Section 603(a) of the RFA. In addition, the Further Notice and the IRFA (or summaries thereof) will be published in the Federal Register. ",%',`(`(88#"  S' ` ` Need for Action and Objectives of the Proposed Rules  S' e W88.` ` This Further Notice proposes to supplement the cable home wiring rules with new  xQprocedural mechanisms to provide certainty regarding the use of MDU home run wiring upon termination  xof existing service. In addition, we propose to expand our cable inside wiring rules to apply to all MVPDs in order to promote parity among competitors.  S'` ` Legal Basis  S' e ~X89.` ` This Further Notice is adopted pursuant to Sections 1, 4(i), 201205, 303, 623, 624, and  x*632 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 201205, 303, 543, 544 and 552.  S '` ` Description and Estimate of the Number of Small Entities Impacted  S ' e ,Y90.` ` The RFA directs the Commission to provide a description of and, where feasible, an  S ' xestimate of the number of small entities that will be affected by the proposed rules.A (] yO'ԍ5 U.S.C.  604(a)(3). A The RFA defines  xZthe term "small entity" as having the same meaning as the terms "small business," "small organization,"  xand "small governmental jurisdiction," and the same meaning as the term "small business concern" under  S ' xSection 3 of the Small Business Act.= X(] yO'ԍ5 U.S.C.  601(3).= Under the Small Business Act, a "small business concern" is one  xwhich: (1)is independently owned and operated; (2)is not dominant in its field of operation; and  S' x7(3)satisfies any additional criteria established by the Small Business Administration ("SBA").;(] yOD'ԍ15 U.S.C.  632.; The rules  S'we propose in this Further Notice will affect MVPDs and MDU owners.  SF' e #Z91.` ` Small MVPDs: SBA has developed a definition of a small entity for cable and other pay  S ' xtelevision services, which includes all such companies generating $11 million or less in annual receipts.J x(] yO8'ԍ13 C.F.R. 121.201 (SIC 4841).J  xkThis definition includes cable system operators, closed circuit television services, direct broadcast satellite  xservices, multipoint distribution systems, satellite master antenna systems and subscription television  xgservices. According to the Bureau of the Census, there were 1423 such cable and other pay television  xservices generating less than $11 million in revenue that were in operation for at least one year at the end  SX' xof 1992.X(] yO"' x ԍ1992 Economic Census Industry and Enterprise Receipts Size Report, Table 2D, SIC 4841 (U.S. Bureau of the Census data under contract to the Office of Advocacy of the U.S. Small Business Administration). We will address each service individually to provide a more succinct estimate of small entities.  S' e [92.` ` Cable Systems: The Commission has developed its own definition of a small cable  xcompany for the purposes of rate regulation. Under the Commission's rules, a "small cable company" is"(` ,`(`(88"  S' xZone serving fewer than 400,000 subscribers nationwide.\(] yOh' x ԍ47 C.F.R.  76.901(e). The Commission developed this definition based on its determinations that a small  {O0' xQ cable system operator is one with annual revenues of $100 million or less. Sixth Report and Order and Eleventh  {O'Order on Reconsideration, MM Docket Nos. 92266 and 93215, 10 FCC Rcd 7393 (1995).  Based on our most recent information, we  S' xestimate that there were 1439 cable operators that qualified as small cable companies at the end of 1995.(] {Od'ԍPaul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 1996 (based on figures for Dec. 30, 1995).  xSince then, some of those companies may have grown to serve over 400,000 subscribers, and others may  xlhave been involved in transactions that caused them to be combined with other cable operators.  xConsequently, we estimate that there are fewer than 1439 small entity cable system operators that may  S8'be affected by the decisions and rules proposed in this Further Notice.  S' e S\93.` ` The Communications Act also contains a definition of a small cable system operator,  xwhich is "a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1% of  xall subscribers in the United States and is not affiliated with any entity or entities whose gross annual  Sr' x}revenues in the aggregate exceed $250,000,000."Ar~(] yO'ԍ47 U.S.C. 543(m)(2).A The Commission has determined that there are  xg61,700,000 subscribers in the United States. Therefore, we found that an operator serving fewer than  x617,000 subscribers shall be deemed a small operator if its annual revenues, when combined with the total  S ' xannual revenues of all of its affiliates, do not exceed $250 million in the aggregate.B (] yO'ԍ47 C.F.R.  76.1403(b).B Based on available  S ' xdata, we find that the number of cable operators serving 617,000 subscribers or less totals 1450. (] {O'ԍPaul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 1996 (based on figures for Dec. 30, 1995).  xAlthough it seems certain that some of these cable system operators are affiliated with entities whose gross  xtannual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the  xnumber of cable system operators that would qualify as small cable operators under the definition in the Communications Act.  S' e ]94.` ` MMDS: The Commission refined the definition of "small entity" for the auction of  xMMDS as an entity that together with its affiliates has average gross annual revenues that are not more  S' xthan $40 million for the preceding three calendar years.D0 (] yOd'ԍ47 C.F.R.  21.961(b)(1).D This definition of a small entity in the context  Sl'of the Commission's Report and Order concerning MMDS auctions has been approved by the SBA.l (] {O 'ԍSee Report and Order, MM Docket No. 9431 and PP Docket No. 93253, 10 FCC Rcd 9589 (1995).  S' e #^95.` ` The Commission completed its MMDS auction in March 1996 for authorizations in 493  xbasic trading areas ("BTAs"). Of 67 winning bidders, 61 qualified as small entities. Five bidders  xVindicated that they were minorityowned and four winners indicated that they were womenowned  xbusinesses. MMDS is an especially competitive service, with approximately 1573 previously authorized  xand proposed MMDS facilities. Information available to us indicates that no MMDS facility generates  x revenue in excess of $11 million annually. We tentatively conclude that there are approximately 1634 small MMDS providers as defined by the SBA and the Commission's auction rules.".)R ,`(`(88"Ԍ S' e ԙ_96.` ` ITFS: There are presently 1,989 licensed educational ITFS stations and 97 licensed  S' xcommercial ITFS stations. Educational institutions are included in the definition of a small business.2X(] yOB' x ԍSBREFA also applies to nonprofit organizations and governmental organizations such as cities, counties, towns,  x townships, villages, school districts, or special districts, with populations of less than 50,000. 5 U.S.C.  601(5). 2  xkHowever, we do not collect annual revenue data for ITFS licensees and are unable to ascertain how many  xof the 97 commercial stations would be categorized as small under the SBA definition. Thus, we tentatively conclude that at least 1,989 ITFS licensees are small businesses.  S' e v`97.` ` DBS: There are presently nine DBS licensees, some of which are not currently in  x&operation. The Commission does not collect annual revenue data for DBS and, therefore, is unable to  xascertain the number of small DBS licensees that could be impacted by these proposed rules. Although  xDBS service requires a great investment of capital for operation, we acknowledge that there are several  x&new entrants in this field that may not yet have generated $11 million in annual receipts, and therefore may be categorized as a small business, if independently owned and operated.  S ' e a98.` ` HSD: The market for HSD service is difficult to quantify. Indeed, the service itself bears  xlittle resemblance to other multichannel video service providers. HSD owners have access to more than  x*265 channels of programming placed on Cband satellites by programmers for receipt and distribution by  S ' x^video service providers, of which 115 channels are scrambled and approximately 150 are unscrambled.^ (] {O'ԍ1996 Competition Report, FCC 96496 at para.49.^  xHSD owners can watch unscrambled channels without paying a subscription fee. To receive scrambled  xchannels, however, an HSD owner must purchase an integrated receiverdecoder from an equipment dealer  xand pay a subscription fee to an HSD programming packager. Thus, HSD users include: (1) viewers who  x_subscribe to a packaged programming service, which affords them access to most of the same  xprogramming provided to subscribers of other video service providers; (2) viewers who receive only non xsubscription programming; and (3) viewers who receive satellite programming services illegally without  xpsubscribing. Because scrambled packages of programming are most specifically intended for retail  SF'consumers, these are the services most relevant to this discussion.1Fz(] {O`'ԍId.1  S' e b99.` ` According to the most recently available information, there are approximately 30 program  S' xpackagers nationwide offering packages of scrambled programming to retail consumers.1 (] {Oz'ԍId.1 These program  S' xpackagers provide subscriptions to approximately 2,314,900 subscribers nationwide.1(] {O!'ԍId.1 This is an average  x"of about 77,163 subscribers per program packager. This is substantially smaller than the 400,000  xsubscribers used in the Commission's definition of a small MSO. Furthermore, because this an average, it is likely that some program packagers may be substantially smaller.  S' e c100.` ` OVS: The Commission has certified nine open video system ("OVS") operators. Because  xthese services were introduced so recently and only one operator is currently offering programming to our"*0 ,`(`(88"  xknowledge, little financial information is available. Bell Atlantic (certified for operation in Dover) and  xMetropolitan Fiber Systems ("MFS," certified for operation in Boston and New York) have sufficient  x^revenues to assure us that they do not qualify as small business entities. Two other operators, Residential  xtCommunications Network ("RCN," certified for operation in New York) and RCN/BETG (certified for  xoperation in Boston), are MFS affiliates and thus also fail to qualify as small business concerns. However,  x/Digital Broadcasting Open Video Systems (a general partnership certified for operation in southern  xCalifornia), Urban Communications Transport Corp. (a corporation certified for operation in New York  xand Westchester), and Microwave Satellite Technologies, Inc. (a corporation owned solely by Frank T.  xpMatarazzo and certified for operation in New York) are either just beginning or have not yet started  xoperations. Accordingly, we tentatively conclude that three OVS licensees may qualify as small business concerns.  S ' e d101.` ` SMATVs: Industry sources estimate that approximately 5200 SMATV operators were  S ' xproviding service as of December 1995.] (] {Ob 'ԍ1996 Competition Report FCC 96496 at para.81.] Other estimates indicate that SMATV operators serve  S ' xapproximately 1.05 million residential subscribers as of September 1996.1 Z(] {O'ԍId.1 The ten largest SMATV  S ' xoperators together pass 815,740 units.1 (] {O6'ԍId.1 If we assume that these SMATV operators serve 50% of the  xunits passed, the ten largest SMATV operators serve approximately 40% of the total number of SMATV  xsubscribers. Because these operators are not rate regulated, they are not required to file financial data with  xthe Commission. Furthermore, we are not aware of any privately published financial information  xxregarding these operators. Based on the estimated number of operators and the estimated number of units  xserved by the largest ten SMATVs, we tentatively conclude that a substantial number of SMATV operators qualify as small entities.  Sj' e e102.` ` LMDS: Unlike the above pay television services, LMDS technology and spectrum  xallocation will allow licensees to provide wireless telephony, data, and/or video services. An LMDS  x<provider is not limited in the number of potential applications that will be available for this service.  xTherefore, the definition of a small LMDS entity may be applicable to both cable and other pay television  x(SIC 4841) and/or radiotelephone communications companies (SIC 4812). The SBA definition for cable  xand other pay services is defined above. A small radiotelephone entity is one with 1500 employees or  S|' xless.?|~(] yO'ԍ13 C.F.R.  121.201.? For the purposes of this proceeding, we include only an estimate of LMDS video service  x providers. The vast majority of LMDS entities providing video distribution could be small businesses  S,' xQunder the SBA's definition of cable and pay television (SIC 4841). However, in the LMDS Second Report  S' xand Order, we defined a small LMDS provider as an entity that, together with affiliates and attributable  S' xinvestors, has average gross revenues for the three preceding calendar years of less than $40 million.(] {O$' x@ ԍSecond Report and Order, CC Docket No. 92297, FCC 9782 (released March 13, 1997) ("LMDS Second  {OX%'Report and Order"). We have not yet received approval by the SBA for this definition. "+j ,`(`(88"Ԍ S' e f103.` ` There is only one company, CellularVision, that is currently providing LMDS video  xservices. Although the Commission does not collect data on annual receipts, we assume that  xCellularVision is a small business under both the SBA definition and our proposed auction rules. We  xtentatively conclude that a majority of the potential LMDS licensees will be small entities, as that term is defined by the SBA.  S' e g104.` ` MDU Operators: The SBA has developed definitions of small entities for operators of  xnonresidential buildings, apartment buildings and dwellings other than apartment buildings, which include  S' xall such companies generating $5 million or less in revenue annually.^(] yO* 'ԍ13 C.F.R.  121.601 (SIC 6512, SIC 6513, SIC 6514).^ According to the Census Bureau,  x there were 26,960 operators of nonresidential buildings generating less than $5 million in revenue that  Sr' xwere in operation for at least one year at the end of 1992.;XrX(] yOj ' x ԍ1992 Economic Census of Financial, Insurance and Real Estate Industries, Establishment and Firm Size Report,  xM Table 4, SIC 6512 (U.S. Bureau of the Census data under contract to the Office of Advocacy of the U.S. Small Business Administration).; Also according to the Census Bureau, there  xwere 39,903 operators of apartment dwellings generating less than $5 million in revenue that were in  S" ' xIoperation for at least one year at the end of 1992.;X" x(] yO:' x ԍ1992 Economic Census of Financial, Insurance and Real Estate Industries, Establishment and Firm Size Report,  xM Table 4, SIC 6513 (U.S. Bureau of the Census data under contract to the Office of Advocacy of the U.S. Small Business Administration).; The Census Bureau provides no separate data  xkregarding operators of dwellings other than apartment buildings, and we are unable at this time to estimate the number of such operators that would qualify as small entities.  S '` ` Reporting, Recordkeeping, and Other Compliance Requirements  S2' e h105.` ` The Further Notice proposes rules to require that, upon termination of existing service,  xthe MDU operator must provide the incumbent service provider with notice of termination of the  xincumbent's access to the building or of the owner's wish to permit headtohead competition for  xindividual home run wires. The MDU operator would have the option of either purchasing the wiring or  x&allowing the alternative provider to purchase it. The incumbent service provider would be required to  xMelect to sell, remove or abandon its home run wiring and would have to complete its sales negotiations  xQor remove its wiring within the time schedule provided herein or be deemed to have abandoned its wiring. The Commission's inside wiring rules would also be expanded to apply to all MVPDs.  S' e i106.` ` The Further Notice requests comment on the adoption of penalties for incumbent MVPDs  xpthat elect to remove their MDU home run wiring upon termination of service and then fail to do so.  xIncumbent providers may choose to maintain records to prove their compliance with the rules regarding  xdisposition of home run wiring, but we do not believe that they will need additional professional skills to maintain such records and we propose no requirement for such recordkeeping.  S' e j107.` ` The Further Notice proposes a rule requiring video service providers to transfer ownership  xof MDU home run wiring to the MDU owner upon installation. Video service providers may choose to  xmaintain records of the home run wiring subject to such a rule, but we do not believe that they will need",,`(`(88"  x8additional professional skills to maintain such records and we propose no requirement for such recordkeeping.  S' 0 w!l` ` Steps Taken to Minimize Significant Economic Impact on Small Entities and  S`' 'Significant Alternatives Considered : None. However, any significant alternatives presented in the comments will be considered.  S' 0 w! ` ` Federal Rules That May Duplicate, Overlap, or Conflict with the Proposed Rules : None.   Sp' V.PAPERWORK REDUCTION ACT OF 1995 ANALYSIS  S ' 0 w!~k108.` ` The requirements proposed in this Further Notice have been analyzed with respect to the   'Paperwork Reduction Act of 1995 (the "1995 Act") and would impose new and modified information   'collection requirements on the public. The Commission, as part of its continuing effort to reduce   'cpaperwork burdens, invites the general public to take this opportunity to comment on the proposed  S '  '7information collection requirements contained in this Further Notice, as required by the 1995 Act. Public  S\'  'Dcomments are due September 25, 1997. Comments should address: (1) whether the proposed collection   'Mof information is necessary for the proper performance of the functions of the Commission, including  'Iwhether the information would have practical utility; (2) the accuracy of the Commission's burden   'estimates; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways   'to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.  SD' 0 w!l109.` ` Written comments by the public on the proposed new and modified information collection   '<requirements are due September 25, 1997. Comments should be submitted to Judy Boley, Federal  '&Communications Commission, Room 234, 1919 M Street, N.W., Washington, D.C. 20554, or via the  'Internet to jboley@fcc.gov. For additional information on the proposed information collection requirements, contact Judy Boley at 2024180214 or via the Internet at the above address.  S,' VI.PROCEDURAL PROVISIONS  S' 0 w! m110.` ` Ex parte Rules "PermitbutDisclose" Proceeding. This proceeding will be treated as  'Ia "permit-but-disclose" proceeding subject to the "permit-but-disclose" requirements under Section   '1.1206(b) of the rules. 47 C.F.R.  1.1206(b), as revised. Ex parte presentations are permissible if  'disclosed in accordance with Commission rules, except during the Sunshine Agenda period when   '7presentations, ex parte or otherwise, are generally prohibited. Persons making oral ex parte presentations   'are reminded that a memorandum summarizing a presentation must contain a summary of the substance   'of the presentation and not merely a listing of the subjects discussed. More than a one or two sentence  S!'  'Qdescription of the views and arguments presented is generally required. See 47 C.F.R.  1.1206(b)(2), as revised. Additional rules pertaining to oral and written presentations are set forth in Section 1.1206(b).  SP$' 0 w!n111.` ` Filing of Comments and Reply Comments. Pursuant to applicable procedures set forth in   'tSections 1.415 and 1.419 of the Commission's Rules, 47 C.F.R.  1.415 and 1.419, interested parties   '^may file comments on or before September 25, 1997, and reply comments on or before October 2, 1997.   'To file formally in this proceeding, you must file an original plus four copies of all comments, reply"&-,`(`(88%"   'comments, and supporting comments. If you want each Commissioner to receive a personal copy of your   'comments and reply comments, you must file an original plus nine copies. You should send comments  |$tand reply comments to Office of the Secretary, Federal Communications Commission, 1919 M Street,  |$NW, Washington, DC 20554. Comments and reply comments will be available for public inspection  |$during regular business hours in the FCC Reference Center, Room 239, Federal Communications Commission, 1919 M Street NW, Washington DC 20554.  S'  ko112.` ` Written comments by the public on the proposed and/or modified information collections  |$gare due September 25, 1997. Written comments must be submitted by the Office of Management and  |$Budget ("OMB") on the proposed and/or modified information collections on or before 60 days after date  |$of publication in the Federal Register. In addition to filing comments with the Secretary, a copy of any  |$&comments on the information collections contained herein should be submitted to Judy Boley, Federal  |$Communications Commission, Room 234, 1919 M Street, NW, Washington, DC 20554, or via the  |$gInternet to jboley@fcc.gov and to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725 17th Street, NW, Washington, DC 20503 or via the Internet to fain_t@al.eop.gov.  SX' VII.ORDERING CLAUSES  S'  kp113.` ` IT IS ORDERED that, pursuant to Sections 1, 4(i), 201205, 303, 623, 624 and 632 of  |$the Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i), 201205, 303, 543, 544 and 552,  |$3NOTICE IS HEREBY GIVEN of proposed amendments to Part 76, in accordance with the proposals,  S' |$discussions and statements of issues in this Further Notice of Proposed Rulemaking, and that COMMENT IS SOUGHT regarding such proposals, discussions and statements of issues.  S'  kWq114.` ` IT IS FURTHER ORDERED that the Commission SHALL SEND a copy of this Further  S' |$Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. ` ` Ghh}FEDERAL COMMUNICATIONS COMMISSION ` `  Ghh} ` `  Ghh}William F. Caton  S'` `  Ghh}Acting Secretary".,`(`(88}"  S' /  APPENDIX Aă Parties That Filed Comments and Reply Comments regarding the Issues Discussed in this Further Notice  S' " Note:XIf no abbreviation appears in parentheses following the full name, the full name is used in this  S' "Further Notice. Unless noted as being filed solely in MM Docket No. 92260, all comments,  S' "reply comments and ex parte filings referred to in this Further Notice were filed in CS Docket No. 95184.(#  S$ ' Comments  S ' CS Docket No. 95184 1st Lake Properties, Inc. ("1st Lake") Adelphia Communications Corporation ("Adelphia") Ameritech AT&T Corp. ("AT&T") Building Owners and Managers Association International, National Realty Committee, National Multi Housing Council, National Apartment Association, Institute of Real Estate Management, and National Association of Home Builders ("Building Owners, et al.") Cable Telecommunications Association ("CATA") Charter Communications, Inc. and Comcast Cable Communications, Inc. ("Charter/Comcast") Cincinnati Bell Telephone Company ("Cincinnati Bell") Circuit City Stores, Inc. ("Circuit City") Community Associations Institute Continental Cablevision, Inc. and Cablevision Systems Corporation ("Continental/Cablevision") Compaq Computer Corporation ("Compaq") Consumer Electronics Manufacturers Association ("CEMA") Cox Communications, Inc. ("Cox") DIRECTV, Inc. ("DIRECTV") GTE Service Corporation ("GTE") Guam Cable TV Independent Cable & Telecommunications Association ("ICTA") Information Technology Industry Council ("ITI") Marcus Cable Company, American Cable Entertainment, Greater Media, Inc., Cable Television Association of Maryland, Delaware and the District of Columbia, Cable Television Association of Georgia, Minnesota Cable Communications Association, New Jersey Cable Telecommunications Association, Ohio Cable Telecommunications Association, Oregon Cable Television Association, South Carolina Cable Television Association, Tennessee Cable Television Association, Texas Cable TV Association ("Joint Cable Parties") Liberty Cable Company, Inc. ("Liberty") MFS Communications Company, Inc. ("MFS") Media Access Project and Consumer Federation of America ("Media Access/CFA")"(/,**88h'"ԌMultimedia Development Corp. ("Multimedia Development") MultiTechnologies Services, L.P. ("MultiTechnologies Services") National Cable Television Association, Inc. ("NCTA") NYNEX Telephone Companies ("NYNEX") OpTel, Inc. ("OpTel") Pacific Bell and Pacific Telesis Video Services ("PacTel") People of the State of California and the Public Untilities Commission of the State of California ("California PUC") RTE Group, Inc. ("RTE") Real Estate Board on New York, Inc. Residential Communications Network, Inc. ("RCN") Riser Management Systems, L.P. ("Riser Mgmt.") State of New Jersey Board of Public Utilities ("New Jersey BPU") TKR Cable Company ("TKR") Tandy Corporation ("Tandy") TeleCommunications, Inc. ("TCI") Telecommunications Industry Association, User Premises Equipment Division ("TIA") Time Warner Cable and Time Warner Communications ("Time Warner") U S West, Inc. ("U S West") United States Telephone Association ("USTA") Wireless Cable Association International, Inc. ("WCA")  S'MM Docket No. 92260 Ameritech New Media, Inc. ("Ameritech") Bell Atlantic Companies ("Bell Atlantic") Building Owners and Managers Association International, National Realty Committee, National Multi Housing Council, National Apartment Association, Institute of Real Estate Management, and National Association of Home Builders ("Building Owners, et al.") Cable Telecommunications Association ("CATA") GTE Service Corporation ("GTE") Independent Cable and Telecommunications Association ("ICTA") National Cable Television Association, Inc. ("NCTA") New York City Department of Information Technology and Telecommunications ("New York City") NYNEX Telephone Companies ("NYNEX") OpTel, Inc. ("OpTel") Pacific Bell and Pacific Telesis Video Services ("PacTel") Time Warner Cable ("Time Warner")  Sp#' Reply Comments  SH$'  S %'CS Docket No. 95184 Ameritech "&0,`(`(88m%"ԌAT&T Corp. ("AT&T") Bartholdi Cable Company, Inc. ("Bartholdi") Bell Atlantic Telephone Companies ("Bell Atlantic") Building Owners and Managers Association International, National Realty Committee, National Multi Housing Council, National Apartment Association, Institute of Real Estate Management, National Association of Real Estate Investment Trusts ("Building Owners, et al.") Cable Telecommunications Association ("CATA") Consumer Electronics Manufacturers Association ("CEMA") Cablevision Systems Corporation and Continental Cablevision, Inc. ("Continental/Cablevision") Cox Communication, Inc. ("Cox") GTE Service Corporation ("GTE") Independent Cable & Telecommunications Association ("ICTA") Marcus Cable, Co., American Cable Entertainment, Greater Media, Inc., TCA Cable TV, Inc., Cable Television Association of Maryland, Delaware and the District of Columbia, Cable Television Association of Georgia, Minnesota Cable Communications Association, New Jersey Cable Telecommunications Association, Ohio Cable Telecommunications Association, Oregon Cable Telecommunications Association, South Carolina Cable Television Association, Tennessee Cable Television Association, Texas Cable Telecommunications Association ("Joint Cable Parties") OpTel, Inc. ("OpTel") Time Warner Cable and Time Warner Communications Holdings, Inc. ("Time Warner") United States Telephone Association ("USTA") Wireless Cable Association International, Inc. ("WCA")  S'MM Docket No. 92260 Ameritech New Media, Inc. ("Ameritech") "1,`(`(88"  S'  Y APPENDIX D ă  S' RProposed Rules  S8' Part 76 of title 47 of the Code of Federal Regulations is proposed to be amended as follows:  S' PART 76 CABLE TELEVISION SERVICE  S'1.The authority citation for Part 76 would continue to read as follows:  "IAUTHORITY: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 307, 308, 309, 312, 315, 317,  x325, 503, 521, 522, 531, 532, 533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 552, 554, 556, 558, 560, 561, 571, 572, 573.  S '2.Section 76.5 is proposed to be amended by revising paragraph (mm)(2) to read as follows:  SX' 76.5 Demarcation Point. * * * * * (mm) * * *  x^(2) For new and existing multiple dwelling unit installations with nonloopthrough wiring configurations,  xQthe demarcation point shall be a point at or about twelve inches outside of where the cable wire enters the  xsubscriber's dwelling unit, or, where the wire is physically inaccessible at such point, as close as practicable thereto so as to permit access to the cable home wiring.  S' "  3.Section 76.802 is proposed to be amended by revising paragraphs (a) and (g) and by adding new paragraphs (l), (m) and (n) to read as follows:  SP'  S(' 76.802 Disposition of cable home wiring.  "(a) (1) Upon voluntary termination of cable service by a subscriber in a single unit dwelling, a  xZcable operator shall not remove the cable home wiring unless it gives the subscriber the opportunity to  xZpurchase the wiring at the replacement cost, and the subscriber declines. If the subscriber declines to  xpurchase the cable home wiring, the cable system operator must then remove the cable home wiring within  xseven days of the subscriber's decision, under normal operating conditions, or make no subsequent attempt to remove it or to restrict its use.  "(2) Upon voluntary termination of cable service by an individual subscriber in a multiple dwelling  xunit building, a cable operator shall not remove the cable home wiring unless it gives the subscriber the  x*opportunity to purchase the wiring at the replacement cost, the subscriber declines, and the owner of the  xmultiple dwelling unit building's common areas (referred to herein as the "MDU owner") has not  xpreviously elected to purchase or have the alternative MVPD purchase the cable home wiring when a  xsubscriber declines, as provided in paragraph (l) hereof. If the subscriber declines to purchase the cable  xhome wiring, and, the MDU owner has not elected to purchase or have the alternative MVPD purchase  xthe cable home wiring, the cable system operator must then remove the cable home wiring within seven"'2,**88&"  xdays of the subscriber's decision, under normal operating conditions, or make no subsequent attempt to remove it or to restrict its use.  "(3) Upon voluntary termination of cable service for an entire multiple dwelling unit building  xby the MDU owner, a cable operator shall not remove the cable home wiring unless it gives the MDU  xxowner the opportunity to purchase the wiring at the replacement cost, and the MDU owner declines either  xto purchase the wiring or to allow the alternative MVPD to purchase the wiring. If the MDU owner  x declines to purchase or have the alternative MVPD purchase the cable home wiring, the cable system  xoperator must then remove the cable home wiring no later than 30 days, under normal operating  xgconditions, after it is notified of the MDU owner's decision, or make no subsequent attempt to remove it or to restrict its use.  "(4) The cost of the cable home wiring is to be based on the replacement cost per foot of the  xtwiring on the subscriber's side of the demarcation point multiplied by the length in feet of such wiring, and the replacement cost of any passive splitters located on the subscriber's side of the demarcation point. * * * * * (g) delete the word "business" where provision refers to "seven business days." * * * * *  "(l) If a subscriber who is not the owner of the premises terminates service and declines to purchase  xkthe cable home wiring under this section, the owner of the multiple dwelling unit building's common areas  x(referred to herein as the "MDU owner") may purchase it under the same terms and conditions provided  xin subsection (a) hereof, provided that the MDU owner notified the cable system operator of its desire to  xpurchase the cable home wiring in the event the subscriber declines. Such notification must occur no later  xthan the time at which the MDU owner provides the incumbent MVPD 60 days' notice of the MDU owner's intention to invoke the procedure set forth in Section 76.804(b).  "[(m) Where an entire multiple dwelling unit building is switching service providers, the MDU  xtowner shall be permitted to exercise the rights of individual subscribers for purposes of the disposition  xof the cable home wiring under this section. If the MDU owner declines to purchase the cable home  xwiring, the MDU owner may allow the alternative provider to purchase it upon service termination under this section.  "(n) This section shall apply to all multichannel video programming distributors, as that term is  xgdefined in Section 602(13) of the Communications Act, 47 U.S.C.  522(13), in the same manner as it applies to cable operators.  S!'4.Section 76.804 is proposed to be added to read as follows:  Sp#'  76.804 Disposition of Home Run Wiring  S %' "y(a) Buildingbybuilding disposition of home run wiring: (1) Where an MVPD owns the home  xrun wiring in a multiple dwelling unit building ("MDU") and does not (or will not at the conclusion of  xthe notice period) have a legally enforceable right to remain on the premises against the wishes of the"&3,`(`(88m%"  xentity that owns the common areas of the MDU ("the MDU owner"), the MDU owner may give the  x7MVPD a minimum of 90 days' notice that its access to the entire building will be terminated. The MVPD  xMwill then have 30 days to elect, for all the home run wiring inside the MDU building: (i) to remove the  xwiring and restore the MDU building to its prior condition by the end of the 90day notice period; (ii) to  xabandon and not disable the wiring at the end of the 90day notice period; or (iii) to sell the wiring to the  xMDU building owner. If the incumbent provider elects to remove or abandon the wiring, and it intends  xgto terminate service before the end of the 90day notice period, the incumbent provider shall notify the  xMDU owner at the time of this election of the date on which it intends to terminate service. If the MDU  xowner refuses to purchase the home run wiring, an alternative provider that has been authorized to provide  xservice to the MDU by the MDU owner may negotiate to purchase the wiring. For purposes of this  xsection, "home run wiring" shall refer to the wiring from the point at which the MVPD's wiring becomes devoted to an individual subscriber to the demarcation point.  "(2) If the parties negotiate a price for the home run wiring, they shall have 30 days from the date  x^of election to negotiate a price. If the parties are unable to agree on a price, the incumbent must elect one  x@of the other two options (i.e., abandonment or removal) and notify the MDU owner at the time of this  xelection if and when it intends to terminate service before the end of the 90day notice period. If the  xincumbent service provider elects to abandon its wiring at this point, the abandonment shall become  xeffective at the end of the 90day notice period or upon service termination, whichever occurs first. If  xthe incumbent elects to remove its wiring and restore the building to its prior condition, it must do so by  xEthe end of the 90day notice period. If the incumbent fails to comply with any of the deadlines  x established herein, it shall be deemed to have elected to abandon its home run wiring at the end of the 90day notice period.  S@' "<(b) Unitbyunit disposition of home run wiring: (1) Where an MVPD owns the home run wiring  x in an MDU and does not (or will not at the conclusion of the notice period) have a legally enforceable  xright to maintain any particular home run wire dedicated to a particular unit on the premises against the  xMDU owner's wishes, an MDU owner may permit multiple MVPDs to compete for the right to use the  xindividual home run wires dedicated to each unit. The MDU owner must provide 60 days' notice to the  xtincumbent MVPD of the MDU owner's intention to invoke this procedure. The incumbent MVPD will  xZthen have 30 days to provide a single written election to the MDU owner and the competing MVPD(s)  xwhether, for each and every one of its home run wires dedicated to a subscriber who chooses an  xalternative provider's service, the incumbent MVPD will: (i) remove the wiring and restore the MDU  x building to its prior condition; (ii) abandon the wiring without disabling it; or (iii) sell the wiring to the  xMDU owner. If the MDU owner refuses to purchase the home run wiring, the alternative provider may  xpurchase it. The alternative provider(s) will be required to make a similar election within this 30day  xperiod for each home run wire solely dedicated to a subscriber who switches back from the alternative provider to the incumbent MVPD.  "h(2) When an existing MVPD is notified either orally or in writing that a subscriber wishes to  xterminate service and that another service provider intends to use the existing home run wire to provide  xservice to that particular subscriber, an existing provider that has elected to remove its home run wiring  xwill have seven days to remove its home run wiring and restore the building to its prior condition. If the  x7existing provider has elected to abandon or sell the wiring, the abandonment or sale will become effective  xseven days from the date it received the request for service termination or upon actual service termination,  xwhichever occurs first. If the incumbent provider intends to terminate service prior to the end of the  xDsevenday period, the incumbent shall inform the party requesting service termination, at the time of such"&4,`(`(88`%"  xrequest, of the date on which service will be terminated. The incumbent provider shall make the home  xMrun wiring accessible to the alternative provider by the end of the sevenday period or within 24 hours of actual service termination, whichever occurs first.  "(3) If the incumbent provider fails to comply with any of the deadlines established herein, the  xhome run wiring shall be considered abandoned and the alternative provider shall be permitted to use the  xMhome run wiring immediately to provide service. The alternative provider or the MDU owner may act  xDas the subscriber's agent in providing notice of a subscriber's desire to change services. If a subscriber's  x^service is terminated without notifying the incumbent provider that the subscriber wishes to use the home  xtrun wiring to receive an alternative service, the incumbent provider will not be required to carry out its  x7election to sell, remove or abandon the home run wiring; the incumbent provider will be required to carry  xout its election, however, if and when it receives notice that a subscriber wishes to use the home run  x3wiring to receive an alternative service. Section 76.802 of our rules regarding the disposition of cable  x/home wiring will apply where a subscriber's service is terminated without notifying the incumbent provider that the subscriber wishes to use the home run wiring to receive an alternative service. (4) The parties shall cooperate to ensure as seamless a transition as possible for the subscriber.  "(5) Section 76.802 of our rules regarding the disposition of cable home wiring will continue to apply to the wiring on the subscriber's side of the cable demarcation point.  S'5.Section 76.805 is proposed to be added to read as follows:  Sh'  76.805 Access to Molding and Conduits  " A multichannel video service provider ("MVPD") shall be permitted to install one or more home  x8run wires in an existing molding or conduit where: (a) sufficient space is present to permit the  xinstallation; (b) the installation will not interfere with the ability of an existing MVPD to provide service; and (c) the owner of the multiple dwelling unit building does not object to such installation.