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Comments and reply comments filed in MM Docket No. 92260 are referred to herein as "Docket No. 92260 Comments" and "Docket No. 92260 Reply Comments," respectively. and the Further Notice  S- d(#yof Proposed Rulemaking in CS Docket No. 95184 and MM Docket No. 92260 ("Inside Wiring Further  S- d(#0Notice")W\(] {OB - d(#ԍSee FCC 97304, 62 FR 46453 (released August 28, 1997). Comments and reply comments filed in response  {O - d(#to the Inside Wiring Further Notice are referred to herein as "Further Comments of ..." and "Further Reply Comments of ...," respectively.W regarding potential changes in our telephone and cable inside wiring (] yOf- d(#ԍInside wiring is the portion of a system's wiring on a customer's premises that is used to transmit signals to  d(#and/or from the customer premises equipment ("CPE"), such as a telephone, television or a cable settop box. Unlike  d(#the network/system wiring, which always remains under the service provider's control and responsibility, inside wiring may under some circumstances be owned or controlled by the customer pursuant to the Commission's rules. rules in light of the  S-evolving telecommunications marketplace.m\ (] {O(- d(#<ԍAppendix B contains a list of the parties that filed comments and reply comments in response to the Inside  {O- d(#\Wiring Notice, the Cable Home Wiring Further Notice and the Inside Wiring Further Notice, as well as the abbreviations used herein to refer to such parties.m We adopt the amended rules as provided in Appendix A.  S|-2. ` ` In this Order, we reach the following conclusions:  S. -X(a)X` ` Disposition of Home Run Wiring(#`  S -  _XX` ` We adopt our proposal in the Inside Wiring Further Notice for the disposition of the cable   "home run" wiring (i.e., the wiring from the point at which it becomes dedicated to an  3individual unit in a multiple dwelling unit building ("MDU") to the cable "demarcation   point" at or about 12 inches outside that unit) upon a termination of service. We adopt  specific procedural mechanisms requiring the sale, removal or abandonment of the home  S- run wiring where the MDU ownerJz(] yO - d(#ԍThe term "MDU owner" (sometimes referred to as the "premises owner") as used herein includes whatever entity  d(#owns or controls the common areas of an apartment building, condominium or cooperative. According to the  d(#Community Associations Institute, "[i]n a cooperative association, the association owns the common areas. In a  d(#Jcondominium, the unit owners own common areas as tenantsincommon, but the association manages these areas."  {O#- d(#See Ex Parte Letter from Robert M. Diamond, President, Community Associations Institute, to Rick C. Chessen,  d(#Assistant Chief, Policy and Rules Division, Cable Services Bureau, Federal Communications Commission (October 31, 1996) at 1.J (1) terminates service for the entire building and   wishes to use the home run wiring for an alternative video service provider, or (2) wants  ato permit more than one multichannel video programming distributor ("MVPD") to"",`(`(88"   compete for the right to use the home run wiring on a unitbyunit basis. We will apply our rules regarding the disposition of cable home run wiring to all MVPDs. (#`  S-(b)` ` Sharing of Molding   ` ` We generally will allow MVPDs to install one or more home run wires within the   3molding of an MDU where the MDU owner finds that there is sufficient space within  Aexisting molding to permit the installation of the additional wiring without interfering with   the ability of an existing MVPD to provide service, and the MDU owner gives its  affirmative consent. Where the MDU owner finds that there is insufficient space and  gives its affirmative consent to the installation of larger molding and additional wiring,  we will permit the MDU owner to replace the existing molding at the alternative  provider's expense. Alternative providers will be required to pay any and all installation  ocosts and damages associated with the addition of wiring and/or any larger molding that is necessary.(#`  S -(c)` ` Disposition of Cable Home Wiring(#`  XX` ` We conclude that the MDU owner may purchase the wiring within an MDU's individual  dwelling units when the MDU owner terminates a video service provider's service for the   `entire building. We also conclude that the MDU owner may purchase the home wiring   if the terminating resident declines to do so. In both cases, the owner may permit an   #alternative provider to purchase the home wiring. In addition, we conclude that, if a cable   Boperator intends to remove the cable home wiring, it must do so within the seven days  provided by our rules if an individual subscriber declines to purchase the wiring and   #vacates the premises, so long as the operator has reasonable access to the premises during those seven days.(#`  S-(d)` ` MDU Demarcation Point(#`  SP- XX` ` We conclude that it is premature to establish a common telephone and cable demarcation   2point. Maintaining different sets of rules will not cause confusion because it appears that  telephone and cable services will continue to be delivered over separate inside wiring   networks for the near future. If and when telephone and cable services begin to be   delivered on a widescale basis over the same inside wiring, we will revisit this issue. We therefore maintain the current telephone and cable demarcation points.(#`  S8-(e)` ` Loopthrough cable inside wiring  ` ` We conclude that cable operators should be required to allow MDU owners to purchase  loopthrough home wiring where such an owner elects to switch to a new service   provider. We will also permit the MDU owner to invoke our procedures for the  disposition of home run wiring with regard to the loopthrough wiring outside the individual unit up to the riser or feeder cable.(#` " %,`(`(88&"Ԍ S-8(f)` ` Video service provider access to private property(#`  bXX` ` We will not establish a federal mandatory access law, nor will we preempt state  mandatory access laws. We will not prohibit service providers from entering into  p8exclusive contracts with property owners. As noted below, we will seek comment,  however, on whether we should adopt certain restrictions on exclusive contracts in order to further promote competition in the MDU marketplace.(#`  S-X(g)X` ` Subscriber access to cable home wiring prior to termination of service(#`   XX` ` We will require cable operators to permit consumers to provide or to install their own  cable home wiring inside their dwelling unit, or redirect, reroute or connect additional   3wiring to the cable operator's home wiring, so long as the cable operator's wiring is not   substantially altered or harmed and no electronic or physical harm is caused to the cable  `system. We will not, however, presume that cable subscribers already own their home wiring.(#`  SX-X(h)X` ` Signal leakage(#`   XX` ` We will apply our cable signal leakage rules to noncable MVPDs that pose a similar  threat of interference with frequencies used for overtheair communications. We will  provide a fiveyear transition period for certain noncable MVPDs to comply with some of the signal leakage rules.(#`  S@-X(i)X` ` Signal quality(#` XX` ` We will not apply our cable rules regarding signal quality to other MVPDs. (#`  S-X(j)X` ` Means of connection(#`  XX` ` We will not mandate a specific type of connector that broadband service providers must use.(#`  S-X(k)X` ` Dual regulation(#`   4XX` ` We conclude that we need not modify the current dual nature of regulation of cable  wiring by federal and local authorities, or of telephone wiring by federal and state authorities.(#`  S -(l)` ` Simple/complex and residential/nonresidential(#`   XX` ` We conclude that, at this time, we will not modify the definitions within the common  carrier and cable rules regarding simple versus complex and residential versus nonresidential wiring.(#` " %,`(`(88&"Ԍ S-X:(m)X` ` Customer premises equipment(#`  S- XX` ` We conclude that the issues raised in the Inside Wiring Notice regarding customer  opremises equipment ("CPE") have been superseded by the Telecommunications Act of  Sb-  $:1996 (the "1996 Act"),Cb(] yO-ԍPub. L. No. 104104 (1996).C and that the issues will be addressed in our proceeding arising under new Section 629 of the Communications Act.(#`  S- 23.` ` We believe that the record would benefit from additional comment on the following issues  S- d(#kdescribed in the Second Further Notice: (1) exclusive service contracts between service providers and  d(#MDU owners; (2) applying certain of our cable inside wiring rules to all MVPDs; (3)signal leakage reporting requirements; and (4) simultaneous use of cable home run wiring by multiple MVPDs.  S$ - II. BACKGROUND  S - A.` ` Telephone Inside Wiring Rules   S - P4.` ` Part 68 of the Commission's rules governs the terms and conditions under which customer  d(#premises equipment ("CPE") and wiring may be connected to the telephone network. Part 68 is designed  d(#to ensure that terminal equipment and wiring can be connected to the network without causing harm to  S - d(#jthe network.F X(] {O-ԍSee 47 C.F.R.  68.1.F We have previously stated that Part 68 restrictions should be no greater than necessary to  S- d(#ensure network protection.3 Z(] {On- d(#YԍSee, e.g., Notice of Proposed Rulemaking, CC Docket No. 8857 (Review of Sections 68.104 and 68.213 of the  d(#Commission's Rules Concerning Connection of Simple Inside Wiring to the Telephone Network), 3 FCC Rcd 1120, 1122 (1988). 3 Furthermore, carriers generally have the burden of showing that any particular  S-Part 68 restriction is necessary.1  (] {Oh-ԍId.1  Sl- a5.` ` In 1984, the Commission adopted Section 68.213 of the Commission's rules, which  SD- d(#allowed customers to connect one and twoline business and residential telephone wiring to the network.A ZD(] {O- d(#ԍSee First Report and Order, CC Docket No. 81216 (Petitions Seeking Amendment of Part 68 of the  d(#Commission's Rules Concerning Connection of Telephone Equipment Systems and Protective Apparatus to the Telephone Network), 97 F.C.C.2d 527 (1984).A  d(#The Commission established a demarcation point to mark the end of the carrier network and the beginning  d(#of customercontrolled wiring. Under Section 68.213, the demarcation point would "be located on the  d(#subscriber's side of the telephone company's protector, or the equivalent thereof in cases where a protector  d(#>is not employed, as provided under the local telephone company's reasonable and nondiscriminatory  S|-standard operating practices." Z| (] {O%- d(#hԍSee 97 F.C.C.2d at 566. The telephone company protector is a device designed to protect equipment, buildings  d(#and persons by preventing the transmission of hazardous voltages through the telephone line. Hazardous voltages  d(#can result from lightning or power surges. The protector allows only the correct amount of current to pass into a"n' ,`(`('" building and diverts excess current into an earth ground wire.  "|X ,`(`(88"Ԍ S- ԙ6.` ` The Commission also issued orders detariffing the installation and maintenance of  S- d(#Ltelephone inside wiring.D HX(] yO- d(#ԍ The Commission detariffed the installation and maintenance of both simple and complex inside wiring. The  d(#term "simple inside wiring" includes telephone wiring installations of up to four access lines. We use the term  {O`- d(#"complex wiring" to refer to all other wiring installations. See 47 C.F.R. 68.213; Order on Reconsideration,  {O*- d(#Second Report and Order and Second Further Notice of Proposed Rulemaking, CC Docket No. 8857 (Review of  d(#Sections 68.104 and 68.213 of the Commission's Rules Concerning Connection of Simple Inside Wiring to the  {O- d(#Telephone Network), FCC 97209 (released June 17, 1997) ("Common Carrier Wiring Reconsideration Order"). The  d(#installation of complex wiring is governed by Section 68.215 of the rules and must be performed under the  {ON -supervision of specially trained personnel. See 47 C.F.R.  68.215(b)(c).D The Commission first detariffed the installation of complex wiring.h (] {O - d(#ԍReport and Order, CC Docket No. 82681 (Modifications to the Uniform System of Accounts for Class A and  d(#Class B Telephone Companies Required by Detariffing of Customer Premises Equipment and Proposed Detariffing  {Or - d(#of Customer Provided Cable Wiring), 48 Fed. Reg. 50534 (1983) ("Complex Wire Detariffing Order"); see also  {O<- d(#Memorandum Opinion and Order, CC Docket No. 79105 (Detariffing the Installation and Maintenance of Inside  {O- d(#Wiring), 1 FCC Rcd 1190, 119091 (1986) ("Detariffing Recon.") (subsequent history omitted). The Commission  d(#took this action because it had detariffed the installation of new CPE, and it would have been inconsistent to continue  {O-having complex wiring installed under tariff. See 1 FCC Rcd at 119091. In 1986,  d(#the Commission extended detariffing to the installation of simple inside wiring and the maintenance of  S- d(#all inside wiring.^(] {O- d(#ԍSecond Report and Order, CC Docket No. 79105 (Detariffing the Installation and Maintenance of Inside  {O- d(#Wiring), 51 Fed. Reg. 8498 (1986) ("Inside Wire Detariffing Order"), recon. in part, Detariffing Recon., 1 FCC Rcd  {On-at 1190, further recon., Memorandum Opinion and Order, 3 FCC Rcd 1719 (1988). The Commission allowed carriers to retain ownership of telephone inside wiring, but  d(#prohibited carriers from: (1) using their ownership to restrict the removal, replacement, rearrangement  d(#or maintenance of telephone inside wiring; (2) requiring customers to purchase telephone inside wiring;  S- d(#and (3) imposing a charge for the use of such wiring.T(] {O-ԍDetariffing Recon., 1 FCC Rcd at 1195.T By these detariffing orders, the Commission  d(#.sought to "foster competition in the inside wiring installation and maintenance markets, to promote new  d(#nentry into those markets, . . . and to foster the development of an unregulated, competitive  S-telecommunications marketplace.":j(] {O-ԍId. at 1191.:  SH - 7. ` ` In 1990, the Commission issued a Report and Order and Further Notice of Proposed  S" - d(#Rulemaking in CC Docket No. 8857 ("Common Carrier Wiring Order"), which, among other things,  d(#amended the definition of the demarcation point for both simple and complex wiring to ensure that the  S - d(#demarcation point would be near the point where the wiring entered the customer's premises.$ (] {Op#- d(#-ԍReport and Order and Further Notice of Proposed Rulemaking, CC Docket No. 8857 (Review of Sections  d(#68.104 and 68.213 of the Commission's Rules Concerning Competition of Simple Inside Wiring to the Telephone  d(#Network and Petition for Modification of Section 68.213 of the Commission's Rules filed by the Electronic Industries  {O%-Association), 5 FCC Rcd 4686 (1990) ("Common Carrier Wiring Order"). The  d(#revised definition required that the demarcation point generally be no further than twelve inches inside  d(#the customer's premises. For single unit installations, the demarcation point must be within twelve inches" ,`(`(88["  d(#of the protector, or if there is no protector, within twelve inches of the point at which the wiring enters  S- d(#kthe customer's premises.I(] {O@-ԍSee 47 C.F.R.  68.3(a).I For existing multiunit installations, the demarcation point is determined in  S- d(#accordance with the carrier's reasonable and nondiscriminatory standard operating practices.NZ(] {O-ԍSee 47 C.F.R.  68.3(b)(1). N For new  d(#wiring installations in multiunit premises, including additions, modifications and rearrangements of existing  d(#wiring, the carrier may establish a reasonable and nondiscriminatory practice of placing the demarcation  S8- d(#/point at the minimum point of entry.5$8(] yO - d(#ԍ47 C.F.R.  68.3(b)(2). The minimum point of entry is defined as either the closest practicable point to the  d(#location at which the wiring crosses a property line or the closest practicable point to the location at which the wiring  {OT - d(#enters a multiunit building. See 47 C.F.R. 68.3. The telephone company's reasonable and nondiscriminatory  {O -standard operating practices determine which of these two standards applies. Id.5 When the carrier does not have such a practice, the multiunit  S- d(#premises owner determines the location of the demarcation point or points.L(] {O-ԍSee 47 C.F.R.  68.3(b)(2).L If there are multiple  d(#demarcation points for either existing or new multiunit installations, the demarcation point for any  d(#Lparticular customer may not be further inside the customer's premises than twelve inches from the point  S-at which the wiring enters the customer's premises.Sj (] {O-ԍSee 47 C.F.R.  68.3(b)(1)(2). S  SH - p8.` ` In June 1997, the Commission issued the Common Carrier Wiring Reconsideration  S" - d(#Order.M" (] yO-ԍFCC 97209 (released June 17, 1997). M Among other things, the Commission clarified that the carrier standard operating practices which  d(#determine the demarcation point for multiunit installations under Section 68.3(b)(1) are those practices in  d(#effect on August 13, 1990, and that Section 68(b)(1) does not authorize changing the demarcation point  S - d(#\for an existing building to the minimum point of entry. $ (] {O- d(#xԍCommon Carrier Wiring Reconsideration Order at para. 26. The Commission also clarified that the change  d(#in the demarcation point rules does not affect the Commission's current or future policies that determine whether  d(#equipment is network equipment or CPE. Thus, in certain limited circumstances, some carrier equipment may be  {O2-located on the customer side of the demarcation point. Id. at para. 34.  Reiterating that carriers may not require the  d(#customer or building owner to purchase or pay for the use of carrierinstalled wiring that is now on the  d(#customer's side of the demarcation point, the Commission concluded that the carrier may not remove such  S4-wiring.>4x(] {OL!-ԍId. at para. 32.>  S- 9.` ` The Common Carrier Wiring Reconsideration Order also amended the telephone  d(#demarcation point definition to do the following: (1) clarify that the demarcation point may be located  d(#within twelve inches of the point at which the wiring enters the customer's premises "or as near thereto" ,`(`(88"  S- d(#as practicable;"TZ(] {Oh- d(#ԍId. at paras. 3, 15 (there may be instances where physical and safety considerations make the twelve inch  d(#jrequirement difficult to meet, and the "closest practicable point" could just as easily be outside the customer's premises as deeper inside those premises).T (2) indicate that only major additions or rearrangements of existing wiring are to be  S- d(#treated as new installations under the rule;B(] {Ob-ԍId. at paras. 3, 20.B (3) allow multiunit building owners to restrict customer access  S- d(#to only that wiring located in the customers' individual unit;B|(] {O-ԍId. at paras. 3, 24.B and (4) require local telephone companies  d(#to provide building owners with all available information regarding carrierinstalled wiring on the  d(#customer's side of the demarcation point (in order to facilitate owners' service and maintenance of such  S8- d(#wiring).B8(] {O -ԍId. at paras. 3, 30.B The Common Carrier Wiring Reconsideration Order also requested comment on certain issues  d(#pertaining to the application of the telephone demarcation point rule to complex wiring, the location of  d(#the telephone demarcation point away from a building, and telephone wire quality standards for simple inside wiring.  Sr- B.` ` Cable Inside Wiring Rules   S" -  10.` ` Section 16(d) of the Cable Television Consumer Protection and Competition Act of 1992  S - d(#(the "1992 Cable Act"), (] {O:-ԍPub. L. No. 102385, 106 Stat. 1460 (1992), 47 U.S.C.  521, et seq. (1992). codified at Section 624(i) of the Communications Act, requires the Commission  d(#[to "prescribe rules concerning the disposition, after a subscriber terminates service, of any cable installed  S - d(#by the cable operator within the premises of such subscriber."_ 2 (] yO|-ԍCommunications Act,  624(i), 47 U.S.C.  544(i)._ In February 1993, the Commission issued  S - d(#ya Report and Order implementing Section 624(i) (the "Cable Wiring Order").! (] {O- d(#ԍReport and Order, MM Docket No. 92260 (Implementation of the Cable Television Consumer Protection and Competition Act of 1992: Cable Home Wiring), 8 FCC Rcd 1435 (1993). The Cable Wiring Order  d(#-provided that when a subscriber voluntarily terminates cable service, the operator is required, if it proposes  d(#to remove the wiring, to inform the subscriber: (1) that he or she may purchase the wire; and (2) what  S - d(#the cost perfoot charge is.f"^ (] {O- d(#ԍ47 C.F.R.  76.802; see Cable Wiring Order, 8 FCC Rcd at 1438. We provided that the operator may not  {O - d(#charge the subscriber any more than the replacement cost of the wire, priced on a perfoot basis. Cable Wiring  {O\!-Order, 8 FCC Rcd at 1438.f If the subscriber declined to purchase the home wiring, the operator was  S- d(#.required to remove it within 30 days or make no subsequent attempt to remove it or to restrict its use.T#B(] {O#-ԍCable Wiring Order, 8 FCC Rcd at 1438.T  d(#These rules were designed to advance Section 624(i)'s goals of avoiding the disruption of having the  S-wiring removed and permitting subscribers to use the wiring with an alternative video service provider.:$(] {O'-ԍId. at 1435.:" f$,`(`(88"Ԍ S- Qԙ 11.` ` We further provided that the subscriber may purchase the cable home wiring inside his  S- d(#or her premises up to the demarcation point.i%Z(] yO@- d(#ԍWe defined "cable home wiring" as the internal wiring contained within the premises of a subscriber which  d(#begins at the demarcation point, not including any active elements such as amplifiers, converter or decoder boxes,  {O-or remote control units. Id. at 143536.i From the customer's point of view, the demarcation point  d(#mis significant because it defines the wiring that he or she may own or control. For purposes of  d(#[competition, the demarcation point is significant because it defines the point where an alternative service provider may attach its wiring to the customer's wiring in order to provide service.  S-   12. ` ` For single family homes, the cable demarcation point generally is at (or about) 12 inches  S- d(#=outside of where the cable wire enters the subscriber's premises.M&(] {Or -ԍSee 47 C.F.R.  76.5(mm)(1).M For MDUs with non"loopthrough"  S- d(#Lwiring,'"|(] yO - d(#-ԍLoopthrough cable wiring configurations, where a single cable provides service to multiple subscribers such  d(#that every subscriber on the loop must receive the same cable service, are generally excluded from our cable home  {Ol- d(#wiring rules. Cable Wiring Order, 8 FCC Rcd at 1437. See Section III.E. below for a discussion of certain issues pertaining to loopthrough cable wiring in MDUs. the cable demarcation point is at (or about) 12 inches outside of where the cable wire enters the  S- d(#subscriber's individual dwelling unit.C(f (] yO-ԍ47 C.F.R.  76.5(mm)(2).C Generally, in a nonloopthrough configuration, each subscriber  d(#!in an MDU has a dedicated line (often called a "home run") running to his or her premises from a  d(#common "feeder line" or "riser cable" that serves as the source of video programming signals for the entire  d(#MDU building. The riser cable typically runs vertically in a multistory building (e.g., up a stairwell) and  d(#jconnects to the dedicated home run wiring at a "tap" or "multitap," which extracts portions of the signal  d(#Mstrength from the riser and distributes individual signals to subscribers. Depending on the size of the  d(#building, the taps are usually located in a security box (often called a "lockbox") or utility closet located  d(#on each floor, or at a single point in the basement. Each time the riser cable encounters a tap its signal  d(#strength decreases. In addition, the strength of a signal diminishes as the signal passes through the coaxial  d(#Lcable. As a result, cable wiring often requires periodic amplification within an MDU to maintain picture  d(#quality. Amplifiers are installed at periodic intervals along the riser based upon the number of taps and  d(#the length of coaxial cable within the MDU. Noncable video service providers typically employ a similar  d(#inside wiring scheme, except that many of them (e.g., multichannel multipoint distribution services  d(#<("MMDS"), satellite master antenna services ("SMATV") and direct broadcast satellite ("DBS") providers)  d(#use wireless technologies to deliver their signal to an antenna on the roof of an MDU, and then run their riser cable down to taps and dedicated home run wires from the roof.  S-   13.` ` In the Cable Wiring Order, we said that it was not "necessary or appropriate under the  S- d(#statute" to apply our cable home wiring rules prior to the time the customer terminates cable service.T) (] {O`#-ԍCable Wiring Order, 8 FCC Rcd at 1435.T  d(#\We noted that the plain language of Section 624(i) refers only to the disposition of cable home wiring  d(#/after termination of service, and that cable home wiring is different from telephone wiring in that, for  d(#>example, cable operators have the responsibility to prevent signal leakage, a responsibility telephone"R ),`(`(88"  S- d(#companies do not have.t*(] {Oh-ԍId. at 1436; see 47 C.F.R.  76.605(a) and 76.61076.617.t We also cited the House Report on the 1992 Cable Act which stated that  d(#Section 16(d) itself "does not address matters concerning the cable facilities inside the subscriber's home  S-prior to termination of service."+Z(] {O- d(#ԍCable Wiring Order, 8 FCC Rcd at 1436 n.13 (citing H.R. Rep. No. 628, 102d Cong., 2d Sess., at 118 (1992) ("1992 House Report")). Also in the Cable Wiring Order, the Commission stated:  X[a]lthough we generally believe that broader cable home wiring rules could foster  competition and could potentially be considered in the context of other proceedings,  because of the time constraints under which we must promulgate rules as required by the  S-Cable Act of 1992, we decline to address such rule proposals in this proceeding.:,(] {O> -ԍId. at 1436.:   S-  14.` ` In January 1996, the Commission issued the Cable Home Wiring Further Notice.8-F(] yO-ԍ11 FCC Rcd 4561.8 Among  d(#other things, the Commission clarified that, during the initial telephone call in which a subscriber  d(#jvoluntarily terminates cable service, if the operator owns and intends to remove the home wiring, it must  d(#inform the subscriber: (1)that the cable operator owns the home wiring; (2)that it intends to remove the  d(#home wiring; (3)that the subscriber has a right to purchase the home wiring; and (4) what the perfoot  d(#jreplacement cost and total charge for the wiring would be, including the replacement cost for any passive  d(#ysplitters attached to the wiring on the subscriber's side of the demarcation point. Where an operator fails  d(#to adhere to these procedures, it is deemed to have relinquished immediately any and all ownership  d(#interests in the home wiring, and thus, is not entitled to compensation for the wiring and may make no  S4- d(#subsequent attempt to remove it or restrict its use.:.4(] {O-ԍId. at 4572.: If the cable operator informs the subscriber of his  d(# or her rights and the subscriber agrees to purchase the wiring, constructive ownership over the home  d(#wiring transfers immediately to the subscriber, who may authorize a competing service provider to connect  S- d(#with and use the home wiring./h (] yO- d(#ԍThe alternative video programming service provider is free to reimburse the subscriber for the cost of the home  {O-wiring. Id. at n.52. If, on the other hand, the subscriber declines to purchase the home  d(#Mwiring, the operator has seven business days to remove the wiring or make no subsequent attempt to  Sl-remove it or restrict its use.:0l (] {O -ԍId. at 4574.:  S- 15.` ` The Cable Home Wiring Further Notice also requested comment on certain issues  d(#/pertaining to home wiring. These issues included: (1) whether cable operators should be required to  d(#zallow a building owner to purchase loopthrough home wiring where all subscribers on a loop want to  d(#switch to a new video service provider; (2) whether our home wiring rules should apply when an MDU  d(#owner terminates service for the entire building; (3) the disposition of cable home wiring when a  d(#[subscriber terminates cable service, elects not to purchase the wiring and vacates the premises within the  d(#time period the operator has to remove the home wiring; and (4) whether, when a subscriber voluntarily". T 0,`(`(88"  d(#jterminating service does not own the premises, the premises owner should have the right to purchase the  S-home wiring if the subscriber declines to purchase it.=1(] {O@-ԍId. at 458283.=  S- 16.` ` Also in January 1996, the Commission issued the Inside Wiring Notice, where we sought  d(#\comment on whether and how we should revise our current telephone and cable inside wiring rules to  d(#reflect these new realities and promote competition, by ensuring that the Commission's inside wiring rules  S- d(#continue to facilitate the development of new and diverse services for the American public.W2Z(] {O -ԍInside Wiring Notice, 11 FCC Rcd at 4550.W In particular,  d(#we sought comment on whether it is technically and competitively desirable to create a uniform set of  d(#inside wiring rules that would apply to telephone companies and cable operators alike, or, in the  d(#alternative, that would apply according to the technical characteristics of the service e.g., narrowband  Sr- d(#or broadband43Xr(] yO - d(#ԍNarrowband services typically require only a small amount of radio frequency spectrum (e.g., a phone  d(#[conversation) where as broadband services commonly use a large portion of radio frequency spectrum (e.g., a multichannel video system).4 or the type of wiring used e.g., fiber optics, coaxial cable or twistedpair wiring.  d(#Specific issues on which we sought comment include: (1)the location of the demarcation point; (2)the  d(#legal and practical impediments faced by telecommunications service providers in gaining access to  d(#[subscribers; (3)subscriber ownership of, or access to, inside wiring; (4)technical connection parameters;  d(#(5)issues arising from the dual regulation of inside wiring by federal and local authorities; (6)the  d(#regulation of telephone simple and complex inside wiring, and of residential and nonresidential wiring;  S -and (7)the regulation of customer premises equipment used to receive cable and telephone service.W4 (] {O.-ԍInside Wiring Notice, 11 FCC Rcd at 4550.W  S2- 17.` ` In addition, as described below, the Commission issued the Inside Wiring Further Notice  d(#in August 1997 to request comment on proposed procedures for the disposition of home run wiring in  d(#MDUs when an MDU owner decides to terminate service for the entire building and when an MDU owner  d(#is willing to permit two or more video service providers to compete for subscribers in the MDU on a unit S-byunit basis.5(] {O-ԍInside Wiring Further Notice, FCC 97304, 62 FR 46453 (released August 28, 1997).  S- III.REPORT AND ORDER  S-A.` ` Disposition of Home Run Wiring (#`  S|-X` ` 1. Background (#  S,-XX` ` X a.XCommission Proposal(#  S- R18.` ` In the Inside Wiring Further Notice, we sought comment on a proposal to establish  d(#procedures for buildingbybuilding disposition of the home run wiring (where the MDU owner decides" 0 5,`(`(88-"  d(#to convert the entire building to a new video service provider) and for unitbyunit disposition of the home  d(#run wiring (where an MDU owner is willing to permit two or more video service providers to compete  d(#=for subscribers on a unitbyunit basis) where the MDU owner wants the alternative provider to be able  S- to use the existing home run wiring.hhC The Commission's proposal was a modified version of a  d(#Mprocedural mechanism proposed by ICTA, which ICTA argued would accomplish many of the same  S8-objectives as moving the cable demarcation point.6\8(] {O- d(#KԍSee ICTA Comments at 29; see also Ex Parte Letter from Treg Tremont, Winston & Strawn, on behalf of  d(#ICTA, to William F. Caton, Acting Secretary, Federal Communications Commission (April 16, 1997). For a fuller  {O2-description of ICTA's proposal, see paras. 1517 of the Inside Wiring Further Notice.  S- 19.` ` We generally proposed that, under our buildingbybuilding procedures, where the  d(# incumbent service provider owns the home run wiring in an MDU and does not (or would not at the  d(#jconclusion of the notice period) have a legally enforceable right to remain on the premises, and the MDU  d(#owner wants to be able to use the existing home run wiring for service from another provider, the MDU  d(#owner may give the incumbent service provider a minimum of 90 days' notice that the provider's access  d(#Lto the entire building will be terminated. The incumbent provider would then have 30 days to notify the  d(#zMDU owner in writing of its election to do one of the following for all the home run wiring inside the  d(#MDU: (1) to remove the wiring and restore the MDU to its prior condition by the end of the 90day  S - d(#notice period; (2) to abandon and not disable the wiring at the end of the 90day notice period;7 (] yO4- d(#ԍUnder our proposal, if the incumbent elects to abandon the wiring, its ownership would be determined as a  {O-matter of state law. Inside Wiring Further Notice at n.98. or (3) to sell the wiring to the MDU owner.  S0- 220.` ` We also generally proposed that, under the unitbyunit procedures, where the incumbent  d(#video service provider owns the home run wiring in an MDU and does not (or would not at the conclusion  d(#Lof the notice period) have a legally enforceable right to maintain its home run wiring on the premises, the  d(#yMDU owner may permit multiple service providers to compete headtohead in the building for the right  d(#to use the individual home run wires dedicated to each unit. Where an MDU owner wishes to permit such  d(#0headtohead competition, the MDU owner would have to provide at least 60 days' notice to the  S@- d(#[incumbent provider of the owner's intention to invoke the following procedure.8Z@F(] yO&- d(#iԍUnder our proposal, the MDU owner would also be required to notify the incumbent provider at this time as  d(#wto whether the MDU owner or the alternative provider will purchase the home wiring within each individual dwelling  {O-unit if and when a subscriber declines to purchase the home wiring under our rules. Id. at n.102. The incumbent service  d(#Lprovider would then have 30 days to provide the MDU owner with a written election as to whether, for  d(#all of the incumbent's home run wires dedicated to individual subscribers who may later choose the  d(#alternative provider's service, it would: (1)remove the wiring and restore the MDU to its prior condition;  S-(2) abandon the wiring without disabling it;9h (] yO"- d(#iԍAgain, under our proposal, if the incumbent elects to abandon the wiring, its ownership would be determined  {Op#-by state law. Id. at n.103. or (3) sell the wiring to the MDU owner.: (] yO%- d(#iԍAs in the buildingbybuilding situation, we proposed to allow the alternative provider to purchase the home  {O%-run wiring if the MDU owner refuses to purchase it. Id. at n.104. "x :,`(`(88"Ԍ S-  21.` ` After completion of this initial process, a provider's election would be carried out if and  d(#when the provider is notified either orally or in writing that a subscriber wishes to terminate service and  d(#that an alternative service provider intends to use the existing home run wire to provide service to that  S- d(#particular subscriber.;(] yO- d(#,ԍWe also proposed to permit the alternative service provider or the MDU owner to act as the subscriber's agent  {O-in providing notice of a subscriber's desire to change services. Id. at para. 39. We proposed that, at that point, a provider that has elected to remove its home  d(#run wiring would have seven days to do so and to restore the building to its prior condition. We proposed  d(#that if the current service provider elected to abandon or sell the wiring, the abandonment or sale would  d(#Mbecome effective seven days from the date it receives a request for service termination or upon actual service termination, whichever occurs first.  S-  22.` ` We expressed a preference that, where the incumbent provider elects to sell the wiring in  d(#either the buildingbybuilding or the unitbyunit context, the price be determined through private  SH - d(#negotiations.C<H "(] {O -ԍId. at paras. 37, 40.C We also sought comment, however, on whether the Commission should establish broad  d(#guidelines, a default price or a general rule or formula if market forces are insufficient to ensure a  S - d(#reasonable price.8= (] {OL-ԍId. at 37.8 We proposed that, if the parties could not agree on a price during the 30day  d(#negotiation period, the incumbent provider would be required to elect one of the other two options (i.e.,  S - d(#.abandonment or removal).<> F(] {O-ԍId. at 38, 40.< We sought comment on whether we should impose penalties on incumbent  S -providers that elect to remove their home run wiring and then fail to do so.8? (] {O-ԍId. at 36.8  S0-XX` ` X b.XComments(#  S- 223.` ` Several parties offer general support for the Commission's disposition of home run wiring  S- d(#proposals.w@Zj (] {O- d(#;ԍSee, e.g., Further Comments of Building Owners, et al., at 12; Further Comments of Community Associations  d(#Institute at 12, 4; Further Reply of Community Associations Institute at 1; Further Reply of Info. Tech. Industry Council at 2; Further Reply of ICTA at 78; Further Reply of Telebeam at 2.w For example, GTE asserts that the Commission's proposals would resolve current  S- d(#uncertainties over wiring ownership and would foster competition.A (] {O - d(#ԍSee Further Comments of GTE at 12; see also Further Comments of Heartland Wireless at 3; Further Comments of Skyzone at 1. Ameritech and SBC state that the  Sh- d(#zCommission's proposals would promote competition and customer choice.kBh(] yO#-ԍFurther Comments of Ameritech at 12; Further Comments of SBC at 2.k OpTel believes that the  S@- d(#proposed disposition procedures would reduce entry barriers and increase competition.JC@v(] yOV&-ԍFurther Comments of OpTel at 3, 5.J Certain cable"@C,`(`(88"  d(#interests concede that the proposed procedures for the unitbyunit disposition of home run wiring would  S-promote competition and consumer choice.D(] {O@-ԍSee Further Comments of Adelphia, et al., at 18; Further Comments of Time Warner at 40.  S- _24.` ` Cable interests generally argue that the Commission lacks statutory authority to adopt the  S`- d(#[proposed procedures.wEZ`Z(] {OZ- d(#<ԍSee Further Comments of Adelphia, et al., at 2; Further Comments of CATA at 38; Further Comments of  d(#YComcast, et al., at 1314; Further Comments of Jones Intercable, et al., at 27; Further Comments of NCTA at 23, 613; Further Comments of TCI at 2, 48; Further Comments of Time Warner at 4962.w They also claim that the procedures will not further Congressional objectives or  d(#the Commission's stated goals of promoting consumer choice and competition in the multichannel video  S- d(#programming delivery marketplace.F|(] {O, - d(#ԍSee, e.g., Further Comments of CATA at 8 (proposed procedures "do anything but protect the subscriber,  d(#because they discourage new entrants from installing a second wire that would increase subscriber choice and head d(#tohead competition"); Further Comments of Comcast, et al., at 1314 (the only one that will have any additional  d(#choice of MVPDs is the MDU owner); Further Comments of Time Warner at 3, 78, 1520 (proposal will not  d(#enhance consumer choice and, contrary to Congressional policies, they will encourage the removal and destruction of cable facilities). NCTA, for example, claims that Congress did not intend for the  d(#Commission's rules to deal with MDU wiring outside the individual subscriber's premises, and that the  d(#rules do nothing to achieve their intended purpose of bringing order and certainty to the disposition of  S-home run wiring.MG (] yO.-ԍFurther Comments of NCTA at 710, 14.M  SH - 25.` ` GTE appears to support the Commission's proposed time frames for the procedures,  d(#claiming in its comments that they would afford incumbents an adequate opportunity to evaluate their  S - d(#options, without causing unnecessary delay.H (] {O- d(#xԍFurther Comments of GTE at 67. But see Further Reply of GTE at 1718 (endorsing ICTA's proposals for shorter time frames). Comcast, et al., contend that the time periods under the  d(#.procedures must be flexible because the incumbent may need more time to remove the wiring or the new  S - d(#<MVPD may not be ready to provide service.VI (] yO(-ԍFurther Comments of Comcast, et al., at 1619.V Other commenters urge the Commission to shorten the time  S - d(#yperiods.JD p(] {O- d(#ԍSee Further Comments of ICTA at 78; Further Comments of RCN at 13; Further Comments of WCA at 1213;  d(#Further Comments of Heartland Wireless at 4; Further Comments of SBC at 34; Further Comments of Ameritech  d(#at 24; Further Comments of Leaco at 34; Further Comments of Skyzone at 1; Further Comments of Echostar at  d(#23; Further Comments of Building Owners, et al., at 7; Further Reply of ICTA at 89; Further Reply of Telebeam  {O"- d(#at 5; Further Reply of Media Access/CFA at 18; Further Reply of Ameritech at 910. But see Further Reply of Time  d(#YWarner at 1820 (shortening deadlines is a transparent attempt to burden incumbent's ability to protect its property  d(#rights); Further Reply of Jones Intercable, et al., at 4 (30 days is not too long to assess rights and take steps necessary to protect them or transfer wiring); Further Reply of Cox at 6.  For example, ICTA proposes shortening the time frame for unitbyunit dispositions of home  d(#run wiring. ICTA recommends giving MDU owners 15 days to provide notice to the incumbent that it  d(#intends to allow a second provider access. The incumbent would then have to provide its written election  d(#!notice by the end of that same 15day period. An abandonment election would become effective"|J,`(`(88"  d(#immediately and a removal election would have to be implemented within seven days after the second  d(#provider gives notice to the incumbent that the replacement wire is installed and functional. ICTA  d(#/proposes that, under a sale election, the parties would have 30 days to negotiate a price and, after an  d(#=agreement is reached, the parties would have seven days to effectuate the sale on a per unit basis if there  d(#has been no lump sum purchase. If within the 30day period, negotiations are terminated or if the 30day  d(#0period closes, the incumbent would have seven days to elect removal or abandonment. To speed  d(#negotiations, ICTA suggests that the incumbent provider be required to include its asking price at the time  S-of its written election for a sale.HK(] yOP-ԍFurther Comments of ICTA at 78.H  S- A26.` ` Community Associations Institute, on the other hand, suggests that a longer notice period  Sp- d(#might be appropriate for deciding the sale of wiring and negotiating a price.LpX(] yOh - d(#ԍFurther Comments of Community Associations Institute at 1114; Further Reply of Community Associations Institute at 910. Community Associations  d(#.Institute suggests that community association boards be allowed to make an initial election regarding the  d(#desire to purchase wiring on day 30, or as soon thereafter as the association board is able to meet, and  d(#that the negotiation period be extended to 60 days after the date of the board's decision with transfer of  d(#/ownership on the earlier of (1) 30 days following the end of the negotiation period, or (2) the date of  S - d(#actual service termination.cM (] yO-ԍFurther Comments of Community Associations Institute at 13.c Community Associations Institute also believes that, under the unitbyunit  d(#procedure for the disposition of home run wiring, MDU owners should be allowed to decide whether they  d(#or the alternative provider will purchase the wiring when the subscriber declines to do so on day 60, after  S0-they have received the per foot replacement cost from the incumbent, rather than on day one.;N0@(] {O-ԍId. at 1314.;  S- 27.` ` With regard to imposing penalties for an incumbent's failure to fulfill a removal election,  d(#SBC argues that the incumbent's desire to maintain good will in the community obviates the need to adopt  S- d(#such penalties.GO(] yO-ԍFurther Comments of SBC at 45.G Several commenters, however, recommend imposing steep fines on cable operators that,  d(#Lin an effort to discourage MDU owners from switching providers, falsely elect the removal option when  S@- d(#ythey have no intention of removing the wire. P@b (] {OB- d(#YԍSee Further Comments of WCA at 57 (proposing a minimum forfeiture of $500 per unit and a minimum total  d(#yforfeiture of $27,000); Further Comments of Heartland Wireless at 56 (endorsing WCA's proposal); Further  d(#wComments of Ameritech at 56 (incumbents that elect to remove their wiring and then abandon it should be required  d(#;to pay the alternative provider three times the amount the alternative provider paid to install a second set of home  d(#Zrun wires); Further Comments of RCN at 1314 (suggesting a fine of $25,000 per day for continuing violations);  d(#Further Comments of OpTel at 4 (asserting that the Commission should initiate forfeiture proceedings in cases where  d(#MVPDs willfully or repeatedly mislead others with respect to the disposition of home run wiring); Further Comments  d(#-of ICTA at 89 (suggesting a minimum fine of $27,000 each time an incumbent fails to honor its election and a  d(#hminimum fine of $15,000 each time an incumbent fails to comply with a time deadline); Further Comments of GTE  d(#at 910 (stating that, if an alternative provider relies on an incumbent's false claim that it will remove the wiring,  d(#the incumbent should be required to reimburse the alternative provider for all costs incurred in installing duplicative"'O,`(`('"  d(#>cable wiring); Further Comments of CEMA at iii, 7, 9, 14 (arguing that, if the proposal is to succeed, the  d(#Commission must implement enforcement mechanisms such as the imposition of penalties to deter misuse of the  d(#proposed procedural mechanisms); Further Comments of DIRECTV at 1213 (arguing that, while a monetary penalty  d(#may help to discourage some incumbent operators from electing to remove home run wiring and then abandoning  d(#it, the penalty will not inhibit incumbents that are simply attempting to threaten MDU owners with disrupted service  {Ox-or damage to the physical structure of the MDU); see also Further Comments of Summit at 1. Nat'l Assn. of Realtors recommends that the Commission"@BP,`(`(88c"  d(#give MDU owners the right to have incumbent service providers remove all wiring belonging to the  S-incumbent provider that cannot be used by the owner or the incoming provider.QB(] yO- d(#KԍFurther Comments of Nat'l Assn. of Realtors at 1 (stating that when providers abandon wiring, it forces the MDU owner to bear the cost of removal, and face the safety hazards associated with abandoned obsolete wiring).  S- 28.` ` In their reply comments, cable operators generally oppose any rule that would make an  d(#.election to remove irrevocable or that would impose any penalty on an incumbent's failure to remove its  d(#Lwiring after electing to do so. Time Warner and NCTA argue that to make a removal election irrevocable  S- d(#would interfere with the parties' ability to reach a negotiated settlement after such an election.R(] yOJ- d(#ԍFurther Reply of Time Warner at 1517 (also arguing that the ability to remove is not always within the sole control of the incumbent); Further Reply of NCTA at 1112. In  d(#\addition, NCTA argues that the Commission's existing complaint procedures can address the issue of  S-penalties on a casebycase basis.GS (] yOR-ԍFurther Reply of NCTA at 1112.G  Sp- `29.` ` Several parties support the adoption of a general rule requiring the parties to cooperate  d(#in good faith to ensure a seamless transition in order to protect new entrants against anticompetitive tactics  S - d(#[not otherwise covered by the Commission's rules.BTX (] yOB- d(#ԍFurther Comments of OpTel at 2, 5 n.7; Further Comments of RCN at 14; Further Comments of WCA at 11 d(#-12; Further Comments of Skyzone at 1 (the time periods set forth in the proposed procedures will help ensure a seamless transition between providers).B RCN proposes that an incumbent not be allowed to  d(#remove or disable any equipment until the earlier of the date upon which the alternative provider is ready  S - d(#to initiate service or 30 days after the incumbent elects to abandon or remove the wiring.U (] {O- d(#-ԍFurther Comments of RCN at 14; see also Further Comments of Building Owners, et al., at 78 (incumbent  d(#operators must have an obligation not only to cooperate but to provide service until the new provider is able to  d(#commence operations in the building); Further Comments of Community Associations Institute at 18 (rules should  d(#help ensure as seamless a transition between service providers as possible); Further Comments of EchoStar at 2  d(# (incumbent should be required to continue service until the expiration of the MDU owner or tenant notice termination  d(#date, unless both the incumbent provider and the alternative service provider agree in writing on a different date);  d(#JFurther Comments of Philips, et al., at 45, 1617 (Commission must require the incumbent to provide service until  d(#the new provider is in a position to offer full and complete service); Further Comments of Summit at 12 (incumbent  d(#should be required to continue service until a minimum of 90 days after the question of wiring ownership is decided,  d(#or earlier if the MDU owner requests earlier service termination); Further Comments of WCA at 12 n.23 (incumbents  d(#,should not be permitted to remove wiring until the new provider has installed its own wiring or to disable abandoned  {O%- d(#Zwiring). But see Further Reply of Time Warner at 2021 (with no valid contract, incumbent has no assurance of  d(#being compensated for service; especially unreasonable to require continuation of service until new provider builds  d(#facilities, which is beyond incumbent's control); Further Reply of Cox at 7 (if incumbent elected to remove wiring,">'T,`(`('" it is up to new provider to ensure seamless service, not incumbent). ICTA urges" XU,`(`(88 "  d(#the Commission to clarify that "any service termination by the incumbent provider prior to the end of the  d(#established date certain cannot abrogate any contractual right of the MDU owner and that such termination  d(#?cannot occur in advance of the alternative service provider's initiation of service" (unless both the  S- d(#incumbent and alternative provider agree in writing on a different date certain).HVX(] yO-ԍFurther Comments of ICTA at 35.H ICTA argues that  d(#=allowing the incumbent to terminate service before the end of the notice period would cause a disruption  S8- d(#in service and thus discourage MDU owners from switching providers.1W8(] {O -ԍId.1 Building Owners, et al., suggest  d(#that, in order to assure proper performance during removal of the wiring and restoration of the building,  d(#Lthe Commission require that the incumbent post a security bond worth twice the value the operator sets  S-for the wiring.xXZz(] {O - d(#ԍFurther Comments of Building Owners, et al., at 45; see also Further Comments of Community Associations  d(#,Institute at 1415; Further Comments of ICTA at 56; Further Comments of RCN at 1415 (post bond worth three times the cost of removal and restoration); Further Reply of Media Access/CFA at 18.x  Sp-  _30.` ` DIRECTV believes that in order for the proposed rules to be effective: (1) the incumbent  d(#must remove the wiring in its entirety without disabling the ability of other providers to connect new home  d(#run wiring; (2) incumbents must be required to coordinate removal of the home run wiring with the MDU  d(#owner so that the new provider can lay new wiring before the old wiring is removed; (3) restoration  d(#=should not occur until the new home run wiring is installed; and (4) the MDU owner must be allowed to  d(#restore the building itself and charge the incumbent all reasonable restoration costs, if the incumbent  S -completes removal before the new MVPD is ready to replace the wiring.MY (] yO-ԍFurther Comments of DIRECTV at 1415.M  S0- P31.` ` In reply, NCTA argues that state courts should decide whether and in what circumstances  d(#incumbents have a duty to restore a building after termination, and whether and to what extent damages  S- d(#\are appropriate.Z, (] {O- d(#JԍFurther Reply of NCTA at 1213; see also Further Reply of Jones Intercable, et al., at 5 (private contracts and state law already provide MDU owners with adequate modes of protection against property damage by MVPDs). Time Warner proposes that, instead of a restoration requirement, the Commission  d(#Msimply require the removing MVPD to "repair any damages to the MDU building directly caused by  d(#[negligent removal of such wiring," similar to the standard in Section 621(a)(2)(C) of the Communications  Sh- d(#Act.K[h (] yO!-ԍFurther Reply of Time Warner at 18.K Cable operators argue that the proposal to require a performance bond is merely an effort to restrict  S@- d(#kthe incumbent's ability to remove the wiring, in the hope of receiving a windfall,i\@(] yO#-ԍFurther Reply of Time Warner at 1718; Further Reply of TCI at 7.i and that there is no  S-evidence that failure to repair damage is a problem.x](] yO^&-ԍFurther Reply of Time Warner at 1718; Further Reply of Comcast, et al., at 78.x "6],`(`(88R"Ԍ S- o32.` ` Media Access/CFA argues that because the removal option would allow incumbents to  d(#add cost and delay to the commencement of an alternative service, removal or abandonment should not  d(#become options unless the subscriber, MDU owner, and alternative provider have declined to purchase  S- d(#the wiring.,^Z(] {O- d(#ZԍFurther Comments of Media Access/CFA at 1416; see also Further Comments of DIRECTV at 11; Further  d(#iReply of Nat'l Rural Telecom. Coop. at 45 (removal should not be an option); Further Reply of Bell Atlantic at 34 (same)., GTE argues that since access to molding and conduits is essential to effectuate access to  d(#[cable wiring, the Commission must clarify that incumbents are required to transfer or relinquish all rights  S8-in molding or conduit when they sell, remove, or abandon their wiring.I_8(] yO -ԍFurther Comments of GTE at 1516.I  S- 2 33.` ` DIRECTV believes that, if the Commission fails to move the demarcation point, it should  d(#at least apply the rules adopted for home wiring to home run wiring so that cable operators will be  S- d(#required to offer to sell home wiring to the subscriber at the replacement cost of the wire.J`z(] yO-ԍFurther Comments of DIRECTV at 10.J DIRECTV  d(#would define the replacement cost for wiring tendered at the conclusion of the contract term as the salvage  d(#value, while it would define the replacement cost for wiring tendered at any other time as the wholesale  S - d(#replacement cost.=a (] {O-ԍId. at 1011. = DIRECTV states that the rules should also provide the option for an incumbent to sell  d(#=the wiring at a nominal price or abandon it, and that removal should only occur after an offer for sale has  S -been declined.:b (] {O -ԍId. at 13. :  S - _!34.` ` Media Access/CFA claims that, by impeding viewers' access to a multiplicity of news and  d(#information sources, the proposed framework would contravene the First Amendment, Section 624 of the  S0- d(#Communications Act, and Section 207 of the 1996 Act.Tc0. (] yO-ԍFurther Comments of Media Access/CFA at 23.T Media Access/CFA argues that this proceeding  d(#and the Commission's Section 207 proceeding are interdependent and must be considered together because  d(#/a viewer's ability to install an overtheair reception device under Section 207 is meaningless without  S- d(#jaccess to inside wiring.d (] {O- d(#ԍId. at 47; see also Further Reply of Nat'l Rural Telecom. Coop. at 34 (MDU residents are entitled to  d(#subscribe to DBS service); Further Comments of Philips, et al., at 24 (arguing that the rules resulting from  d(#implementation of Section 207 and the inside wiring provisions must work together if they are to succeed); Further  d(#Comments of DIRECTV at 34 (proposing that the Commission rule in either this proceeding or in the proceeding  d(#<under Section 207 that MDU owners have to make one or more alternative MVPD services available to building residents). Similarly, NAB argues that the Commission's proposals overlook the fact that  d(#{Section 207 grants individual viewers the right to access overtheair broadcast signals including, if  Sh-necessary, via a rooftop antenna.Geh8(] yO@&-ԍFurther Comments of NAB at 57.G "@e,`(`(88"Ԍ S-X X` ` 2.X Discussion (#  S-XX` ` X a.XThe MDU Competitive Environment(#  S`-  B"35.` ` We continue to believe, as discussed at length in the Inside Wiring Further Notice, that  d(#ymore is needed to foster the ability of subscribers who live in MDUs to choose among competing service  S- d(#providers.[f(] {Oz-ԍInside Wiring Further Notice at paras. 2531.[ As we found in the Inside Wiring Further Notice, we believe that one of the primary  d(#icompetitive problems in MDUs is the difficulty for some service providers to obtain access to the property  S- d(#for the purpose of running additional home run wires to subscribers' units.>gZ(] {O -ԍId. at para. 25.> The record indicates that  d(#MDU property owners often object to the installation of multiple home run wires in the hallways of their  d(#Oproperties, for reasons including aesthetics, space limitations, the avoidance of disruption and  SL -inconvenience, and the potential for property damage.Rh L (] {O- d(#wԍSee, e.g., OpTel Reply Comments at 6; Media Access/CFA Comments at 57; Liberty Comments at 27; WCA  d(#Comments at 11, 13 (stating that space limitations often place a de facto cap on the number of competing video  d(# service providers that may serve an MDU property, such that a property owner often cannot give an alternative video  d(#,service provider the space necessary to compete in the building); Multimedia Development Comments at 15; ICTA  d(#YComments at 21 (stating that incumbent cable operators typically refuse to let an alternative video service provider  d(#share a hallway molding that contains the home run so that the alternative video service provider need not install  d(#wa second molding); DIRECTV Comments at 2 ("The MDU owners and tenants are typically unreceptive to assuming  d(#xthe cost and inconvenience of overbuild installations, which causes an intractable barrier to entry for new service providers.").R  S - _#36.` ` We also continue to believe that property owners' resistance to the installation of multiple  d(#sets of home run wiring in their buildings may deny MDU residents the ability to choose among  S - d(#competing service providers, thereby contravening the purposes of the Communications Act,iz (] {O - d(#ԍSee, e.g., Communications Act, 1, 47 U.S.C.  151 (Commission created "so as to make available, so far  d(#as possible, to all people of the United States . . . a rapid, efficient, Nationwide, and worldwide wire and radio  d(#;communications service"); Telecommunications Act of 1996 Conf. Report, S. Rep. 104230 (Feb. 1, 1996) ("1996  d(#Conference Report") at 1 (providing for "a procompetitive, deregulatory national policy framework designed to  d(#Zaccelerate rapidly private sector deployment of advanced telecommunications and information technologies and  d(#<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  d(#<particularly Section 624(i), which was intended to promote consumer choice and competition by permitting  d(#[subscribers to avoid the disruption of having their home wiring removed upon voluntary termination and  S4- d(#[to subsequently utilize that wiring for an alternative service.j4(] {O"- d(#,ԍSee Inside Wiring Further Notice at para. 26; see also 1992 House Report at 118; S.Rep. No. 92, 102d Cong.,  {O#- d(#<1st Sess., (1991) ("1992 Senate Report") at 23; Cable Home Wiring Further Notice, 11 FCC Rcd at 4570 (citing  {Oh$- d(#Cable Wiring Order, 8 FCC Rcd at 1435). We make no findings here regarding the rights of viewers under Section  d(#207 of the 1996 Act to receive video programming services. Those rights are the subject of an ongoing Commission  {O%- d(#proceeding. See Report and Order, Memorandum Opinion and Order, and Further Notice of Proposed Rulemaking,  d(#CS Docket No. 9683 and IB Docket No. 9559 (In the Matter of Preemption of Local Zoning Regulation of Satellite  d(#Earth Stations and In the Matter of Implementation of Section 207 of the Telecommunications Act of 1996,"'i,`(`('"  d(#[Restrictions on OvertheAir Reception Devices: Television Broadcast Service and Multichannel Multipoint Distribution Service), 11 FCC Rcd 19276 (1996). We continue to believe that the impact is"4 j,`(`(88"  d(# substantial. As of 1990, there were almost 31.5 million multiple dwelling units in the United States,  S- d(#Kcomprising approximately 28% of the total housing units nationwide.k (] {O-ԍSee Liberty Comments at Tables 14 (citing 1990 Data from the Bureau of the Census). Moreover, the trend between 1980  d(#and 1990 indicates that the number of MDUs is growing at a much faster rate than the number of single  S- d(#jfamily dwellings.1l(] {O-ԍId.1 Data also shows that MDUs make up between 32% and 84% of the housing market  S`-in cities with the greatest numbers of households receiving cable service.zm`D(] {OD -ԍId. at 5 (citing 1 Cable & Broadcasting Yearbook 1995 at D75 (1995)).z  S- $37.` ` Although some cable operators argue that the current cable demarcation point rule should  S- d(#be maintained in order to encourage property owners to permit the installation of multiple sets of wires,Yn(] {O^-ԍSee, e.g., Time Warner Reply Comments at 3.Y  d(#the record does not demonstrate that the current cable home wiring rules, having been in place for four  d(#years, provide adequate incentives for MDU owners to permit the installation of multiple home run  Sp- d(#=wires._oph (] {Ox-ԍSee Inside Wiring Further Notice at paras. 2730._ In its most recent comments, Time Warner asserts that over 104 MDU buildings in Manhattan  d(#have opted to allow twowire competition in the first eight months of 1997, bringing the total to 247 such  S - d(#MDUs.Tp (] yO-ԍFurther Comments of Time Warner at 11 n.21. T While we do not dispute Time Warner's count, we note that Time Warner has not provided  d(#kany estimate of the total number of MDUs in Manhattan, nor has Time Warner challenged our stated  S - d(#belief in the Inside Wiring Further Notice that the presence of multiple wires in MDUs is substantially  d(#due to the existence of state mandatory access statutes (such as New York's) and not to a desire for multi S - d(#wire competition on the part of property owners.q (] {O- d(#ԍSee Inside Wiring Further Notice at paras. 2731; see also Further Comments of Cablevision Systems at 6  d(#;(stating that the Commission misconstrued cable operators' arguments and evidence regarding twowire competition  d(#in states with mandatory access statutes and that they did not argue that MDU owners favor twowire competition,  d(#but only that they submitted evidence to show that twowire competition is possible); Further Comments of Adelphia,  d(#et al., at 24; Further Comments of Jones Intercable, et al., at 10; Further Comments of Time Warner at 12 ("multiwire competition in MDUs flourishes in mandatory access states").  Even assuming that this belief is incorrect and MDU  d(#Kowners perceive a competitive benefit to twowire competition, there is nothing in the procedures we adopt  d(#today that will prevent or impair an MDU owner's ability to insist that all MVPDs install their own home run wiring.  S- %38.` ` As set forth in the Inside Wiring Further Notice,Wr(] {O^%-ԍInside Wiring Further Notice at para. 31.W we believe that disagreement over  d(#ownership and control of the home run wire substantially tempers competition. The record indicates that,  d(#where the property owner or subscriber seeks another video service provider, instead of responding to"lr,`(`(88"  d(#/competition through varied and improved service offerings, the incumbent provider often invokes its  S- d(#alleged ownership interest in the home run wiring. s(] {O@- d(#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").  Incumbents invoke written agreements providing  S- d(#]for continued service,t"(] yOr- d(#ԍEx Parte Submission by Terry S. Bienstock and Philip J. Kantor, Bienstock & Clark, counsel for Comcast ("Comcast Ex Parte Submission"). perpetual contracts entered into by the incumbent and previous owner,uz(] yO- d(#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).  S- d(#=easements emanating from the incumbent's installation of the wiring,v(] {O - d(#iԍSee 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  S`- d(#become a fixture and remains the personal property of the incumbent,1w`, (] {O,-ԍId.1 or that the incumbent's investment  d(#in the wiring has not been recouped, and oral understandings regarding the ownership and continued  S- d(#provision of services.x (] {On- d(#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 agreements are frequently unclear, often having been entered into in an  d(#Lera of an accepted monopoly, and state and local law as to their meaning is vague. Invoking any of these  d(#reasons, incumbents often refuse to sell the home run wiring to the new provider or to cooperate in any  d(#ztransition. The property owner or subscriber is frequently left with an unclear understanding of why  d(#another provider cannot commence service. The litigation alternative, an option rarely conducive to  d(#-generating competition, while typically not pursued by the property owner or subscriber, can be employed  S - d(#\aggressively by the incumbent.cy (] yO-ԍOpTel February 4, 1997 Letter; Comcast Ex Parte Submission.c The result, regardless of the cable operators' motives, is to chill the competitive environment.  S -XX` ` X b.XProcedures for the Disposition of Home Run Wiring(#  SX- &39.` ` In this Order, we establish procedures for buildingbybuilding disposition of the home  d(#run wiring (where the MDU owner decides to convert the entire building to a new video service provider)  d(#and for unitbyunit disposition of the home run wiring (where an MDU owner is willing to permit two  d(#or more video service providers to compete for subscribers on a unitbyunit basis) where the MDU owner  d(#?wants the alternative provider to be able to use the existing home run wiring. We believe that our  d(#jprocedural mechanisms will not create or destroy any property rights, but will promote competition and  d(#consumer choice by bringing order and certainty to the disposition of the MDU home run wiring upon termination of service. "y,`(`(88S"Ԍ S- 3'40.` ` As we noted in the Inside Wiring Further Notice,Wz(] {Oh-ԍInside Wiring Further Notice at para. 33.W alternative video service providers  d(#\currently have no timely and reliable way of ascertaining whether they will be able to use the existing  S- d(#home run wiring upon a change in service.I{Z(] {O-ԍSee ICTA Comments at 3132.I As explained above, MDU owners are similarly unsure of  d(#their legal rights. Because of this uncertainty, an MDU owner seeking to change providers may be  d(#zconfronted with choosing among: (1)allowing the alternative provider to install duplicative home run  d(#wiring before it knows whether the incumbent will abandon the existing home run wiring when it leaves;  d(#.(2)waiting to see what the incumbent does with the home run wiring when it leaves the building, risking  d(#La potential disruption in service to its residents; (3)staying with the incumbent provider; or (4) allowing  d(#the alternative provider to use the home run wiring and risking litigation. This dilemma can impede  d(#=competition by discouraging MDU owners from considering a change in service. The procedures we are  d(#adopting are intended to provide all parties sufficient notice and certainty of whether and how the existing  d(#{home run wiring will be made available to the alternative video service provider so that a change in  S" - d(#service can occur efficiently. We clarify that riser cable is not covered by the following procedures.V|" (] {O-ԍSee Further Comments of TCI at 4, 2122.V  d(#We conclude that establishing 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 -` `  ` (1)hhCBuildingbyBuilding Procedures(#  S4-  ~(41.` ` We adopt the following rule: where the incumbent service provider owns the home run  d(#wiring in an MDU and does not (or will not at the conclusion of the notice period) have a legally  d(#Menforceable right to remain on the premises, and the MDU owner wants to be able to use the existing  d(# home run wiring for service from another provider, the MDU owner may give the incumbent service  S- d(#provider a minimum of 90 days' written notice}Z~(] yO- d(#ԍWe believe that it is reasonable to require, and thus our rules will require, that MDU owners that wish to avail  d(#themselves of these procedures notify the incumbent providers of termination of service for the entire building in  {OB-writing. See Further Comments of Jones Intercable, et al., at v, 1920. that the provider's access to the entire building will be  Sl- d(#terminated.~l(] yO- d(#ԍBy adopting this procedural mechanism, we do not intend to affect any contractual rights the parties may have to terminate service in a different manner. The incumbent provider will then have 30 days to notify the MDU owner in writing of its  d(#[election to do one of the following for all the home run wiring inside the MDU: (1) to remove the wiring  d(#Land restore the MDU consistent with state law within 30 days of the end of the 90day notice period or  S- d(#jwithin 30 days of actual service termination, whichever occurs first;" (] yO"- d(#JԍWe decline to adopt the proposal of Media Access/CFA that removal should not be an option unless the MDU  d(#owner, subscriber, and alternative provider all decline to purchase wiring. Further Comments of Media Access/CFA  {O$- d(#at 15; see also Further Comments of Summit at 1. We think this would prolong the process without accruing parallel benefits.  (2) to abandon and not disable the",`(`(88%"  S- d(#wiring at the end of the 90day notice period;. (] {Oh- d(#ԍAs we proposed in the Inside Wiring Further Notice, if the incumbent elects to abandon the wiring, its  {O2- d(#Kownership will be determined as a matter of state law. See Further Comments of Time Warner Comments at 64  d(#x(asking that the Commission use the phrase "leave the home wiring in place without disabling such wiring" rather  d(#than "abandon and not disable the wiring" because the term abandon has legal implications under state law and the  d(#xCommission should not interfere with state law). In addition, Time Warner asks the Commission to clarify what  d(#"abandon without disabling" means and to clarify that the operator should be permitted to remove its amplifiers, taps,  d(#splitters, etc., that are attached to but not part of the home run wiring. Further Comments of Time Warner at 14  d(#hn.25. We find that passive devices including splitters, as in the cable home wiring context, should be considered part  {O- d(#of the home run wiring. See 47 C.F.R.  76.5(ll). While the operator may remove its amplifliers or other active  d(#devices used in the wiring, it may do so if an equivalent replacement can easily be reattached. Our decision in this  d(#iproceeding assumes adherence to standards of good faith that are necessary elements of an orderly transition. In  d(#addition, we will require the party removing any active elements to comply with the notice requirements and other rules regarding the removal of home run wiring.  or (3) to sell the wiring to the  S- d(#\MDU owner. (] yO6- d(#ԍAlthough we decline to adopt GTE's proposal that incumbents must transfer or relinquish all rights in molding  {O- d(#or conduit when they sell, remove or abandon their wiring (see Further Comments of GTE at 1516), we will prohibit  d(#incumbent providers from using any ownership interests they may have in property located on or near the home run  d(#wiring, such as molding or conduit, to prevent, impede or in any way interfere with the ability of an alternative  {OX-MVPD to use the home run wiring. See 47 C.F.R.  76.802(j) (same prohibition with regard to cable home wiring). If the MDU owner refuses to purchase the home run wiring, the MDU owner may  d(#permit the alternative video service provider to purchase it. If the incumbent provider elects to remove  d(#.or abandon the wiring, and it intends to terminate service before the end of the 90day notice period, the  d(#.incumbent provider will be required to notify the MDU owner at the time of this election of the date on which it intends to terminate service.  S- 3)42.` ` Certain cable operators argue that the proposed procedures should not apply when an  S- d(#-MDU owner terminates service for an entire building.IZr(] yO- d(#-ԍFurther Comments of Adelphia, et al., at 1720, 30; Further Comments of Comcast, et al., at 48; Further  {O- d(#Comments of Time Warner at 3, 3435, 3941; see also Further Comments of Leaco at 23. But see Further Comments of Summit at 1.I These commenters assert that these circumstances  d(#?do not engender a competitive choice for each resident. We disagree that the buildingbybuilding  d(#procedural mechanism does not benefit consumer choice because it merely substitutes one MVPD for  d(#another. This argument assumes that any MVPD that serves the entire building has the ability to act like  d(#=an entrenched monopolist, without regard to the quality and quantity of the video service provided. We  d(#do not believe this assumption is valid. Generally, MVPDs encounter an environment in which the MDU  d(#owner must compete with similarlysituated MDU owners to attract and retain tenants. Commenters have  d(#ynot demonstrated that the type of video services offered is irrelevant to such competition among MDUs.  d(#[MVPDs competing for the right to serve the building generally will have to offer the mix of video service quality, quantity and price that will best help the MDU owner compete in the marketplace.  S-  A*43.` ` Where the incumbent provider elects to sell the home run wiring, we will allow the parties  d(#>to negotiate the price of the wiring. We agree with commenters that argue market forces will provide  d(#adequate incentives for the parties to reach a reasonable price, particularly in these circumstances where",`(`(88"  S- d(#the incumbent has no legally enforceable right to remain on the premises.. (] {Oh- d(#ԍSee Further Comments of ICTA at 67; Further Comments of Heartland Wireless at 6; Further Comments of  d(#RCN at 13; Further Comments of SBC at 46; Further Comments of GTE at 1011; Further Comments of OpTel  d(#iat 4; Further Comments of Building Owners, et al., at 34, 89; Further Reply of ICTA at 911; Further Reply of  {O- d(#<OpTel at 45; Further Reply of GTE at 1920. But see Further Comments of Adelphia, et al., at 2627; Further  d(#Comments of NCTA at 2224; Further Comments of Time Warner at 1315 (all claiming that because the incumbent  d(#must remove or abandon the wiring if negotiations fail, establishing the price by negotiation would give the MDU  d(#xowner and alternative providers undue leverage, and generally asserting that, if the MDU owner is not required to  d(#purchase the home run wiring, the MDU owner will stall negotiations, hoping that the incumbent provider will decide  d(#to abandon the wiring because removal and restoration would be too expensive, thus giving the wiring to the MDU  d(#owner for free); Further Comments of Summit at 1 (incumbent does not have the incentive to negotiate a fair price).  d(#Time Warner also contends that, because the incumbent would not want to let its competitor have the wiring for free,  d(#the Commission's proposed procedures encourage removal of wiring, which is contrary to Congressional goals.  {O -Further Comments of Time Warner at 1315, 38; see also Further Comments of Adelphia, et al., at 27. The parties will have 30 days  d(#from the date of the incumbent's election to negotiate a price for the home run wiring. The parties may  S- d(#.also negotiate to purchase additional wiring (e.g., riser cables) at their option.ZZ (] yO- d(#ԍAs stated above, our procedures do not apply to riser cable in that the incumbent provider is not required to  {O- d(#sell, remove or abandon its riser cable, but it does have the option of doing so if all parties agree. See Further Comments of TCI at 4, 2122. Z If the parties are unable  d(#Mto agree on a price, the incumbent will then be required to elect: (1) to abandon without disabling the  d(#wiring; (2) to remove the wiring and restore the MDU consistent with state law; or (3) to submit the price  S8- d(#determination to binding arbitration by an independent expert.8(] {O- d(#wԍSee Further Comments of Adelphia, et al., at 28; Further Comments of Time Warner at 3839 (if negotiations fail, the matter should be submitted to binding arbitration or alternative dispute resolution).  If the incumbent fails to comply with  d(#any of the deadlines established herein, it will be deemed to have elected to abandon its home run wiring  d(#at the end of the 90day notice period. If the incumbent service provider elects to abandon its wiring at  d(#Lthis point, the abandonment will become effective at the end of the 90day notice period or upon service  d(#termination, whichever occurs first. Similarly, if the incumbent elects at this point to remove its wiring  d(#and restore the building consistent with state law, it will have to do so within 30 days of the end of the 90day notice period or within 30 days of actual service termination, whichever occurs first.  S -  +44.` ` At this time we decline to establish a penalty for an incumbent provider that fails to  d(#remove wiring after electing to do so, or, for that matter, for any other party that violates our cable inside  d(#jwiring rules. As a result, we do not need to establish any particular penalty amounts. We think that our  d(#xprocedures and present and future opportunities provided by the market will afford all parties the necessary  d(#0incentives to create an effective and efficient transition. We expect all parties participating in the  d(#procedures for the disposition of home run wiring to cooperate and act in full compliance with our rules  d(#and the policies underlying them. Similarly, at this time we will not require the incumbent to post a  d(#performance bond prior to removal. There is not sufficient evidence to conclude that a significant problem will exist, or that MDU owners are unable to protect their interests pursuant to contract or state law.  Sh-  P,45.` ` If the incumbent chooses to abandon or remove its wiring, it must notify the MDU owner  d(#Lat the time of this election if and when it intends to terminate service before the end of the 90day notice  d(#period. In addition to this and other notice requirements, we will adopt a general rule requiring the parties":,`(`(88&"  S- d(#to cooperate to avoid service disruption to subscribers to the extent possible. (] yOh- d(#ԍWe believe that the current notification requirements, in conjunction with a general rule requiring a seamless  d(#transition, are sufficient to protect subscribers from lengthy service disruptions when switching providers. We decline  d(#to adopt commenters' suggestions that we require incumbents to continue service until the new provider is connected.  One of our overriding  d(#goals in this proceeding is to ensure as seamless a transition as possible. Our rules are premised on the  d(#good faith cooperation of all parties to protect against such disruption. We expect service providers to  d(#cooperate and to make all necessary efforts to minimize any service disruption when a transition is undertaken.  S-  -46.` ` If the parties are unable to agree on a price and the incumbent elects to submit to binding  d(#\arbitration, the parties will have seven days to agree on an independent expert or to each designate an  d(#Lexpert who will pick a third expert within an additional seven days. The independent expert chosen will  d(#be required to assess a reasonable price for the home run wiring by the end of the 90day notice period.  d(#We believe that it is not practical for the Commission to set a default price or formula that could apply  SH - d(#to the widely varying circumstances throughout the country. lH (] {O- d(#ԍSee Further Comments of Adelphia, et al., at 28; Further Comments of GTE at 1011; Further Comments of  d(#Heartland Wireless at 6; Further Comments of ICTA at 67; Further Comments of OpTel at 4; Further Comments  d(#of RCN at 13 (contending that a default price would skew negotiations); Further Comments of SBC at 46; Further  d(#Comments of Time Warner at 6, 4145 (contending that a default price is likely not to appropriately account for the  d(#"business value" or fair market value of the wiring and any Commission set price would become a price ceiling for  d(#the wiring, tilting the negotiations in favor of the MDU owner). But see the following comments suggesting that  d(#the Commission set various default prices or formulas: Further Comments of Ameritech at 45 and Further Reply  d(#of Ameritech at 1114 (pricing guidelines of $0.06 per foot); Further Comments of CATA at 1113 ($150 $300  d(#iper unit passed, based on actual cost to replace wiring, not original cost less amortization); Further Comments of  d(#Cablevision Systems at 1216 (at least $150 per unit passed, as opposed to per subscriber, representing estimate of  d(#: replacement cost rather than original cost less amortization); Further Comments of Jones Intercable, et al., at v, 1819  d(#<(replacement value, including some amount for labor, on a per dwelling unit basis); Further Comments of NCTA  d(#hat 24 (marketplace value); Further Comments of Summit at 1 (depreciated value or fair market value which is "equal  d(#to the cost to duplicate, reduced to equate the ages of the original and duplicated equipment"); Further Comments  d(#of TCI at 3, 1719 (three MDU categories of $72, $115 or $184 per unit passed, based on labor and material cost  d(#for installations in new buildings); Further Reply of Media Access/CFA at 1617 (supporting Ameritech's proposal);  d(#Further Reply of U.S. Wireless/Ohio Valley Wireless at 47 (default price of $1.00); Further Reply of NCTA at 11  d(#,(if default price set, it should reflect the replacement value of the wiring). NCTA states that any default price must  d(#xbe subject to de novo review by the courts in order to avoid an impermissible taking under the Fifth Amendment.  {Or- d(#Further Comments of NCTA at 24; see also Further Comments of Adelphia, et al., at 2829; Further Comments of Time Warner at 4144. We think that this process should help  d(#=ensure that the parties reach a fair price, while not creating a lengthy and complicated mechanism. If the  d(#.incumbent elects to submit the matter to binding arbitration and the MDU owner (or, in some cases, the  d(#alternative provider) refuses to participate, the incumbent will have no further obligations under our home run wiring disposition procedures.  SX-  .47.` ` We decline to adopt the proposal of Adelphia, et al., and Time Warner to require the  d(#MDU owner, rather than the incumbent provider, to elect: (1) to buy the wiring; (2) to pay to remove  S- d(#it; or (3) to allow the incumbent to leave the wiring in place and restrict others from using it.~(] yO'-ԍFurther Comments of Adelphia, et al., at 29; Further Comments of Time Warner at 3739.~ Similarly,"t,`(`(88"  d(#ywe decline to adopt the proposal of NCTA and others that, if the MDU owner refuses to buy the wiring  d(#yat an established default price, or if the MDU owner cannot demonstrate that the incumbent has failed to  d(#{negotiate in good faith, the procedures should terminate and the incumbent provider should not be  S- d(#obligated to abandon or remove the home run wiring.(] {O- d(#ԍFurther Comments of NCTA at 5, 2225; see also Further Comments of Jones Intercable, et al., at v, 19; Further Comments of TCI at 4, 1516, 1921; Further Reply of NCTA at 9. We believe that the binding arbitration option  d(#described above addresses these commenters' underlying concern that incumbents should be assured of  d(#receiving a reasonable price for the wiring. As we have noted, we think competition has been deterred  d(#{by prolonged assertions of ownership interest in the wiring by incumbents, not by MDU owners'  d(# reluctance to purchase the wiring. Our procedures are meant to bring the process of switching video service providers to an expeditious resolution.  Sp- n/48.` ` We will not adopt the suggestion of several cable operators that the proposed buildingby d(#building procedures not apply where the MDU owner receives any excess compensation for allowing the  S - d(#alternative provider into the premises,aX "(] yO- d(#ԍFurther Comments of Adelphia, et al., at 2226; Further Comments of Cablevision Systems at 1718; Further  d(#JComments of Comcast, et al., at 30; Further Comments of CATA at 1415; Further Comments of Jones Intercable, et al., at iv, 1011; Further Comments of Time Warner at 4, 3537.a or where the MDU owner bundles video service with rent.{ B(] yO-ԍFurther Comments of Adelphia, et al., at 22; Further Comments of Time Warner at 35.{ We  d(#do not believe that there is sufficient record evidence to establish that such practices are per se anticompetitive and, if they are, that market forces will not address them.  S -` `  X(2)hhCUnitbyUnit Procedures(#  S2- 049.` ` We adopt the following procedures for unitbyunit disposition of home run wiring.  d(#LWhere the incumbent video service provider owns the home run wiring in an MDU and does not (or will  d(#ynot at the conclusion of the notice period) have a legally enforceable right to maintain its home run wiring  d(#jon the premises, the MDU owner may permit multiple service providers to compete headtohead in the  d(#jbuilding for the right to use the individual home run wires dedicated to each unit. Where an MDU owner  d(#wishes to permit such headtohead competition, the MDU owner must provide at least 60 days' written  SB- d(#notice to the incumbent provider of the owner's intention to invoke the following procedure.B(] yO- d(#-ԍAs in the buildingbybuilding context, we believe that it is reasonable to require that MDU owners seeking to avail themselves of these procedures notify the incumbent in writing. The  d(#jincumbent service provider will then have 30 days to provide the MDU owner with a written election as  d(#to whether, for all of the incumbent's home run wires dedicated to individual subscribers who may later  d(#choose the alternative provider's service, it will: (1) remove the wiring and restore the MDU consistent  S- d(#jwith state law; (2) abandon the wiring without disabling it;* (] yOl#-ԍAgain, if the incumbent elects to abandon the wiring, its ownership will be determined by state law. or (3) sell the wiring to the MDU owner. (] yO$- d(#ԍAs in the buildingbybuilding situation, the MDU owner may permit the alternative provider to purchase the home run wiring if the MDU owner refuses to purchase it.  d(#In other words, the incumbent service provider will be required to make a single election for how it will  d(#handle the disposition of individual home run wires whenever a subscriber wishes to switch video service"R,`(`(88"  d(# providers; that election will then be implemented each time an individual subscriber switches service  S- d(#providers. (] yO@- d(#ԍAs in the context of buildingbybuilding dispositions of home run wiring, incumbent providers will be  d(#prohibited from using any ownership interests they may have in property on or near the home run wiring, such as  d(#molding or conduit, to prevent, impede, or in any way interfere with the ability of an alternative MVPD to use the home run wiring. If the MDU owner permits the alternative service provider to purchase the home run wiring,  d(#jthe alternative service provider will be required to make a similar election within this same 30day period  d(#for any home run wiring that the alternative provider subsequently owns (i.e., after the alternative provider  d(#has purchased the wiring from the current incumbent provider) and that is solely dedicated to a subscriber who switches back from the alternative provider to the incumbent.  S- P150.` ` In the Inside Wiring Further Notice, we tentatively concluded that it would streamline and  d(#expedite the process of changing service providers if alternative service providers and MDU owners were  S- d(#permitted to act as subscribers' agents in providing notice of a subscriber's desire to change services.W(] {O -ԍInside Wiring Further Notice at para. 39.W  Sr- d(#We continue to believe that this is the case.rB(] {OT- d(#ԍSee Further Comments of GTE at 89; Further Comments of ICTA at 3 n.1; Further Comments of OpTel at  {O- d(#5; Further Reply of ICTA at 15; see also Cable Home Wiring Further Notice, 11 FCC Rcd at 4572 (where the  d(#hCommission did not prohibit a subscriber from delegating to an agent the task of terminating service and authorizing  {O- d(#-the purchase of home wiring on his or her behalf). But see Further Comments of Comcast, et al., at 21; Further Comments of TCI at 4, 2224; Further Comments of Time Warner at 6, 4547. However, consistent with our intention not to "create or  SJ - d(#-destroy any property rights" by these procedures,WJ (] {O-ԍInside Wiring Further Notice at para. 32.W we will not create any new right of MDU owners and  S" - d(#Malternative providers to act on behalf of subscribers in terminating service." (] {OL- d(#xԍSee Further Comments of Jones Intercable, et al., at iv, 1112 (asking the Commission to clarify that it did not intend to create new agency law). Nor will we restrict the  S - d(#rights of such MDU owners and alternative providers under state law.$ (] {O~- d(#ԍSee Further Comments of Jones Intercable, et al., at 11 (the Commission should "adopt a hands off' policy  {OH- d(#Ywith respect to creating any implied agency"). But see Further Comments of Time Warner at 6, 45 (suggesting that  d(#-neither the MDU owner nor the alternative MVPD should be allowed to act as the subscribers' agent without the incumbent's consent). We therefore decline at this time  S - d(#=to adopt specific procedures to guard against unauthorized changes in service, i.e., "slamming."\ (] {OB - d(#ԍ"Slamming" is the unauthorized change of a consumer's chosen long distance service. SeeIn the Matter of  {O !- d(#Direct Impact Telecommunications, Inc. v. American Teletronics Long Distance, Inc., 12 FCC Rcd 4891, n.28 (1997). We use the term more generically here to mean an unauthorized change in any communications service.  Given  d(#that an unauthorized change of MVPDs would likely be apparent to consumers (e.g., differing channel  d(#lineups), we do not believe that slamming poses the same dangers in the video context as in the telephony" ,`(`(88y"  S- d(#context.$(] {Oh- d(#<ԍSee Further Reply of RCN at 11 (subscribers know immediately if their video service has been changed and  d(#can rectify the situation at once; also, there is no reason to believe that MDU owners would initiate or participate  {O- d(#;in slamming activities). But see Further Reply of Time Warner at 2728 (transparency of video slamming does not make it any better as a matter of policy, just easier to recognize). We will take additional steps to curb slamming if, once our new rules have become effective,  S-slamming becomes a problem.tZ(] {O,- d(#ԍSee Further Comments of Comcast, et al., at 21; Further Comments of Jones Intercable, et al., at 12; Further  d(#-Comments of TCI at 4; Further Comments of Time Warner at 4546 (all asking the Commission to adopt rules similar to those in the long distance telephone context to prohibit "slamming").t  S- 251.` ` As with the proposed buildingbybuilding procedures, we will permit the parties to  d(#negotiate for the sale of the home run wiring. If one or both of the video service providers elects to  d(#negotiate for the sale of the home run wiring it may own, the parties will have 30 days from the date of  d(#zsuch election to reach an agreement. During this 30day negotiation period, the incumbent, the MDU  d(#owner and/or the new provider may also work out arrangements for an upfront lump sum payment in lieu  d(#[of a unitbyunit payment. An upfront lump sum payment would permit either service provider to use  d(#the home run wiring to provide service to a subscriber without the administrative burden of paying  Sp-separately for each home run wire every time a subscriber changes providers.p(] yO- d(#ԍTime Warner suggests that, in the unitbyunit context, an upfront lump sum payment would be reasonable  d(#<whereby the first new MVPD would be required to pay the incumbent 50% of the fair market value of the wiring  d(#;(established through negotiation or binding arbitration), with subsequent MVPDs being required to pay their pro rata  d(#share, and each MVPD would have the equal right to use the home run wiring when a particular resident requests  {O- d(#that MVPD's service. Further Comments of Time Warner at 40; see also Further Comments of Comcast, et al., at 2122.  S -  352.` ` If the parties cannot agree on a price, the provider that has elected to sell the wiring will  d(#kbe required to elect: (1) to abandon without disabling the wiring; (2) to remove the wiring and restore  d(#[the MDU consistent with state law; or (3) to submit the price determination to binding arbitration by an  S - d(#Lindependent expert." P (] {O- d(#wԍSee Further Comments of Adelphia, et al., at 28; Further Comments of Time Warner at 3839 (if negotiations  d(#fail, the matter should be submitted to binding arbitration or alternative dispute resolution). Again, if the MDU  d(#.owner (or, in some cases, the alternative provider) refuses to submit the issue to arbitration, the incumbent's obligations under our procedures will cease.  If the incumbent fails to comply with any of the deadlines established herein, the  d(#home run wiring will be considered abandoned and the incumbent may not prevent the alternative provider from using the home run wiring immediately to provide service.  S-  453.` ` If the incumbent elects to submit to binding arbitration, the parties will have seven days  d(#to agree on an independent expert or each designate an expert who will pick a third expert within an  d(#additional seven days. The independent expert chosen would be required to assess the price for the wiring  d(#within 14 days. We realize that the expert's price determination may not be issued for up to 28 days after  d(#=the 60day notice period has expired. If subscribers wish to switch service providers during this period,  d(#Lthe procedures set forth below should be followed, subject to the price established by the arbitrator. As  d(#[stated above with regard to the buildingbybuilding procedures, we believe that it is not practical for the  d(#Commission to set a default price or formula that would apply to the widely varying circumstances":,`(`(88"  S- d(#\throughout the country.(] {Oh-ԍSee note 135, supra, regarding comments for and against the Commission setting a default price or formula.. If the MDU owner (or, in some cases, the alternative provider) refuses to participate, the incumbent's obligations under the Commission's home run wiring procedures will cease.  S-  554.` ` After completion of this initial process, a provider's election will be carried out if and  d(#when the provider is notified either orally or in writing that a subscriber wishes to terminate service and  d(#that an alternative service provider intends to use the existing home run wire to provide service to that  d(#particular subscriber. At that point, a provider that has elected to remove its home run wiring will have  d(#[seven days to do so and to restore the building consistent with state law. If the subscriber has requested  d(#service termination more than seven days in the future, the sevenday removal period will begin on the  d(#date of actual service termination (and, in any event, shall end no later than seven days after the requested  d(#date of termination). We conclude that seven days is adequate for removal because we believe that, unlike  d(#in the buildingbybuilding context, the provider will only be required to remove a single home run wire.  S -  655.` ` If the current service provider has elected to abandon or sell the wiring, the abandonment  d(#or sale will become effective upon actual service termination or upon the requested date of termination,  d(#>whichever occurs first. If the incumbent provider intends to terminate service prior to the end of the  d(#sevenday period, the incumbent will be required to inform the subscriber or the subscriber's agent  d(#(whichever is notifying the incumbent that the subscriber wishes to terminate service) at the time of the  d(#request for service termination of the date on which service will be terminated. In addition, the incumbent  d(#]provider must disconnect the home run wiring from its lockbox and leave it accessible for the new provider within 24 hours of actual service termination.  Sh- A756.` ` We base the above procedures on the assumption that the alternative service provider will  d(#have an incentive to ensure that the incumbent is notified that the alternative service provider intends to  d(#use the existing home run wire to provide service. If, however, the subscriber's service is simply  d(#terminated without any indication that a competing service provider wishes to use the home run wiring,  d(#the incumbent service provider will not be required to carry out its election to sell, remove or abandon  d(#the home run wiring. This might occur, for instance, where an MDU tenant is moving out of the building.  d(#.In such cases, we do not believe that it would be appropriate to require the incumbent to sell, remove or  d(#abandon the home run wiring when it might have every reasonable expectation that the next tenant will  d(#request its service. However, the incumbent provider will be required to carry out its election with regard  d(#jto the home run wiring if and when it receives notice from a subsequent tenant (either directly or through an alternative provider) that the tenant wishes to use the home run wiring to receive a competing service.  S- A857.` ` Where the incumbent receives a request for service termination but does not receive notice  d(#>that an alternative provider wishes to use the home run wiring, the incumbent will still be required to  d(#yfollow the procedures set forth in our cable home wiring rules e.g., to offer to sell to the subscriber any  d(#cable home wiring that the incumbent provider otherwise intends to remove. The required notice in the  d(#unitbyunit context may be effected in two stages (i.e., the subscriber may call to terminate service and  d(#=the alternative provider may separately notify the incumbent that it wishes to use the home run wiring).  d(#In order for the home run wiring and the home wiring to be disposed of in a coordinated manner, we  d(#kbelieve that our cable home wiring rules must apply upon any termination of service. In addition, we  d(#believe that subscribers should have the right to purchase their home wiring to protect themselves from"H$Z,`(`(88%"  d(#\unnecessary disruption associated with removal of home wiring, regardless of whether they intend to subscribe to an alternative service.  S-` `  X(3)hhCOwnership of Home Run Wiring(#  S:- 958.` ` In both the buildingbybuilding and unitbyunit approaches, the MDU owner will have  d(#\the initial option to negotiate for ownership and control of the home run wiring because the property  d(#owner is responsible for the common areas of a building, including safety and security concerns,  d(#Mcompliance with building and electrical codes, maintaining the aesthetics of the building and balancing  S- d(#[the concerns of all of the residents.MZ(] {O - d(#ZԍSee, e.g., Building Owners, et al., Comments at 18; Further Comments of OpTel at 56 (arguing that MDU  d(#owners have every incentive to maximize resident welfare and temporary residents have less interest in enhancing the service options of future tenants).M Moreover, vesting ownership of the home run wiring in the MDU  d(#owner, as opposed to the alternative service provider, will reduce future transaction costs since the above  SJ - d(#procedures will not need to be repeated if service is subsequently switched again.OJ (] {O-ԍSee Further Comments of TCI at 9.O Nevertheless, we  S" - d(#recognize that some MDU owners may not want to own the home run wiring in their buildings;^" |(] {O>-ԍCf. Building Owners, et al., Comments at 25, 33.^ in such  S -cases, the MDU owner may permit the alternative service provider to purchase the wiring. (] {O- d(#ԍSee Further Comments of GTE at 9 and Further Comments of OpTel at 6 (both supporting the Commission's proposal to allow the alternative provider to purchase the wiring if the MDU owner declines to do so).  S - :59.` ` We do not believe that individual subscribers will be disadvantaged by having the MDU  d(#owner own the home run wiring. If a subscriber has the ability to choose between multiple service  d(#providers in the unitbyunit context, the MDU owner has already concluded that it is willing to permit  d(#multiple service providers on the premises in order to compete for subscribers. Since the MDU owner  d(#will have voluntarily opened its building to multiple competitors, we do not believe that it will deny a  d(#Mresident the ability to use the home run wiring for the resident's provider of choice. Furthermore, we  d(#believe that, if the alternative service provider purchases the home run wiring, that provider will not be  d(#able to act as a bottleneck and the individual subscriber will continue to be protected because, as described  d(#herein, the alternative service provider will also be subject to these same procedures if and when the alternative provider's service is terminated.  S- A;60.` ` As we have noted, several cable interests contend that the Commission's belief that MDU  S- d(#owners will act in the best interest of the residents in their buildings is misplaced.ixh (] yO!- d(#ԍFurther Comments of Adelphia, et al., at 2026; Further Comments of Cablevision Systems at 7; Further  d(#Comments of Comcast, et al., at 4; Further Comments of Jones Intercable, et al., at iii, 710 (the Commission's  d(#presumption that MDU owners will act in the interest of their tenants contradicts realworld experience); Further  d(#Comments of Media Access/CFA at 12, 812 (objects to the amount of control the Commission would give to MDU  d(#owners to dictate tenants' choices since MDU owners typically resist the installation of multiple sets of wires;  d(#submits that MDU owners would not be effective representatives for their tenants because they benefit from exclusive contracts); Further Comments of Time Warner at 712. i According to these",`(`(88"  S- d(#commenters, MDU owners more often act based on their own immediate financial interest.(] {Oh-ԍSee, e.g., Further Comments of Adelphia, et al., at 20; Further Comments of Comcast, et al., at 48. They  d(#contend that  d(#MDU owners are the true bottlenecks to competition in that they have a direct financial interest in granting  d(#exclusive access to alternative MVPDs, either because of a direct financial investment in a noncable  S`- d(# MVPD seeking to serve the building or because of large "kickbacks."?`Z(] {OZ- d(#ԍSee Further Comments of Adelphia, et al., at 2122, 2425 ("landlords get bigger kickbacks by auctioning  d(#exclusive rights than by allowing competition"); Further Comments of Cablevision Systems at 7 ("landlords refuse  d(#ito allow a second wire . . . because they elevate revenues from auctioning off the whole building over giving their  d(#tenants an ongoing choice"); Further Comments of Comcast, et al., at 4 ("MDU owners routinely seek cash payments  d(#<and/or a percentage of revenues in consideration for long term 15 to 20 year exclusive contracts"); Further  d(#iComments of Time Warner at 79 (the real inhibition to consumer choice for MDU residents results from MDU  d(#owners's ability to act as broadband service gatekeepers'") and at n.17 (particularly true in rent control situations  {O - d(#wlike New York City where MDU owners have an incentive to drive out longstanding tenants). But see Further Reply  d(#of ICTA at 1113 (cable operators' condemnation of "kickbacks" is hypocritical and misplaced); Further Reply of OpTel at 78 (Commission should not interfere with private contractual payments for access).? Time Warner claims that the  d(#Commission cannot point to any reliable evidence that the real estate market is responsive to the video  S- d(#service interests of MDU residents.N (] yO-ԍFurther Comments of Time Warner at 10.N TCI, however, supports the Commission's proposal to give MDU  d(#owners, rather than the competing MVPDs, the initial option to negotiate for ownership and control of the  S- d(#Lhome run wiring.G (] yO-ԍFurther Comments of TCI at 89.G Not only is the MDU owner responsible for the safety and security concerns in the  d(#common areas, TCI asserts, but MDU owner control could reduce future transaction costs and  d(#administrative hassles, particularly in the unitbyunit context where service may be switched back and  SH -forth between providers. The result will reduce disruption to the subscriber.7H (] {O-ԍId. at 9.7  S - <61.` ` We agree with those commenters that argue that MDU owners seek to maximize their  d(#profits, but disagree that this incentive always leads them to be willing and able to ignore their tenants'  d(#desires. Even some cable operators recognize that many MDU owners (e.g., condominium associations  S - d(#=and cooperative boards) are representative of their residents' interests. (] {O- d(#ԍSee Further Comments of Comcast, et al., at 24; see also Further Reply of Community Associations Institute at 23. We continue to believe that, in  d(#rental MDUs, market forces will compel MDU owners in competitive real estate markets to take their  d(#tenants' desires into account. It is not, as some commenters suggest, that we assume that viewers will  S- d(#move from one MDU to another based on the video services provided.d(] {O#-ԍSee, e.g., Further Comments of Comcast, et al., at 25.d Rather, it is that a significant" ,`(`(88 "  S- d(#percentage of MDU renters move each year,iZ(] {Oh- d(#ԍSee Ex Parte Letter from Jim Arbury, Vice President, National MultiHousing Council and National Apartment  d(#Association, to Rick Chessen, Federal Communications Commission (December 16, 1996) (estimating that nationwide 33% of all residents of rental apartments move in a given year).i and MDU owners must compete  d(#\with rival owners to keep current residents and attract additional residents. In this context, an MDU  d(#owner that agrees to an exclusive contract in exchange for a monetary payment but does not somehow  d(#yflow that payment through to its residents (e.g., a new swimming pool, a security system, or discounting  d(#ythe rent below the competitive level) is vulnerable to competition from similarly situated MDUs offering  d(#a more attractive mix of price and amenities to prospective tenants. If the MDU owner tries to simply  d(#keep the payment, new tenants will not be as attracted to the building and existing tenants will have an  d(#additional reason to relocate to another MDU (e.g., an otherwise similar residence where, to attract tenants,  d(#the owner has utilized its exclusive access payment to reduce rent or improve amenities). We believe that  d(#\consumer welfare will be maximized by letting the market determine the appropriate mix of price and amenities in the MDU marketplace.  S -  _=62.` ` In the Inside Wiring Further Notice, we also sought comment on whether we should adopt  d(#a rule requiring video service providers to transfer to the MDU owner upon installation ownership of the  d(#home wiring and home run wiring installed in MDUs under contracts entered into on or after the effective  S - d(#date of any rules we may adopt.W (] {O4-ԍInside Wiring Further Notice at para. 85.W We stated that such a rule might increase competition and consumer  d(#choice in future installations by permitting MDU owners to control access to the home run wiring from  SZ-the start.1Z|(] {Ov-ԍId.1  S - >63.` ` Cable commenters that addressed the issue of requiring video providers to transfer  d(#ownership of the wiring to the MDU owner upon installation generally contend that, not only does the  d(#LCommission not have authority to establish such a restriction, but as a policy matter, MDU owners and  d(#yvideo providers are capable of protecting their own interests in contracts and the Commission should not  Sj- d(#interfere.j(] {O- d(#,ԍSee Further Comments of Jones Intercable, et al., at 1718; Further Comments of NCTA at 5, 2627; Further Comments of TCI at 12. Adelphia, et al., and Time Warner, however, suggest that, instead of adopting the proposed  d(#Lprocedures, the Commission should require video providers and MDU owners to include in their service  S-contracts a clear provision which specifically provides for the disposition of home run wiring.h (] yO" -ԍFurther Comments of Adelphia, et al., at 57; Further Comments of Time Warner at 2022.  S- ?64.` ` Several other commenters also argue that the Commission should not adopt a rule  d(#requiring video service providers to transfer ownership of all newly installed cable wiring upon  Sz- d(#installation.`Zz (] yO%- d(#ԍFurther Comments of GTE at 1720; Further Comments of SBC at 6; Further Comments of Heartland Wireless  {O%- d(#iat 7; Further Reply of ICTA at 5; Further Reply of OpTel at 8; Further Reply of GTE at 2223; see also Further Reply of Community Associations Institute at 12.` GTE and Heartland Wireless claim that such a rule would be outside the Commission's  d(#.statutory authority and would be inconsistent with the procompetitive, deregulatory nature of the 1996"!,`(`(88"  S- d(#Act.v(] yOh-ԍFurther Comments of GTE at 1720; Further Comments of Heartland Wireless at 7.v Media Access/CFA maintains its position that tenants should be given the first opportunity to  S-purchase the wire.SX(] yO-ԍFurther Comments of Media Access/CFA at 21.S  S- @65.` ` Ameritech argues that ownership of inside wire in future installations should be transferred  S`- d(#jto the MDU owner.`(] {O- d(#ԍFurther Comments of Ameritech at 8; see also Further Comments of CEMA at iii, 13; Further Reply of Ameritech at 1516. Ameritech proposes that the MVPD should be able to dedicate ownership of the  d(#Linside wiring to the MDU owner free of charge in exchange for the MDU owner's agreement not to grant  d(#exclusive rights to any other MVPD, unless the second MVPD pays the first MVPD 100% of the first  S- d(#\MVPD's original cost to install its cable inside wire.B(] {O -ԍFurther Comments of Ameritech at 810; see also Further Reply of Info. Tech. Industry Council at 56. RCN believes the Commission should require  d(#video providers to transfer to the MDU owner, upon installation, ownership of inside wiring, but only to  S- d(#=the extent that the MDU owner desires ownership.F(] yO -ԍFurther Comments of RCN at 15.F RCN proposes the same transfer for molding and  Sp-conduits.1pd (] {Ot-ԍId.1  S - oA66.` ` We will not require video service providers to transfer ownership of cable inside wiring  d(#!to MDU owners upon installation. At this time, we believe this issue is best left to marketplace  d(#>negotiations between the service provider and the MDU owner. Some MDU owners may choose to  d(#bargain for ownership of the inside wiring, while others may prefer to let the service provider maintain  d(#[ownership. We are not convinced that MDU owners have insufficient bargaining power in this situation  d(#Lto protect their interests. Even under the home run disposition procedures adopted above, we recognize  d(#Mthat some MDU owners may not wish to exercise ownership over the inside wiring. We believe that MDU owners should have the same option at the time of installation.  S- B67. ` ` We do believe, however, that all parties involved would benefit from additional certainty  d(#regarding ownership of the home run wiring upon termination of a service contract. For any contracts  d(#.between MVPDs and MDU owners entered into after the effective date of our rules, we will require the  d(#MVPD to include a provision describing the disposition of the home run wiring upon the contract's  S- d(#termination. (] {O!-ԍSee Further Comments of Adelphia, et al., at 57; Further Comments of Time Warner at 21. We believe that such a rule will provide certainty to the parties and permit them to address  d(#ythe disposition of home run wiring in light of their circumstances. Where the parties' contract clearly and  d(#expressly addresses the disposition of the home run wiring, our procedures will not apply. We also  d(#reiterate that the parties may rely upon any existing contractual rights upon termination, in addition to the procedures we are adopting.  SP- "P" ,`(`(88"Ԍ S-XX` ` X X(4)XhhCImpact on Incumbent Video Service Providers(#h  S- C68.` ` We conclude that cable operators' argument that the loss of their home run wiring  S- d(#eliminates their ability to provide other telecommunications services is misplaced. "(] {O- d(#ԍSee Further Comments of Cablevision Systems at 911 (claiming that the Commission's proposal fails to take  d(#into account that many operators use or plan to use wiring to provide other services, such as Internet service, and  d(#ithat "the forced surrender of its broadband wire to a competitor" would preclude Cablevision from competing for pay per view services and local telephone service in MDUs and deny these competitive benefits to MDU tenants).  Cable operators'  d(#[ability to compete in the telephony market should be largely unaffected. The procedures adopted herein  d(# apply where the incumbent has no legally enforceable right to remain on the premises and the MDU  d(#\owner and/or the individual subscriber has selected another provider's package notwithstanding the  d(#/incumbent's other telecommunications services. We think that affording the incumbent the ability to  d(#zremain in the building on the premise that it has a service to offer in addition to video undermines this  d(#[proceeding's effort to enhance competition. Cable operators continue to have the opportunity to market  d(#video or any other service. The procedures we implement seek to afford the MDU owner or resident with  d(#an ability to make a choice. In addition, MDU owners will remain free to implement the type of multiple d(#wire model advocated by the cable industry by requiring all service providers to install their own home run wires.  S -XX` ` X X(5)XhhCApplication of Procedural Framework(#h  S\- ~D69.` ` As noted above, the procedural mechanisms we are adopting will apply only where the  d(#Nincumbent provider no longer has an enforceable legal right to maintain its home run wiring on the  S - d(#premises against the will of the MDU owner. (] {O^- d(#ԍSee also Further Comments of GTE at 7 (agreeing that proposed framework should only apply when incumbent does not have a legally enforceable right to remain on the property). These procedures will not apply where the incumbent  d(#provider has a contractual, statutory or common law right to maintain its home run wiring on the property.  d(#We also reiterate that we are not preempting any rights the incumbent provider may have under state law.  d(#In the buildingbybuilding context, the procedures will not apply where the incumbent provider has a  d(#Llegally enforceable right to maintain its home run wiring on the premises, even against the MDU owner's  d(#wishes, and to prevent any third party from using the wiring. In the unitbyunit context, the procedures  d(#ywill not apply where the incumbent provider has a legally enforceable right to keep a particular home run  d(#wire dedicated to a particular unit (not including the wiring on the subscriber's side of the demarcation point) on the premises, even against the property owner's wishes.  S|-  PE70.` ` In the Inside Wiring Further Notice, we sought comment on whether we should create any  d(#Lpresumptions or other mechanisms regarding the rights of the parties if the incumbent's right to maintain  S.- d(#[its home run wiring on the premises is disputed.`. (] {O"-ԍInside Wiring Further Notice at paras. 34, 35, 39.` Many of the cable interests focus their comments on  S- d(#/when an incumbent provider does not have a "legally enforceable right to remain on the premises."(] {OD%- d(#ԍSee, e.g., Further Comments of NCTA at 15 (determining whether the incumbent has the right to stay on property is the "crux of the matter").  d(#Operators ask the Commission to clarify that the procedures will not apply when the incumbent provider"# ,`(`(88="  d(#and the MDU owner have entered into a contract which specifically deals with the disposition of the home  S- d(#[run wiring following termination of service.(] yO@-ԍFurther Comments of Adelphia, et al., at 45, 810; Further Comments of Time Warner at 2425. They assert that this is important if the Commission is to  S- d(#be true to its assertion that the proposed rules are not intended to create or destroy any property rights.SX(] yO-ԍFurther Comments of Adelphia, et al., at 8.S  d(#Adelphia, et al., and TCI ask the Commission to make clear that the proposed rules do not give MDU  S`-owners a new right to terminate service outside the contract or state law.`(] {O- d(#ԍFurther Comments of Adelphia, et al., at 10; Further Comments of TCI at 11 (certain statements in the Further  {O -Notice could be interpreted as inconsistent with the principle of contract sanctity).  S- F71.` ` Several commenters also ask the Commission to state specifically that the procedures  S- d(#=would not apply in any jurisdiction with a mandatory access law."D(] yO - d(#ԍFurther Comments of Adelphia, et al., at 45, 1014; Further Comments of TCI at 1011; Further Comments  {O- d(#iof Time Warner at 2833; see also Further Comments of New York DPS at 23 (scope and effect of state access  d(#statutes are matters for state regulators and state courts to resolve, and the Commission should not create any presumptions or mechanisms with respect to rights conferred under state statutes). The cable commenters are troubled  S- d(#by the Commission's notation in footnote 100 of the Inside Wiring Further Notice that where a mandatory  d(#access statute is triggered by a tenant requesting service, the incumbent provider may not have the right  Sr- d(#to maintain its facilities on the premises if no tenant is currently requesting service.r. (] yO@-ԍFurther Comments of Adelphia, et al., at 1114; Further Comments of Time Warner at 2833. The commenters  d(#contend that most mandatory access statutes do not hinge on a tenant's request for service, and that in  d(#=those few that do, franchised cable operators have the right to maintain their cable wiring throughout the  S -MDU indefinitely. (] yOX-ԍFurther Comments of Adelphia, et al., at 1114; Further Comments of Time Warner at 2833.  S - G72.` ` Cable interests generally claim that the proposed procedures should not apply until the  S - d(#/incumbent provider's rights are "fully exhausted."$ N (] yOp- d(#ԍFurther Comments of Adelphia, et al., at 8, 16; Further Comments of Comcast, et al., at 1213; Further  {O8- d(#Comments of Jones Intercable, et al., at 13, 15; Further Comments of Time Warner at 2728; see also Further  {O- d(#Comments of NCTA at 1415. But see Further Comments of WCA at 811; Further Comments of Heartland Wireless at 5. NCTA suggests that, if the incumbent provider  d(#<notifies the MDU owner of its intent to initiate a state court proceeding to enforce its rights within 30 days  d(#of the MDU owner's notice that it intends to use the Commission's procedures, the procedures should be  S - d(#stayed until the judicial proceeding is terminated." :(] {O"- d(#ԍFurther Comments of NCTA at 2021; see also Further Comments of Comcast, et al., at 1112. But see  d(#Further Reply of Ameritech at 28 (alternative provider should have possession of inside wire during pendency of  d(#any state court proceedings); Further Reply of GTE at 910 (procedures should not be tolled during judicial proceedings to determine incumbent's rights). Cable operators also state that the Commission must" $$,`(`(88"  S- d(#determine how the incumbent's rights will be established.(] yOh- d(#ԍFurther Comments of Adelphia, et al., at 1416; Further Comments of Comcast, el al., at 12; Further Comments of Jones Intercable, et al., at 1215; Further Comments of NCTA at 4, 1421. Cable commenters believe, however, that the  d(#=Commission should not establish any presumptions as to whether the incumbent has the right to remain  S- d(#on the premises.l (] yOp- d(#jԍFurther Comments of Adelphia, et al., at 16; Further Comments of Cablevision Systems at 48; Further  d(#Comments of Comcast, et al., at 11 (if incumbent has a contract that allegedly provides for continued access, there  d(#should be a presumption that the incumbent has a legally enforceable right); Further Comments of CATA at 911;  d(#hFurther Comments of Jones Intercable, et al., at iv, 1215; Further Comments of NCTA at 4, 1517, 2122; Further Comments of TCI at 1214; Further Comments of Time Warner at 2528.l For the most part, these parties contend that establishing any presumption in this area  d(#would be contrary to the Commission's decision not to create or destroy any property rights nor to  S`- d(#preempt state law.X`(] {O -ԍSee, e.g., Further Comments of NCTA at 22.X NCTA claims that the Commission would be "wholly outside its area of expertise"  d(#if it were to attempt to determine an appropriate presumption, which would have to be based on complex  S- d(#kcontractual, statutory and common law issues.b (] {O-ԍFurther Comments of NCTA at 21; see also Further Comments of Jones Intercable, et al., at 14. Cablevision Systems asserts that the benefits of its  d(# substantial investments in upgrading its network to offer new services will be denied subscribers if a  d(#presumption adopted by the Commission prevents Cablevision Systems from exercising its right to remain  S-in an MDU under state law or contractual agreement.V (] yO,-ԍFurther Comments of Cablevision Systems at 10.V  SH - H73.` ` Ameritech objects to the Commission's proposal to exempt incumbents with a legally  d(#[enforceable right to remain on the premises and argues that, at a minimum, such an exemption should not  S - d(#apply to future agreements. (] {O- d(#YԍFurther Comments of Ameritech at 67; see also Further Reply of Ameritech at 8; Further Reply of Telebeam at 24. Ameritech reasons that incumbents could otherwise easily evade the  S - d(#=Commission's new rules by entering into longterm contracts.K (] yON-ԍFurther Comments of Ameritech at 7.K DIRECTV argues that the Commission  d(#has the authority to provide that MDU owners may notify incumbent operators at any time that their  d(#exclusive use of the inside wiring will be terminated in 90 days in spite of the existence of contracts that  SX- d(#may support such exclusive use.Xn(] {Of - d(#YԍFurther Comments of DIRECTV at 57. But see Further Reply of TCI at 5 (arguing that DIRECTV's proposal should be rejected). Community Associations Institute urges the Commission to establish  d(#=the presumption that the incumbent operator does not have the right to maintain wiring on the property  d(#without securing a ruling from a court of law; and argues that any action to establish such a right should  S- d(#not stay the proposed disposition procedures.(] yOH%- d(#ԍFurther Comments of Community Associations Institute at 910; Further Reply of Community Associations Institute at 78. Similarly, Media Access/CFA argues that by refusing to  d(#preempt mandatory access statutes and contractual rights of access, the Commission would be creating an"% ,`(`(88"  S- d(#exception that would swallow the rule.(] {Oh- d(#ԍFurther Comments of Media Access/CFA at 8; Further Reply of Media Access/CFA at 1014; see also Further Reply of U.S. Wireless/Ohio Valley Wireless at 34. WCA contends that ultimately the Commission should preempt  d(#all state mandatory access statutes, but in the interim, it should clarify that, in the case of a dispute  d(#regarding the incumbent's right to remain on the premises, the disposition procedures will take effect until  S- d(#a court rules otherwise."(] {OJ- d(#,ԍFurther Comments of WCA at 810; Further Reply of WCA at 45, 711. But see Further Reply of Comcast, et al., at 9 (WCA proposal would greatly increase litigation as incumbents seek to preserve their legal rights). OpTel argues that incumbents should be required, when service termination  d(#=is requested, to make "an affirmative good faith showing" of its legally enforceable right to remain on the  S8- d(#property.f8|(] yOT -ԍFurther Comments of OpTel at 2; Further Reply of OpTel at 56.f RCN argues that an incumbent claiming the legal right to control wiring, molding, or conduits  d(#or to exclude an alternative service provider should obtain a court order affirming its rights within 30 days  S- d(#of receiving notice from the MDU owner, and forfeitures should be imposed for noncompliance.I (] yO-ԍFurther Comments of RCN at 1213.I ICTA  d(#]asks the Commission to create a presumption that the incumbent provider does not have a legally  d(# enforceable right to remain on the premises so that the Commission's rules would have full force and  Sp-effect until the incumbent proved its claim through whatever judicial proceeding was appropriate.p(] {O- d(#ԍFurther Comments of ICTA at 23; Further Reply of ICTA at 23; see also Further Comments of Skyzone at 2.  S -  BI74.` ` RCN and WCA also urge the Commission to make it clear that state mandatory access  S - d(#statutes do not authorize MVPDs to block moldings or conduits with unused wire.\ (] {O- d(#wԍFurther Comments of RCN at 912; Further Comments of WCA at 1011; Further Reply of RCN at 810. But  {OX- d(#see Further Reply of Time Warner at 912 ("blocked conduit" argument is contrary to Commission intent that procedures will not apply where incumbent still has existing rights to wiring under state law). They state that  d(#Lincumbents have no right to maintain unused home run wiring that is blocking competitive access merely  S -because a state does not make mandatory access contingent upon a subscriber's request for service. (] {Ob- d(#ԍFurther Comments of RCN at 912; Further Comments of WCA at 1011; see also Further Reply of OpTel at 67.  SX-  `J75.` ` Both CEMA and Philips, et al., note that the Commission's proposal will not apply in  S0- d(#many situations because of state mandatory access statutes.}0t(] yOD!-ԍFurther Comments of CEMA at iii, 67; Further Comments of Philips, et al., at 34, 7.} Building Owners, et al., believe that the  d(#proposed rules may serve to confuse matters by raising the issue of possible preemption of state law and  S- d(#contract rights.(] {O$- d(#iԍFurther Comments of Building Owners, et al., at 67; see also Further Comments of Nat'l Assn. of Realtors at 2 (opposing the rules to the extent that they alter such rights). CEMA suggests that the Commission preempt these statutes if it decides to adopt the"&^,`(`(88 "  S- d(#proposal because Sections 1 and 601 of the Communications Act should take precedence over state law.N(] yOh-ԍFurther Comments of CEMA at iii, 813.N  S-Philips, et al., also argue that exclusive contracts will limit the usefulness of the proposed rules.TX(] yO-ԍFurther Comments of Philips, et al., at 78.T  S- K76.` ` In reply comments, cable operators object to RCN's proposal that the incumbent obtain  S`- d(#a final court ruling or an injunction within 30 days in order to toll the wiring disposition procedures. "`(] {O- d(#iԍSee Further Reply of NCTA at 67; Further Reply of Time Warner at 78 (proposing alternative approach  d(#whereby parties would be permitted to negotiate; if the MDU owner believed the incumbent's claims were frivolous,  d(#the incumbent would be required to file a lawsuit within 30 days and, if the incumbent won, the MDU owner would be required to pay damages and court costs); Further Reply of Jones Intercable, et al., at 13.   d(#.First, absent a statutory right, they argue that a cable operator cannot force a court to issue a final ruling  S- d(#within 30 days.6Z(] {O- d(#ԍSee Further Reply of NCTA at 67; see also Further Reply of Time Warner at 78 (Commission cannot tell  d(#Kstate or federal court when it must issue ruling or force incumbents to commence litigation on an expedited time schedule).6 Second, they argue that the failure to obtain a temporary restraining order or an  S- d(#injunction is no basis on which to conclude that the incumbent will not ultimately prevail on the merits." (] {O|- d(#ZԍSee Further Reply of NCTA at 67; Further Reply of Jones Intercable, et al., at 12 (temporary restraining  d(#Jorder requirement would amount to a nationwide mandatory injunction that would automatically evict an incumbent  d(#;when its rights are in doubt and either a temporary restraining order is unavailable or the local court puts the matter over to a preliminary injunction hearing).  d(#Third, they argue that if the proposed procedures proceed before it is clear that the incumbent does not  d(#!have a right to maintain its wires on the premises, the Commission's intent to provide "order and  Sp- d(#certainty" and not to disturb existing property rights would be undermined.7Zp(] {O- d(#,ԍSee Further Reply of NCTA at 89; Further Reply of TCI at 7 n.17 (Commission's takings analysis predicated  d(#on assumption that incumbent has no legally enforceable right to remain on the premises); Further Reply of Time Warner at 78.7 Fourth, they argue that an  d(#incumbent's damages for being wrongly forced to remove or abandon its wiring will be virtually  S -impossible to calculate and difficult to prove. (] yO- d(#ԍFurther Reply of NCTA at 89; Further Reply of Cox at 7 (no way to make the operator whole if forced to elect to sell, remove or abandon wiring when not required to do so under state law).  S - L77.` ` After consideration of the comments, we adopt a presumption that the buildingbybuilding  d(#Land unitbyunit procedural mechanisms will apply unless and until the incumbent obtains a court ruling  d(# or an injunction enjoining its displacement during the 45day period following the initial notice. The  d(#incumbent will still be required to make its election to sell, remove or abandon the wiring by the end of  d(# the initial 30day period in the absence of such a ruling or injunction. In light of this rule, we decline  S- d(#to adopt the suggestions of various commenters that we shorten the initial election period.ZX(] yO&- d(#ԍWe also decline to adopt Community Associations Institute's request that the time periods be lengthened for  {O&- d(#association boards. See Further Comments of Community Associations Institute at 13. We believe that changing  d(#video service providers is not a commonplace event and that association boards will be able to make allowances to"',`(`('" comply with our procedures.  We also"'X,`(`(88"  d(# decline to adopt the cable operators' proposal to stay our procedures until all judicial procedures are  d(#terminated, including all appeals. We have not received evidence sufficient to persuade us that state courts  d(#will not respond expeditiously. Significantly, the record indicates state courts' ability to protect  S- d(#incumbents' rights."X(] {O- d(#ԍSee, e.g., Further Comments of NCTA at 1618 (discussing several state and federal court cases in which  d(#incumbents sought injunctive relief against MDU owners attempting to evict them); Further Reply of Telebeam at  d(#4 n.6 (stating that in pending litigation between TCI of Pennsylvania and an MDU owner, TCI has been successful in obtaining court hearings within days of submitting requests for temporary injunctions). The record continues to support our judgment that an incumbent's failure to obtain  d(#ya state court injunction justifies a presumption that the incumbent no longer has an enforceable legal right  d(#?to remain on the premises. Contrary to some commenters' assertions, we do not believe that this  d(#presumption interferes with the incumbent's state law rights. A court applying state law will continue to  d(#be the ultimate arbiter of whether the incumbent has a legally enforceable right to remain on the premises,  d(#iand possesses the ability to take any necessary and appropriate steps to make the parties whole under state  d(#law. Our presumption simply means that if the incumbent cannot obtain an injunction to maintain its  d(#home run wiring on the premises, it is appropriate to permit the MDU owner to invoke our procedures pending any further litigation.  S -  BM78.` ` We will adopt one exception to our presumption that our procedures will apply in the  d(#Mabsence of a state court ruling or injunction obtained within 45 days of the initial notice. We will not  d(#require an incumbent provider to obtain such a ruling or injunction where a state's highest court has found  d(#Lthat, under its state mandatory access statute, the incumbent always has an enforceable right to maintain  d(#|its home run wiring on the premises. We believe that to require the incumbent to initiate court  d(#proceedings in this situation is wasteful and unnecessary. In such cases, we believe that the burden should shift to the new provider to obtain a judicial determination to the contrary.  S- %N79.` ` We decline, however, to adopt some commenters' request that we provide that our  d(#procedures do not apply in states that have enacted mandatory access statutes. Several commenters take  d(#issue with our statement that where the incumbent provider's mandatory right of access is dependent upon  d(#a subscriber's request for service, the provider may no longer have a legally enforceable right to maintain  d(#that subscriber's home run wiring on the premises against the MDU owner's wishes once the subscriber  S- d(#no longer requests service.XB(] {O-ԍSee Inside Wiring Further Notice at n.100.X We clarify that we did not intend to and do not now express any opinion  S- d(#on the merits of this issue.(] yO< - d(#ԍSimilarly, we express no opinion on whether state mandatory access statutes permit an incumbent MVPD to block moldings or conduits with unused wiring. The enforceability of a state mandatory access statute is an issue for the  S- d(#state courts to decide under their particular statutes.Z, (] {Ol#- d(#ԍBut see Further Reply of ICTA at 4 (the Commission should state that its proposed unitbyunit rules will  d(#apply, even in mandatory access states, unless the owner, by contract, explicitly gives the incumbent the right to maintain home run wiring when it is not being used by the incumbent to serve tenants). We are unwilling to conclude that state mandatory  d(#Laccess statutes always grant incumbents the right to maintain their home run wiring in an MDU over the  d(#MDU owner's objection. Contrary to the arguments of some cable operators, this is not an issue of the  d(#{right to install wiring. Rather, the issue is whether the incumbent has a legally enforceable right to"((N ,`(`(88{"  d(#maintain its home run wiring on the premises over the objection of the MDU owner. Accordingly, our  d(#procedures will apply in mandatory access states to the extent state law does not permit the incumbent to  d(#maintain its home run wiring (in the case of a buildingbybuilding disposition) or a particular home run  d(#Mwire to a particular subscriber (in the case of a unitbyunit disposition) against the will of the MDU owner.  S- O80.` ` The above procedural mechanisms will apply regardless of the identity of the incumbent  S- d(#video service provider involved.1Z(] {OP- d(#JԍSee, e.g., Further Comments of NCTA at n.17; Further Comments of RCN at 15; Further Comments of Time  d(#Warner at n.33 (apply to all MVPDs except open video system operators that are required to construct endtoend overbuilds). 1 While initially this incumbent would commonly be a cable operator,  d(#it could also be a SMATV provider, an MMDS provider, a DBS provider or others. We believe that this  d(#will ensure competitive parity among MVPDs and ensure that MDU owners are able to benefit from these procedures regardless of the MVPD that initially wired their buildings.  S -` `  c.XStatutory Authority (#  S -` `  ` (1)hhCBackground(#  S - P81.` ` Several commenters agree with the Commission's position that it has statutory authority  SZ- d(#under Section 623 to adopt its proposed framework.Z(] {O- d(#-ԍSee Further Comments of GTE at 1314; Further Reply of GTE at 15; Further Reply of Ameritech at 12  d(#=(concurring with GTE's further comments); Further Reply of ICTA at 6 (proposed procedures are within the  d(#Commission's authority because they merely establish a set of timetables and do not affect substantive rights);  d(#Further Reply of RCN at 45 (Section 628(b) prohibiting unfair methods of competition provides the necessary  {O- d(#statutory authority). But see Further Reply of TCI at 23 (GTE reliance on Section 623 does not pass "straight face" test). GTE reasons that the proposed disposition  d(#procedures fall within the Commission's obligation under Section 623 to ensure reasonable rates for  S -programming, installation, and equipment, which the Commission has defined to include inside wiring.I f (] yO-ԍFurther Comments of GTE at 1314.I  S- Q82.` ` Building Owners, et al., argue that while Section 623(b) might grant the Commission  d(#authority to regulate the rates at which operators may sell cable home wiring, it does not authorize the  Sj- d(#Commission to give building owners the right to acquire wiring or to require cable operators to sell it.uj (] yO - d(#ԍFurther Comments of Building Owners, et al., at 10. Building Owners, et al., also argue that the Commission  d(#,would be in error to the extent it attempted to assert jurisdiction over building owners pursuant to Section 624(i) by  {O!- d(#claiming that they are subscribers. Further Comments of Building Owners, et al., at 910; see also Further  d(#Comments of Nat'l Assn. of Realtors at 2 (questioning the Commission's authority to adopt rules that appear to assert authority over building owners and managers).u  d(#Cable interests generally contend that the Commission does not have the statutory authority to adopt the  d(#proposed procedures because the procedures: (1) are inconsistent with Section 624(i) and its legislative  d(#history which clearly state that the statute only applies to wiring within the unit; (2) are not necessary to  d(#the Commission's functions under Sections 624(i), 623 or 601; and (3) would not serve the stated purposes"),`(`(88"  S- d(#=of promoting consumer choice and competition.(] yOh- d(#ԍFurther Comments of NCTA at 2, 3, 613; Further Comments of Adelphia, et al., at 2; Further Comments of  d(#CATA at 2, 38; Further Comments of Comcast, et al., at 14; Further Comments of Jones Intercable, et al., at 27;  d(#Further Comments of TCI at 2, 48; Further Comments of Time Warner at 5, 4954, 5562; Further Reply of Cox  {O- d(#.at 2; Further Reply of NCTA at 67. But see Further Reply of Media Access/CFA at 39 (proposed rules are necessary to effectuate Commission's obligations under Section 624(i) and Section 207). NCTA asserts that Section 4(i) does not provide the  d(#<Commission with any independent authority, and the Commission cannot do whatever it wants to promote  S-competition in the video service marketplace.Z\z(] {O- d(#[ԍFurther Comments of NCTA at 713; see also Further Comments of Building Owners, et al., at 10 (the  {O - d(#Commission overstates its authority under Section 4(i)). But see also Further Reply of Philips, et al., at 57; Further Reply of DIRECTV at 24.Z  S`-` `  ` (2)hhCDiscussion(#  S- R83.` ` We conclude that the Commission has authority under Sections 4(i) and 303(r) of the  d(#<Communications Act, in conjunction with the pervasive regulatory authority committed to the Commission  d(#under Title VI, and particularly Section 623, to establish procedures for the disposition of MDU home run  d(#wiring upon termination of service. Section 4(i) permits the Commission to "perform any and all acts,  d(#make such rules and regulations, and issue such orders, not inconsistent with this Act, as may be necessary  SJ - d(#in the execution of its functions."]J (] yO-ԍCommunications Act,  4(i), 47 U.S.C.  154(i).] The Commission may properly take action under Section 4(i) even  d(#lif such action is not expressly authorized by the Communications Act, as long as the action is not  d(#expressly prohibited by the Act and is necessary to the effective performance of the Commission's  S - d(#functions.|h . (] {O- d(#,ԍNCTA argues that the cases cited by the Commission in the Inside Wiring Further Notice "provide no support  d(#<for the dubious proposition that a regulation is not inconsistent' with the Communications Act, for purposes of  d(#jSection 4(i), so long as it is not expressly prohibited by the Act." Further Comments of NCTA at 8. To the  {O- d(#contrary, in Nader v. FCC, 520 F.2d 182 (D.C. Cir. 1975), the court held that, even though the Act makes no  d(#mention of any authority to prescribe a rate of return, a Commission order prescribing a rate of return for AT&T  d(#allowed the public to receive the benefit of the protection inherent in the Commission's authorization to prescribe  d(#just and reasonable charges, and therefore "was in the public interest, necessary for the Commission to carry out its  {O- d(#;functions in an expeditious manner, and within its section 4(i) authority." Id. at 204. In concluding that this result  d(#;is not inconsistent with Section 205 or any other provision of the Act, the court reasoned that "there is no explicit  d(#Ystatutory prohibition against prescribing a rate of return. Additionally, since the rate of return is one component of  d(#a charge, and the charges prescribed must properly reflect the allowable rate of return, the prescription of a rate of  {O> -return is fully consistent with the prescription of charges." Id.| We invoke Section 4(i)_Z ^(] {O!- d(#ԍSee also Communications Act,  303(r), 47 U.S.C.  303(r) (Commission has authority to "[m]ake such rules  d(#and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this Act....")._ here because, contrary to the arguments posed by some  d(#commenters, the Communications Act does not prohibit the Commission from adopting procedures  d(#regarding the disposition of home run wiring and because adopting such procedures is necessary to  d(#zimplement several provisions of the Communications Act by effectuating and broadening the range of competitive opportunities in the multichannel video distribution marketplace."2*,`(`(88"Ԍ S- ԙS84.` ` Courts have upheld various Commission regulations that were not within explicit grants  S- d(#zof authority under the "wideranging source of authority"b\(] {O@- d(#ԍNew England Tel. & Tel. Co. v. FCC, 826 F.2d 1101, 1107 (D.C. Cir. 1987), cert. denied, 490 U.S. 1039  {O - d(#K(1989); see North American Tel. Ass'n v. FCC, 772 F.2d 1282, 1293 (7th Cir. 1985) (reference to Commission's "broad powers under section 4(i)").b of Section 4(i). In these cases, the courts  d(#found that the Commission's regulations were not inconsistent with the Communications Act because they  S- d(#>did not contravene any provision of the Act(] {O- d(#ԍNorth American Tel. Ass'n, 772 F.2d at 1292 (Section 4(i) "could not properly be used ... to contravene another provision of the Act."). and were "appropriate and reasonable":F(] {On -ԍId. at 1108.: exercises of  S`-authority.`(] {O - d(#ԍContrary to the suggestion by some commenters, see Further Comments of Time Warner at 57; Further  {O - d(#<Comments of TCI at 7, the recent Iowa Utilities Board case does not offer a more limited view of our authority  {Ol- d(#wunder Section 4(i). See Iowa Utilities Board v. FCC, No. 963321, 1997 WL 403401 at * 4 (8th Cir. July 18, 1997)  d(#("Both of these subsections [Sections 4(i) and 303(r)] merely supply the FCC with ancillary authority to issue  d(#Lregulations that may be necessary to fulfill its primary directives contained elsewhere in the statute. Neither subsection confers additional substantive authority on the FCC.").  S- T85.` ` Recently, in Mobile Communications Corp. v. FCC ("Mtel"),rV (] {O-ԍ77 F.3d 1399 (D.C. Cir. 1996), cert. denied, 117 S. Ct. 81 (1996). r the United States Court  d(#[of Appeals for the District of Columbia Circuit acknowledged the Commission's authority under Section  d(#4(i) to regulate even where the Communications Act does not explicitly authorize such action. In that  d(#case, the D.C. Circuit held that the Commission had authority under Section 4(i) to require Mtel, which  d(#held a pioneer's preference, to pay for a narrowband personal communications service ("PCS") license,  d(#despite the fact that the Communications Act did not specifically authorize the Commission to charge a  S" - d(#.price for a license granted to a pioneer's preference holder.9D" (] yO- d(#ԍThe Commission granted Mtel a pioneer's preference in 1993. Later that year Congress amended the  d(#iCommunications Act to allow the Commission to use auctions for allocation of some kinds of licenses (including  {O:- d(#PCS licenses) when "mutually exclusive applications are accepted for filing." See Omnibus Budget Reconciliation  d(#Act of 1993, Pub. L. No. 10366, Section 6002 (codified at 47 U.S.C.  309(j)). The Commission subsequently  d(#reversed its decision that Mtel would not have to pay for its license, in part, because of the Commission's "clearer  d(#understanding of the interdependence of the nationwide narrowband PCS licenses and the potential anticompetitive  d(#<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). 9 The court denied Mtel's argument that the  d(#]Commission's action was inconsistent with the Communications Act and therefore not within the  d(#Commission's Section 4(i) power. Mtel argued that Congress' explicit grant of authority to the  d(# Commission to collect certain fees and to conduct auctions for specified types of licenses denied the  S - d(#Commission authority to impose other fees.D (] {O%-ԍMtel, 77 F.3d at 1404.D The court found Mtel's reliance on the expressio unius  S\- d(#Lmaxim that the expression of one is the exclusion of other misplaced. According to the court, "[t]he  d(#Mmaxim has little force in the administrative setting,' where we defer to an agency's interpretation of a"6+,`(`(88,"  S- d(#[statute unless Congress has "directly spoken to the precise question at issue.'"(] {Oh- d(#ԍMtel, 77 F.3d at 140405 (citing Texas Rural Legal Aid, Inc. v. Legal Serv. Corp., 940 F.2d 685, 694 (D.C.  {O2-Cir. 1991) (quoting Chevron v. NRDC, 467 U.S. 837 (1984))). The court also denied  d(#?Mtel's argument that, in the absence of an affirmative statutory mandate to support the payment  d(#!requirement, the Commission's action was not "necessary in the execution of [the Commission's]  S-functions," as required by Section 4(i).?$(] yOL- d(#ԍThe Commission had argued that in imposing the payment requirement it relied on its duty to determine  d(#"whether the public interest, convenience, and necessity will be served" by the granting of a license application as  d(#-required by Section 309(a). The court found that "in light of that requirement, the payment condition would be  d(#;necessary in the execution of [the Commission's] functions' under Section 4(i) so long as the Commission properly  d(#found it necessary to ensure the achievement of the Commission's statutory responsibility' to grant a license only  {O4 - d(#where the grant would serve the public interest, convenience, and necessity." Mtel, 77 F.3d at 1406 (citations  d(#omitted). The court found that the concerns alluded to by the Commission in its Licensing Decision, specifically  d(#K"the unjust enrichment of Mtel from a free license while, under the new auction regime, others would be required  d(#to pay," or "the prospect of predation by Mtel," "would support a finding that the payment requirement is necessary  {OV-in the execution of [the Commission's] functions.'" Id. ?  S8- U86.` ` Similarly, in New England Telephone & Telegraph Co. v. FCC,q8 (] {O-ԍ826 F.2d 1101 (D.C. Cir. 1987), cert. denied, 490 U.S. 1039 (1989).q the court affirmed a  d(#Commission order requiring telephone companies to refund charges they had collected in excess of the  d(#authorized rate of return, even though the Communications Act's only provision explicitly mentioning  d(#refunds "does not apply to the circumstances of this case," because refunds were necessary to remedy the  S- d(#violation of the Commission's rate of return order.<R (] yO-ԍ826 F.2d at 110709.< In North American Telecommunications Association  St- d(#v. FCC,Ot(] yO-ԍ772 F.2d 1282, 129293 (7th Cir. 1985).O the court affirmed a Commission order pursuant to Section 4(i) requiring the Bell holding  d(#<companies to file capitalization plans for subsidiary companies organized to sell telephone equipment, even  d(#=though the Communications Act conferred no authority on the Commission over holding companies and  d(#the legislative history of the Communications Act suggested that Congress had considered granting such  d(#authority but ultimately denied it, because such a requirement "was necessary and proper to the  S - d(#]effectuation of" the Commission's functions.: r(] {O-ԍId. at 1293.: The court stated that "Section 4(i) empowers the  d(#Commission to deal with the unforeseen even if that means straying a little way beyond the apparent  d(#boundaries of the Act to the extent necessary to regulate effectively those matters already within the  S6-boundaries."z6(] {O"- d(#<ԍId. at 1292. NCTA argues that in this case, in contrast, the Commission's proposal does not deal with the  d(#j"unforeseen," because the "Act's legislative history foresaw the issue of the regulation of MDU wiring outside  d(#subscriber premises, and it said, Do not go there.'" Further Comments of NCTA at 10. As discussed below,  d(#however, Congress did not indicate in Section 624(i) that the Commission is powerless to adopt procedures governing  d(#disposition of home run wiring. Moreover, it arguably was "unforeseen" at the time that Congress adopted Section  d(#-624(i) that adopting rules relating only to disposition of wiring within subscribers' premises would be insufficient to foster competition in delivery of video programming services, which Section 624(i) was intended to do."6,F,`(`(88,"Ԍ S- $ԙV87.` ` Applying these principles here, we conclude that the Commission is authorized under  d(#Section 4(i) and 303(r), in conjunction with Section 623, to establish procedures regarding the disposition  d(#of MDU home run wiring upon termination of service. Establishing rules regarding the disposition of the  d(#home run wiring upon termination is "necessary" to the execution of the Commission's functions. Courts  d(#have made clear that they will defer to the Commission's judgment as to what actions are "necessary in  S8- d(#the execution of its functions" under Section 4(i). In New England Telephone & Telegraph Company, the  d(#court emphasized that "the Commission enjoys significant discretion to choose among a range of  S- d(#reasonable remedies ...."9(] yOR-ԍ826 F.2d at 1108.9 Furthermore, the Commission "does not have to show that it selected the  S- d(#Monly conceivably appropriate remedy in order to invoke its 4(i) powers."<$X(] {O - d(#ԍId. Thus, NCTA's suggestion that this action is beyond the Commission's Section 4(i) authority, because  {O - d(#+ "there is not a hint in [Section 623] that Congress meant Section 623 to authorize, much less require, the Commission  d(#to take on the responsibility of reducing rates by promoting competition," takes an overly literal reading of the word "necessary" that is inconsistent with the Section 4(i) case law. Further Comments of NCTA at 13 (emphasis added).< Rather, "[t]he question  d(#eventually reduces to one of judgment, informed by the policy of the statute that Congress has seen fit  Sr- d(#to enact.'"vrD(] {OV-ԍNew England Tel. & Tel. Co. v. FCC, 826 F.2d at 1108 (citation omitted).v The court held that although the Commission might have adopted other corrective measures,  SJ - d(#"the measure it adopted in this case was appropriate and reasonable," and therefore authorized by Section  S$ -4(i).C$ (] {O-ԍId. (emphasis added).C  S - W88.` ` We believe that establishing procedures regarding the disposition of MDU home run  d(#wiring will assist the Commission in discharging its statutory obligations under Section 623 and its overall  S - d(#responsibility to pursue Congress' preference for competition stated in the 1992 Cable Act._ h (] yO-ԍCommunications Act,  623(a), 47 U.S.C.  543(a)._ Section  d(#623(b) of the Communications Act requires the Commission to prescribe rules to ensure that rates for  S4- d(#basic cable service are "reasonable"_4 (] yO-ԍCommunications Act,  623(b), 47 U.S.C.  543(b)._ and provides that such regulations "shall include standards to  d(#=establish, on the basis of actual cost, the price or rate for... installation and lease of equipment used by  S- d(#subscribers...."e (] yO -ԍCommunications Act,  623(b)(3), 47 U.S.C.  543(b)(3).e Some commenters point out, concerning equipment, that Section 623(b) deals with  d(#rates for the "installation and lease" of equipment and argue that our authority under Section 623 to  S- d(#regulate equipment rates does not relate to the disposition of wiring upon termination of service.w(] {OL"-ԍSee, e.g., Further Comments of NCTA at 12; Further Comments of CATA at 7.w We  d(#agree that our authority more properly rests on the requirement in Section 623(b)(1) that the Commission  d(#ensure, by regulation, that the rates for the basic service tier are reasonable. Section 623 seeks to foster  d(#?services to the subscriber at reasonable prices. We believe that establishing the above procedures  d(#=regarding the disposition of MDU home run wiring is a necessary, "appropriate and reasonable" method  d(#to fulfill Section 623's mandate of reasonable cable rates. We believe that these procedures will provide  d(#certainty for property owners, alternative video service providers and subscribers regarding the disposition"-,`(`(88"  d(#of the home run wiring when the existing service is terminated, thereby alleviating current circumstances  d(#that deter the property owner from considering alternative service providers and fostering competition  d(#zamong service providers. We believe that such competitive choice will exert a restraining influence on rates as service providers compete for the opportunity to serve the entire building or individual subscribers.  S8- X89.` ` In the 1992 Cable Act, Congress specifically embraced a "[p]reference for competition"  S- d(#over regulation in setting rates for cable services._(] yOx-ԍCommunications Act,  623(a), 47 U.S.C.  543(a)._ Fostering competition among service providers  d(#jthrough the adoption of rules regarding the disposition of MDU home run wiring is a fundamental means  d(#to ensure that cable service rates remain "reasonable." The legislative history of Section 623(b) states that  d(#Congress agreed that "[r]ather than requiring the Commission to adopt a formula to set a maximum rate  Sp- d(#for basic cable service, the conferees agree to allow the Commission to adopt formulas or other  SJ - d(#jmechanisms and procedures to carry out this purpose. The purpose of these changes [in the legislation]  d(#is to give the Commission the authority to choose the best method of ensuring reasonable rates for the  S - d(#.basic service tier and to encourage the Commission to simplify the regulatory process."u X(] yO-ԍH.R. Conf. Rep. No. 102862, 102d Cong., 2d Sess. 62 (1992) (emphasis added).u We therefore  d(#{find that it is within our scope of authority under the 1992 Cable Act and Section 4(i) to establish  d(#procedural mechanisms that encourage reasonable rates through a competitive environment rather than a regulatory one.  S4- #Y90.` ` Further, our decision to establish procedures regarding the disposition of home run wiring  d(#in MDUs is consistent with the Communications Act's fundamental purpose of "regulating interstate and  d(#foreign commerce in communication by wire and radio so as to make available, so far as possible, to all  d(#Opeople of the United States ...a rapid, efficient, Nationwide, and worldwide wire and radio  S- d(#communications service...."W(] yO-ԍCommunications Act,  1, 47 U.S.C.  151.W Similarly, Section 601 of the Communications Act states that one of  d(#the purposes of Title VI of the Act relating to cable communications is to promote competition in  SD- d(#[cable communications._Dx(] yO\-ԍCommunications Act,  601(6), 47 U.S.C.  521(6)._ Due to the lack of competitive alternatives in multichannel video programming  S- d(#services,c(] {O-ԍSee, e.g., S.12, 102d Cong., 2d Sess. at 820 (1992).c Congress has authorized the Commission to ensure that basic cable services are available at  S- d(#reasonable rates,_(] yO. -ԍCommunications Act,  623(b), 47 U.S.C.  543(b)._ to ensure that cable programming service rates are not unreasonable,_* (] yO!-ԍCommunications Act,  623(c), 47 U.S.C.  543(c)._ and to establish  S-standards whereby cable operators fulfill customer service requirements._ (] yO&$-ԍCommunications Act,  632(b), 47 U.S.C.  552(b)._ That is what we do here.  S|-  RZ91.` ` We also believe that our rules will help fulfill Congress' mandate in the 1996 Act to  d(#"provide for a procompetitive, deregulatory national policy framework designed to accelerate rapidly  d(#Lprivate sector deployment of advanced telecommunications and information technologies and services to",.J ,`(`(88"  S- d(#all Americans."D(] yOh-ԍ1996 Conference Report at 1.D We believe that our procedural mechanisms will enhance competition, fostering the  S- d(#deployment of innovative technologies and expanded services.WX(] {O-ԍSee, e.g., Ameritech Reply Comments at 6.W Based on the record before us,K(] {Ob-ԍSee Section III.A.2.a. above.K we find  d(#lthat failing to establish such procedures would continue existing barriers to competitive choice for  d(# individuals residing in MDUs. Individuals residing in MDUs often are currently limited to receiving  d(#jservice from only one provider. Although we recognize that subscriber choice would be enhanced by the  d(#=use of multiple wires, we do not believe that requiring MDU owners to permit multiple wires is a viable  d(#option at this point in time. We believe that the inability of the MDU owner to use the existing home run  d(#wiring deters consideration of alternative providers, and that providing certainty with regard to the  d(#disposition of the MDU home run wiring provides a reasonable means of increasing choice and promoting  d(#competition. In sum, we believe that adoption of the above procedures for disposition of home run wiring is necessary to the effectuation of the Commission's obligations under Section 623(b).  S - [92.` ` Turning to the other component of Section 4(i), we also conclude that the procedural  d(#ymechanisms we are adopting are "not inconsistent" with any provision of the Communications Act. The  d(#crux of the commenters' argument that adoption of these procedures is beyond the Commission's authority  S - d(#is that they conflict with Section 624(i) of the Act. |(] {O- d(#JԍSee, e.g., Further Comments of NCTA at 710 (e.g., arguing that Mtel is distinguishable from this case because  d(#j"it is one thing for Congress to authorize certain actions and remain silent as to others, and quite another for  d(#LCongress to authorize certain actions and specifically indicate that other actions are not intended."); Further  d(#Comments of Adelphia, et al., at 23 n.3; Further Comments of CATA at 56; Further Comments of Jones Intercable, et al., at 24; Further Comments of TCI at 56; Further Comments of Time Warner at 5054. To the contrary, Section 624(i) does not prohibit  S - d(#[the Commission from adopting rules concerning wiring outside the subscriber's premises.l X . (] yON- d(#ԍThis approach is consistent with assertions by certain parties that Section 624(i) should be read as the  d(#minimum, not maximum, level of authority the Commission may exercise over cable inside wiring. Media Access/CFA Comments at 12; Bartholdi Reply Comments at 45; ICTA Reply Comments at 8.l By its plain  SX- d(#zlanguage, Section 624(i) mandates that the Commission take certain action, but does not preclude any  d(#other exercise of our authority. It states: "Within 120 days after the date of enactment of this subsection,  S - d(# the Commission shall prescribe rules concerning the disposition, after a subscriber to a cable system  S- d(#terminates service, of any cable installed by the cable operator within the premises of such subscriber."p N (] yO-ԍCommunications Act,  624(i), 47 U.S.C.  544(i) (emphasis added).p  d(#This provision only mandates that the Commission adopt rules regarding the disposition of wiring installed  d(#jwithin subscribers' premises, it does not limit the Commission's existing authority with respect to wiring  Sl- d(#=outside those premises. l(] yO#- d(#ԍThe same is true of the legislative history language NCTA cites: "[Section 624(i)] deals with internal wiring  d(#within a subscriber's home or individual dwelling unit. In the case of multiple dwelling units, this section is not  d(#intended to cover common wiring within the building, but only the wiring within the dwelling unit of individual  {OB&- d(#subscribers." 1992 House Report, cited in Further Comments of NCTA at 7. That is, the mandate of Section 624(i) that the Commission adopt rules relates only to the wiring within the individual subscribers' dwelling units. Indeed, in Mtel, the court rejected the argument that Congress's specific grant"l/ ,`(`(88"  S- d(#of authority to charge for certain licenses suggested that without that explicit grant of authority the  S- d(#Commission did not otherwise have the authority.8 (] yOB-ԍ77 F.3d at 1406.8 Even more so here, given that Section 624(i)  S- d(#/requires the Commission to adopt rules in certain circumstances rather than authorizes it to do so, it  d(#kcannot be read as a limit on the Commission's authority found elsewhere in the Communications Act.  Sd- d(#Furthermore, as the Mtel court found, the expressio unius maxim that the expression of one is the  d(#yexclusion of other "has little force in the administrative setting,' where [a court] defer[s] to an agency's  S- d(#>interpretation of a statute unless Congress has "directly spoken to the precise question at issue.'" X(] {O - d(#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))).  S- d(#LIndeed, the Mtel court stated: "[W]e think the nature of Congress's auction authorization more supports  S-than undermines the Commission's decision here."s\(] {O - d(#-ԍMtel, 77 F.3d at 1405 (quoting Texas Rural Legal Aid, 940 F.2d at 694 ("[A] congressional prohibition of  {O - d(#particular conduct may actually support the view that the administrative entity can exercise its authority to eliminate a similar danger.")) (emphasis in original).s  Sx- B\93.` ` Thus, this is not a circumstance where the general canon of statutory construction, the  SP - d(#."specific governs the general,"}P (] {O-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  S( - d(#"is an inescapable conflict' between the specific provision and the general provision."}( j (] {O2-ԍAeron Marine Shipping Co. v. United States, 695 F.2d 567, 576 (D.C. Cir. 1982).} Section 624(i)  d(#does not prohibit the Commission from adopting rules affecting home run wiring. We conclude that there  S -is no "inescapable conflict" between Section 624(i) and the procedures discussed above.~ (] {Ot- d(#ԍSee, e.g., New England Telephone & Telegraph Co. v. FCC, 826 F.2d 1101, 1107 (D.C. Cir. 1987), cert.  {O>- d(#,denied, 490 U.S. 1039 (1989) (the "wideranging source of authority" found in Section 4(i) adequately supports the  d(#Commission's orders requiring refunds as a result of rate reductions, despite the fact that the only provision of the  {O- d(#hAct that mentions refunds does not apply to the circumstance of the case); Lincoln Telephone Co. v. FCC, 659 F.2d  d(#x1092, 110809 (D.C. Cir. 1981) (Section 4(i) granted the Commission the authority to require a tariff filing by a  d(#telephone company that arguably qualified as a "connecting carrier," where the only provision in the Act expressly requiring carriers to file tariffs specifically exempted connecting carriers).  S -  `]94.` ` To the contrary, we believe that the rules we are adopting will further promote Section  d(#[624(i)'s underlying purpose of promoting consumer choice and competition by permitting subscribers to  S8- d(#use their existing home wiring to receive an alternative video programming service.8B(] {O"- d(#;ԍIn Mtel, the court noted that requiring Mtel to pay for its license fit within the situation "where the principles supporting an auction are powerful." 77 F.3d at 1405. Section 624(i)  d(#]directs the Commission to prescribe rules regarding the disposition of wiring within a subscriber's  d(#premises in order to promote consumer choice and competition by permitting subscribers to avoid the  d(#disruption of having their home wiring removed upon voluntary termination and subsequently to utilize  d(#that wiring for an alternative service. We believe that, under our current rules, we cannot fully meet those  d(#objectives in the MDU context because, as described above, MDU owners often will not permit multiple"p0,`(`(88"  d(#home run wires to be installed in their buildings. In order to promote consumer choice and competition,  d(#\therefore, we are prescribing additional rules regarding the disposition of the existing home run wiring upon termination of service.  S`- P^95.` ` Furthermore, the statement in the legislative history regarding limiting the "right to acquire  d(#/home wiring to the cable installed within the interior premises of a subscriber's dwelling unit," which  S- d(#some parties read out of context to suggest a limitation on our authority,W(] {Ox-ԍSee, e.g., Further Comments of CATA at 6.W was made in conjunction with  S- d(#Congress' expression of concern about the potential for theft of serviceyXZ(] yO - d(#ԍThe 1992 House Report states: "The Committee is concerned about the potential for theft of service within  d(#;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.1z(] {O -ԍId.1 The  d(#procedures we are adopting, however, do not grant alternative providers, subscribers, or MDU owners  d(#access to the incumbent provider's riser cable or lockbox and therefore do not pose the safety concerns  d(#about which Congress was concerned. We do not believe that the procedural mechanisms we are adopting  d(#will increase the frequency of service theft; a provider's control over its network security is unaffected  d(#>by our rules. In addition, our rules do not affect the service provider's signal leakage responsibilities.  d(#It will remain the duty of the provider to protect against signal leakage while it is providing service,  S -regardless of who owns the home run wiring in the building.N (] {O|-ԍ47 C.F.R.  76.601, et seq. N  S -  2_96.` ` In addition, cable operator reliance on the "Joint Use" provision of the 1996 Act (codified  d(#\at Section 652(d)(2) of the Communications Act) as evidence of Congress' intent that cable operators  S0- d(#retain ownership and control of the home run wiring is misplaced.[0(] {On-ԍSee Further Comments of Time Warner at 1617.[ Section 652(d)(2) provides generally  d(#that a local exchange carrier ("LEC") may obtain permission from the cable operator to use that part of  d(#jthe transmission facilities extending from the last multiuser terminal to the premises of the end user, and  S- d(#that such use must be reasonably limited in scope and duration.A0 (] yO-ԍ47 U.S.C.  572(d)(2).A Cable operators assert that this  d(#jprovision invests them with ownership and control of all cable wiring outside the subscriber demarcation  d(#point, including the home run wiring, even after a subscriber terminates service, as Congress otherwise  d(#jwould not have established rules allowing cable operators to set the terms and conditions for a LEC's use  S-of the facilities. (] {Ox"-ԍSee, e.g., NCTA Comments at 1011; Time Warner Comments at 16; CATA Comments at 4.  S- `97.` ` We disagree. Notably, Section 652(d)(2) is entitled "Joint Use," indicating Congress'  d(#zintent for the provision to govern only the joint use of the facilities by a cable operator and a LEC. It  d(#is an exception to the general prohibition in Section 652(c) on joint ventures or partnerships between cable  d(#operators and LECs that serve the same market area. We believe that Section 652(d)(2) does not constrain  d(#our authority to establish procedures governing the disposition of the home run wiring because the"(1R ,`(`(88"  d(#yprovision only addresses use of the wiring while the cable operator continues to own or use the facilities.  d(#Here, the procedural mechanisms would not apply until the cable operator has no legally enforceable right to remain on the premises and the MDU owner and/or subscriber terminates the operator's service.  S`- a98.` ` Additionally, we believe that had Congress intended the "Joint Use" provision to govern  d(#cable wiring, it would have placed the provision in Section 624, which sets forth the existing wiring  d(#Zprovisions, rather than in Section 652, which concerns telephone companycable television crossownership  d(#restrictions. We also agree with alternative video service providers that Congress would have enumerated  d(#additional types of potential users of cable operators' wiring, other than telephone companies, if it had  d(#Lintended this provision to cover uses of the wiring other than the limited situation of wiring being shared  Sp-between a LEC and a cable operator.[p(] {O -ԍSee, e.g., Bartholdi Reply Comments at 1011.[  S -  b99.` ` In sum, we conclude that the procedures we are adopting are "not inconsistent" with the  S - d(#|Act. As the court found in Mtel, "we see no conflict between the language and structure of the  S -Communications Act" and our adoption of procedural rules regarding disposition of home run wiring.D Z(] {O-ԍMtel, 77 F.3d at 1406.D  S -  2c100.` ` In addition, we believe that we have authority under Sections 4(i) and 303(r) to apply our  d(#cable inside wiring rules to all MVPDs, and not just to cable operators. Section 303(r) of the  d(#Communications Act authorizes the Commission, as required by public convenience, interest, or necessity,  d(# to promulgate rules and restrictions, not inconsistent with law, as may be necessary to carry out the  S- d(#<provisions of the Act.i(] {On-ԍSee Communications Act,  303(r), 47 U.S.C.  303(r).i We believe that applying these rules to all Commission licensees that are MVPDs  d(#would be in the public interest. The same competitive concerns described above exist regardless of  d(#whether a cable operator or some other video service provider initially installed a subscriber's or an  d(#=MDU's inside wiring. In addition, we believe that applying our cable home wiring rules to MVPDs that  d(#=are Commission licensees would not be inconsistent with Section 624(i) and would further its purposes,  d(#since subscribers could use their existing inside wiring to receive an alternative service. Further, for  d(#similar reasons to those discussed above in adopting procedures for disposition of the home run wiring  d(#in MDUs for cable operators, such procedures are not inconsistent with Section 624(i) if applied to MVPDs that are radio licensees.  SR-  d101.` ` In addition, we conclude that we have the authority under Sections 4(i), 201 to 205, and  d(#\303(r) to extend our cable inside wiring rules to common carriers engaged in the transmission of video  S- d(#programming.M~(] {O "-ԍSee 47 U.S.C.  201205.M Section 201(b) in particular requires that "practices...for and in connection with  S- d(#z[common carrier services] be reasonable.">(] yO$-ԍ47 U.S.C.  201(b).> For the same reasons that we are applying these rules to  d(#cable operators, we believe they are appropriately applied to common carrier practices consistent with  d(#jSection 201(b). We conclude that Section 4(i) also invests the Commission with authority to expand our  d(#rules in this manner with regard to MVPDs that are neither radio licensees nor common carriers. Again,"b2,`(`(88"  d(#we conclude that the same competitive concerns are present regardless of the type of service provider that  d(#jinitially installs the broadband inside wiring. In addition, we conclude that such an extension of our rules  d(#is necessary in the execution of our functions and is not inconsistent with the Communications Act, as  d(#described above. To promote parity among broadband competitors and to fulfill the directives of the 1992  S`-Cable Act and the 1996 Act, we will apply our cable inside wiring rules to all MVPDs."`(] {O- d(#iԍIn Southwestern Cable Co., 392 U.S. 157, 178 (1968), the Supreme Court held that prior to passage of the  d(# 1984 and 1992 Cable Acts, the Commission had ancillary jurisdiction over cable in order to carry out its  d(#responsibility for regulating television broadcasting. Similarly, applying our rules to all entities engaged in the transmission of video programming is necessary to carry out our responsibilility for regulating cable under Title VI.  S-` `  d.Constitutional Arguments(#  S-` `  ` (1)hhCBackground(#  Sr- e102.` ` Time Warner argues that the proposed procedures constitute an impermissible taking under  SJ - d(#the Fifth Amendment.X J (] yO-ԍFurther Comments of Time Warner at 5455, 6267.X Comcast, et al., believe that takings concerns would be alleviated if a just  S" - d(#.compensation formula is implemented.S!" B(] yO-ԍFurther Comments of Comcast, et al., at 15.S However, Building Owners, et al., argue that the Commission  d(#Lshould allow the price for wiring to be set by the marketplace because the Commission might infringe on  d(#Fifth Amendment property rights if it sets a price that presents the parties with an unrealistic choice of  S - d(#xhow to deal with the property.\" (] yO-ԍFurther Comments of Building Owners, et al., at 89.\ GTE asserts that the proposed disposition procedures would not amount  d(#.to an unconstitutional taking because property will not be deemed abandoned unless the incumbent fails  SZ-to act and because this proceeding has afforded incumbents adequate process.#Zb (] {O\-ԍFurther Comments of GTE at 1415; Further Reply of GTE at 1517; see also Further Reply of OpTel at 2.  S -` `  ` (2)hhCDiscussion(#  S- af103.` ` We conclude that the procedural mechanisms we have adopted do not constitute an  S- d(#jimpermissible "taking" under the Fifth Amendment.$ (] yO(- d(#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 incumbent's  d(#>physical property, since the incumbent has a reasonable opportunity to remove, abandon, or sell the  d(#kwiring. The Fifth Amendment cannot be construed to allow a service provider with no contractual or  d(#/other legal right to remain on a person's property to leave its wiring on the property indefinitely and  d(#prohibit the property owner from using it. There can be no taking of the incumbent's access rights  d(#because the procedures expressly apply only where the incumbent does not have a contractual, statutory  d(#0or other legal right to maintain its wiring on the premises. If the incumbent fails to act within the"3L $,`(`(88"  d(#[reasonable periods set forth and its wiring is deemed abandoned, it is the operator's failure to act, not the  S-Commission's rule, that would extinguish the cable operator's rights._%(] {O@- d(#ԍSee United States v. Locke, 471 U.S. 84, 107 (1985) (rejecting Fifth Amendment taking claim where the  d(#plaintiff failed to comply with statutory requirement for filing mining claim that would have indicated its intent to  {O- d(#Yretain property right); see also Texaco v. Short, 454 U.S. 516, 530 (1982) (noting that the Court has never required  d(#hcompensation to a private property owner who fails to take reasonable actions imposed by law for the consequences of his own neglect)._  S-X B.X` ` Sharing of Molding (#`  S8-  g104.` ` In the Inside Wiring Further Notice, we noted that RCN argued that some MDU owners  d(#jdo not object to a second set of home run wires but to the installation of a second set of hallway molding  d(#or conduits, and that in some cases there is room in the molding or conduit for it to install its home run  S- d(#wiring without interfering with the incumbent's wiring.&|(] {O - d(#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"). We sought comment on a proposal to permit  d(#the alternative service provider to install its wiring within the incumbent provider's existing molding or  d(#conduit, even over the incumbent's objection, where there is room in the molding or conduit and the MDU  SJ - d(#Mowner does not object.W'J (] {O-ԍInside Wiring Further Notice at para. 83.W We tentatively concluded that such a rule would promote competition and  d(#jconsumer choice and would not constitute a taking of the incumbent provider's private property without just compensation under the Fifth Amendment.  S - h105.` ` A number of commenters support the Commission's proposal.h(  h (] yO- d(#,ԍFurther Comments of Ameritech at 6; Further Comments of OpTel at 78; Further Comments of SBC at 67;  d(#Further Comments of RCN at 89; Further Comments of GTE at 16; Further Comments of Media Access/CFA at  d(#2021; Further Comments of CEMA at iii, 13; Further Comments of Time Warner at 4748 (asserts that with proper  d(#icompensation, the proposal may be an appropriate way to further twowire competition; claims it may waive its  d(#,exclusive molding rights as a gesture of good faith); Further Reply of OpTel at 8. However, Jones Intercable, et al.,  d(#and NCTA oppose the proposal. Further Comments of Jones Intercable, et al., at iv, 1517; Further Comments of  {Ob- d(#xNCTA at 5, 2526; see also Further Comments of TCI at 1112 (Commission should not adopt rule that permits  d(#alternative providers to use moldings or conduits where such use is inconsistent with an existing contract between the MDU owners and the incumbent MVPD).h Community Associations  d(#Institute further suggests that the Commission allow MDU owners to permit the addition of wiring to  SZ- d(#lexisting moldings and conduits except where contracts bar such action.c)Z:(] yO4!-ԍFurther Comments of Community Associations Institute at 17.c Building Owners, et al.,  d(#yspecifically argue that access to molding and conduits should only be permitted with the prior consent of  S - d(#\the building owner.* (] {Ot$- d(#ԍFurther Comments of Building Owners, et al., at 6; see also Further Comments of Nat'l Assn. of Realtors at 2. Cox supports the proposal so long as the incumbent has not bargained for and" 4$*,`(`(88"  S- d(#\received the exclusive right to use the molding or conduit.B+(] yOh-ԍFurther Reply of Cox at 5.B DIRECTV, however, suggests that such  d(#O actions be allowed regardless of whether  S-the incumbent has a contract purportedly giving it the right to exclusive use of the molding or conduit.M,X(] yO-ԍFurther Comments of DIRECTV at 1516.M  S`- i106.` ` NCTA argues that forced sharing would be an impermissible taking, and that the  S8- d(#Commission should leave the issue to contract and property law.-8(] {O - d(#hԍFurther Comments of NCTA at 2526; see also Further Comments of Comcast, et al., at 2627; Further Reply of Time Warner at 2427 (empty spaces are subject to the takings clause). On reply, NCTA states that if the  d(#Commission adopts its proposal, it should apply only where the incumbent has no statutory, contractual  S-or common law right to exclude or limit such access.G.B(] yO -ԍFurther Reply of NCTA at 1415.G  S- pj107.` ` Time Warner offers a proposal under which sharing of molding or conduit would be  d(#permitted if all affected MVPDs and the MDU owner agree that there is adequate space, subject to  SH - d(#appropriate compensation.N/H (] yO-ԍFurther Comments of Time Warner at 48.N Where the parties cannot agree that there is adequate space for additional  d(#[wires, and the MDU owner is willing to allow installation of larger molding or conduit, the party owning  d(#?the molding or conduit would install larger molding or conduit at the expense of the party seeking  S -occupancy.10 b (] {O-ԍId.1  S - k108.` ` Several parties also believe that the incumbent should be compensated for an alternative  SX- d(#provider's access to its molding or conduits.1$X (] yO- d(#ԍFurther Comments of SBC at 67 (parties should negotiate a price); Further Comments of RCN at 9; Further  {O- d(#Comments of Media Access/CFA at 2021 (alternative provider should reasonably compensate the incumbent); see  {O~- d(#=also Further Reply of Bell Atlantic at 5 (alternative provider should be liable for any damage caused by using existing molding or conduits).  RCN proposes that if parties cannot reach a negotiated  d(#price for access, the cost for each wire would be determined by calculating the incumbent's documented  S- d(#installation costs for the molding or conduit minus depreciation.E2(] yO -ԍFurther Comments of RCN at 9.E According to RCN, the new provider's  d(#share of the costs would be the depreciated per wire cost times the number of wires it installs in the  S- d(#molding or conduit.13p(] {O#-ԍId.1 Similarly, Media Access/CFA argues that the price should be prorated to reflect  d(#the percentage of empty space actually used and should be based on depreciation value, rather than  Sh-replacement value.S4h(] yO '-ԍFurther Comments of Media Access/CFA at 21.S"h54,`(`(88"Ԍ S-  ԙl109.` ` We will adopt a rule that permits an alternative MVPD to install its wiring within an  d(#incumbent's existing molding, even over the incumbent provider's objection, where the MDU owner  S- d(#agrees that there is adequate space in the molding and the MDU owner gives its affirmative consent.5(] {O- d(#ԍSee Further Comments of Building Owners, et al., at 6 (access to molding should only be permitted with the prior consent of the building owner); Further Comments of Nat'l Assn. of Realtors at 2.  d(#We believe that such a rule will promote headtohead competition among MVPDs by overcoming the  d(#[resistance of MDU owners to the installation of redundant molding. At this time we will not require the  d(#sharing of space within conduits. The record does not contain sufficient evidence regarding the practicability of such a requirement.  S-  m110.` ` We have authority to adopt these rules on the sharing of molding under Sections 4(i) and  d(#303 of the Communications Act, for similar reasons described in the disposition of home run wiring section, above.   S -  n111.` ` We agree with RCN that such a rule would not constitute a "taking" of private property  d(#\because, absent a contractual right of exclusive occupation, the incumbent would not have a property  d(#interest in the air space between the molding and the hallway wall or ceiling. We do not believe and  d(#commenters have not adduced any case law to the contrary that merely attaching hallway molding to  d(#a third party's real property ordinarily gives the attaching party any property interest in the vacant air  d(#?space covered by the molding. However, we will not apply this rule where the incumbent has an  d(#=exclusive contractual right to occupy the molding. Since we do not believe that the incumbent ordinarily  d(#will have a property interest in the vacant air space inside the hallway molding, we will not require the  d(#jalternative MVPD to compensate the incumbent for the placement of its wires. The alternative provider  d(#{will, however, be required to pay any and all installation costs, including the costs of restoring the property to its prior condition and the costs of any damage to the incumbent's wiring or other property.  S@-  o112.` ` We also will adopt a variant of Time Warner's proposal for those situations in which the  d(#[molding may not have sufficient space for the alternative MVPD's wiring. Under the rule we will adopt,  d(#where the MDU owner does not agree that there is adequate space in the molding for the additional  d(#jwiring, and the MDU owner is willing to permit the installation of larger molding that could contain both  d(#jthe incumbent's and the alternative MVPD's wiring, the the MDU owner (with or without the assistance  d(#of the incumbent and/or the alternative provider) shall be permitted to remove the existing molding (and  d(#return the molding to the incumbent, if appropriate) and replace it with the larger molding at the  d(#Nalternative MVPD's expense. Again, the alternative MVPD would be required to pay any and all  d(#jinstallation costs, including the costs of restoring the property to its prior condition and the costs of any  d(#damage to the incumbent's wiring or other property. This rule will not apply if the incumbent has  d(#=contracted for the right to maintain its molding on the MDU owner's property without alteration by the  d(#MDU owner. Absent such a contractual provision, we believe that the incumbent has no right to prevent the MDU owner from altering the molding in its hallways and other areas of its property.  S - C.` ` Disposition of Cable Home Wiring   S!- p113.` ` As we stated in the Inside Wiring Further Notice,W6!"(] {O&-ԍInside Wiring Further Notice at para. 73.W we believe that fostering competitive  d(#=choice in MDUs requires the coordinated disposition of two segments of cable wiring: (1) the home run""66,`(`(88'$"  d(#wiring from the point where the wiring becomes devoted to an individual unit to the cable demarcation  d(#point; and (2)the cable home wiring from the demarcation point to the subscriber's television set or other  d(#customer premises equipment. Without clear and predictable rules for the disposition of each of these  d(#Lsegments, an alternative provider's ability to convince an MDU owner or individual subscriber to switch  d(#services could be significantly compromised. The procedural framework discussed above addresses the  d(#[disposition of MDU home run wiring. Here, we set forth specific rules on how to address certain issues  d(#regarding the disposition of MDU cable home wiring that were not addressed in our prior home wiring  S- d(#order.d7(] {OP-ԍSee Cable Home Wiring Further Notice, 11 FCC Rcd 4561.d 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.  Sp-  q114.` ` As in the context of home run wiring, our MDU home wiring rules will apply regardless  SH - d(#of the identity of the incumbent video service provider involved.8&H Z(] {OB - d(#KԍSee Inside Wiring Further Notice at para. 74 (proposing to apply home wiring rules to all MVPDs). In this  {O - d(#=Order, we will apply all of our cable home wiring rules for multipleunit installations to all MVPDs. We also  d(#believe that it may be beneficial to apply our cable home wiring rules for singleunit installations to all MVPDs.  {O-We seek comment on this issue in the Second Further Notice.  While initially this incumbent will  d(#commonly be a cable operator, it could also be a SMATV provider, an MMDS provider, a DBS provider  d(#or others. We conclude that the same authority described above regarding the disposition of cable home run wiring allows us to apply our MDU home wiring rules to other video service providers.  S -` ` 1.  Disposition of Home Wiring When Service Is Terminated for an Entire MDU (#  S0- Ar115.` ` In the Cable Home Wiring Further Notice, we requested comment on, among other issues,  d(#zwhether, in order to promote the goals of Section 624(i) and our rules thereunder, the subscriber (on a  d(#=nonloopthrough wiring configuration) or the building owner (with a loopthrough wiring configuration)  d(#should be given the opportunity to purchase the cable home wiring when the MDU owner terminates cable  S- d(#service for the entire building.c9H(] {Oz-ԍCable Home Wiring Further Notice, 11 FCC Rcd at 4582.c For the most part, alternative service providers support having the cable  d(#lhome wiring procedures apply where the building owner terminates service on behalf of the entire  SB- d(#/building.`:ZB(] yO- d(#ԍAmeritech Docket No. 92260 Comments at 8; Bell Atlantic Docket No. 92260 Comments at 3; NYNEX  {O- d(#,Docket No. 92260 Comments at 4; Further Reply of ICTA at 16. But see Building Owners, et al., Docket No. 92260 Comments at 1; CATA Docket No. 92260 Comments at 5.` Some commenters believe that when the building owner terminates service the individual  S- d(#subscriber should be given the opportunity to purchase the home wiring;x;Z (] yO!- d(#ԍNew York City Docket No. 92260 Comments at 7 (other than bulk arrangements, only subscribers should have  {O~"- d(#the opportunity to purchase the home wiring); see also GTE Docket No. 92260 Comments at 7 (Commission should deregulate wiring and give subscribers full control over home wiring).x others believe only the building  S- d(#owner should have that right.<X(] yO%- d(#,ԍICTA Docket No. 92260 Comments at 4 (building owner should have the right to purchase regardless of who  d(#+ terminates; requiring option to purchase only when tenant terminates is inconsistent with congressional intent); OpTel  d(#hDocket No. 92260 Comments at 8; PacTel Docket No. 92260 Comments at 3 (owner should be given the right to"@';,`(`(c'"  d(#purchase and occupant should be given the right to control, e.g., to choose video service providers); Further Reply  d(#iof U.S. Wireless/Ohio Valley Wireless at 3 (building owners are "subscribers" and are entitled to control all wiring  {O - d(#<within their buildings). But see Building Owners, et al., Docket No. 92260 Comments at 45 (Commission does  d(#not have authority over landlords because they are neither subscribers nor cable operators); Time Warner Docket No. 92260 Reply Comments at 78. GTE asserts that cable "subscriber" should be defined as the one that"7z<,`(`(88%"  S- d(#contracts or arranges for service.=z(] {O- d(#ԍGTE Docket No. 92260 Comments at 7. But see Building Owners, et al., 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  d(#subscriber's authorized agent if the subscriber agrees in its lease agreement that the landlord may terminate  S- d(#service.Z>(] yO$ -ԍBell Atlantic Docket No. 92260 Comments at 3 n.3.Z Building Owners, et al., oppose applying the Commission's rules under Section 624(i) when  d(#Lservice for the entire building is terminated, because much of the building wiring is not cable home wiring  S`-and because a landlord is allegedly not a "subscriber" under the Commission's rules.c?`d (] yOd-ԍBuilding Owners, et al., Docket No. 92260 Comments at 45.c  S-  _s116.` ` In the Inside Wiring Further Notice, we tentatively concluded that, if the MDU owner has  d(#the legal right, either by law or by contract, to terminate the subscriber's cable service, the owner  d(#jterminating service for the entire building is effectively voluntarily terminating service on the subscriber's  S- d(#behalf,d@ (] {O.-ԍSee Bell Atlantic Docket No. 92260 Comments at 3 n.3.d and our home wiring rules would be triggered.WA (] {O-ԍInside Wiring Further Notice at para. 76.W We affirm this conclusion. We conclude that  d(#providing the cable operator a single point of contact (i.e., the MDU owner) will further the statutory  d(#zpurposes of minimizing disruption and facilitating the transfer of service to a competing video service  d(#provider. Because we believe that it would be impractical and inefficient for the incumbent provider to  d(#deal with each individual subscriber regarding the disposition of his or her cable home wiring when the  d(#lentire MDU is switching providers, we will deem the MDU owner to be acting as the terminating  d(#="subscriber" for purposes of the disposition of the cable home wiring within the individual dwelling unit  d(#where the cable home wiring is not already owned by a resident. We clarify, however, that, contrary to  d(#yTime Warner's contention, we are not changing our definition of subscriber to include MDU owners. We  d(#believe that, when as a matter of law or contract, the MDU owner has the right to terminate service, the  S -MDU owner is effectively terminating service on behalf of the subscriber.:BX (] yO- d(#ԍSimilarly, with regard to exclusive bulk service contracts, we conclude that it is logical for the landlord to be  d(#Zdeemed the subscriber, and thus for the landlord to have the right to purchase the home wiring as provided in our general rules.:  S- ~t117.` ` For those MDU owners proceeding under our home run wiring disposition procedures,  d(#Mwe will adopt the following framework in order to ensure the orderly disposition of the home wiring.  d(#When an incumbent provider is notified under our home run wiring disposition procedures that the  d(#incumbent provider's access to the entire building will be terminated and that the MDU owner seeks to  d(#use the home run wiring for another service, the incumbent provider must, within 30 days: (1) offer to  d(#sell to the MDU owner any home wiring within the individual dwelling units which the incumbent"88B,`(`(88%"  d(#-provider owns and intends to remove; and (2) provide the MDU owner with the total perfoot replacement  S-cost of such home wiring.HC(] {O@-ԍSee 47 C.F.R.  76.802.H  S-  u118.` ` As with the home run wiring, if an MDU owner declines to purchase the cable home  d(#wiring not already owned by a resident, the MDU owner may permit the alternative service provider to  S8- d(#purchase the wiring upon service termination under our rules.ND8Z(] {O2-ԍSee Further Reply of ICTA at 16.N We will require that the MDU owner  d(#{decide whether it or the alternative provider will purchase the cable home wiring and so notify the  d(#kincumbent provider no later than 30 days before the termination of access to the building will become  d(#effective. If the MDU owner and the alternative service provider decline to purchase the home wiring,  d(#the incumbent provider will not be permitted to remove the home wiring until the date of actual service  d(#termination, i.e., likely 90 days after the building owner notified the incumbent that its access to the entire  d(#lbuilding will be terminated. We will modify our current home wiring rules to allow the incumbent  d(#provider 30 days after service termination, rather than the current seven days, to remove all of the cable  d(#home wiring for the entire building if the MDU owner has terminated service for the entire building and  d(#has declined to purchase the home wiring. We believe this is appropriate given the amount of home  d(#wiring that may need to be removed from an entire building. Under these circumstances, if the incumbent  d(#provider fails to remove the home wiring within 30 days of actual service termination, it cannot make any subsequent attempt to remove the wiring or restrict its use.  S- z ` ` 2.  Disposition of Home Wiring When Service Is Terminated by an Individual  S-Subscriber (#  S- av119.` ` In the Cable Home Wiring Further Notice, we sought comment on whether, when a  d(#subscriber who voluntarily terminates cable service does not own the premises and elects not to purchase  SB- d(#the wiring, the premises owner should have the right to purchase the cable home wiring.cEB(] {O-ԍCable Home Wiring Further Notice, 11 FCC Rcd at 4583.c Alternative  d(#service providers contend that the premises owner should have this right to purchase when the individual  S- d(#subscriber declines to purchase the wiring, if not at all times.F~(] yO- d(#hԍAmeritech Docket 92260 Comments at 9; Bell Atlantic Docket 92260 Comments at 23; ICTA Docket 92 d(#260 Comments at 5 (premises owner should always have the right to purchase, not only if subscriber declines); OpTel  d(#Docket 92260 Comments at 2, 78 (because owner has long term investment in building and services available to  d(#-it, owner should always be allowed to purchase wiring when subscriber is merely renting); PacTel Docket 92260  {O0 - d(#hComments at 4 (building owner should have the right to purchase while tenant should have the right to use); see also New York City Docket 92260 Comments at 8. ICTA claims that this arrangement would  d(#promote competition and, consistent with Section 624(i), would avoid damage, cost and inconvenience  S- d(#to the owner's property.G (] {O:$-ԍICTA Docket 92260 Comments at 5; see also Ameritech Docket 92260 Reply Comments at 89. Building Owners, et al., claim that only owner residents (as opposed to"9 G,`(`(88"  S- d(#tenants) should have the right to purchase cable home wiring in the first place.fHX(] yOh- d(#ԍBuilding Owners, et al., Docket 92260 Comments at 6, 8, 1819 (Commission's home wiring rules should  d(#Znot apply to apartment or cooperative residents; current rules adequately address condominium situation because condominium owners should be treated like single dwelling unit owners).f In addition, Building  d(#Owners, et al., contend that it is essential for the building  d(#owner to have full control over its property, including the wiring, subject only to state property law, a  S- d(#Llease or other contract.I(] {O- d(#ԍBuilding Owners, et al., Docket 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 opportunities on  S`- d(#landlords.RJ`B(] yOB -ԍTime Warner Docket 92260 Comments at 67.R NCTA asserts that the wiring should be available to subsequent residents unless the operator  S8-removes the wiring.IK8(] yO -ԍNCTA Docket 92260 Comments at 5.I  S- `w120.` ` In the Inside Wiring Further Notice, we proposed two modifications to our cable home  d(#wiring rules. First, we proposed to permit the MDU owner or the alternative service provider to purchase  d(#the cable home wiring within each unit if the subscriber declines, provided that the MDU owner provides  d(#Ladequate notice to the incumbent provider that it or the alternative provider wants to purchase the home  d(#wiring under those circumstances. Second, we proposed to change the time in which an incumbent  d(#provider must remove the home wiring or make no further effort to use it or restrict its use from seven  S -business days to seven calendar days after the individual subscriber terminates service.[L b (] {O-ԍSee Inside Wiring Further Notice at para. 79.[  S -   x121.` ` In response to the Inside Wiring Further Notice, Comcast, et al., and ICTA agree that an  d(#MDU owner should have the opportunity to purchase the home wiring should one or more of its tenants  S\- d(#Ldecline to do so,vM\ (] yO-ԍFurther Comments of Comcast, et al., at iv; Further Comments of ICTA at 3 n.1.v but Time Warner and Building Owners, et al., argue that MDU owners should not be  S4- d(#@allowed to purchase home wiring.#N 4 (] yOX- d(#ԍFurther Comments of Time Warner at 6062 (claiming that building owners do not meet the definition of a  d(#subscriber); Further Comments of Building Owners, et al., at 10 (arguing that Section 623(b) might give the authority  d(#xto regulate the rates at which operators may sell cable home wiring, but that it does not give the Commission the authority to grant building owners the right to acquire wiring or the authority to require cable operators to sell it).# Comcast, et al., state that while it does not challenge the  d(#jCommission's proposal to allow the MDU owner to purchase the home wiring when a tenant declines to  d(#do so, it does believe that just compensation for the wiring must be "more than simply the replacement  S- d(#jvalue of that wiring."SOl(] yO#-ԍFurther Comments of Comcast, et al., at iv.S They also state that the home wiring rules should not apply when the home run  d(#wiring rules do not apply (e.g., when a subscriber terminates service without informing the incumbent that":O,`(`(88"  S- d(#[it wishes to use the home run wiring for another video provider).<PZ(] {Oh- d(#ԍFurther Comments of Comcast, et al., at 22; see also Further Comments of SBC at 3 (arguing that the  d(#[disposition of home wiring would be complicated when an occupant moved out, if nonowner occupants were permitted to purchase the wiring).< Media Access/CFA, however, argue  d(#that preventing individual subscribers from exercising the option to purchase their home wiring would  S-unlawfully subordinate individual choice and place the MDU in a gatekeeper position.VQ(] yO:-ԍFurther Comments of Media Access/CFA at 1618.V  S`- 2y122.` ` We will continue to apply our rules permitting individual terminating subscribers (or their  d(#>agents) to purchase the cable home wiring up to a point at or about 12 inches outside their individual  S- d(#units.eRz(] yO* - d(#ZԍOur current rules require a cable operator, if the operator owns the wiring and intends to remove it, to give  d(#a terminating subscriber an opportunity to purchase the wiring on the subscriber's side of the demarcation point (at  d(#Zor about 12 inches outside the customer's premises). If the subscriber declines to acquire the wiring, the operator  {O- d(#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). e We continue to believe that this is consistent with the purposes of Section 624(i) to promote  d(#Lconsumer choice and competition by permitting subscribers to avoid the disruption of having their home  d(#>wiring removed upon voluntary termination and to subsequently utilize that wiring for an alternative  S- d(#\service.S, (] {Od- d(#ZԍSee 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). If the subscriber declines to purchase its home wiring, we believe that the premises owner  d(#yshould be permitted to purchase the cable home wiring within the individual's premises based on the per SH - d(#foot replacement cost.HTH (] {Op-ԍSee 47 C.F.R.  76.802.H This approach will preserve the current subscriber's rights, and still allow the  d(#jpremises owner to act on behalf of future tenants, thus promoting competition and consumer choice. As  d(#Lwith the home run wiring in an MDU, if the premises owner declines to purchase the cable home wiring, the owner may permit the alternative service provider to purchase it.  S - $z123.` ` Where an individual MDU resident terminates service, the MDU owner must provide  d(#yreasonable advance notice to the incumbent provider if it wishes to purchase the home wiring (or that the  d(#alternative provider will purchase it) if and when an individual subscriber declines. The MDU owner will  d(#be required to inform the incumbent provider one time for the entire building. If the MDU owner fails  d(#zto provide the incumbent with such notice, the incumbent will be under no obligation to sell the home  d(#wiring to the MDU owner or the alternative provider when an individual subscriber terminates and  d(#declines to purchase the wiring. Where an MDU owner does not or cannot invoke our unitbyunit home  d(#run wiring disposition procedures (e.g., if it elects to have twowire competition to each unit), we will  d(#require the MDU owner to provide the incumbent provider reasonable advance notice if the MDU owner or the alternative provider intends to purchase the home wiring if and when a subscriber declines.  S- {124.` ` In addition, where an individual subscriber is terminating service, we will change the time  d(#in which an incumbent provider must remove the home wiring or make no further effort to use it or  d(#restrict its use in single unit installations from seven business days to seven calendar days after the  d(#=individual subscriber terminates service. We believe that this minor change is sufficient time for removal"P;T,`(`(88"  d(#of a single subscriber's cable home wiring, and will avoid customer confusion by having the time  d(#permitted for the provider to remove the home wiring within the individual unit run concurrently with the  d(#/time permitted for the provider to remove, sell or abandon the home run wiring under our procedural framework.  S8- ` ` 3. Effect of Subscriber Vacating the Premises(#`  S-` `  on the Application of Cable Home Wiring Rules (#  S-  |125.` ` We also sought comment in the Cable Home Wiring Further Notice on the disposition of  d(#cable home wiring in the event that a subscriber terminates cable service, elects not to purchase the wiring  Sr- d(#and vacates the premises within the time period the operator has to remove the home wiring.xUXr(] yO - d(#ԍSection 76.802(a) provides that, if the terminating subscriber declines to purchase the cable home wiring, the  d(#cable operator must then remove it within seven business days, under normal operating conditions, or make no subsequent attempt to remove it or to restrict its use. 47 C.F.R. 76.802(a). x We stated  d(#[that we believed that, as long as the cable operator is allowed access to the premises to remove its wiring  d(#if it so wishes, whether the subscriber vacates the premises has no bearing on the application of our rules.  d(#The cable operator would be required to remove the wiring within seven days of the subscriber's  d(#termination of service, or make no subsequent attempt to remove it or to restrict its use, regardless of who  S -subsequently resides in the premises.cV (] {O2-ԍCable Home Wiring Further Notice, 11 FCC Rcd at 4583.c  SZ- o}126.` ` Several commenters believe that whether a subscriber vacates the premises should have  S2- d(#no bearing on the application of the home wiring rules.W 2z(] yOL- d(#hԍAmeritech Docket 92260 Comments at 89; Bell Atlantic Docket 92260 Comments at 3; ICTA Docket 92 d(#,260 Comments at 6; New York City Docket 92260 Comments at 78; NYNEX Docket 92260 Comments at 45;  d(#OpTel Docket 92260 Comments at 2, 67; PacTel Docket 92260 Comments at 4; WCA Docket 92260 Comments at 25; Ameritech Docket 92260 Reply Comments at 9. NYNEX asserts that the cable operator must  d(#ascertain when the wire can be removed during the time period allowed and that, if the cable operator fails  d(#-to act promptly and the new tenant refuses to grant access, the operator loses its right to remove the wiring  S- d(#!or restrict its use.VXZb (] {O- d(#ԍNYNEX Docket 92260 Comments at 45; see also OpTel Docket 92260 Comments at n.4 (requesting  d(#clarification that the operator must remove the wiring, not merely disable it); Ameritech Docket 92260 Reply Comments at n.23 (supporting OpTel's clarification request).V WCA states that the operator's failure to act should extinguish any claim of  S- d(#ownership or control over the home wiring.IY (] yO -ԍWCA Docket 92260 Comments at 25.I PacTel contends that once the unit is vacant, all service  Sj-providers should have equal access to the next tenants.KZj(] yO#-ԍPacTel Docket 92260 Comments at 4.K  S-  ~127.` ` We conclude that our cable home wiring rules should apply even when the subscriber is  d(#jvacating the premises within the seven day period. A cable operator that owns the wiring and intends to  d(#remove it must offer to sell the cable home wiring to the subscriber upon voluntary termination, and if  d(#[the subscriber declines, the operator must remove the wiring within seven days or make no further effort"<Z,`(`(88"  S- d(#to remove it or restrict its use.E[(] {Oh-ԍSee 47 CFR  76.802.E We expressly state that the cable operator must be given reasonable  d(#zaccess to the individual premises during the removal period. We believe that the foregoing policy will  d(#promote the objectives of Section 624(i) by minimizing disruption and facilitating subsequent subscribers' ability to use their home wiring to connect to the video service provider of their choice.  S8- 3128.` ` The disposition of the cable home wiring under these circumstances will not affect our  S- d(#\rules for the unitbyunit disposition of the MDU home run wiring. As described above,K\Z(] {O -ԍSee Section III.A.2.b. above.K our rules  d(#regarding the disposition of the home run wiring are not triggered where a subscriber terminates service  d(#and vacates the premises unless and until a new or subsequent subscriber (or his or her agent) notifies the  d(#incumbent service provider that the subscriber wishes to receive service from an alternative service provider lawfully serving the premises.  S - D.` ` MDU Demarcation Point  S -` ` 1. Background  S -  Q129.` ` In the Inside Wiring Notice, we sought comment on "whether and how our wiring rules  d(#can be structured to promote competition both in the markets for multichannel video programming  S2- d(#delivery and in the market for telephony and advanced telecommunications services."Z]2(] {O-ԍInside Wiring Notice, 11 FCC Rcd at 275556.Z In particular, we  d(#Lrequested comment on whether and where the Commision should establish a common demarcation point  d(#for wireline communications networks, regardless of the type of wiring they employ (e.g., coaxial cable  S- d(#ior "twistedpair" copper wiring) or the type(s) of services provided (e.g., video or telephony).:^~(] {O-ԍId. at 2754.: We stated  d(#that sound reasons for creating a common demarcation point may exist, such as when cable and telephony  d(#services are provided over a single broadband wire. In that situation, we posited that a common  d(#demarcation point could facilitate competition by decreasing confusion over where a particular service's  d(#.demarcation point is located and reducing the possibility that conflicting property rights could impede a  S-transfer of service.=_(] {O-ԍId. at 275455.=  S- &130. ` ` We sought comment on whether, alternatively, we should continue to establish  d(#demarcation points based on the services provided over facilities (i.e., telephony or cable), or whether we  d(#\should create demarcation points based upon the nature of the facilities ultimately used to deliver the  S*- d(#service (i.e., narrowband termination facilities or broadband termination facilities).1`*(] {Ol$-ԍId.1 We noted that we  d(#"recognize that numerous other factors may affect the proper location of the cable network's demarcation"=4 `,`(`(88z"  S- d(#kpoint, as well as one's control over cable inside wiring and cable service generally.":a(] {Oh-ԍId. at 2757.: We also sought  d(#comment on the "legal and practical impediments faced by telecommunications service providers in  S-gaining access to subscribers.":bZ(] {O-ԍId. at 2775.:  S`- 131.` ` Several commenters support the establishment of a common demarcation point in single  S8- d(#family homes for both cable and telephone wiring.ZcX8(] yO - d(#ԍAT&T Comments at 6; Cincinnati Bell Comments at 2; GTE Comments at 89; PacTel Comments at 6; USTA  d(#Comments at 34; U S West Comments at 46; DIRECTV Comments at 8; Time Warner Reply Comments at 56; Bell Atlantic Reply Comments at 11; Further Reply of Bell Atlantic at 13.Z These commenters state that a common demarcation  d(#[point would foster competition by easing a subscriber's transition among services providers. A common  d(#<point would permit a subscriber to switch service providers by simply disconnecting the inside wiring from  d(#/one provider's network and reconnecting it to another network, all at one location. Time Warner and  d(#others support a common point set at or about 12 inches outside of the point where the wiring enters the  d(#customer's home, because this will allow service transfers without requiring the presence of the consumer  SH - d(#to allow access to the interior of the home.dDH (] {O- d(#ԍSee, e.g., Time Warner Reply Comments at 56; AT&T Comments at 56 (noting that this point would  d(#coincide with the current cable demarcation point, and that the telephone rules would have to be amended only  d(#slightly to move that demarcation point from just inside the premises to the network interface unit, which is typically  d(#located outside the premises); Charter/Comcast Comments at 14; Media Access/CFA Comments at 10; Tandy  {O- d(#Comments at 6; see also NYNEX Comments at 56 (urging the Commission to restrict this approach only to new  d(# construction); U S West Comments at 4 (stating that there "is apparently no reason why [the Commission] could not"  d(#set a common point); DIRECTV Comments at 8 (phrasing it as "the first point where physical wiring is dedicated to an individual subscriber"). They assert that this approach will accommodate future  S - d(#competition between cable and telephone companies,e (] {O-ԍSee, e.g., Adelphia Comments at 3; Circuit City Comments at 15; Charter/Comcast Comments at 14. while also facilitating testing and complying with  S - d(#existing electric codes.kf (] {OB-ԍTime Warner Reply Comments at 6; see also AT&T Comments at 5.k Other commenters would modify this approach to allow a common point set  S - d(#at or about 12 inches outside the premises or 12 inches inside the premises,&g <(] yO- d(#ԍAdelphia Comments at 3. Time Warner apparently supported this point in its initial comments but supports  {Ot-a point outside the premises in its reply comments. See Time Warner Comments at 5 and Reply Comments at 56.& or the closest practicable  S - d(#point to that location,h (] yO!-ԍPacTel Comments at 7 (supporting this point as long as it is beyond any electronics equipment). "provided that the point is reasonably accessible to competing providers."Hi &(] yOn#-ԍAmeritech Reply Comments at 4. H Bell  d(#Atlantic would allow multiple demarcation points anywhere between the property line (i.e., a terminating  d(#device) and 12 inches inside the premises, but adds that the demarcation rules for existing singlefamily  S0-homes should be grandfathered.Kj0(] yO'-ԍBell Atlantic Reply Comments at 12.K"0>Fj,`(`(88J"Ԍ S- ԙ132.` ` The New Jersey BPU, in contrast, believes that the current demarcation points offer  S- d(#sufficient access to competitors, and that changing these rules would not benefit consumers at this time.Ek(] yO@-ԍNew Jersey BPU Comments at 2.E  d(#Building Industry Consulting adds that, in practice, the telephone demarcation point has moved gradually  S- d(# closer to the cable point.SlX(] yO-ԍBuilding Industry Consulting Comments at 2.S For this reason, Building Industy Consulting believes that establishing a  d(#common demarcation point would not be burdensome, while TIA relies on the same reasoning to argue  S8-that setting a common demarcation point is unnecessary.:m8(] yO -ԍTIA Comments at 2.:  S- 133.` ` Many commenters argue that the current cable demarcation point in MDUs (at or about  d(#12 inches outside of where the cable wire enters the subscriber's individual dwelling unit) is  d(#[anticompetitive. These commenters assert that, as a physical matter, the cable wiring at the demarcation  d(#point is often embedded in brick, plaster, or cinder blocks, or encased in conduits or moldings, particularly  SH - d(#in older MDUs.nH x(] {O`- d(#ԍSee, e.g., OpTel Reply Comments at 6; Media Access/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  d(#krefuse to allow installation of a second set of cable wires in their buildings due to the risk of property  S - d(#damage, space limitationso (] {Oj- d(#ԍSee WCA Comments at 13 (space limitations often place a de facto cap on the number of competing service  d(#xproviders that may serve an MDU property, such that a property owner often cannot give an alternative service  {O- d(#,provider the space necessary to compete in the building); see also Multimedia Development Comments at 15; Riser  d(#;Mgt. Comments at 4 (stating that "there are many buildings in which conduits, riser shafts, entrances links, or crawl  d(#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.p N (] {O- d(#xԍSee, e.g., ICTA Comments at 21 ("Virtually all property owners refuse to allow installation of a second set  d(#Kof separate cable wires . . . [because] . . . [p]ostwiring a building generally negatively impacts the appearance of  d(#the property because [the wiring] cannot be hidden without tampering with the structure of the building."); DIRECTV  d(#Comments at 2 ("The MDU owners and tenants are typically unreceptive to assuming the cost and inconvenience  {O- d(#of overbuild installations, which causes an intractable barrier to entry for new service providers."); see also Further Reply of USSB at 45. Alternative MVPDs contend that property owners  d(#routinely insist that a competitor to the incumbent cable operator may only provide service to the  S - d(#consumers residing in the MDU if the competitor uses the existing wiring within the building.=q (] yO!-ԍICTA Comments at 21. = These  d(#Mcommenters assert that, given the growing number of MDU residents, this is a significant nationwide  SX-problem.wrXZ(] yOR$- d(#JԍLiberty cites the U.S. Bureau of the Census in describing data that MDUs accounted for 28% of the entire U.S.  d(#Jhousing market in 1990, and that the number of dwelling units in MDUs in the U.S. increased by 51% between 1980  d(#Zand 1990, while the number of households and single family residences grew by only 14% and 15%, respectively.  {O&- d(#YLiberty 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").w"X? r,`(`(88K"Ԍ S- pԙ134.` ` Alternative providers make several different proposals. Most commenters urge the  d(#Commission to establish a new cable demarcation point at the point at which the wiring becomes solely  d(#dedicated to an individual subscriber e.g., at the lockbox, where the riser cable connects to each unit's  S- d(#dedicated home run wiring.s(] {O- d(#ԍSee, e.g., GTE Comments at 4; USTA Comments at 3; ICTA Comments at 2024; Multimedia Development  d(#wComments at 1314; MultiTechnologies Services Comments at 2; RCN Comments at 2; OpTel Comments at 1011;  d(#-Media Access/CFA Comments at 1011; US West Comments at 5; New Jersey BPU Comments at 67; Compaq  d(#[Comments at 36; WCA Comments at 1012; AT&T Comments at 78; NYNEX Comments at 7; DIRECTV  d(#Comments at 78; PacTel Comments at 35; Ameritech Comments at 8; Liberty Comments at 23; Further Reply of USSB at 34; Further Reply of DIRECTV at 6; Further Reply of Nat'l Rural Telecom. Coop. at 56. Other proposals include: (1) placing the cable demarcation point at the  S`- d(#minimum point of entry, as it typically is located in the telephone context;t`B(] {OB - d(#ԍSee, e.g., CEMA Comments at 45; Ameritech Comments at 56 ("[I]n a converging marketplace where  d(#telephone companies and cable operators are providing a variety of broadband services . . . different regulations for  d(#;premises wire based on the identity of the provider no longer are reasonable or necessary, especially where different  d(#services are provided over the same wire."); Bell Atlantic Reply Comments at 1214 (recommending that the  d(#Jminimum point of entry be established as the common demarcation point for buildings that are built or substantially  d(#rewired after January 1, 1998, which would prevent premises owners from having to give up valuable corridor space  d(#for multiple feeder cables, and would maximize the amount of wiring that can be provided by companies other than  d(#the service providers); AT&T Comments at 3; Tandy Comments at 6; GTE Comments at 7; Circuit City Comments  d(#xat 1415; Cincinnati Bell Comments at 2; Media Access/CFA Comments at 4; GTE Comments at 3; Riser Mgmt. Comments at 3; California PUC Comments at 12.  (2) moving the cable  d(#/demarcation point to a location near the entry to the building, such as a basement, telephone vault or  S- d(#frameroom;u"(] yO- d(#[ԍBuilding Owners, et al., Comments at 38. Many commenting property managers and owners state that  d(#"[d]epending on the type of property, the demarcation point should be outside the building or outside of the premises  {O- d(#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. v((] {ON- d(#ԍDIRECTV Comments at 78; Liberty Petition for Reconsideration of the Cable Wiring Order at 1; WJBTV  {O- d(#.Limited Partnership Response to Petitions for Reconsideration of the Cable Wiring Order at 3; WCA Reply  {O- d(#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- 135.` ` Alternative service providers argue that moving the cable demarcation point to the point  d(#where the wiring becomes dedicated to an individual unit will promote competition in the video  d(#jmarketplace. They assert that adopting their proposal would allow an alternative service provider, upon  d(#.termination of the incumbent provider's service by a subscriber, to attach its network quickly and easily  S - d(#!to the wiring solely dedicated to the individual subscriber's use.rw (] {ON#-ԍLiberty Petition for Reconsideration of the Cable Wiring Order at 2.r They also argue that this new  d(#Ldemarcation point would permit a second entrant to provide service without disrupting hallway walls or" @Hw,`(`(88 "  S- d(#ceilings, or installing additional hallway molding in order to conceal a second set of home run wiring.7x(] {Oh- d(#ԍSee OpTel Reply Comments at 6; Media Access Project/CFA Comments at 6; Ameritech Comments at 34;  d(#New Jersey BPU Comments at 67; GTE Comments at 4; WCA Comments at 1112; NYNEX Comments at 78;  d(#PacTel Comments at 3; USTA Comments at 3; RCN Comments at 5 & n.5; Riser Mgmt. Comments at 5; AT&T  d(#Reply Comments at 6; Liberty Comments at 23; DIRECTV Comments at 8; OpTel Comments at 1011; Multimedia Development Comments at 1314; AT&T Comments at 7.7  d(#These 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.y"z(] {O- d(#ԍSee Ameritech Reply Comments at 2; AT&T Comments at 48; TIA Comments at 7; Media Access/CFA  d(#Comments at 610; Circuit City Comments at 15; GTE Comments at 2; DIRECTV Comments at 12; Info. Tech.  d(#<Industry Council Comments at 3; NYNEX Comments at 78; RTE Group Comments at 2; MFS Comments at 2; Multimedia Development Comments at 2.  S`- %136.` ` Some commenters that advocate moving the cable demarcation point to the "solely  d(#dedicated" point, as described above, urge the Commission to deem the MDU property owner the  d(#"subscriber" for purposes of Section 624(i) and to allow the property owner to purchase the home run  S- d(#wiring upon termination of the cable service.zXd (] yO- d(#ԍOpTel Comments at 1213; ICTA Comments at 11 n.4. ICTA states that this approach is consistent with the  d(#I 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- d(#purchase the wiring would constitute an impermissible taking of the property owner's property,?{ (] yO-ԍICTA Comments at 1119.? would  S- d(#be beyond the Commission's authority under Section 624(i),|Z(] {OL- d(#ԍSee id. at 810 (arguing that the Commission only has authority under Section 624(i) over cable "within the  d(#: 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- d(#wԍSee id. at 2526; OpTel Comments at 1214; WCA Comments at 1516; Multimedia Development Comments  d(#at 1415 (stating that "[t]he interests of an MDU property owner, whether it is a condominium association or  d(#landlord, closely parallels those of its building residents regarding building services," and that in order to attract and  d(#retain residents, a premises owner "seeks to provide the best possible building environment at the most reasonable  d(#zcost."); Building Owners, et al., Reply Comments at iii (stating that "the real estate business is extremely  d(#Jcompetitive, 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 - 137.` ` DIRECTV suggests that the Commission should establish a "virtual" demarcation point  S - d(#from which an alternative provider could share the wiring simultaneously with the cable operator.A~ x(] yO$-ԍDIRECTV Comments at 810.A Other  S - d(#\alternative providers endorse this view, if it is technically possible.g (] {Ox&-ԍSee NYNEX Comments at 89; Batholdi Reply Comments at 16.g CEMA states that some of its  d(#members "are currently developing equipment that will allow multiple uses of a single broadband wire," A,`(`(88 "  d(#.including the potential for simultaneous use, and the highspeed, realtime transport of digitally encoded  S- d(#information to the customer premises."B(] yO@-ԍCEMA Reply Comments at 13.B Cable operators generally oppose DIRECTV's suggestion that  d(#two video service providers may share a single wire, stating that the alternative provider would have to  d(#use different frequency bands to avoid interference, and, while theroetically possible, most systems do not  S`-have sufficient bandwidth capacity to carry multiple MVPDs.`X(] yOX- d(#ԍCox Comments at 19; Marcus Cable, et al., Comments at 6; Adelphia Comments at 5; CATA Comments at 4; TKR Comments at 5.  S- 138.` ` Cable operators generally argue that the Commission should not modify the current cable  S- d(#demarcation point in MDUs.cX(] yO8 - d(#ԍAdelphia Comments at 12 ; CATA Comments at 67; Time Warner Comments at 68; Continental/Cablevision  d(#Comments at 610; Charter/Comcast Comments at 17; Guam Cable TV Comments at 34; Marcus Cable, et al., Comments at 89; NCTA Comments at 45; TCI Comments at 45; TKR Comments at 10.c Some cable operators argue that the alternative service providers have  d(#failed to support their assertions that the current cable demarcation point is often inaccessible and that the  S- d(#cost of installing additional home run wiring is prohibitive.X(] {O- d(#ԍSee, e.g., Cox Reply Comments at 1011; Marcus Cable, et al., Reply Comments at 7; see also Time Warner  d(#JComments at 1718 (asserting that, contrary to claims by Liberty and NYNEX, only approximately two percent of  d(#YMDUs in New York City have home runs that are inaccessible to competitors because the wiring is concealed behind  d(#Kold plaster walls or ceilings, and that even in those cases, "true" inside wiring is available at the wall plates of the individual dwelling units). X Cable operators contend that they often are  d(#>the second entrant into an MDU, and that in such circumstances they install their own inside wiring,  SH - d(#including home runs.+@H (] yOj- d(#ԍCox Reply Comments at 1011 (citing Charter/Comcast Comments at 1819 (arguing that postwiring a  d(#condominium building costs less than $10,000)). Guam Cable TV states that MDU subscribers in Guam are able  d(#to receive multiple services from multiple providers because: (1)most contractors use large interior conduit together  d(#wwith miniature coaxial cable; (2)premises owners insist that service providers leave in a pull cord for use by the next  d(#provider; and (3)wiring is often concealed in unobtrusive exterior moldings on older buildings. Guam Cable TV  d(#Comments at 45. Cable operators argue that Guam's experience proves that the costs of installing additional wire  d(#Zis 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." Marcus Cable, et al., Reply Comments at 9; CATA Reply Comments at 6.+ In addition, some cable operators assert that alternative service providers typically  d(# assuage concerns of landlords through compensation for access to the MDU, which they claim cable  S - d(#operators may be precluded by law from doing.a (] {O" -ԍSee, e.g., Charter/Comcast Comments at 17 and n.28.a Alternatively, Charter/Comcast urges the Commission  d(#jto move the demarcation point for broadband services inside the customer's premises, such as to the wall  S -plate.yZ (] {Od#- d(#iԍId. at 15; see also CEMA Comments at 5 (stating that consumers are likely to want multiple services from  d(#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).y  SX- 139.` ` Cable operators argue that moving the cable demarcation point would restrict their ability  d(#>to compete to provide telephony and other telecommunications services, such as Internet access, if a"0B>,`(`(88;"  S- d(#lsubscriber chose a competitor's video services.B(] {Oh- d(#>ԍSee, e.g., Ex Parte Letter from Arthur H. Harding, Fleischman & Walsh, counsel for Time Warner  d(#Entertainment Company, L.P., to William F. Caton, Acting Secretary, Federal Communications Commission  d(#(February 21, 1995) at 2; Cox Comments at 22. Time Warner also argues that the home run wiring is never truly  d(#"dedicated" because: (1) even after a subscriber terminates cable service, the operator must retain its entire endto d(#wend distribution system so that other services can be offered to that unit; (2) a home run often serves more than one  d(#,unit through splitters; and (3) a home run may be redirected for use by another unit. Time Warner thus asserts that  d(#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  d(#additional broadband wires to their premises, since they could then have the flexibility of receiving  S- d(#different services from different providers, rather than simply choosing among service providers.B(] {O" - d(#ԍSee Time Warner Comments at 11 (a consumer, for instance, may want basic cable service from the incumbent  d(#cable operator, expanded basic service from a DBS provider, and telephone service from a local exchange carrier);  d(#nAdelphia Comments at 2; NCTA Comments at 79; Marcus Cable, et al., Comments at 1314;  d(#Continental/Cablevision Comments at 1421 (moving the demarcation point would "thwart both competition and  d(#consumer choice in MDU units"). Time Warner states that, contrary to the assertions of the Media Access/CFA,  d(#multiple sets of broadband wires extending to a particular dwelling unit are never "redundant" because the cable  d(#operator always will need the wire connection to the subscriber in order to offer noncable services. Time Warner Reply Comments at 34 (citing Media Access/CFA Comments at 5). Cable  d(#operators argue that they should be permitted to maintain control over their wire in order to compete to  d(#provide such services, rather than have to relinquish their wire to a competitor and be forced to rewire  S8-in the future.w8(] {O-ԍSee, e.g., NCTA Comments at 7; Continental/Cablevision Comments at 1421.w  S- 140.` ` Cable operators also argue that allowing competitors to take over the cable operators'  S- d(#Lexisting plant would undercut their incentives to upgrade and deploy endtoend broadband networks.n(] yO- d(#ԍCox Comments at 20; Marcus Cable, et al., Comments at 56; Continental/Cablevision Reply Comments at  d(#10 (allowing alternative service providers to take over the existing network would undermine "the present  d(#marketplace incentives that are spurring cable operators to make new investments to upgrade and expand their  d(#broadband capacity"); Time Warner Reply Comments at 1718 (arguing that moving the demarcation point would  d(#contradict the intent of Congress expressed in the Telecommunications Act of 1996 to promote private sector  d(#investment in advanced telecommunications facilities and infrastructure development) (citing H.R. Conf. Rep. No.  d(#Y104458, 104th Cong., 2d Sess. 113 (1996) ("1996 House Report")); NCTA Comments at 2223 (stating that cable  d(#operators have invested huge resources in upgrading their networks with fiber optic technology, and that requiring  d(#xcable operators 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).   d(#yCox states that it is not surprising that telephone companies and other alternative service providers favor  d(#a rule that allows them to take over the cable operator's plant, since this allows them to reduce costs while  d(#also protecting them from competition from cable operators in the provision of telephony, video and data  S - d(#services." (] {O$- d(#xԍCox Comments at 2122; see also Time Warner Comments at 8 (the end result will be that fewer wires will  d(#be installed to subscribers); Continental/Cablevision Comments at 10 (stating that such an approach would reward  d(#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" C,`(`(88 "  d(#upgrades in areas with a high concentration of MDUs and disadvantage those subscribers residing in  S-MDUs visavis subscribers residing in single family homes.\(] {O@- d(#ԍSee generally Time Warner Reply Comments at 21. Others argue that, given the impending competition to  d(#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.  S- 4141.` ` The end result of moving the cable demarcation point in MDUs, according to cable  d(#!operators, would be a "onewire world" in which the MDU owner or manager would become the  d(#^"gatekeeper" with the power to determine which services and service providers have access to  S- d(#subscribers.Z(] yO - d(#ԍCox Comments at 20. Cox further states that, even in those states where cable operators have a mandatory  d(#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- d(#interests at the expense of subscribers residing in the building. z(] yO- d(#xԍMarcus Cable, et al., Comments at 78 (citing cases in which premises owners have evicted franchised cable  d(#operators in order to provide exclusive access to an affiliated SMATV or one that promises a "kickback" to the  d(#Ydeveloper); Continental/Cablevision Comments at 2122. Marcus Cable, et al., contend that forcing cable operators  {O- d(#to turn over their wiring to competitors would "create de facto exclusive arrangements for MDUs, even where the  d(#provider has not contracted for exclusivity, by transforming the cable operator into little more than a contractor for wiring installation." Marcus Cable, et al., Reply Comments at 9.  These parties believe that, rather than  d(#enhancing 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.P (] yO- d(#ԍMarcus Cable, et al., Reply Comments at 10; Continental/Cablevision Comments at 2122; Charter/Comcast Comments at 17; CATA Reply Comments at 3; Cox Reply Comments at 11.  SH - 142.` ` In reply, GTE disputes the claim that moving the demarcation point necessarily "would  S - d(#/lead to a onewire world and would discourage the offering of new services."@ (] yOh-ԍGTE Reply Comments at 6.@ GTE states that, if a  d(#building owner wants to allow service providers to duplicate the wiring that exists in its structure, there  d(#yis nothing in the current rules preventing this. Similarly, ICTA argues that moving the demarcation point  d(#\would not discourage investment because a cable operator may protect itself by obtaining a property  d(#jowner's agreement guaranteeing the operator access to the property for a period of time sufficient for the  SX-operator to recoup its investment in the wiring and make a reasonable profit.`X8(] yO0!-ԍICTA Reply Comments at 7 (citing Cox Comments at 2021).`  S- 143.` ` Alternative service providers also dispute the cable industry's argument that moving the  d(#/cable demarcation point would impair cable operators' ability to offer additional services because the  d(#loperator will no longer control the existing home run wiring. WCA asserts that this is a consumer  d(#decision and that MDU subscribers will do what all consumers do when choosing among providers i.e.,  d(#yevaluate the options and determine which one will provide the highest quality service at the lowest price.  d(#/WCA believes it would be anticompetitive for the cable operator to hold a subscriber hostage to the"@D,`(`(88r"  d(#operator's video programming service only because the cable operator may offer telephony or other  S- d(#services in the future.D(] yO@-ԍWCA Reply Comments at 1819.D In addition, ICTA argues that the cable industry should not be able to use its  d(#/competitive advantage with respect to video programming, which results from its control over inside  S-wiring, to inhibit competition in other markets as well.X(] yO- d(#ԍICTA Reply Comments at 56 (the cable industry ignores the fact that many alternative video service providers  d(#are capable of, and currently offer, voice, video and data to subscribers); GTE Reply Comments at 6 (the cable  d(#operators' arguments are "selfserving" and clearly demonstrate that the cable industry opposes any change to the  {O- d(#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).  S8- 144.` ` Finally, some commenters contest cable operators' arguments that property owners will  d(#function as anticompetitive gatekeepers if the cable demarcation point is changed. First, these parties  d(#state that the cable industry's arguments ignore property owners' incentives to act in tenants' best interests  S- d(# if the owners want to avoid vacancies in their buildings.xZ (] {Oj- d(#ԍICTA Reply Comments at 7; WCA Reply Comments at 1517; see also generally Building Owners, et al.,  d(#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  d(#Nignores the "thousands of times" landlords seek to act in the best interests of their tenants but are  d(#"hamstrung" by cable operators' assertions of ownership over wiring, even after the cable operator's  SH - d(#service has been terminated.mH , (] {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  d(#be or should be a gatekeeper to an MDU, but whether the property owner or the cable operator would  d(#make a better gatekeeper. Ameritech, for instance, believes that given cable operators' incentives to  d(#.preclude 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. (] {O- d(#YԍAmeritech 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).  SX- p145.` ` In the Inside Wiring Further Notice, we sought additional comment on our tentative  d(#conclusion that where the cable demarcation point is truly physically inaccessible to the alternative  d(#provider, the demarcation point should be moved back to the point at which it first becomes physically  S- d(#{accessible.(] {O - d(#ԍInside Wiring Further Notice at para. 84. Among other things, we also sought comment on how to define  {Od!-"physically inaccessible." Id. Several commenters support the Commission's proposal to require relocation of the  S- d(#\demarcation point when it is "physically inaccessible" to a point where it first becomes accessible.lt(] yO#- d(#-ԍFurther Comments of GTE Comments at 1617; Further Comments of Heartland Wireless at 67; Further  d(#Comments of RCN at 23; Further Comments of OpTel at 78; Further Comments of SkyZone at 2; Further Reply  d(#of GTE at 2021. Several parties urge the Commission to clarify that relocation must be toward the junction box  d(#and away from the MDU unit. Further Comments of Heartland Wireless at 67; Further Comments of RCN at 23;  {O&- d(#Further Comments of WCA at 14; Further Reply of Telebeam at 4; Further Reply of GTE at 21; see also Further"&,`(`(%'"  d(#Comments of Media Access/CFA at 19 (a physically inaccessible demarcation point should not be moved inside the subscriber's unit). l "E ,`(`(88"  d(#Media Access/CFA propose a twopart definition that would ask whether accessing the demarcation point  d(#would: (1)require modification or damage to preexisting structural elements and (2)add significantly to  S- d(#the difficulty and/or cost of accessing the subscriber's home wiring.U (] yOp-ԍFurther Comments of Media Access/CFA at 20. U A number of other definitions were  S-also suggested.8b (] yO- d(#iԍRCN and WCA assert that a demarcation point should be defined as physically inaccessible if an alternative  d(#provider cannot connect its wiring without cutting or otherwise altering any parts of the building, including the  {Oh - d(#molding or conduit. Further Comments of RCN at 35; Further Comments of WCA at 14. See also Further Reply  d(#jof ICTA at 5 (supporting WCA's definition); Further Reply of OpTel at 8 (same). RCN further argues that a  d(#wdemarcation point is also inaccessible if it can be reached by only one molding or conduit and the molding or conduit  d(#Jis full or otherwise not available to competing MVPDs. Further Comments of RCN at 45. DIRECTV believes that  d(#the term "physically inaccessible" should encompass any instance where the demarcation point is not in an open,  d(#,common space, but is behind a wall, floor, ceiling, or other structural component. Further Comments of DIRECTV  d(#at 16. Community Associations Institute believes that the MDU owner is in the best position to determine the point  d(#at which wiring is physically accessible. Further Comments of Community Associations Institute at 17. Comcast,  d(#et al., contend that the cable demarcation point should only be deemed physically inaccessible where it is embedded in brick, metal conduit or cinder block. Further Comments of Comcast, et al., at 27. 8  S8- 146.` ` In reply, Time Warner suggests adoption of the Commisison's "brightline" test that the  d(#.cable demarcation point would be physically "inaccessible" where it is embedded in brick, metal conduit  S- d(#or cinderblocks, not simply within hallway molding.|(] {Ob-ԍFurther Reply of Time Warner at 2223; see also Further Reply of TCI at 1415.| Cable commenters propose that in such  d(#.circumstances the demarcation point would be moved as close as practicable thereto (either closer to the  S-unit or farther away) to permit access.gl(] yO-ԍFurther Reply of Time Warner at 23; Further Reply of TCI at 15.g  SH -` ` 2. Discussion  S -  P147.` ` We believe that it is not necessary to establish a common cable and telephone demarcation  d(#point at this time. At least as far as inside wiring is concerned, telephony generally appears to continue  d(#/to be delivered over twisted pair wiring and multichannel video programming generally appears to be  S - d(#delivered over coaxial cable.FD (] yO!- d(#ԍBased on the record in this proceeding, it appears that cable operators and other entities planning to offer  {O!- d(#telephone service generally will do so by connecting to the existing telephone inside wiring network. See, e.g., Time  d(#Warner Reply Comments at 23 ("Even as cable operators begin to deliver telephony services over their broadband  d(#Jnetworks, the actual telephone service delivered within the home or MDU residence will be over traditional "twisted  d(#Jpair" narrowband wiring"); NCTA Comments at 22; Cox Comments at 1011; WinStar Comments at 58. Pursuant  d(#to Section 1.415(d) of the Commission's rules, we deny WinStar's Motion to Accept LateFiled Comments. Reply  {O%- d(#comments in response to the Inside Wiring Notice closed April 17, 1996; Winstar's comments were filed on August 5, 1997. We will, however, consider WinStar's comments as informal comments under Section 1.419(b). F The record before us indicates that this distinction is likely to continue" F,`(`(88L"  S- d(#for at least the near future.(] {Oh- d(#ԍSee, e.g., NCTA Comments at 22; Time Warner Reply Comments at 23 ("[E]ven as competitors begin  yO2- d(#[providing additonal services over broadband networks, the inside wiring used to carry such services within the  d(#customer's dwelling unit will remain separate for the foreseeable future") (emphasis in original); SBC Reply  d(#Comments at 2; PacTel Comments at 2; New Jersey BPU Comments at 56; Cox Comments at 11 ("Even though  d(#cable operators and telephone companies are each finding it economical and desirable to upgrade their trunk plants  {OR- d(#xwith fiber optics, they are continuing to use coaxial cable to provide video and broadband services into and inside  d(#xhomes and MDUs and to use twisted pair copper inside wiring to provide telephone service. The costs associated  d(#jwith integrated broadband inside wiring to provide video programming and switched telephone service remain  d(#-prohibitively high compared to the use of dual facilities. Furthermore, the existing dual wiring scheme is used in  d(#many millions of homes in the United States and it fully serves the needs of customers. There is no economic or technical incentive to change this scheme.") (emphasis in original). If and when circumstances change, we will revisit this issue with the goal  S-of creating a single set of inside wiring rules.z, (] yO - d(#ԍWe note that, as a practical matter, the telephone demarcation point in new single family home installations  {Ol - d(#may be located at a point outside of where the wiring enters the home, near the cable demarcation point. See  d(#Building Industry Consulting Comments at 2. Similarly, the points at which the telephone and cable inside wiring  d(#-become devoted to individual multiple dwelling units may be at similar locations (e.g., in gardenstyle apartment  d(#buildings, such points may both be located in the basement of the individual buildings). While such examples may  d(#create a de facto convergence in many cases, so long as the cable and telephone inside wiring networks remain distinct, we do not believe that the Commission need require such a result.    S-  148.` ` We are not prepared at this time to adopt DIRECTV's proposal that we could promote  d(#competition and consumer choice by having competing service providers share a single home run wire.  d(#The record reflects varied and contradictory perspectives that we cannot yet resolve. Several commenters  d(#have argued that transmitting competing services over a single wire is technically and/or practically  S- d(#infeasible.n(] {O- d(#ԍSee Cox Comments at 19; Marcus Cable, et al., Comments at 6; Adelphia Comments at 5; CATA Comments at 4; TKR Comments at 5. DIRECTV acknowledges that its proposal has limitations, since only service providers that  S- d(#use different parts of the spectrum technically can share a single wire.=Z(] {O(- d(#;ԍSee Further Comments of DIRECTV at 45, and attached Declaration of Robert J. Rothaus (DIRECTV signals  d(#and cable television signals can be carried simultaneously by a single wire because these signals occupy different frequency spectrums).= We do believe, however, that  d(#jthe technical, practical and economic feasibility of multiple services sharing a single wire deserves further  Sp-exploration. We will therefore seek comment on DIRECTV's proposal in the Second Further Notice.  S" -  149.` ` Nor at this time will we adopt any of the other proposals for modifying the cable  d(#]demarcation point in MDUs (e.g., moving the demarcation point to the point at which it becomes  d(#/dedicated to an individual subscriber). We reach no conclusions here on the merits of such proposed  d(#modifications. We believe that the procedures for disposition of MDU home run wiring adopted above  d(#-address many competitive concerns that commenters proposed to address by moving the cable demarcation point.  S - 150.` ` We will, however, adopt our tentative conclusion that where the cable demarcation point  d(#is "physically inaccessible" to an alternative MVPD, the demarcation point should be moved to the point"G,`(`(88"  S- d(#at which it first becomes physically accessible. (] yOh- d(#ԍThe presumptive demarcation point of at (or about) twelve inches outside of where the cable wire enters the  {O0-subscriber's unit was adopted in the Cable Wiring Order, 8 FCC Rcd 1435 (1993).  We clarify that this movement should be the closest  d(#point at which the wiring becomes physically accessible that does not require access to the subscriber's  d(#{unit. Moving the demarcation point into the unit in such situations would add significantly to the  S- d(#disruption and inconvenience of switching service providers, contrary to the intent of Section 624(i).JZ"(] {OJ- d(#ZԍSee, e.g., Time Warner Reply Comments at 6 (noting that an exterior point of demarcation allows service  d(#;connections and disconnections, as well as testing, without necessitating the presence of the resident to allow access to the interior of the home).J  S- Q151.` ` In addition, we will adopt a definition of "physically inaccessible" which asks whether  d(#accessing the demarcation point (1) would require significant modification or damage of preexisting  d(#ystructural elements, and (2) would add significantly to the physical difficulty and/or cost of accessing the  d(#subscriber's home wiring. For example, wiring embedded in brick, metal conduit or cinder blocks would  d(#likely be "physically inaccessible" under this definition; wiring simply enclosed within hallway molding would not.  S - E.` ` LoopThrough Cable Wiring Configurations   S - ` ` 1. Background  SX- 152.` ` As described in the Cable Home Wiring Further Notice,;XD(] yO<-ԍ11 FCC Rcd at 4579.; in a loopthrough cable wiring  d(#system, a single cable is used to provide service to either a portion of or an entire MDU. Every subscriber  d(#Lon the loop is therefore limited to receiving video services from the same provider. If the cable is broken  S- d(#or removed, signals to all succeeding units are interrupted. In the Cable Wiring Order, we excluded MDU  d(#.loopthrough wiring from the cable home wiring rules, reasoning that applying our rules to loopthrough  S- d(#Nwiring would give the initial subscriber control over cable service for all subscribers in the loop.T(] {O-ԍCable Wiring Order, 8 FCC Rcd at 1437.T  d(#\Because loopthrough configurations are excluded from the home wiring rules, cable operators are not  d(#currently required to offer to sell the wire to subscribers upon termination of service, and no subscriber  d(#on the loop has the right to purchase that portion of the loopthrough cable wiring located inside his or  d(#her dwelling unit. The ownership of loopthrough wiring therefore currently depends on the circumstances  d(#(e.g., who installed the wire, whether the wire has been sold and state fixture law) and is not affected by  S-our rules.cf (] {O"-ԍCable Home Wiring Further Notice, 11 FCC Rcd at 4579.c  ST- #153.` ` On reconsideration in the Cable Home Wiring Further Notice, we maintained our decision  S.- d(#to generally exclude loopthrough wiring from our cable home wiring rules.:. (] {O&-ԍId. at 4580.: We found that inclusion".H ,`(`(88"  d(#.of loopthrough systems within these rules would be impractical, in part because establishing a separate  d(#demarcation point for each subscriber on a loopthrough system and deciding how much wiring each  d(#subscriber should have the option to purchase are not feasible. Furthermore, loopthrough configurations,  d(#by their nature, limit individual subscriber control, an essential element of the Commission's cable home wiring rules.  S- 154.` ` In the Cable Home Wiring Further Notice, we asked whether the Commission should  d(#require cable operators to allow MDU owners to purchase loopthrough wiring in the limited situation  d(#[where all subscribers in a building want to switch to a new service provider. We also asked for comment  d(#/on whether we should apply the same rules regarding compensation and technical standards to loop d(#through wiring that we now apply to nonloopthrough wiring, and on the appropriate demarcation point  d(#for this limited circumstance. We solicited comment on how to apportion control of a loopthrough wiring  d(#system, including how to assure that subscribers have a choice of multichannel video programming service  d(#providers. We further requested comment on whether we should prohibit future installations of loop S -through wiring configurations.: (] {O:-ԍId. at 4582.:  S - P155.` ` Alternative video service providers generally support the Commission's proposal to allow  d(#[MDU owners to purchase loopthrough wiring in the limited situation where all subscribers in a building  S2- d(#Lwant to switch to a new service provider.|2Z(] {O,- d(#ԍSee Ameritech Docket 92260 Comments at 5 (except that it should not be restricted to situations where all  d(#Ysubscribers agree); Bell Atlantic Docket 92260 Comments at 2; Liberty Docket 92260 Comments at 15; NYNEX  d(#Docket 92260 Comments at 23; OpTel Docket 92260 Comments at 46; PacTel Docket 92260 Comments at 2;  d(#RCN Docket 92260 Comments at 3; USTA Docket 92260 Comments at 2 (only if individual tenant is permitted  d(#to install additional wiring and exercises independent choice); Bartholdi Docket 92260 Reply Comments at 1; SNET  {O- d(#Docket 92260 Reply Comments at 12. But see GTE Docket 92260 Comments at 4 (requiring all subscribers to agree is not workable; should "deregulate" and allow building owner to control). These commenters assert that allowing the MDU owner to  d(#purchase the loopthrough wiring under these circumstances will further the purposes of Section 624(i)  d(#{by fostering competition and promoting consumer choice to the greatest extent possible, given the  S- d(#Llimitations of loopthrough wiring configurations.(] yO- d(#<ԍAmeritech Docket 92260 Comments at 6 and Docket 92260 Reply at 3, 67 (building owner has greater  d(#<incentive to represent interests of subscribers and allowing operators to continue to control loopthrough wiring  d(#further entrenches incumbent's monopoly status); Liberty Docket 92260 Comments at 3, 5 (subscribers should have  d(#choice of service providers, but this is not possible with loopthrough wiring, regardless of who owns the wire; issue  d(#iis who should be the gatekeeper the cable operator or the building owner); NYNEX Docket 92260 Comments  d(#at 3 (competition would be better served with building owner rather than cable operator in control); OpTel Docket  d(#w92260 Comments at 5 (would foster competition and provide maximum degree of flexibility to subscribers); PacTel  d(#ZDocket 92260 Comments at 2 (would enhance consumers' access and foster competition); RCN Docket 92260  d(#.Comments at 3 (consistent with basic premise of 1992 Cable Act, i.e., to promote competition; would allow alternative providers the opportunity to compete); Bartholdi Reply Docket 92260 Comments at 4. Ameritech and USTA also contend that individuals"I6,`(`(88"  d(#should always have the right to obtain service from another service provider that is willing to dedicate a  S-wire to the subscriber's unit.(] {O@- d(#ԍAmeritech Docket 92260 Comments at 7; USTA Docket 92260 Comments at 2; see also NCTA Docket 92 d(#260 Comments at 45 (if building owner is allowed to control the wiring, its rights should, at a minimum, be  {O- d(#conditioned on its surrender of its right to exclude other service providers). But see Building Owners, et al., Docket  d(#92260 Comments at 12, 18 and n.8 (only way for subscriber to receive service from more than one provider is if  d(#alternative provider has access and runs its own wires; oppose any plan that would require building owners to admit any or all service providers).  S- 156.` ` Cable operators, on the other hand, generally oppose the proposal, asserting that it is  S`- d(#impractical,&`D(] yOD - d(#jԍCox Docket 92260 Comments at 2931 (impractical and would disrupt landlord/video service provider  d(#Yrelationships); Time Warner Docket 92260 Comments at 4 (rapid tenant turnover would create a constant state of  {O - d(#confusion; ownership would be in constant flux); Time Warner Docket 92260 Reply Comments at 5; see also  d(#KBuilding Owners, et al., Comments at 1416 (MDU building owners are fully capable of protecting their interests  d(#and do not need the Commission to do it for them; building owners should therefore not be required to purchase the  {O.-cable home wiring). But see Bartholdi Docket 92260 Reply Comments at 2 nn.5 & 6, 5.& that competition would not be served,@` (] yO- d(#ԍCATA Docket 92260 Comments at 2 (competition would suffer; proposal is a government sponsored charade  d(#because wiring will really be controlled by cable competitor and cable operator will be precluded from offering other  d(#new services); Charter/Comcast Docket 92260 Comments at 1213; Cox Docket 92260 Comments at 2931 (would  d(#retard facilitiesbased competition); NCTA Docket 92260 Comments at 24 (landlords and developers fiercely resist  d(#competitive access by franchised cable operators and cable operators will lose ability to market other services); Time  d(#Warner Docket 92260 Comments at 6 (competition would not be fostered because building owner would have  d(#control); Time Warner Docket 92260 Reply Comments at 34 and n.8 (if only one service can be offered over loopthrough wiring, it should be the franchised cable service that installed the wiring in the first place). that consumer choice would be restricted`(] yO- d(#ԍCATA Docket 92260 Comments at 12 (building owner and cable competitor can bring too much pressure  d(#,on subscribers); Guam Cable TV Docket 92260 Comments at 5 (landlord should not be permitted to act as guardian  d(#or parent of tenant); NCTA Docket 92260 Comments at 24 (landlords will act for their own enrichment and  d(#[subscribers' wishes will be subordinated to the owner's; undermines rationale for allowing consumers to acquire  d(#Kwiring); Time Warner Docket 92260 Comments at 56 (coercive and deceptive practices by alternative service  {O- d(#providers and building owners are likely to increase); Time Warner Docket 92260 Reply Comments at 4; see also  d(#YNew York City Docket 92260 Comments at 45 (replaces one monopoly for another); New York DPS Docket 92 {OB- d(#260 Reply Comments at 78. But see Ameritech Docket 92260 Reply Comments at 9 (allowing building owner to  d(#purchase home wiring will not result in the owner choosing the provider that pays the highest premium, but will result in a variety of considerations, including price, features and quality). and  S8- d(#that the Commission does not have the authority to establish such a rule. 8d(] yO-ԍSee Time Warner Docket 92260 Reply Comments at 67.b Including loopthrough wiring within our rules as explained  S -herein will not result in cable operators' entire distribution systems "essentially be[ing] confiscated." (] {O- d(#ԍSee id. at 6. Also see Section III.A.2.d. above for a discussion of the takings issue with respect to home run wiring.  S -  164.` ` We will set the demarcation points, i.e., the points between which the MDU owner may  d(#purchase the loopthrough home wiring under our cable home wiring rules, at or about 12 inches outside  d(#the point at which the loop enters or exits the first and last individual dwelling units on the loop, or as  d(#close as practicable where 12 inches outside is physically inaccessible. In some cases, the loop may begin  d(#=and end outside of the same unit, and thus the demarcation points shall be 12 inches outside the point at  d(#Nwhich the loop enters and exits that one unit, or as close as practicable where 12 inches outside is  d(#physically inaccessible. We believe that this is consistent with Section 624(i), i.e., the loopthrough home  d(#/wiring is within the customer's premises, and with the cable demarcation point for nonloopthrough  d(#configurations. We note that one of our prior concerns was that establishing a separate demarcation point  S@- d(#[for each subscriber on the loop was not feasible.h@j (] {OJ-ԍSee Cable Home Wiring Further Notice, 11 FCC Rcd at 4580. h Under the rules set forth herein, however, one entity  d(#ywill be purchasing the entire home wiring loop, making it unnecessary to set a demarcation point for each subscriber's unit.  S- 165.` ` We will apply the same rules with respect to compensation and technical standards that  d(#we apply to nonloopthrough wiring systems as well. In other words, the loopthrough wiring on the  d(#ysubscriber's side of the demarcation point may be purchased by the MDU owner at the replacement cost  S(- d(#as defined in Section 76.802(a).A( (] yO&-ԍ47 C.F.R. 76.802(a).A The loopthrough wiring outside the demarcation points up to the point"(N ,`(`(88"  d(#at which the loop connects with the riser or feeder cable may be addressed pursuant to the procedures set forth above with regard to the disposition of home run wiring.  S- P166.` ` Despite the competitive drawbacks of loopthrough wiring, we do not believe it necessary  d(#for the Commission to prohibit future installations of loopthrough wiring configurations. We believe that  d(#such a prohibition would unduly restrict the configuration options available to building owners and service  S- d(#providers.(] {Ox- d(#ԍSee Liberty Docket 92260 Comments at 3 (loopthrough wiring is wellsuited to bulk service arrangements, which can result in consumer benefits). We have found no evidence in the record that cable operators have installed loopthrough  S- d(#wiring in order to evade our rules since they were implemented in 1993.R"(] {O -ԍSee GTE Docket 92260 Comments at 6.R Also, the application of our  d(#khome wiring rules to loopthrough systems where the MDU owner seeks to switch service providers  d(#>should reduce any incentive cable operators may have to install loopthrough configurations for anticompetitive reasons.  S - F.` ` Video Service Provider Access To Private Property(#`  S -` ` 1.  Federal Mandatory Access Requirements  S -` `  a.Background  S0-  n167.` ` In the Inside Wiring Notice, we sought comment on the ability of various service providers  S - d(#to obtain access to private property.[ (] {O^-ԍInside Wiring Notice, 11 FCC Rcd at para. 58.[ Specifically, we sought comment on the legal and practical  d(#impediments faced by telecommunications service providers in gaining access to subscribers, and on the  d(#current status of the law regarding access to private property by cable operators and telephone  S- d(#companies.FF(] {Ox-ԍId. at paras.61 and62.F We also sought comment on whether allowing a company that holds an easement for one  d(#service to rely on that same easement to provide another service would constitute a "taking" under the  SB- d(#[Fifth Amendment.>B(] {O-ԍId. at para.63.> The Inside Wiring Notice further sought comment on whether the Commission can  d(#and should attempt to create access parity among service providers and, if so, what the rules regarding  S-such parity should be, and whether there were any statutory or constitutional impediments to this goal.>j (] {O -ԍId. at para.64.>  S- 168.` ` Telephone companies and alternative video providers generally assert that there is a need  S|- d(#=for rules that will provide comparable property access rights for the delivery of all services."| (] {O%- d(#ԍSee, e.g., GTE Comments at 2, 21 (uniform, nondiscriminatory access rules should be adopted for delivery  d(#of all voice, data, and video services; creating access parity is vital); MFS Reply Comments at 14 (Commission  d(#should follow Guam's lead, by requiring installation of conduit in MDUs which is large enough to accommodate multiple cables and by requiring service providers to leave a pull wire in the conduit for other service providers).  NYNEX"|O,`(`(88"  d(#<explains that, while state laws give telephone companies the authority to use public rightsofway, the laws  d(#Kdo not always provide access to private property. NYNEX claims that, in states that do provide telephone  d(#companies with the power of eminent domain over private property, the use of such eminent domain in  d(#MDUs or commercial buildings is "impractical due to statutory time periods, costs, and survey  S`- d(#requirements."@`(] yO-ԍNYNEX Comments at 1213.@ NYNEX states that its telephone companies have obtained access to MDUs not through  S8-easements or eminent domain proceedings, but with the tacit or express consent of the landlords.18X(] {O0-ԍId.1  S- 169.` ` PacTel argues that the notion of allowing competition would be purely illusory if  S- d(#alternative video service providers did not have access to private easements and rightsofway.(] yOJ - d(#xԍPacTel Reply Comments at 2. PacTel also argues that the Commission has already taken a strong stand in  {O - d(#Zfavor of allowing video service providers access to public and private property (citing our Report and Order and  {O - d(#-Further Notice of Proposed Rule Making in IB Docket No. 9559 (supporting preemption of local regulation of  {O- d(#satellite antennas)); see also NTCA Reply Comments at 3 (goal of Commission's rules should be to ensure  d(#,accessibility for all providers; efficient delivery of service and opportunity for choice can best be accommodated by  d(#reasonable, flexible rules that permit subscribers to choose among providers in a competitive environment);  d(#DIRECTV Comments at 1314 (supporting open access and the right of service providers to install or upgrade  d(#common wiring in an MDU, unless a property owner can demonstrate a reduction in property value by the exercise  {O- d(#of such access rights). But see Ameritech Reply Comments at 11 (there is no private property cable access issue to  d(#be solved; cable operators' 1994 national penetration rate of 65.2% and installation of facilities which pass 96% of all U.S. television households demonstrates that such access is readily available). AT&T  d(#states that the Commission must assure that competitive service providers have the same access rights to  Sp- d(#.the subscriber's or building owner's property as incumbent service providers currently enjoy."pR (] {Ob- d(#xԍAT&T Reply Comments at 10; see also NYNEX Comments at 17. NYNEX also supports rules that would  d(#yrequire a LEC to afford access to competing local exchange carriers where the LEC's contractual or easement  d(#xagreements give the LEC the right to do so. However, NYNEX points out that contractual rights obtained by its telephone companies to provide service to buildings are limited at best. NYNEX Comments at 15. AT&T  d(#argues that, pursuant to Sections 251(b)(4) and 251(c)(3) of the 1996 Act, the Commission should require  d(#that all new service providers have access to portions of incumbents' network access facilities, including  S - d(#rightsofway, easements and other pathways to customer wiring." <(] {O- d(#ԍAT&T Reply Comments at 1011; see also U S West Comments at 7 (facilities use agreements for unbundled  d(#iLEC network elements are contemplated by the 1996 Act; to the extent existing inside building wire is owned by  d(#a LEC and is part of a LEC's network, it is a network element subject to Sections 251(c)(2) and (3); however, deregulated wire is not a potential network element). MFS argues that government  d(#intervention is appropriate and necessary to proscribe discriminatory actions by owners and managers that  S - d(#stymie competition. &(] yOn#- d(#ԍMFS Reply Comments at 1013 (property owners often block building entry and attempt to charge new  d(#xentrants exorbitant, discriminatory access fees; building owners and managers are often not motivated by tenants  {O$- d(#Zdemands, but rather by profit/revenue opportunities); see also MFS Reply Comments at 69 (Commission should  d(#adopt a general nondiscrimination access rule with three requirements: equal entry charges to all wireline service  d(#providers; nondiscriminatory interconnection and unbundled access to the incumbent LEC's network to allow  d(#connection with the customer's demarcation point; and establishment of dispute resolution responsibility with local"X',`(`('" franchising authorities and state commissions). NYNEX also supports the adoption of rules that would promote open access for" PX,`(`(88z "  S- d(#alternative telephone and video service providers on a going forward basis.=X(] yO-ԍNYNEX Comments at 17.= NYNEX notes, however,  d(#>that legislation may be the only way to ensure comparable access for competing telephone and video  d(#service providers, and further cautions that courts may deem laws or regulations that force landlords to  S-allow providers access to their buildings to be a taking, requiring payment of just compensation. (] {O- d(#wԍId. at 1617. But see AT&T Reply Comments at 1011 and n. 28 (asserting that Section 251 of the 1996 Act  d(#provides the Commission clear statutory authority to require incumbent LECs to offer new carriers the ability to share  d(#their facilities on the network side of the demarcation point, which should alleviate building owners' concerns that  {Oj - d(#iplacing wires and other facilities on their private property is a taking); cf. MFS Reply Comments at 6, 18 and 21  d(#(where an owner allows incumbents exclusive access but denies new entrants the same access, the owner effectively  d(#Jcreates an exclusive easement, and enforcement of such easements should be preempted under Section253(d) of the  d(#1996 Act; a rule prohibiting discriminatory access would not constitute a "taking" because it would only require  d(#building owners to offer new entrants the same access provided to incumbents under the same terms, and would require compensation at the market rate paid by incumbents).  S8- 170.` ` Two wireless competitive LECs, Teligent and WinStar, urge the Commission to adopt a  d(#rule ensuring reasonable and nondiscriminatory access to inside wiring. WinStar proposes that the  d(#Commission issue a rule requiring owners of multiple tenant units to grant telecommunications service  d(#jproviders physical access to inside wiring on nondiscriminatory terms, so long as the owners are allowed  S- d(#to demand just compensation from the providers after access has occurred.E (] yO-ԍWinStar Comments at 1621. E Teligent argues that the  d(#Commission should mandate building access through an interpretation of Section 224 that encompasses  SH - d(#private rightsofway to building rooftops,CH L (] yO4-ԍTeligent Comments at 1621.C and should ensure that competitive carriers have access to  S -the riser cables of office buildings as part of the incumbent LEC's unbundling requirement.; (] {O-ԍId. at 2224.;  S - 171.` ` Generally, proponents of a federal mandatory access law argue that such a law would  d(#.promote competition through ensuring competitors uniform access to MDUs. These commenters claim  d(#=that property owners often block building entry for service providers, or are willing to grant access only  SX- d(#on unreasonable or discriminatory terms.Xn(] {Of - d(#ԍSee, e.g., MFS Reply Comments at 1013 (property owners often block building entry and attempt to charge  d(#new entrants exorbitant, discriminatory access fees; building owners and managers are often not motivated by tenants  d(#demands, but rather by profit/revenue opportunities); Teligent Comments at 916 (some building owners use their  d(#control over bottleneck facilities to refuse building access entirely, while others seek to extract unreasonable rates  d(#and conditions for access); WinStar Comments at 7 (many landlords are exercising their monopoly power when leasing rooftop space, inside wiring and riser access).  They further claim that building owners and managers are  d(#kmotivated to exploit business opportunities, rather than by a desire to provide tenants with access to diverse and advanced telecommunications services. "Q,`(`(88"Ԍ S- 172.` ` Two commenters suggest that existing telephone easements should be construed to allow  d(#jincumbent service providers access to provide additional services. Bell Atlantic seeks "clarification" that  d(#a provider that has obtained access to provide any service (e.g., telephone service or cable television  S- d(#service) may use that access to provide additional services.K(] yO-ԍBell Atlantic Reply Comments at 10.K NYNEX contends that, if it delivered video  d(#Nprogramming using a common carrier service, it would "arguably" have the same access rights as a  S8-telephone company providing any other common carrier service.8X(] {O0- d(#,ԍNYNEX Comments at 14; see also Liberty Comments at 22 (statutes that give common carriers MDU access for telephony could be interpreted to guarantee such carriers access for provision of video service).  S- 173.` ` Cable operators also note the disparity in property access rights which exists among  d(#service providers. NCTA claims that "[b]y virtue of their status as monopoly providers, telephone  d(#]companies benefit ... from access statutes and easements that are not available to cable and other  Sp- d(#providers."Bp(] yO-ԍNCTA Reply Comments at 14.B Thus, NCTA argues, the Commission must promote policies that broaden access for all  SH - d(#competitors.1H B(] {O*-ԍId.1 Charter/Comcast notes that public utilities are often granted private easements because  S - d(#property owners would otherwise be unable to obtain the utilities' monopoly services;k (] {O-ԍCharter/Comcast Comments at 6; see also NYNEX Comments at 13.k however, property  d(#\owners have fewer incentives to grant easements to franchised cable operators due to existing choices  S - d(#-among video providers.F f (] yO-ԍCharter/Comcast Comments at 6.F Charter/Comcast urges the Commission to rectify this incongruity by construing  d(#ySection 621(a)(2) of the Communications Act as prohibiting a property owner from denying a franchised  d(#Lcable operator access to an easement on the property when the owner has already granted or is obligated  SX- d(#to grant an easement to other utilities, whether public or private.]zX (] {O- d(#,ԍId. at 1012. But see Building Owners, et al., Comments at 11 (legislative history of Section621(a)(2) of the  d(#Z1984 Cable Act demonstrates that Congress did not intend to give the Commission power to mandate access. In  d(#y1984, the House deleted from H.R. 4103 the section that would have directed the Commission to promulgate  d(#regulations guaranteeing cable access to MDUs, commercial buildings and trailer parks); Building Owners, et al.,  d(#JReply Comments at 8 (the 1996 Act provides no mandatory access provisions; if Congress had wanted to give cable  d(#<operators access rights to private property, it could have done so in this most recent comprehensive revision of federal telecommunications law). ] Other cable operators urge the  d(#\Commission to adopt an access rule that would allow residents to choose among providers instead of  S-having to accept the property owner's choice of provider.aZ8(] {O"- d(#ԍSee, e.g., Guam Cable Comments at 6 (recommending access rules which mirror Illinois statutes); TKR Cable  d(#Reply Comments at 56 (noting that the arguments raised against multiple provider access to MDUs are similar to those raised against allowing multiple cable franchises).a  S-  A174.` ` Marcus Cable, et al., claim that, under Section 706 of the 1996 Act, the Commission must  d(#adopt an access rule. Section706 directs the Commission to encourage deployment of advanced"RZ,`(`(88"  d(#telecommunications capability to all Americans by promoting competition and removing barriers to  d(#]infrastructure investment, and, according to the Marcus Cable, et al., the record in this proceeding  d(#>demonstrates that MDU property owners stand as a barrier to continued development of broadband  S-services.V(] yO-ԍMarcus Cable, et al., Reply Comments at 1112.V  S8- 175.` ` Several commenters believe that there may be limits to the Commission's authority to  S- d(#enact a federal rule mandating access to MDUs in order to resolve variations in access rights.X(] {O - d(#ԍSee, e.g., CATA Comments at 910; CATA Reply Comments at 7 (Commission has no present authority to  d(#wenact competitive access regulations, but should urge Congress to adopt a uniform access law); Cox Reply Comments at 15, n. 29 (a rule granting access to MDUs  d(#Zwould reflect sound public policy, and the Commission should mandate access to extent it has authority to do so;  d(#yif the Commission has no such authority, it should request that Congress grant it authority); Further Reply of Community Associations Institute at 36. Time  d(#Warner argues that the Commission must ensure that a landlord's ability to restrict access is not enhanced  d(#yas a result of any rules adopted, but cautions that the adoption of a federal uniform access policy may be  S- d(#Zpremature and the subject is better left to the states.M(] yO - d(#,ԍTime Warner Reply Comments at 48, 58. State regulatory authorities agree that such matters are best left to  {O- d(#[the states. See New Jersey BPU Comments at 15 (access rules should be based on and consistent with models  d(#adopted by the states); New York City Comments at 2 (local property use matters are best resolved at the local level,  d(#-and should continue to be treated in a manner that gives deference to traditional local health, safety and welfare concerns).M ICTA argues that the Commission does not possess  d(#Othe power of eminent domain and that a mandatory cable access law will lead to a lessening of  SH - d(#competition rather than an expansion of competition.pH (] {Ol- d(#,ԍICTA Comments at 38, 50; see also OpTel Reply Comments at 2 (a Commissionimposed federal mandatory  d(#access requirement would harm consumers and competition); D.Chudnow Comments at 2 (mandating competitive  d(#;access without compensation would unconstitutionally impair existing contractual rights under state and federal law,  d(#;since many owners have longterm exclusive contracts with service providers, and such an access requirement would  d(#Jcreate blanket unrestricted easements over owners' property, which constitute takings under the Fifth Amendment).  {OV- d(#iBut see TKR Reply Comments at 10 (there is a fundamental difference between whether owners can be forced to  d(#provide access and whether they can be forced to do so without compensation; the Commission "surely has the  {O- d(#power, short of condemnation, to require, as the New York State Cable Commission did in Loretto, mandatory access with compensation").p ICTA also notes that Congress has repeatedly  S -considered and rejected a federal mandatory cable access law. Z(] {O -ԍICTA Comments at 3839, 41 and 42; see also Building Owners, et al., Comments at 11.  S -  176.` ` Building Owners, et al., argue that requiring a landlord to permit a third party to occupy  d(#>the premises and attach wires to the building is legally indistinguishable from the intrusion which the  S - d(#Supreme Court invalidated in Loretto v. Teleprompter Manhattan CATV Corp.& (] {O %- d(#ԍBuilding Owners, et al., Comments at 67, (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.  {O%- d(#419 (1982)); see also ICTA Comments at 36 (citing Loretto, 458 U.S. at 426 and Cable Holdings, Inc. v. McNeil  {O&- d(#wReal Estate Fund VI, Ltd., 953 F.2d 600, 605 (11th Cir. 1992)); Further Reply of Community Associations Institute at 4. Building Owners, et al.," S,`(`(88["  d(#claim the real estate market is thriving, competitive, and responsive to the needs of tenants, and that  d(#=government regulation would interfere with the "onthespot management" needed to effectively address  d(#safety and security concerns, assure compliance with building codes, coordinate the needs of different  S- d(#tenants and service providers, and generally oversee efficient daytoday operations.(] {O- d(#ԍBuilding Owners, et al., Comments at 18; see also ICTA Comments at 43 (owners would be foolish not to  d(#ensure that the particular broadband services available were of the highest quality at a competitive price); Building  d(#Owners, et al., Comments at 32, 34 (only the landlord can coordinate the conflicting needs of multiple tenants and  d(#multiple service providers, and therefore the best approach is to allow owners to retain maximum flexibility over  d(#ithe control of inside wiring of all kinds); Building Owners, et al., Reply Comments at 3, 5 (discrimination "either does not exist or is simply a rational response to market conditions"). TKR, however,  d(#asserts that if the market were already providing tenants with the services they need, alternative providers  d(#would not be complaining about their inability to gain access. According to TKR, the Commission should  d(#remove MDU owner gatekeeper control by requiring that each subscriber be entitled to the services of  S-his/her choice.AB(] yO -ԍTKR Reply Comments at 11.A  S- 177.` ` Building Owners, et al., also point to property owners' responsibility for tenant security  Sp- d(#/as a concern.KXp(] yO- d(#<ԍBuilding Owners, et al., Comments at 31 (owners may be found legally liable for failing to protect tenants;  d(#telecommunications service providers have no such obligations, and may violate security policies or even commit illegal or dangerous acts themselves). K But others state that concerns regarding safety, security and aesthetics can be easily  SH -addressed._xH (] yO- d(#<ԍMarcus, et al., Reply Comments at 7 (video service providers' personnel could be required to check in with  d(#landlords before doing work; wiring safety concerns are governed by industry standards; providers could be required  d(#to compensate landlords for damage caused in installation and removal of wiring); DIRECTV Reply Comments at  d(#.45 (owners should be able to schedule building access, as with all other service providers, while ensuring that  d(#building codes are not violated, and all installers should be held to same set of standards and not allowed to perform  d(#work unless they can do so safely; tenants should be able to decide for themselves which services have merit based on their own individual needs)._  S -` `  b.Discussion  S - 178.` ` While we agree that nondiscriminatory access for video and telephony service providers  d(#enhances competition, we will not adopt a federal mandatory access requirement at this time. We note  d(#that telecommunications carriers' access to telephone companies' facilities and rightsofway under the  S0- d(#j1996 Act are currently under reconsideration in First Report and Order in CC Docket No. 9698 and CC  S - d(#Docket No. 95185 ("Interconnection Order").dZ 2(] {O"- d(#ԍFirst Report and Order, CC Docket No. 9698 (Implementation of Local Competition Provisions in the  d(#Telecommunications Act of 1996) and CC Docket No. 95185 (Interconnection Between Local Exchange Carriers and Commercial Mobile Radio Service Providers), 11 FCC Rcd 15499 (1996). d We do not believe that the record in this proceeding" TT,`(`(88"  d(#.provides a sufficient basis for us to address these issues. We will defer decisions on these issues to that  S-proceeding.(] yO@- d(#ԍSimilarly, as noted above, we do not decide herein whether under Section 207 of the 1996 Act viewers living  d(#Lin rental properties, and those who need access to common property, have the right to receive certain video  d(#iprogramming services over the property owner's objections. This issue will be addressed in IB Docket No. 9559  d(#,(Preemption of Local Zoning Regulation of Satellite Earth Stations) and CS Docket No. 9683 (Implementation of  d(#Section 207 of the Telecommunications Act, Restrictions on OvertheAir Devices: Television Broadcast Service and Multichannel Multipoint Distribution Service).  S- 179.` ` In addition, as stated above, Charter/Comcast urges the Commission to construe Section  d(#621(a)(2) to prohibit a property owner from denying a franchised cable operator access to an easement  d(#on the property when the owner has already granted or is obligated to grant an easement to other utilities,  S- d(#whether public or private.lz@(] {O - d(#ԍCharter/Comcast Comments at 1011. But see Building Owners, et al., Comments at 11 (legislative history of  d(#Section621(a)(2) of the 1984 Cable Act demonstrates that Congress did not intend to give the Commission power  d(#to mandate access. In 1984, the House deleted from H.R. 4103 the section that would have directed the Commission  d(#to promulgate regulations guaranteeing cable access to MDUs, commercial buildings and trailer parks); Building  d(#Owners, et al., Reply Comments at 8 (the 1996 Act provides no mandatory access provisions; if Congress had wanted  d(#to give cable operators access rights to private property, it could have done so in this most recent comprehensive revision of federal telecommunications law). l Section 621(a)(2) provides that "[a]ny franchise shall be construed to  d(#=authorize the construction of a cable system over public rightsofway, and through easements, which is  d(#within the area to be served by the cable system and which have been dedicated for compatible uses . .  S- d(#. . "A (] yO-ԍ47 U.S.C. 541(a)(2).A Numerous court decisions have interpreted the statutory language and legislative history of Section  d(#621(a)(2), several finding that this section does not provide cable operators access to purely private  SH - d(#easements granted to utilities.H (] {O- d(#,ԍSee, e.g., Cable Holdings, Inc. v. McNeil Real Estate Fund VI, Ltd., 953 F.2d 600, 606 (11th Cir. 1992); TCI,  {O- d(#YInc. v. Schriock Holding Co., 11 F.3d 812 (8th Cir. 1993); Media General Cable, Inc. v. Sequoyah Holding Condo.  {O- d(#Council, 991 F.2d 1169 (4th Cir. 1993); Cable Investors, Inc. v. Woolley, 867 F. 2d 151 (3d Cir. 1989); Cable  {OX- d(#Assocs. v. Town & Country Mgmt. Corp., 709 F. Supp. 582 (E.D. Pa. 1989). But see, e.g., Centel Cable Television  {O"-Co. of Florida v. Admiral's Cove Associates, Ltd., 835 F. 2d 1359 (11th Cir. 1988). We decline to address those rulings here, but will continue to examine  d(#these issues as we seek to ensure parity of access among all telecommunications and video services  d(#providers. Similarly, we decline at this time to adopt a mandatory access rule under Section706 of the  S - d(#\1996 Act,` (] {O< -ԍSee Marcus Cable, et al., Reply Comments at 1112.` but may revisit this issue as we consider issues of service provider access in the broader competitive context.  SX- 180. ` ` We believe that whether an incumbent provider may use its existing easements or rights S0- d(#ofway to provide new or additional services0^(] {O.%- d(#JԍSee, e.g., Bell Atlantic Reply Comments at 10; NYNEX Comments at 14; Charter/Comcast Comments at 1011; NCTA Reply Comments at 14. generally depends on state law interpretations of the terms  d(#of the easements or rightsofway. While we decline at this time to decide as a general matter whether"U,`(`(88 "  d(#such easements and rightsofway permit the provision of additional services, we believe that we do have  S-the authority in certain instances to review restrictions imposed upon such use.(] {O@- d(#ԍSee, e.g., 47 U.S.C. 253; In the Matter of TCI Cablevision of Oakland County, Inc., CSR Docket No. 4790, FCC 97331 (released Sept. 19, 1997).  S-` ` 2. State Cable Mandatory Access Requirements  S8-` `  a.Background  S-  #181.` ` In the Inside Wiring Notice, we sought comment on the types of access provided by state  S- d(#mandatory access statutes and who qualifies for such access.["(] {O -ԍInside Wiring Notice, 11 FCC Rcd at para.62.[ We sought comment on what type of  d(#access is provided to cable operators under statutes granting mandatory access and what type(s) of access  Sr-to private property states grant to telephone companies.1r(] {O-ԍId.1  S" -  182.` ` According to the record in this proceeding, some form of mandatory access law may exist  d(#in approximately 18 U.S. jurisdictions, including Connecticut, Delaware, the District of Columbia, Florida,  d(#Illinois, Iowa, Kansas, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New York, Ohio,  S - d(#Pennsylvania, Rhode Island, West Virginia and Wisconsin.X F(] yO- d(#ԍICTA Comments at 48, n.24; WCA Comments at 67 and n.15; Ex Parte Letter from Daniel L. Brenner,  d(#counsel for NCTA, to William F. Caton, Acting Secretary, Federal Communications Commission (February 18, 1997). The record also indicates that there may  S - d(#be local ordinances that provide similar access rights.< f (] yO-ԍICTA Comments at 48.< Commenters claim that these statutes were  d(#generally enacted due to local franchising authorities' efforts to ensure that MDUs would have cable  d(#programming service and to prevent owners from denying access based on aesthetic or other  S - d(#<considerations.o  (] yO-ԍWCA Comments at 7; MDC Comments at 4; Continental Reply Comments at 11.o Commenters further contend that state mandatory access statutes were intended to serve  d(#as consumer protection laws at a time before franchised cable operators faced competition from alternative  S-video service providers.1 (] {O-ԍId.1  Sj- B183.` ` According to NYNEX, while state laws give telephone companies the authority to use  d(#public rightsofway, they do not always provide access to private property. In states that do provide the  d(#telephone company with the power of eminent domain over private property, NYNEX claims that the use  d(#[of such eminent domain in MDUs or commercial buildings is not practical due to statutory time periods,  d(#jcosts, and survey requirements. NYNEX asserts that its telephone companies generally obtain access to"V,`(`(88$"  d(#MDUs not through easements or eminent domain proceedings but by tacit or express agreements with the  S-property owner.@(] yO@-ԍNYNEX Comments at 1213.@  S- Q184.` ` Alternative video service providers raise concerns over the disparity in access rights to  d(#private property that exists between new entrants and franchised cable operators or incumbent LECs.  d(#Specifically, these commenters contend that the most serious barrier to competition in the multichannel  d(#Lvideo programming service market is the unfair advantage that franchised cable operators have as a result  S- d(#of state mandatory cable access laws."X(] {O - d(#ԍSee, e.g., ICTA Comments at 42, 48, 59 (where there is no mandatory access, all providers must compete at  d(#the property line for the right to serve by obtaining the property owner's permission for access); Wireless Holdings  d(#Reply Comments at 1, 2 (mandatory access laws limit the ability of owners to enter into exclusive arrangements, and it is costprohibitive for new entrants to install facilities in MDUs without exclusivity). They argue that state mandatory access laws guarantee access  S- d(#only to franchised cable operators and therefore unfairly advantage the franchised cable operator.B(] {O- d(#ԍSee, e.g., Liberty Cable Comments at 1314; MDC Comments at 3; WCA Comments at 78; Wireless Holdings Reply Comments at 2. They  d(#also allege that mandatory access laws reduce competition in the MVPD market, and, if such laws are not  d(#eliminated, a competitive marketplace for multichannel video programming services will be virtually  SH - d(#\impossible to promote.zH (] {O-ԍSee, e.g., MDC Comments at 7; OpTel Reply Comments at 2; WCA Comments at 6. z OpTel argues that because current state access laws overwhelmingly favor  S - d(#franchised cable operators, they slow the growth of competition.B . (] yO-ԍOpTel Reply Comments at 2.B OpTel explains that, where franchised  d(# cable operators have a legal right of access under state law, property owners are reluctant to provide  d(#Lalternative providers with access, because the owner knows that the franchised cable operator will likely  S -demand access and overbuild the property, causing great disruption.1 (] {O-ԍId.1  SX- _185.` ` Several commenters request that the Commission preempt state mandatory access laws.zXP (] {OH- d(# ԍSee, e.g., Liberty Comments at 13, 22 (preemption should extend to any statute that guarantees access to MDUs  d(#by franchised MVPDs, regardless of whether their service is offered alone or with telephony, and regardless of the  d(#number of wires used, including statutes that grant common carriers MDU access for telephony purposes to the extent  d(#that they are interpreted to guarantee such carriers access for the provision of video services); Multimedia  d(#Development Comments at 7; OpTel Reply Comments at 2; WCA Comments at 6 ("it will be virtually impossible  d(#for the Commission to promote a competitive marketplace for multichannel video services unless the Commission preempts all State mandatory access laws which discriminate in favor of franchised cable operators").   d(#.Commenters assert that such preemption would be consistent with prior Commission actions, including  d(#kthe Commission's preemtion of laws that effectively hinder the use of satellite television receiveonly"W,`(`(88"  S- d(#antennas ("TVROs") and state regulation of SMATV systems.)(] {Oh- d(#[ԍSee, e.g., Liberty Comments at 1920 and n. 28, (citing 47 C.F.R. 25.104 as preempting local zoning  {O2- d(#regulations that discriminate between satellite receiveonly antennas and other types of receiving antennas; and In  {O- d(#re Earth Satellite Communications, Inc., 95 F.C.C.2d 1223 (1983) aff'd sub nom. New York State Commission on  {O- d(#Cable Television v. FCC, 749 F.2d 804 (2d Cir. 1984) ("ESCOM") as preempting state regulation of SMATV systems  d(#that results in the suppression of that service in order to advance interests of franchised cable operators); WCA  {OX- d(#Comments at 89, and n.19 (citing In re OrthOVision, Inc., 82 F.C.C.2d 178 (1980), aff'd sub nom. New York State  {O"- d(#\Commission on Cable Television v. FCC, 669 F.2d 58 (2d Cir. 1982) ("OrthOVision"), as upholding the  d(#,Commission's preemption of a New York state law imposing franchise requirements on a MATV system was upheld  d(#where such regulation would have "[inhibited] the growth of MDS in the provision of freely competitive interstate services.").) ICTA advocates federal preemption of  d(#Lstate mandatory access laws, arguing that the Commission has independent preemption authority to act,  d(#/even in the absence of congressional direction, as long as its action is neither arbitrary nor exceeds its  S- d(#Zstatutory authority.~l (] {O - d(#ԍICTA Comments at 5355 (citing Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699 (1984)); see also  {O^- d(#xMultimedia Development Comments at 5 and n. 4 (citing Louisiana PSC v. FCC, 476 U.S. 355 (1986); National  {O(- d(#;Assn. of Regulatory Utility Commissioners v. FCC, 880 F.2d 422 (DC Cir. 1989); and OrthOVision (providing that  d(#the Commission has authority to preempt state and local regulations which are inconsistent with and frustrate the  d(#+ execution of federal policy over interstate communications matter)). Furthermore, the Commission has Congressional  d(#authority to promote the nationwide development of wireless cable, and may preempt any state law that impedes the Commission's own regulatory scheme. Such preemption would not be arbitrary if it represents a reasonable accommodation  S`- d(#yof conflicting policies that are within the Commission's statutory authority.c`(] {O-ԍICTA Comments at 5355 (citing Crisp, 467 U.S. 700). c According to ICTA, state  d(#jmandatory access laws unfairly advantage the franchised cable operator, discourage competition, provide  d(#no benefit to the public, and conflict with the Commission's mandate to promote the growth of  d(#competition in the cable industry. ICTA asserts that preemption of such state laws would therefore be a  S-reasonable accommodation of conflicting policies.8D(] {O-ԍId. at 55.8  Sp- 186.` ` Telephone providers also urge the Commission to preempt state mandatory access laws  SH - d(#that confer exclusive or preferential rights on incumbent service providers.H (] {O- d(#YԍSee, e.g., AT&T Reply Comments at 89; MCI Reply Comments at 3; MFS Reply Comments at 26; NYNEX Comments at 17; RCN Reply Comments at 9. These commenters argue  d(#.that the Commission has the authority under Section 253 of the 1996 Act to preempt state or local legal  d(#[requirements that have the effect of prohibiting carriers from providing telecommunications services, and  d(#that the Commission should therefore exercise its preemption authority under Section 253(b) to nullify the  S - d(#Loffending portions of the state mandatory access laws.B 0(] yOx#-ԍAT&T Comments at 9, n. 26.B AT&T argues that existing state laws granting  d(#>access are not uniform and are often unclear, and that, to the extent competitive service providers are" X,`(`(88j"  d(#prevented by state or local law from having the same access as incumbents, the Commission can preempt  S-that state or local law. (] yO@- d(#JԍAT&T Reply Comments at 9, and n. 26. AT&T further contends that all service providers should be assessed  {O-building entry fees equally. Id.  S- 3187.` ` Most cable operators oppose the preemption of state cable mandatory access laws. "(] {OJ- d(#ԍSee, e.g., Continental Reply Comments at 11; Marcus Cable, et al., Reply Comments at 11; NCTA Reply Comments at 1314; Time Warner Reply Comments at 54.  d(#According to these parties, there is no basis in policy or law for the Commission to preempt statutes that  d(#guarantee subscribers access to franchised cable service. Marcus Cable, et al., argue that the  d(#Commission's prior preemption actions were undertaken to preempt laws that prohibited competitive  S- d(#services, not laws that guarantee subscribers a choice of video service providers. "|(] {O - d(#ԍMarcus Cable, et al., Comments at 1011 (in OrthOVision, the Commission preempted a state law that  d(#Kprohibited competitive service by MMDS providers to MDUs. Similarly, if preemption is considered at all, only  d(#those regulations that might prohibit access to premises should be preempted, not state laws that provide access to subscribers).  Continental notes that  d(#state access laws are a response to landlords' access bottleneck, and that the preemption of existing access  d(#laws would only strengthen landlords' power to make both service and provider choices for tenants, by  Sp- d(#resurrecting the landlords' power to contract exclusively with service providers. "pf (] {Ov- d(#ԍContinental Reply Comments at 11; see also Marcus Cable, et al., Reply Comments at 11 (preemption of state  d(#access laws would deprive MDU residents of a choice of providers and of the opportunity to receive all broadband  d(#services that cable operators are beginning to offer and would force MDU residents to accept whatever service building owners and landlords choose to provide). NCTA maintains that  d(#mandatory access laws are not discriminatory. Such laws do not exclude others from providing service,  S - d(#but merely ensure that consumers have access to multichannel video programming services.Y  P (] {O- d(#ԍNCTA Reply Comments at 1314. But see ICTA Comments at 51 (state mandatory access laws were not  d(#drafted to ensure MDU residents the right to receive cable service; they do not grant tenants the right to force a cable  d(#franchisee to condemn property to ensure tenants' receipt of cable service. A tenant request is typically a prerequisite  d(#wto forced entry, but the cable franchisee is not obligated to honor the request, even if the tenant has no cable service available whatsoever).Y NCTA  d(#further argues that there is no need for preemption of such laws because alternative providers may avail  S - d(#themselves of access statutes by becoming franchised, now that exclusive franchises are prohibited.bX (] yOr- d(#ԍNCTA Reply Comments at 14; Time Warner Reply Comments at 54, 58 (nonfranchised providers want the  d(#benefits of a franchise without the concurrent obligations; they argue for preemption simply because they seek access to the most lucrative buildings with minimal capital investment).b  d(#Time Warner claims that franchise service obligations, such as universal service requirements, sufficiently  S -distinguish franchised operators so as to merit special treatment under state access laws.I "(] yOB$-ԍTime Warner Reply Comments at 55.I "XY,`(`(88Z"Ԍ S-8` `  b.Discussion  S- 188.` ` Many commenters argue that parity of access rights is necessary to foster a fully  d(#competitive market for multichannel video programming and telecommunications services. To achieve  S`- d(#=s8uch parity, several alternative service providers urge the preemption of state mandatory access laws.IX`(] yO- d(#ԍAT&T Reply Comments at 89; ICTA Comments at 53, 55; Liberty Cable Comments at 13; MCI Reply  d(#Comments at 3; Multimedia Development Comments at 7; MFS Comments at 4; MFS Reply Comments at 56; NYNEX Comments at 17; RCN Reply Comments at 9; WCA Comments at 8.I  S8- d(#Franchised cable operator interests, however, oppose federal preemption of state mandatory access laws8(] yO - d(#ԍContinental Reply Comments at 11; Marcus Cable, et al., Reply Comments at 10; NCTA Reply Comments at 1314; Time Warner Reply Comments at 54.  d(#jand claim that parity of access should be achieved by granting franchised cable operators the same access  S- d(#Mto easements and rightsofway as provided to telephone companies and other utilities.r@(] {O -ԍSee, e.g., Charter/Comcast Comments at 11; TKR Cable Comments at 12.r They also  d(#contend that there are valid distinctions between franchised and nonfranchised video service providers,  S-which justify disparate treatment under state access laws.wZ(] yO - d(#JԍTime Warner Reply Comments at 5558. Time Warner contends, for example, that Section621(a)(3) of the  d(#Communications Act requires franchised service providers to provide universal service upon request, while non {O-franchised video providers have no such obligations. Id. at 56.w  SH -  Q189.` ` We believe that the record in this proceeding does not support the preemption of state  d(#jmandatory access laws at this time. While commenters opposing state mandatory access laws argue that  d(#these laws act as a barrier to entry, the record also indicates that property owners deny access for reasons  d(#unrelated to the state laws, including property damage, aesthetic considerations and space limitations. We  d(#believe that our rules regarding the buildingbybuilding and unitbyunit disposition of home run wiring  d(#adopted herein will lower many of these barriers to entry and may alleviate some of the advantages incumbent providers may have with respect to providing service to particular buildings.  S- P190.` ` We remain concerned, however, about disparate regulation of MVPDs that unfairly skews  d(#competition in the multichannel video programming marketplace. Despite our decision not to preempt  d(#state and local mandatory access laws at this time, we encourage these jurisdictions to evaluate present  d(#laws and circumstances to determine whether a nondiscriminatory and competitively neutral environment  d(#exists. We believe that establishing competitive parity under these statutes will promote competition among MVPDs and will expand consumer choice.  S-` ` 3. Exclusive Service Contracts  S-` `  a.Background  SP- `191.` ` In discussing provider access to MDUs, many commenters raise the issue of exclusive  d(#service contracts between MDU owners and video service providers. Telephony providers generally argue  d(#Lfor rules banning cable operators from entering into exclusive contracts for the provision of video service  d(#to MDUs and prohibiting cable operators from enforcing the exclusivity provisions of any existing"Z ,`(`(88="  S- d(#]contract.$(] {Oh- d(#ԍSee, e.g., Bell Atlantic Comments at 5; MCI Reply Comments at 3; NYNEX Comments at 17; Ameritech ex  {O2- d(#[parte submission, dated May 15, 1997; GTE Comments at 22 (existing cable operators should be barred from  d(#entering into or enforcing any exclusive arrangements in excess of 12 months in markets where alternative providers have announced an intention to enter). Bell Atlantic argues that prohibiting exclusive contracts would be consistent with the  d(#Commission's restrictions on exclusive contracts in other contexts where necessary to increase competition  S- d(#Mand enhance consumer choice,](] {O- d(#ԍBell Atlantic Reply Comments at 7 (citing Report and Order in MM Docket Nos. 92259, 904 and 92295  d(#(Implementation of the Cable Television Consumer Protection Act of 1992: Broadcast Signal Carriage Issues), 8 FCC  {O - d(#,Rcd 2965 (1993), and First Report and Order in MM Docket No. 92265 (Implementation of the Cable Television  d(#;Consumer Protection Act of 1992: Development of Competition and Diversity in Video Programming Distribution and Carriage), 8 FCC Rcd 3359 (1993)).] and that the Commission has directly prohibited exclusive contracts  S- d(#between regulated providers and unregulated parties in the past.$h (] {O - d(#ԍId. at 8 (citing 47 C.F.R.  73.635 and 73.239). Bell Atlantic also contends that, in contrast to mandatory  d(#access requirements, a prohibition on exclusive contracts would eliminate unreasonable barriers to competition  d(#wwithout unduly interfering with the interests of MDU owners and managers, who would still retain discretion to grant  {O-or deny access to service providers. Id. at 56. AT&T argues that longterm, exclusive  d(#service contracts with MDUs are an impermissible barrier to entry and should be preempted under Section  d(#253(d) of the 1996 Act. AT&T further argues that state and local laws which allow for discriminatory  S-application of charges imposed on franchised service providers should also be preempted.iZT (] {O- d(#;ԍAT&T Reply Comment at 910, n. 27. But see SBC Reply Comments at 67 (Commission should not dictate  d(#wrules regarding exclusive contracts; question of exclusivity in this context is a matter of private contract, and parties should be allowed the freedom to exercise their own choice).i  S-  192.` ` Some cable operators also support a ban on exclusive contracts. Cox argues that the  d(#Commission should preempt state laws that permit exclusive contracts if they interfere with federal  d(#policies, claiming that the policy which led Congress to prohibit exclusive franchises supports a limitation  SH - d(#on exclusive contracts for provision of service in MDUs.H v(] {O^- d(#KԍCox Comments at 2728 (citing 47 U.S.C. 152(a) and United States v. Southwestern Cable Co., 392 U.S.  d(#x157, 178 (1968)). Cox claims that in some respects, owners resemble local franchising authorities who typically  d(#refused to grant more than one cable franchise prior to the Cable Acts of 1984 and 1992; those authorities justified  d(#;exclusive franchises by asserting an interest in preventing undue disruption to streets, and extracted concessions and  {O-payments in return for franchise, just as property owners do in this context. Id. at 27 and n. 40.  Continental contends that competition will  d(#kbe impossible where control over access to potential customers is wielded by landlords that decide to  d(#contract exclusively with a particular provider, and argues that proposals that empower landlords to make  d(#such choices must be rejected in favor of proposals that empower tenants to make those choices  S -themselves._Z *(] {Or#- d(#,ԍContinental Comments at 2122; see also Continental Reply Comments at 10 (the Commission's preeminent  d(#policy goal should be to promote facilitiesbased competition, not minimize inconvenience to owners or maximize landlords' ability to enter lucrative exclusive contracts)._  SX- 193.` ` Some alternative video providers, private cable interests and property owners argue that  d(#exclusive contracts are imperative for viable competition and oppose the prohibition of exclusive contracts,"0[L,`(`(88,"  d(#claiming that: (1)such contracts are private agreements beyond the scope of the Commission's  S- d(#preemption authority under Section253;Z(] {O@- d(#ԍBuilding Owners, et al., Reply Comments at 7; see also Further Comments of Building Owners, et al., at 67;  d(#Further Comments of Community Associations Institute at 17 (urging the Commission not to interfere with an MDU owner's ability to consider exclusive contracts because such options are a right of property ownership). (2)it would be costprohibitive for new entrants to install  S- d(#facilities in MDUs without service exclusivity;Z(] {O:- d(#JԍOpTel Comments at 78; OpTel Reply Comments at 2; OpTel/MTS ex parte submission, dated July 23, 1996,  d(#at 2; Wireless Holdings Reply Comments at 2; GTE ex parte submission, dated May 15, 1997, at 12; ICTA ex parte submission, dated February 24, 1997, at 34; ICTA ex parte submission, dated February 27, 1997. (3)exclusivity is often necessary to attract investment,  S- d(#given the smaller subscriber base and the provider's need to guarantee a return on its investment; (] {O4 - d(#ԍICTA Comments at 45. But see Cox Reply Comments at 1415 (arguments that limited duration exclusive  d(#;contracts are necessary is unpersuasive; exclusivity not necessary to attract and justify investment, and it is folly to  d(#,suggest that viable facilitiesbased competition cannot exist in MDUs. Exclusivity allows building owners to choose  d(#a monopoly provider rather than allowing subscribers to choose among providers; incentives to enter exclusive contracts serve only the interests of owners and do not promote competition). and  d(#(4)prohibiting exclusive contracts will never promote unlimited competition in MDUs, since such  S8-competition is physically impossible.E8 (] yO-ԍWCA Reply Comments at 2223. E  S- 194.` ` GTE contends that the Commission does not have jurisdiction to prohibit these exclusive  d(#jcontracts or to limit their duration, because the Commission has no authority over MDU owners and the  S- d(#[rates of cable operators facing "effective competition" under Section 623 of the 1992 Cable Act._N (] yO-ԍGTE ex parte submission, dated March 31, 1997, at 110._ GTE  d(#.argues that any use of Section 628(b) of the Communications Act is improper as it does not expand the  d(#Commission's jurisdiction to reach these exclusive contracts, since such action would go beyond the  S - d(#Congressional purpose of ensuring video service providers' access to video programming.; (] {O-ԍId. at 1113.; Such  S - d(#regulation, GTE argues, would contravene the 1996 Act's purpose to promote competition.;  p(] {O-ԍId. at 1314.; Similarly,  d(#Section 4(i), authorizing the Commission to perform all acts necessary in the execution of its functions,  d(#=provides no jurisdiction to regulate these contracts since such regulation is directly inconsistent with the  S -Commission's authority.;! (] {O"!-ԍId. at 1921.;  S0- #195.` ` While alternative video providers and private cable interests generally argue that exclusive  d(#contracts are imperative for viable competition to exist, they argue that "perpetual" exclusive contracts are  d(#anticompetitive. These commenters define "perpetual" exclusive contracts as exclusive service contracts"\!,`(`(88 "  S- d(#Mwhich extend for the life of the provider's franchise and any extensions or renewals thereof.""(] yOh- d(#ZԍICTA Comments at 55; OpTel Comments at 8; WCA ex parte submission, dated October 2, 1996, at 23;  d(#ICTA/OpTel/MTS/WCA ex parte submission, dated March 27, 1997, at 1; GTE ex parte submission, dated March  {O- d(#31, 1997, at 15; PacTel/PacBell ex parte submission, dated February 10, 1997, at 9; see also Further Comments of Skyzone at 2. ICTA  d(#jargues that such contracts are perpetual because it is exceedingly rare that a franchise is not renewed, and  d(#that the practical result is that an owner's choice of provider is restricted forever. ICTA further contends  d(#that these contracts cannot be justified as a business necessity because they extend well beyond the period  S`-necessary for a cable operator to recoup its investment.<#`(] yO -ԍICTA Comments at 56.<  S- `196.` ` OpTel recommends a rule requiring future contracts to include a specific term of years,  d(#and requiring existing perpetual contracts to expire at the end of the service provider's current franchise  S- d(#term.<$B(] yO-ԍOpTel Comments at 8.< Similarly, ICTA proposes that all future service agreements between franchised operators and  d(#property owners include a durational provision, and that existing perpetual agreements should be void 15  d(#=years after the effective date of the contract or upon expiration of the initial franchise term, whichever is  d(#Ksooner. For contracts that would be already void under this standard, ICTA proposes that the Commission  d(#yallow a sixmonth period in which franchised operators may phase out service or negotiate new contracts  S -for a term of years if the owner so desires.<% (] yOj-ԍICTA Comments at 57.<  S - B197.` ` NCTA proposes a rule to be applied solely in mandatory access states, providing that  d(#exclusive contracts ordinarily shall not extend past the end of a current franchise term (or, in the case of  d(#a noncable video service provider, until the end of the cable franchisee's term) or a date certain in the  d(#/contract. NCTA emphasizes, however, that the Commission must enforce this rule in a manner that  S- d(#<protects operators' "legitimate business expectations" and operators near the end of their franchise terms.`&b (] yO -ԍNCTA ex parte submission, dated February 13, 1997, at 1.`  d(#>ICTA, WCA, OpTel and MTS argue that there is no reason for the rule to be limited to states where  S- d(#yfranchised cable operators have mandatory access to all MDUs.' (] yOJ- d(#ԍICTA/OpTel/MTS/WCA ex parte submission, dated March 27, 1997, at 1; ICTA ex parte submission, dated February 24, 1997, at 3. Moreover, ICTA opposes linking the  S- d(#[duration of exclusive contracts to the current franchise term.`(J (] yOz!-ԍICTA ex parte submission, dated February 24, 1997, at 4.` ICTA further argues that the proviso for  d(#protection of operators' business interests and operators near the end of their franchise term would spawn  d(#neverending litigation and deprive the market of any certainty regarding the termination of these  S-contracts, thus further hobbling competition.2)(] {O%-ԍId. 2 "]l),`(`(88R"Ԍ S-  198.` ` SBC and PacTel advocate a rule that exclusive contracts be allowed only where a service  d(#provider has newly installed at least 75% of the inside wiring in an MDU and that the contract term be  S- d(#limited to seven years from the time of new installation.*(] yO- d(#ԍSBC/PacTel/PacBell ex parte submission, dated April 28, 1997, at 1. PacTel/PacBell originally supported a  d(#35 year limitation on the exclusive contract term but later advocated a 7 year limitation in their joint proposal with  d(#the SBC. PacTel/PacBell ex parte submission, dated February 10, 1997, at 9. PacTel/PacBell define "inside wire"  d(#to include feeder cable and other components on the network or provider side of the demarcation point and the  {O8-homerun or drop wiring to individual units. Id. GTE argues that any rule limiting exclusive  d(#contracts to new installations must consider the service providers' total investment and not just inside  S`- d(#wiring.!+X`z(] yOz - d(#xԍGTE ex parte submission, dated May 15, 1997, at 2 (SMATV operators often also have to invest in an on d(#premise headend and campus wiring and electronics to transport signals to the various buildings in an MDU complex).! Furthermore, GTE, ICTA, and WCA oppose any absolute limitation on the duration of  S8- d(#exclusive contracts.X,\8(] {Or- d(#ԍId.; ICTA ex parte submission, dated February 24, 1997, at 45; WCA Comments at 1315; WCA Reply  {O<- d(#Comments at 22; see also OpTel Comments at 9 (no further regulation of exclusive contracts is necessary after "fresh look" doctrine has been adopted).X GTE argues that limitation of the period that a SMATV operator has to recover  d(#[on its investment would force the operator to raise its price to subscribers, thereby making it less able to  S- d(#compete with an entrenched cable operator.Z- (] yOF-ԍGTE ex parte submission, dated May 15, 1997, at 2.Z Finally, GTE contends that the Commission has no  S-authority to prohibit exclusive contracts or to limit their duration.7.N (] {O-ԍId.7  Sp- 199.` ` In addition to a brief reference in PacTel's Reply Comments,]/Xp(] yO- d(#ԍPacTel Reply Comments at 6 (at the time new rules are promulgated, Commission should allow property  d(#owners benefit of a "fresh look" at existing contracts; otherwise, incumbents will evade new rules by locking MDU owners into long term contracts before rules are promulgated). ] several commenters also  SH - d(#have submitted ex parte presentations suggesting that a "fresh look" policy be applied to certain exclusive  S" - d(#zcontracts executed prior to the effective date of our rules.0$" (] {O- d(#ԍSee, e.g., OpTel/MTS ex parte submission, dated July 23, 1996; WCA ex parte submission, dated October 2,  d(#w1996; SBC Communications, Inc. ex parte submission, dated October 18, 1996, at 5; GTE ex parte submission, dated  d(#JNovember 5, 1996, at 89; ICTA ex parte submission, dated February 24, 1997, at 45; WCA/ICTA/OpTel/MTS ex  {O -parte submission, dated March 27, 1997, at 1; see also Further Reply of CEMA at 1013. For example, OpTel/MTS has suggested  S - d(#-applying a "fresh look" to "perpetual" exclusive contracts between property owners and cable operators.M1 (] yO"-ԍOpTel/MTS ex parte submission, at 5. M  d(#Under the OpTel/MTS proposal, property owners that have committed to longterm perpetual exclusive  d(#contracts would have a window of 180 days to take a "fresh look" at the marketplace to renegotiate or  d(#terminate those contracts without liability in order to avail themselves of a competitive alternative service  d(#provider. The "fresh look" period would be initiated at any given MDU upon the request of a private  d(#cable operator able to serve the MDU or where the Commission has determined that the cable operator  d(#is subject to effective competition. If a property owner wished to enter into another perpetual contract" ^|1,`(`(88+"  d(#[after being given the opportunity for a "fresh look," it would not be prohibited. The Commission would  S- d(#not dictate an acceptable term length for exclusive contracts.72(] {O@-ԍId. at 6.7 OpTel/MTS argues that the Commission's  d(#responsibility to regulate cable rates under Title VI is comparable to its regulation responsibilities under  S- d(#0Title II, and that therefore analogies to "fresh look" proceedings under Title II are appropriate.13Z(] {O-ԍId.1  d(#OpTel/MTS further claims a "fresh look" application will also fulfill our obligations to small businesses  S8-under Section 257 of the 1996 Act.748(] {O -ԍId. at 7.7  S- 200.` ` Similarly, WCA supports the application of a "fresh look" policy to exclusive contracts  S- d(#entered into prior to the emergence of competition.]5~(] yO -ԍWCA ex parte submission, dated October 2, 1996, at 1.] While generally supporting the OpTel/MTS  d(#proposal, WCA proposes that the "fresh look" period only apply upon a finding by the Commission that  d(#the cable operator is subject to effective competition. The "fresh look" period would be available to a  d(#franchised cable operator and an MDU owner that had entered into an exclusive arrangement that extended  S - d(# either for the life of the operator's franchise and any renewals thereof, or for three years or longer.6( (] {O- d(#ԍId. at 3. WCA argues that applying "fresh look" to contracts lasting three years or more comports with our  {O- d(#decision in Expanded Interconnection with Local Telephone Company Facilities, 7 FCC Rcd. 7369, 746364 (1992),  {Ob- d(#;aff'd 8 FCC Rcd. 7341, 7345 (1993) (existence of certain contracts with access arrangement of three or more years  {O,-raised potential anticompetitive concerns). Id.  d(#WCA contends that the "fresh look" period should remain open until 180 days after a determination of  d(#Keffective competition to assure MDU owners a reasonable opportunity to consider competitive alternatives  S - d(#jand pinpoint precisely when the "fresh look" window expires.K7Z (] {OF- d(#ԍId. at 4. Where a cable operator has been held to face effective competition prior to adoption of the "fresh  d(#look" policy, the 180 day window should be calculated from the date the Commission adopts the fresh look policy.  {M-Id.K SBC agrees with this calculation of the  S -"fresh look" period.X8 (] yO@-ԍSBC ex parte submission, dated October 18, 1996.X  S0- 201.` ` GTE likewise supports a "fresh look" policy toward existing exclusive contracts which,  d(#GTE argues, were imposed by cable operators not subject to "effective competition." GTE argues that  d(#the Commission has jurisdiction to adopt this policy under Section 623 of the Comunications Act, which  d(#=authorizes the Commission to choose the best method to ensure "reasonable rates" for cable service, and  d(#|requires that any such regulations "achieve the goal of protecting subscribers" where "effective  Sh-competition" is not present.9h(] yO$- d(#<ԍGTE ex parte submission, dated March 31, 1997, at 1415; GTE ex parte submission, dated November 15, 1996, at 89. "@_9,`(`(88"Ԍ S- Q202.` ` NCTA and Jones, however, argue that the "fresh look" policy is inappropriate and the  d(#Commission has no authority to adopt it in this situation. The "fresh look" policy applies only where an  d(#area previously subject to monopoly opens to competition or where an area is subject to significant  d(#changed circumstances. NCTA and Jones argue that these conditions do not exist in the video services  S`-market because SMATV systems have competed vigorously with cable services since the 1980s.):X`(] yO- d(#xԍNCTA Reply Comments at 2021; Jones ex parte submission, dated January 8, 1997, at 1, 4 (broad Title II  d(#powers that supported "fresh look" policy in the context of common carriers are inapplicable to video service providers).)  S-` `  b.Discussion  S- 203. ` ` We recognize the significant competitive issues raised by commenters regarding exclusive  d(#contracts. We are concerned that longterm exclusive contracts may raise anticompetitive concerns  d(#because they "lock up" properties, preventing consumers from receiving the benefits of a newly  SH - d(#=competitive market.[;H (] {O-ԍSee, e.g., Bell Atlantic Reply Comments at 4.[ However, we also note that alternative providers cite the competitive benefits of  d(#kexclusive contracts as a means of financing "specialized investments." Without exclusive contracts to  d(#allow recovery over time on the cost of new installation, these parties assert that they will be unable to  S - d(#kcompete with the incumbent cable operator.<  z(] yO- d(#YԍOpTel Comments at 78; OpTel Reply Comments at 2; OpTel/MTS ex parte submission, dated July 23, 1996,  d(#at 2; WHI Reply Comments at 2; GTE ex parte submission, dated March 31, 1997; GTE ex parte submission, dated  d(#May 15, 1997, at 12; ICTA Comments at 45; ICTA ex parte submission, dated February 24, 1997, at 34; ICTA ex parte submission, dated February 27, 1997. We believe that the record would benefit from further  S - d(#kcomment on these issues. In the Second Further Notice below, we seek comment on various options,  d(#{including: (1)adopting a maximum "cap" on the enforceability of all MVPDs' exclusive contracts;  d(#(2)limiting the ability of MVPDs with market power from entering into exclusive contracts;and (3) adopting a "fresh look" period for socalled "perpetual" exclusive contracts.  S- G.` ` Customer Access to Cable Home Wiring Before Termination of Service  S-` ` 1. Background  SB- 3204.` ` In the Inside Wiring Notice, we noted that Section624(i) required us to prescribe rules  d(#concerning the disposition, upon termination of service by a subscriber, of cable home wiring installed  S- d(#by a cable operator.W=b (] {O -ԍInside Wiring Notice, 11 FCC Rcd at 2765.W We also noted that our current rules do not require cable operators to allow  S- d(#subscribers to install their own wiring or to rearrange operatorowned wiring.1> (] {O`#-ԍId.1 In contrast, telephone  d(#inside wiring has been deregulated for nearly ten years, and we tentatively concluded that there was no  S|- d(#reason to change the telephone inside wiring rules.:?| (] {O&-ԍId. at 2766.: We asked for comment as to whether consumers  d(#should have the right to install and own their broadband inside wiring and to access wiring on their"T`?,`(`(88"  d(#.premises prior to termination of service where such wiring was installed and is owned by the broadband  S-video service provider.=@(] {O@-ԍId. at 276768.=  S- 205.` ` We also sought comment on how to protect against signal leakage and maintain signal  d(#quality if subscribers were given pre-termination access to their cable inside wiring, and whether the  S8- d(#<Commission has the authority to promulgate a requirement of pre-termination access.:A8Z(] {O2-ԍId. at 2768.: We asked whether  d(#Mthe Commission can and should create a presumption that the subscriber owns his or her cable inside  d(# wiring and, if so, what kind of showing would be necessary to overcome that presumption. We also  S- d(#isought comment on any statutory or constitutional impediments to creating such a presumption.=B(] {OL -ԍId. at 276970.= Finally,  d(#>we sought comment on whether and how the rules governing access should be harmonized in a world  d(#where the cable operator, the telephone company and others may be offering a variety of services over  SH -a single wire.:CH ~(] {Of-ԍId. at 2776.:  S - P206.` ` Telephone companies, alternative video service providers and others support an extension  S - d(#.of the telephone rules to the cable context,%D` (] yO- d(#ԍAmeritech Reply Comments at 10 (supporting extension of procompetitive telephone inside wire rules to cable  d(#home wire); AT&T Comments at 8 (contending that the Commission should take steps to harmonize regulation of  d(#ycustomer access to inside cable wiring with existing regulations governing customer access to inside telephone  d(#wiring); GTE Comments at 15 (cable inside wiring rules should be made consistent with regulations for telephony);  d(#Multimedia Development Comments at 10 (for cable wiring rules to work in the evolving market, parity with  d(#Ytelephone wiring rules is necessary, to fullest extent possible); WCA Comments at 45 (urging use of telephone rules  d(#xas a starting point for developing new inside wiring rules for broadband services, but broadband rules should depart  d(#from telephone rules where necessary to accommodate the practical differences between the "wiring topologies" used  d(#in each); Building Industry Consulting Comments at 45 (recommending single set of regulations for all wiring,  d(#Zincluding telecommunications and cable, and seeing no reason to change policy for inside telephone wire); Media  d(#Access/CFA Comments at 16 (supporting regulation of cable inside wiring under same model used for telephone inside wiring; rules allowing access to telephone inside wiring "have been a great success").% arguing that such deregulation would promote competition  S - d(#and customer choice,fEX 8(] yO- d(#YԍAmeritech Reply Comments at 23 (common rules would reduce confusion, promote competition and increase  d(#icustomer choice); New York DPS Reply Comments at 4 (guidelines for inside wiring should evolve to model used for telephony in order to maximize consumer options and establish parity).f and that efficient competition requires that all customers have access to and control  S -of all inside wiring within their premises.;F X(] yOx#-ԍAT&T Comments at 8.; "XaF,`(`(88Z"Ԍ S- 207.` ` WCA argues that precedent in the telephone context supports the transfer of cable inside  S- d(#wiring to property owners on installation. G$(] {O@- d(#,ԍWCA Comments at 1719. But see ICTA Comments at 33 (Section624(i) grants authority to prescribe rules  {O - d(#;for disposition after termination, but there is no statutory authority to prescribe rules for disposition of wiring priorĄ  d(#Jto termination; forcing cable operators to sell wiring before termination would constitute a taking, and Congress has not granted the Commission authority to exact a taking).  WCA further argues that the Commission should adopt a  d(#rule providing that ownership of wiring not designated as "cable home wiring" in an MDU transfers  d(#/automatically to the property owner upon installation. WCA argues that, to the extent owners have  d(#already acquired the wiring by state law or separate contracts with incumbent operators, such an action  S8- d(#ywill have no impact.>H8(] yO -ԍWCA Comments at 1516.> WCA also claims that the cost of cable inside wiring lies primarily in installation,  d(#and the salvage value of the wiring pales in comparison to the cost of removal and restoration of the  d(#]premises. WCA argues that a rule allowing operators to recover all of their inside wiring costs by  d(#including those costs in rates for basic service to MDUs or entering into separate service contracts for  S-maintenance fees where wire is transferred at no cost will address any takings issues.8ID(] {O|-ԍId. at 20.8  SH - 208.` ` Multimedia Development argues that the only reason video service providers seek to  S - d(#protect their ownership of inside wiring is to protect their customer base against entry by competitors.WJ (] yO-ԍMultimedia Development Comments at 17 and n.30.W  d(#Multimedia Development contends that we should require that title to cable inside wiring vest with the  d(#ysubscriber (or property owner for common wire in MDUs) upon installation, because the equipment has  d(#llittle or no residual value and is likely fully expensed for tax and regulatory purposes; Multimedia  S - d(#Development asserts that such a rule would not raise a takings issue if it were applied prospectively.K f (] {O-ԍId. at 18 and n.31 (citing FCC v. Florida Power Corp., 480 U.S. 245 (1987)).  d(#Multimedia Development further argues that existing signal leakage rules adequately protect the public  d(#{and there is no evidence that the proposed changes would undermine that protection. Multimedia  d(#Development notes that CATA admits that many subscribers routinely alter their cable home wiring, but  S-offers no evidence of how such alteration has or will cause leakage problems.VL (] yOx-ԍMultimedia Development Reply Comments at 910.V  S- o209.` ` DIRECTV seeks a presumption that the subscriber owns his or her cable inside wiring,  d(#jand that the collective MDU community owns its common inside wiring. DIRECTV asserts that a cable  d(#operator could rebut these presumptions by providing proof that it had not recovered the investment cost  d(#of the wiring and that the salvage value of the wiring exceeds its unrecovered investment cost. DIRECTV  d(#recommends that where the cable operator is able to rebut these presumptions, the subscriber or MDU  d(#community should have the right to purchase the inside wiring or obtain access thereto prior to termination  d(#of service, arguing that our rules should allow for more than one provider to use the same wires in order"b L,`(`(88"  S- d(#to facilitate competition.RM(] {Oh- d(#;ԍDIRECTV Comments at 12. But see Marcus, et al., Reply Comments at 1718 (DIRECTV's recommendation  d(#to share wires among providers is infeasible because it: (1)would require the addition of equipment that will  d(#ysubstantially increase the likelihood of signal quality degradation and outages; (2)would destroy existing cable  d(#operators' ability to increase their channel and/or service offerings; and (3)assumes that only two providers will seek to provide broadband service).R Alternatively, DIRECTV suggests that, where significant value remains in the  d(#wiring and the wiring is owned by the incumbent provider, a competitive service provider could be  S-allowed to coinvest in the wiring by purchasing a portion of the unrecovered value from the incumbent.?Nz(] yO-ԍDIRECTV Comments at 12.?  S`- }210.` ` Property owners and managers claim that they have "no objection in principle" to allowing  d(#.customers to install and maintain their own home wiring, so long as the property owner retains the right  S- d(#to obtain access to the wiring and to control the type and placement of such wiring.PO (] yO -ԍBuilding Owners, et al., Comments at 44.P Furthermore, they  d(#contend that the building owner has, by contract, a superseding right to acquire or install any wiring. In  d(#!any event, these commenters argue that tenants' rights to own, acquire or install wiring should be  S-governed by state property law and the terms of the tenant's lease.P(] {O- d(#<ԍId. at 4445; see also Wireless Holdings Reply Comments at 1 (MDU building owners should be considered the relevant subscribers in rental MDUs and should be allowed to purchase cable inside wiring).  SH - B211.` ` In contrast, cable interests oppose granting subscribers the right to own or access their  d(#.cable inside wiring prior to termination of service. These commenters argue that Section 624(i) does not  d(#provide for subscriber ownership of wiring before termination of service, and that the Commission  S - d(#Lotherwise lacks the statutory authority to impose it.Q (] {Od- d(#ԍSee, e.g., CATA Comments at 1213 (suggestion that cable operators be required to sell inside wiring to  d(#customers before termination is without legal or economic justification or authority, and there is no support for it  d(#in the record; Congress gave the Commission authority to regulate the disposition of inside wiring in narrow  d(#circumstance where subscriber voluntarily terminates service, not authority to create regulations designed to promote  d(#termination or create new property rights); Marcus Cable, et al., Reply Comments at 19 (Section 624(i) authorizes  d(#FCC regulation of disposal of wiring in very narrow circumstances; the rule cannot apply unless a subscriber has  d(#elected to terminate service, and then it only applies to wiring within the subscriber's home); TCI Comments at 4  d(#(Commission's sole source of statutory authority over cable inside wire flows from Section624(i), which sought to  d(#Zensure the customer's opportunity to purchase inside wire within the premises when cable service was voluntarily  {On- d(#terminated); Time Warner Comments at 2627 (Section 624(i) applies only posttermination); see also ICTA Comments at 33 (Commission lacks statutory authority to require pretermination access). These commenters also argue that requiring pre S - d(#termination access would constitute an impermissible "takings" under the Fifth Amendment,R X(] {O"-ԍSee, e.g., Time Warner Comments at 28; ICTA Comments at 33; NCTA Reply Comments at 913. and would  S - d(# raise signal leakage concerns.9S" (] {O %- d(#ԍSee, e.g., CATA Comments at 11 (Commission should determine the likelihood of leakage if subscribers have  d(#iunfettered access to the cable; signal leakage is more important now since cable operators are about to offer high  d(#wspeed data services which are particularly sensitive to impulse noise migrating into system from subscriber premises);  d(#;NCTA Reply Comments at 910 and fn. 16 (citing 1992 House Report at 119 (Congress was well aware of practical"d'R,`(`('"  d(#iimplications of allowing subscriber access to continuouslyactivated coaxial wire and did not provide for it; signal leakage is a serious problem if wiring is improperly installed and maintained)).9 NCTA and Time Warner argue that while the Commission lacks the" c S,`(`(88j"  d(#=statutory authority to force cable operators to cede control of home wiring at the point of installation, it  d(#[could adopt incentives for cable operators to voluntarily cede control of home wiring to consumers upon  S- d(#.installation.`T (] yOp-ԍNCTA Reply Comments at 9; Time Warner Comments at 2930.` Such incentives could include a relaxation of price regulation for inside wiring installation  d(#and maintenance fees and relaxation of signal quality and leakage regulations when an operator voluntarily  S`-allows pretermination access.U`(] yO - d(#ԍTime Warner Comments at 2930. Time Warner also sees the negotiation of "social contracts," such as the  {Ox -one they have negotiated with the Commission, as a possible way to achieve this goal. Id.   S-  B212.` ` Cable interests also object to any analogy to our telephone inside wiring rules. CATA  d(#.contends that analogies to telephone inside wiring rules are inapposite for cable wiring because access to  d(#|telephone wiring was required in order to encourage competition for telephony CPE, while the  S- d(#Commission's goal for cable wiring is to encourage competition among video service providers.PVz (] {OB- d(#ԍCATA Comments at 10; see also Marcus Cable, et al., Reply Comments at 1516 (no rationale for adopting  d(#,telephone inside wire rules for cable wiring; telephone rules were adopted when telephone service was delivered over  d(#xsimple, uniform network, using equipment completely developed and regulated, while cable service is in a state of  d(#wdynamic growth, and the imposition of rules for a "static technology" in the cable context would stifle technological  d(#growth); TCI Comments at 34 (nothing in the 1996 Act or its history contemplates harmonization of telephony and  d(#xcable inside wiring rules; Congress specifically addressed and rejected regulatory harmony with respect to physical plant). P NCTA  d(#argues that Congress did not intend operators to be treated as common carriers with respect to internal  d(#cable installed in subscriber homes, and that requiring cable operators to give up their facilities is  S -inconsistent with their noncommon carrier status.^W L (] yO -ԍNCTA Comments at 13 (citing 1992 House Report at 118).^  S - }213.` ` In addition, Time Warner maintains that a rebuttable presumption of subscriber ownership  d(#constitutes an impermissible taking, because ownership of the wiring would automatically shift to the  S - d(#consumer without compensation to the cable operator.IX (] yO-ԍTime Warner Reply Comments at 43.I Time Warner contends that the 1992 Cable Act  d(#does not permit the promulgation of rules mandating that a cable operator yield ownership of home wiring  d(#.prior to termination of service, even if just compensation is paid, and that Section 252(d)(2) of the 1996  d(#Act presumes that the operator owns the wire over which it provides service, unless or until the operator  d(#[cedes its ownership. According to Time Warner, a presumption that the subscriber owns the wiring will  S- d(#also discourage operators from installing wiring in the future.;Yl(] {O#-ԍId. at 4244.; Similarly, ICTA argues that an  d(#irrebuttable presumption of ownership would be unconstitutional. ICTA also argues that the Commission  d(#>probably does not have authority to create a rebuttable presumption, but that operators could easily  d(#overcome such a presumption by ensuring that their contracts specify operator retention of ownership. "@dY,`(`(88r"  d(#-ICTA suggests that the Commission establish a "bright line" test of ownership, so there will be no question  S-as to ownership at any point in time.?Z(] yO@-ԍICTA Comments at 3536.?  S- 2214.` ` Finally, Media Access/CFA strongly opposes proposals to deregulate inside wiring rates,  S`- d(#arguing that deregulation would risk monopolization by existing service providers.H[`X(] yOX-ԍMedia Access/CFA Comments at 18.H Media Access/CFA  d(#>claims that the 1992 Cable Act expressed a fundamental preference for the protection of subscribers,  d(#noting that the Act exempted cable systems from rate regulation only if those systems were subject to  S- d(#effective competition.[\(] {Op -ԍId. at 17 (citing 47 U.S.C. 543(a)(2)). [ Otherwise, rate regulation is required, including regulation of equipment used  S- d(#zby subscribers to receive the basic tier.]z(] {O -ԍId. at 1718 (citing 47 U.S.C. 1992 Cable Act, 3(a) and Communications Act, 623(b)(3)). ICTA also opposes rate deregulation, arguing that it would  S- d(#probably not result in subscriber access prior to termination.<^ (] yOD-ԍICTA Comments at 34.< ICTA claims that operators are unwilling  d(#to sell their wiring at any price in order to force owners to let the operator stay in the building, and that  d(#permitting operators to receive replacement cost is eminently fair because the wiring is worth less than  d(#its removal cost and the operator has ordinarily more than fully recouped its investment by the time of  d(#termination. ICTA also states that, in the alternative, the Commission should not deregulate the rates for  S -which inside wiring can be sold for the period after the operator receives notice of termination.;_ (] {O -ԍId. at 3435.;  S - 215.` ` Time Warner also recommends that we continue to regulate prices for installation and  d(#maintenance of wiring if a cable operator retains ownership and control over that wiring upon installation.  d(#\Prices should be deregulated if the operator chooses to cede control of the wiring to the subscriber on  d(#installation; this would foster a competitive installation and maintenance market, and would also eliminate  S-the need to regulate inside wiring and maintenance prices.F`. (] yO-ԍTime Warner Comments at 3031.F  S-` ` 2. Discussion  Sh-  S@-  216. ` ` We now establish a rule that will allow customers to provide and install their own cable  d(#home wiring within their premises, and to connect additional home wiring within their premises to the  d(#0wiring installed and owned by the cable operator prior to termination of service. Under this rule,  d(#customers will be able to select who will install their home wiring (e.g., themselves, the cable operator  d(#/or a commercial contractor). In addition, customers may connect additional wiring, splitters or other  d(#equipment to the cable operator's wiring, or redirect or reroute the home wiring, so long as no electronic  d(#or physical harm is caused to the cable system and the physical integrity of the cable operator's wiring"Pe `,`(`(88"  S- d(#remains intact.a(] yOh- d(#<ԍSuch additional wiring or rerouting may not, however, be used to provide video service to other subscribers in nearby homes or other units in an MDU. Subscribers will not be permitted to physically cut, improperly terminate, substantially  d(#yalter or otherwise destroy cable operatorowned inside wiring. To protect cable operators' systems from  d(#signal leakage, electronic and physical harm and other types of degradation, we will permit cable operators  d(#[to require that any home wiring (including any passive splitters, connectors and other equipment used in  d(# the installation of home wiring) meets reasonable technical specifications, not to exceed the technical  S8- d(#specifications of such equipment installed by the cable operator.b8 (] {O- d(#ԍIn the Second Further Notice below, we request comment on whether we should apply this rule to all MVPDs.  {O -See Section IV.B. below. If, however, the subscriber's  d(#kconnection to, redirection of or rerouting of the home wiring causes electronic or physical harm to the cable system, the cable operator may impose additional technical specifications to eliminate such harm.  S- 3217.` ` We believe that subscriber access to home wiring is necessary to enhance competition,  d(#/which will result in lower and more reasonable rates for services such as the installation of additional  SH - d(#0outlets.cH |(] {Od- d(#xԍSee 1992 Senate Report at 23 (urging the Commission to adopt policies that will protect consumers against the imposition of unnecessary charges, including those for home wiring maintenance). Indeed, where competition is introduced, consumers benefit from lower prices, greater technological innovation, and additional consumer choice.  S -  218.` ` We take this action pursuant to Sections 4(i) and 303(r) of the Communications Actd (] yOF- d(#ԍCommunications Act,  4(i) (Provisions relating to the Commission) and 303(r) (General Powers of Commission), 47 U.S.C. 154(i) and 303(r). to  S - d(#further the purposes of Section 623oe . (] yOv-ԍCommunications Act, 623 (Regulation of Rates), 47 U.S.C. 543.o specifically and Title VI generally. The Commission has authority  d(#.under Sections 4(i) and 303(r) to allow a subscriber to install and maintain its cable home wiring. As set  SX- d(#forth above,EfX (] {O-ԍSee Section III.A.2.c. E Section 4(i) grants the Commission the authority to make such rules as are necessary to  S0- d(#carry out its functions, so long as the rules are not inconsistent with the Communications Act.>g0P (] yO -ԍ47 U.S.C. 154(i).> Section  S- d(#303(r) grants the Commission similar authority.8hX(] yO - d(#Jԍ47 U.S.C. 303(r) (the Commission has the authority to "[m]ake such rules and regulations and prescribe such  d(#restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this Act . . . . ").8 The rule adopted here is necessary to effectuate the  d(#-purpose of the Communications Act of promoting reasonable rates through the introduction of competition  d(#{and is not inconsistent with any provision of the Act. Congress, in enacting Section 623(b) of the  d(#Communications Act, expressed a clear preference for competition as a method to reach reasonable  Sh- d(#rates.;ih(] yO'-ԍ47 U.S.C. 543.; Section 623(b) requires the Commission to ensure that the installation and lease charges for cable"hfi,`(`(88"  S- d(#equipment, which include cable home wiring,sj^(] {Oh- d(#ԍSee Report and Order and Further Notice of Proposed Rulemaking, MM Docket No. 92266 (Implementation  {O2- d(#of Sections of the Cable Television Consumer Protection and Competition Act of 1992, Rate Regulation) ("Rate  {O-Order"), 8 FCC Rcd 5631, 5806 & n.666 (1993).s are "reasonable" and based on "actual cost."_k(] yO-ԍCommunications Act,  623(b), 47 U.S.C. 543(b)._ We believe  d(#that, if subscribers are allowed to install and to maintain their own cable home wiring, or to pay an outside  d(#vendor to do it for them, the wiring installation and maintenance markets will be more competitive and  S-operate to ensure reasonable rates, the goal of Section 623(b).il~(] {O -ԍSee AT&T Comments at 8; New York DPS Reply Comments at 24.i  S8- 219.` ` More generally, we believe our decision furthers the goal of competition which pervades  d(#"Title VI. Section 601 states that one purpose of Title VI is to "promote competition in cable  d(#communications and minimize unnecessary regulation that would impose an undue economic burden on  S- d(#cable systems.>m(] yOp-ԍ47 U.S.C. 521(6).> Subscriber control over the installation and maintenance of home wiring will result in  d(#Mgreater competition in cable wiring services, while deemphasizing the necessity for rate regulation for  d(#those services. In addition, Congress has expressed a preference for enhancing a subscriber's ability to  SH - d(#[connect equipment to the cable operator's home wiring.nH (] {O- d(#ԍSee Communications Act, 629, 47 U.S.C. 549 (Competitive Availability of Navigation Devices); Communications Act, 624A, 47 U.S.C. 544a (Consumer Electronics Equipment Compatibility). More broadly, Congress explicitly prohibited  S - d(#jexclusive franchises,>o (] yO-ԍ47 U.S.C. 541(a).> which indicates that Congress sought to encourage widespread competition in the  d(#]cable communications area. We also note that Congress has shown its intent to introduce broader  S - d(#competition in the communications industry overall with the passage of the 1996 Act.Np (] {O-ԍSee 1996 Conference Report at 1.N Thus, we  d(#Lconclude that these provisions support the Commission's authority to take actions necessary to prompt evolution of a competitive environment.  S0- 220.` ` Contrary to the assertions of cable operators, subscriber pretermination access is not  d(#inconsistent with the Communications Act. Specifically, Section 624(i) does not limit our authority to  S- d(#Mtake this action.Dq(] {O -ԍSee Section III.A.2.c.D The plain language of that provision refers only to the disposition of cable wiring  S- d(# "after a subscriber to a cable system terminates service...."^r(] yO#-ԍCommunications Act  624(i), 47 U.S.C.  544(i).^ The rule we adopt here will have an  d(#impact on the rights and obligations of service providers and subscribers prior to termination of service.  Sh- d(#[As discussed above with regard to our new rules regarding the disposition of home run wiring,Dsh>(] {OF&-ԍSee Section III.A.2.c.D we find"hgs,`(`(88"  d(#no "inescapable conflict" between the establishment of customer pretermination access rights to cable  S-home wiring and the plain language of Section 624(i).wt(] {O@-ԍSee III.A.2.c. (citing Aeron Marine Shipping Co., 695 F.2d at 576).w  S- 221.` ` This rule does not impermissibly treat cable operators as common carriers. Functionally,  d(#our rule permitting subscribers to connect their own home wiring to the cable operator's wiring is no  d(#Mdifferent than a subscriber connecting his or her own television or video cassette recorder to the cable  d(#operator's wiring. Indeed, as noted above, Congress has established policies designed to enhance  S-subscribers' ability to connect their own equipment to the cable operator's wiring.uZ(] {O - d(#ԍSee Communications Act, 629, 47 U.S.C. 549 (Competitive Availability of Navigation Devices); Communications Act, 624A, 47 U.S.C. 544a (Consumer Electronics Equipment Compatibility).  S-  222.` ` We also do not believe that the rule we are adopting will pose an undue risk of signal  d(#leakage or harm to the cable system. Many subscribers already own and control their home wiring e.g.,  d(#where the cable operator charges for it upon installation or where state law deems home wiring to be a  d(#"fixture." Indeed, as many cable interests have pointed out in this proceeding, the marketplace has  S - d(#established the Ftype connector as the de facto standard for connecting coaxial cable to CPE.v (] {OL- d(#hԍSee, e.g., Time Warner Comments at 3136; NCTA Comments at 3536. The status of the Ftype connector as the cable industry standard is discussed at length in the Section on Means of Connection, below. Such  S - d(#connectors are readily available and, if properly used, provide adequate signal leakage protection.w (] yO~-ԍIn addition, cable operators can provide guidance to subscribers who install their own wiring. Also,  d(#]as stated above, we will permit cable operators to establish reasonable technical specifications for  d(#jsubscriberinstalled home wiring (including passive splitters, connectors and other equipment used in the  d(#installation of home wiring), not to exceed the specifications of their own wiring and equipment.  d(#Furthermore, we will protect the cable system from electronic and physical harm by allowing the cable operator to impose additional technical specifications where such harm exists.  S- B223.` ` We note that, although questioning the Commission's authority to require operators to  d(#allow subscribers to own and access their home wiring prior to termination of service, NCTA and Time  d(#Warner do not appear to believe that allowing subscriber access to home wiring poses substantial risks.  d(#Both parties suggest that the Commission might provide incentives, such as deregulation of wiring and  d(#equipment rates, for cable operators to voluntarily cede control of home wiring to consumers upon  S- d(#installation.`x(] yO. -ԍNCTA Reply Comments at 9; Time Warner Comments at 2931.` Notably, Continental and Time Warner agreed, under the terms of their respective Social  S- d(#[Contracts,&y. (] {O"- d(#JԍSocial Contract for Continental Cablevision, 11 FCC Rcd 299 (1995) Continental Cablevision, Inc., Amended  {O`#-Social Contract, 11 FCC Rcd 11118 (1996); Social Contract for Time Warner, 11 FCC Rcd 2788 (1995).& to provide their subscribers with pretermination access to their home wiring. Not only do  d(#we believe that it is unlikely that Continental and Time Warner would have agreed to do so if the signal  d(#leakage problems posed by such access were insurmountable, but we also have seen no evidence of  d(#increased hazardous signal leakage for systems owned by Continental in the over one year, or Time Warner in the nearly two years, since this provision of the respective Social Contracts went into effect."(h y,`(`(88"Ԍ S- `ԙ224.` ` We will not modify our current requirement that cable operators monitor signal leakage  d(#\and eliminate harmful interference while they are providing service, regardless of who owns the home  S- d(#wiring.nz(] {O- d(#,ԍSee WCA Comments at 23 (citing WCA December 1, 1992 Comments filed in MM Docket No. 92260 at 8 d(#10). Cable operators are required to demonstrate compliance with a cumulative signal leakage index at least once  {O- d(#;a year. See 47 C.F.R. 76.611. In addition, cable operators must monitor a substantial portion of their cable plant  d(#.every three months, and must promptly take appropriate remedial action to eliminate any detected harmful interference. 47 C.F.R. 76.61376.614.n We also will continue to require cable operators to discontinue service to a subscriber where  S- d(# signal leakage occurs, until the problem is corrected.H{|(] {O -ԍSee 47 C.F.R. 76.617.H As stated in the Cable Wiring Order, a cable  Sb- d(#yoperator will not be held responsible for facilities over which it no longer provides service.T|b(] {O -ԍCable Wiring Order, 8 FCC Rcd at 1439.T We believe  d(#that the continuation of these requirements will appropriately balance the interests of subscribers with the  d(#Linterests of those engaged in licensed overtheair communications and cable operators in maintaining the security and integrity of the cable systems.  S- A225.` ` Allowing subscribers to install their own cable home wiring prior to termination of service  d(#may raise concerns regarding physical and electronic harm to the cable system and degradation of signal  d(#quality, including interference with other customers' service. To the extent a customer's installations or  d(#.rearrangements of wiring degrade the signal quality of or interfere with other customers' signals, or cause  d(#electronic or physical harm to the cable system, we will allow cable operators to discontinue service to  d(#that subscriber, as operators may do where a customer's wiring causes signal leakage, until the degradation  d(#or interference is resolved. We note, however, that cable operators are not responsible for degradation  d(#of signal quality to the subscriber where a subscriber has added outlets or owns and maintains his or her  SZ- d(#/own wiring. While we recognize that theft of cable service is a legitimate concern,}Z(] {O-ԍSee 1992 House Report at 118; Cable Wiring Order, 8 FCC Rcd at 1436, para. 7. we do not agree  d(#that our rules granting customers pretermination access to cable home wiring will promote theft of  d(#service. Some cable companies already provide customer pretermination access to wiring, and there is  d(#Lno evidence in the record that these policies have resulted in increased theft of service. In addition, cable operators may take security measures, such as scrambling of their signals, to deter theft of service.  Sj-  226.` ` We do not believe that the above rule will result in an impermissible per se or regulatory  SB- d(#K"taking" under the Fifth Amendment.~B2 (] yO - d(#ԍU.S. Const. amend. V. The Fifth Amendment provides that private property shall not be "taken for public use,  {O -without just compensation." Id. First, our rule does not authorize a permanent physical occupation  S- d(#of the cable operator's property, and thus does not constitute a per se taking under Loretto.K (] {OF#-ԍSee Loretto, 458 U.S. at 426.K To the  d(#contrary, the only physical "burden" that can be placed on the cable operator's wiring under our rules is  d(#[its connection to wiring installed by the subscriber or the subscriber's redirecting of the wiring to another  d(#location. The rule specifically provides that subscribers may not physically cut, substantially alter or  d(#otherwise destroy operatorowned wiring. So long as the cable operator continues to own the wiring, the  d(#=cable operator retains the right, prior to termination of service, to use and dispose of its property in any"Ti,`(`(88"  S- d(#zmanner it sees fit.Z(] {Oh- d(#ԍSee Andrus v. Allard, 444 U.S. 51, 6566 (1979) ("The regulations challenged here do not compel the surrender  d(#,of the artifacts, and there is no physical invasion upon them .... In this case, it is crucial that appellees retain the rights to possess and transport their property, and to donate or devise the protected birds."). No government edict requires cable operators to place their wires in subscribers'  d(#homes, and no government edict requires cable operators to keep them there. So long as cable operators  d(#choose to place and to maintain their wiring on subscribers' private property, they have no reasonable expectation that the wiring will never be used or moved by the subscribers themselves.  S8-  B227.` ` Nor do we believe that our rules effect a "regulatory taking" under the factors set forth  S- d(#Oin Penn Central Transportation Co. v. New York City, which examine: (1) the character of the  d(#.governmental action; (2) the economic impact of the regulation; and (3) the regulation's interference with  S- d(#jinvestmentbacked expectations.A(] yOL -ԍ438 U.S. 104, 124 (1978).A First, the Penn Central court held that a taking "may more readily be  d(#found when the interference with property can be characterized as a physical invasion by government .  d(#. . than when interference arises from some public program adjusting the benefits and burdens of economic  SL - d(#life to promote the common good."LL z(] {Of-ԍId. at 124 (citation omitted).L Applying this principle, the Claims Court in American Continental  S& - d(#Corporation v. United States found that the characterization of the governmental action as involving "an  S - d(#Meffort to promote the public interest militates against finding a fifth amendment taking."_ (] {O-ԍAmerican Continental, 22 Cl. Ct. 692, 696 (1991)._ Here, our  d(#Laction seeks to promote competition and consumer choice in the marketplace for cable home wiring. We  d(#expect our action to produce the same benefits we have seen in the myriad of other areas of  d(#/communications where we have introduced competition, including lower prices, greater technological  d(#innovation and additional consumer choice. We believe this factor weighs heavily against any finding of a regulatory taking.  S-  228.` ` Second, we do not believe that the economic impact of the rules we adopt argues in favor  d(#jof a taking. Cable operators' home wiring will remain intact, and they may continue to use that property  d(#kfor the very purpose for which it was installed to provide video programming and other services to  d(#subscribers. While cable operators may lose some revenues relating to the installation of home wiring and  d(#yadditional outlets, we believe that monopoly profits lost when a market is opened to competition are not an infringement on legitimate property rights that requires compensation:  XX` ` Suffice it to say that government regulation by definition involves the  adjustment of rights for the public good. Often this adjustment curtails some  potential for the use or economic exploitation of private property. To require  compensation in all such circumstances would effectively compel the government  S0-to regulate by purchase.YZ0(] {On$- d(#LԍAndrus v. Allard, 444 U.S. at 65; see also Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922)  d(#-("Government could hardly go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.").Y ` "j ,`(`(88k"Ԍ d(#In addition, as the Supreme Court held, a "prediction of profitability is essentially a matter of reasoned  d(#speculation that courts are not especially competent to perform. Further, perhaps because of its very  d(#uncertainty, the interest in anticipated gains has traditionally been viewed as less compelling than other  S-propertyrelated interests." $(] {O- d(#jԍAndrus v. Allard, 444 U.S. at 6566 ("loss of future profits unaccompanied by any physical property  {O- d(#restriction provides a slender reed upon which to rest a takings claim"); see also Everard's Breweries v. Day, 265  d(#YU.S. 545, 563 (1924) (rejecting takings argument where regulation prohibited the sale of alcoholic beverages despite the fact that individuals were left with previously acquired stocks).   S8-  229.` ` Third, we believe that the rule we are adopting will not interfere with cable operators'  d(#legitimate "investmentbacked expectations." As noted above, subscribers can already connect some of  d(#their own equipment to the cable operator's network in a manner similar to that provided for home wiring  d(#in our new rule. More importantly, we do not believe that cable operators could have a "reasonable  d(#expectancy" that the cable home wiring market would continue to be a monopoly service never subject  d(#=to competition. Given that the cable industry and cable wiring are subject to significant regulation under  d(#Title VI of the Communications Act, the expectations of entities in the cable industry must be based on  d(#those regulations, the premise of the law underlying them, and that regulations are amended to respond  S - d(#to changing circumstances.yZ (] {OL- d(#ԍSee American Continental, 22 Cl. Ct. at 697 ("[W]hen investment is made in a highly regulated industry, to  d(#be reasonable, expectations must be based not only on thenexisting federal regulations but also on the recognition that there may well be related changes in the regulations in the future.").y This environment is consistent with the Commission's authority to evaluate  S - d(#changing circumstances and amend its policies as it determines necessary.q (] {OF-ԍSee FCC v. RCA Communications, Inc., 346 U.S. 86, 9495, 98 (1953).q We therefore believe that  S - d(#kall three Penn Central factors weigh in favor of a finding that our pretermination access rule does not effect a regulatory taking.  S2- 2230.` ` We will neither establish a presumption of ownership of cable home wiring nor deregulate  d(#home wiring rates at this time. These proposals encompass a range of issues beyond the scope of this  d(#jproceeding. We believe that our rules allowing consumers to install, redirect and reroute their cable home  d(#wiring adequately promote the goals of expanded competition and consumer choice without the need to  S- d(#address ownership issues. We also note our obligation under Section 623 to regulate the rates of  Sj-equipment used by subscribers to receive the basic service tier.Ejh (] {Or-ԍSee 47 U.S.C.  543.E  S- H.` ` Signal Leakage  S-` ` 1. Background   Sz-  231.` ` In the Inside Wiring Notice, we sought comment on whether and how to extend our signal  d(#leakage rules that currently apply only to traditional cable systems to others that provide service over"Tk ,`(`(88"  S- d(#/broadband facilities.(] {Oh- d(#.ԍInside Wiring Notice, 11 FCC Rcd at 275960. Cable systems often deliver cable signals over the same  d(#frequencies as many overtheair licensees, including air traffic control and police and fire safety communications.  d(#xIn order to reduce the potential for electromagnetic interference with overtheair services caused by cable signal  {O- d(#,leakage, the Commission established specific restrictions on cable operators' use of radio frequencies. See 47 C.F.R.  76.605(a)(12) (formerly  76.605(a)(13)) and 76.61076.617). We noted that while signal leakage from the transmission of broadband video  d(#^programming may interfere with licensed overtheair communications, signal leakage from the  S- d(#ztransmission of narrowband telephony does not pose a similar threat to such communications.@|(] {O- d(#ԍInside Wiring Notice, 11 FCC Rcd at 275759. The transmission of narrowband telephony is not a source of  d(#<signal leakage that could cause harmful interference with critical health and safety frequencies because it requires  d(#only a fraction of the power used to transmit video programming. In addition, telephone signals have been carried  d(#over a much narrower, as well as different, portion of the frequency spectrum than licensed overtheair communications.@ We  d(#recognize, however, that telephone companies and other telecommunications service providers now deliver  d(#broadband service over the same aeronautical and public safety frequencies, and at similar levels of power,  d(#as do cable systems. We are concerned that the risks posed by the delivery of cable signals also exist with  d(#respect to these providers of broadband service. We solicited comment on whether, if our cable signal  d(#leakage rules were to apply to all broadband service providers, our current signal leakage requirements  d(#Mare adequate or whether they should be modified in light of the additional types of broadband service  S-providers that would be covered.=. (] {Of-ԍId. at 275960.=  SH - 232.` ` The comments filed in this proceeding overwhelmingly support extending the  S - d(#yCommission's existing cable television signal leakage rules to all providers of broadband service.T (] {O- d(#ԍSee Time Warner Comments at 3642; Time Warner Reply Comments at 5962; Adelphia Comments at 5;  d(#AT&T Comments at 18; AT&T Reply Comments at 14, n.36; OpTel Comments at 16; ICTA Comments at 58; GTE  d(#Comments at 14; PacTel Comments at 10; Cox Comments at 2327; Cox Reply Comments 1718; New Jersey BPU  d(#at 10; MCI Reply Comments at 34; Liberty Cable Comments at 24; Bartholdi Reply Comments at 20; Media Access/CFA Comments at 1617; New Jersey Ratepayer Advocate Comments at 34.T These  d(#commenters assert that broadband service providers, in addition to franchised cable systems, may transmit  d(#signals over aeronautical and public safety frequencies at power levels sufficient to cause potential  S - d(#\interference.l r(] {O-ԍSee, e.g., Time Warner Comments at 3942; AT&T Comments at 18.l The commenters generally agree that where potential signal leakage from a broadband  d(#^service provider poses a risk of interfering with air traffic and emergency communications, the  SX-Commission's cable signal leakage rules should apply.nX(] {O!-ԍSee, e.g., PacTel Comments at 10; Time Warner Comments at 3942.n  S- %233.` ` A few commenters believe that extension of the Commission's cable signal leakage  d(#standards to all providers of broadband service is unnecessary. Ameritech argues, for instance, that the  d(#signal leakage rules should not apply to broadband digital transmissions that may not interfere with"l,`(`(88"  S- d(#aeronautical and public safety bands."(] yOh- d(#ԍAmeritech Comments at 15 (supporting, however, extension of the Commission's cable signal leakage rules  {O0- d(#to providers of broadband analog service); Ameritech Reply Comments at 89; see also Bell Atlantic Reply  d(#Comments at 1718 (asserting that digital transmission over fiber optics poses little risk of interference with public safety or aeronautical traffic). Tandy and Circuit City both insist that concerns about signal  d(#leakage from consumerinstalled broadband wiring can be addressed through mandatory labeling  S- d(#requirements and installation instructions for broadband wiring and connectors.(] yO- d(#ԍTandy Comments at 5; Tandy Reply Comments at 6; Circuit City Comments at 14 (also suggesting that the Commission set minimum standards regarding the quality of wiring sold to the public). TIA asserts that leakage  d(#hazards can be diminished through minimum cable performance specifications and detailed customer  S`- d(#installation guides.:` (] yO -ԍTIA Comments at 4.: General Instrument and Media Access/CFA propose the adoption of cable shielding  S8-standards to reduce the risk of signal leakage.8(] yOr- d(#ԍGeneral Instrument Comments at 57; General Instrument Reply Comments at 2; Media Access/CFA Comments at 1617.  S- p234.` ` In addition, while ICTA and Optel generally support application of the cable signal  d(#\leakage standards to all providers of broadband service, they request the establishment of a transition  d(#kperiod to permit private cable operators to bring existing systems into compliance with signal leakage  Sp- d(#rules.Xp (] yO-ԍICTA Comments at 5759; OpTel Comments at 1618.X Specifically, ICTA proposes a fiveyear transition period.<p (] yO-ԍICTA Comments at 59.< ICTA and Optel argue that a  d(#transition period is necessary in light of the costs associated with compliance and in order to afford private  S - d(#{cable operators a reasonable time within which to upgrade their systems.X (] yO-ԍICTA Comments at 5759; OpTel Comments at 1618.X They further urge the  S - d(#Commission to tailor signal leakage testing criteria to private cable operators serving MDUs.X (] yO:-ԍICTA Comments at 5759; OpTel Comments at 1618.X In  d(#particular, these commenters ask the Commission to consider each MDU connected via microwave link  d(#a separate cable system so that leakage from individual MDUs may be assessed individually rather than  S - d(#Lcumulatively.X 2(] yOR -ԍICTA Comments at 5759; OpTel Comments at 1618.X Time Warner opposes ICTA's and Optel's requests. Time Warner argues that the five d(#year period suggested by ICTA is too long and proposes a oneyear transition period for noncable  S0- d(#\broadband service providers to comply with the Commission's signal leakage rules.U0(] yO#- d(#ZԍTime Warner Reply Comments at 5962. Time Warner notes that when the Commission revised its cable  d(#signal leakage requirements in 1984, it established a fiveyear transition period to allow for compliance. Time  d(#Warner argues, however, that at that time cable operators faced problems such as equipment replacement and plant  d(#yreconditioning of a magnitude that would not be faced by private cable systems seeking to comply with signal  {O&-leakage rules today. Id.U In response to  d(#ICTA's and Optel's request that the Commission modify its signal leakage testing criteria, Time Warner"mt,`(`(88:"  d(#suggests that the Commission establish certain distance criteria that define when areas served by the same  S-microwave system may be considered separate for testing purposes.8(] {O@-ԍId. at 62.8  S-  235.` ` Finally, a number of parties suggest that, in the event that our signal leakage rules are  d(#extended to all broadband service providers, new techniques for identifying signal leakage may have to  S8- d(#be devised.8Z(] yO2- d(#ԍTime Warner Comments at 42; Adelphia Comments at 5; Bartholdi Reply Comments at 2021; Cox Reply Comments at 18. These commenters assert that pinpointing the source of a particular leak may be difficult  d(#in cases where several providers serve the same or overlapping geographic areas and propose methods for  S- d(#identifying the source of the signal leakage.(] yO: - d(#ԍTime Warner Comments at 42; Adelphia Comments at 5; Bartholdi Reply Comments at 2021; Cox Reply Comments at 18. Time Warner, Bartholdi, and Cox all suggest that the  d(#Commission implement signal leakage tracking procedures while Adelphia proposes that service providers  S-themselves establish methods for pinpointing the source of leakage. (] yOB- d(#ԍTime Warner Comments at 42; Adelphia Comments at 5; Bartholdi Reply Comments at 2021; Cox Reply Comments at 18.  SH -` ` 2. Discussion  S - ~236.` ` The purpose of the Commission's signal leakage rules is to protect licensed overtheair  d(#[communications, including aeronautical, police, and fire safety communications, from interference caused  S - d(#by signal leakage.- b (] {O- d(#ԍThe Commission's signal leakage rules were initially adopted in 1977 and revised in 1984. Report and Order,  {Ot-Docket No. 21006, 65 F.C.C.2d 813 (1977); Second Report and Order, Docket No. 21006, 99 F.C.C.2d 512 (1984).- Until now, the Commission rules governing signal leakage have been applied only  d(#Nto cable systems, which often deliver signals over the same frequency bands as many overtheair  SX-licensees."X (] yO- d(#ԍSpecifically, Section 76.605(a)(12) establishes the maximum individual signal leakage limits for all cable  d(#operators using frequencies outside the broadcast television bands, while Sections 76.61076.617 impose more  d(#stringent operating and monitoring requirements for cable systems operating in the bands that are used by aircraft  {O-for communications and navigation. See 47 C.F.R.  76.605(a)(12) and 76.61076.617.  S- 237.` ` An increasing number of MVPDs are competing with cable operators in the provision of  d(#video programming and other services. Because these MVPDs often transmit signals over the same public  d(#safety and navigation frequencies as cable operators, they may be a source of potentially harmful signal  S- d(#.leakage.(] yO#-ԍCurrently, cable operators transmit video signals in the radiofrequency band from 54 MHz up to 1 GHz. The public safety concerns that underlie application of our signal leakage regulations to cable  d(#operators are equally present with respect to other MVPDs such as SMATV, MMDS and open video  d(#system operators and others. We agree with the majority of commenters in this proceeding and will  d(#modify our rules to extend existing cable signal leakage requirements to noncable MVPDs. In light of  d(#the potential harm to public safety that may be caused by broadband signal leakage interfering with"n8,`(`(88C"  d(#.aeronautical, navigational and communications radio systems, we will not rely on labelling requirements, installation instructions or cable performance specifications.  S- 238.` ` With regard to Ameritech's argument that our signal leakage rules should not apply to  d(#Mdigital transmission, we note that systems transmitting digitized signals may operate in the restricted  d(#aeronautical and public safety bands. Our signal leakage rules provide that systems operating in the  d(#restricted bands are only subject to the testing and monitoring requirements when they operate above a  S- d(#]threshold power level.H(] {OP-ԍSee 47 C.F.R.  76.610.H Systems using digital transmissions normally operate below this power  S- d(#threshold.Z(] yO - d(#wԍFor digital transmissions that may operate above the power threshold, the Commission shall continue to apply the same requirements as those for analog transmissions due to the potential harm to public safety. Systems using digital technology that operate below our threshold power level therefore  S- d(#ywould not generally be subject to the most rigorous sections of our signal leakage rules.5(] {O -ԍSee id.5 MVPDs using  d(#Mdigital transmission will, however, be subject to Section 76.605(a)(12) which sets forth the maximum  SH -signal leakage limits for systems, regardless of the frequency band or power level in use.OH D(] {O,-ԍSee 47 C.F.R.  76.605(a)(12).O  S -  4239.` ` We will require that all MVPDs comply with Section 76.613 of our rules upon the  S - d(#[effective date of this Order. Section 76.613 protects licensed overtheair communications from harmful  S - d(#interference and requires prompt action to eliminate such interference.> (] yO -ԍ47 C.F.R. 76.613.> We believe that immediate  d(#lcompliance with Section 76.613 is necessary because, unlike our other signal leakage rules that are  d(#designed to minimize the risk of interference by requiring that leakage be detected and repaired, Section  d(#76.613 provides that once harmful interference actually occurs it must be promptly eliminated. We  d(#recognize, however, that immediate compliance with many of our other signal leakage requirements may  d(#ypresent hardships to existing MVPDs not previously subject to such rules. We will allow for a fiveyear  d(#.transition period from the effective date of these rules to afford noncable MVPDs time to comply with  S- d(#our signal leakage rules other than Section 76.613.sZf (] {O- d(#JԍIn addition, we are issuing a Second Further Notice herein to determine, among other things, whether and how  d(#to apply the reporting requirements of Section 76.615(b)(7) of our signal leakage rules to certain broadband service providers other than cable operators. 47 C.F.R.  76.615(b)(7).s We note that such a transition period is consistent  d(#Lwith the time period allotted to cable operators in 1984 to comply with the more stringent signal leakage  SB- d(#jrequirements imposed by the Commission.<ZB (] yOj"- d(#ԍIn 1984, the Commission imposed more stringent signal leakage requirements and granted cable operators a  {O2#- d(#five year time frame within which to comply. See Second Report and Order, Docket No. 21006, 99 F.C.C.2d 512 (1984).< We disagree with Time Warner that noncable MVPDs do  d(#not need five years to comply with signal leakage rules because they do not face many of the same  d(#obstacles cable operators confronted in the past in complying with such rules. We believe that a fiveyear  d(#transition period will provide a reasonable time period for existing noncable MVPDs to undertake such  d(#functions as replacing equipment, upgrading existing wiring, and training personnel to conduct signal"o,`(`(88"  S- d(#Kleakage measurements.(] yOh- d(#ԍWe note that the signal leakage requirements under Part 15 of the Commission's rules will continue to apply during the transition period. The fiveyear transition period will apply only to the systems of those noncable  d(#LMVPDs that have been substantially built as of January 1, 1998. We will define "substantially built" as having 75% of the distribution plant completed.  S`- R240.` ` Our rules require that each cable system perform an independent signal leakage test  S8- d(#Nannually.>8 (] yO-ԍ47 C.F.R.  76.611.> Based on the current record, we will not amend our rules to treat MDUs or different  S- d(#geographic areas connected by microwave link as separate systems for testing purposes.(] {O` -ԍSee ICTA Comments at 5759; OpTel Comments at 1617; Time Warner Reply Comments at 62. We believe  d(#{that for the past six years our testing criteria have provided effective standards for monitoring and  d(#yrectifying signal leakage in 31,000 cable communities nationwide. Cognizant of the changing technologies  d(#that may be used by MVPDs, we will continue to review specific systems' operations and designs that may warrant adjustments to our signal leakage testing criteria.  S - 241.` ` We will not establish any new signal leakage testing procedures such as tracking systems  d(#kto identify the source of signal leakage. We believe that MVPDs are capable of devising and selecting  d(#jthe most appropriate methods for detecting signal leakage on their own systems. We encourage MVPDs  d(#to work together to develop methods that will permit them to accurately identify the source of any signal leakage.  S0- 242.` ` While our signal leakage rules generally require cable operators to perform signal leakage  d(#monitoring and testing, Section 76.615 requires cable operators to file specific information with the  S- d(#Commission.>B(] yO-ԍ47 C.F.R.  76.615.> In particular, Section 76.615(b)(7) requires that cable operators annually file with the  S- d(#Commission the results of signal leakage testing.D(] yO*-ԍ47 C.F.R.  76.615(b)(7).D The reporting requirements of Section 76.615(b)(7)  S- d(#may impose undue burdens on small MVPDs. In the Second Further Notice below, we seek comment  d(#on whether certain MVPDs should be exempted from the reporting requirements of Section  SB- d(#76.615(b)(7).FBb (] {OD-ԍSee Section IV.C. below.F Since Section 76.615(b)(7) is one of the provisions covered by the fiveyear transition  S- d(#Mperiod, all noncable MVPDs will have five years to comply with the filing requirements; the Second  S- d(#Further Notice seeks comment on whether we should create a permanent exemption for certain types of MVPDs. "p ,`(`(88"Ԍ S-  I.` ` Signal Quality  S-` ` 1. Background  S`- a243.` ` We sought comment in the Inside Wiring Notice on whether our cable signal quality  S:- d(#standards should be extended to other broadband video service providers.\:(] {O- d(#ԍInside Wiring Notice, 11 FCC Rcd at 2760. Commission signal quality standards define the quality of  d(#television signal that cable subscribers are entitled to receive and, in particular, ensure the delivery of a good quality  {O4-picture to the television set or video cassette recorder.  See 47 C.F.R.  76.601, 76.605, and 76.609. We noted that signal strength  d(# can be reduced by the use of poor cable, signal splitting for additional television sets, improper  S- d(#termination, and improper attachments of and to CPE.W(] {Ov -ԍInside Wiring Notice, 11 FCC Rcd at 2758.W We suggested, however, that the extension or  d(#further maintenance of signal quality standards may not be necessary due to the emergence of competition  S- d(#among broadband service providers.:~(] {O-ԍId. at 2760.: We further sought comment on how our decisions in this  d(#rulemaking concerning the issues of access to wiring prior to termination of service, ownership and control  d(#of the wiring, and the location of the demarcation point would affect our signal quality requirements  S" - d(#should they be maintained or extended.1" (] {O-ԍId.1 We asked for comment generally on how any new or revised  S - d(#regulatory approaches proposed in the Inside Wiring Notice would affect signal leakage or signal quality  S -considerations.1 (] {O-ԍId.1  S - #244.` ` Alternative video service providers generally oppose extension of the Commission's cable  d(#1signal quality standards to other broadband service providers or believe that such extension is  S4- d(#unnecessary.44 (] yO- d(#ԍDIRECTV Comments at 11; NYNEX Comments at 19; GTE Comments at 14; GTE Reply Comments at 13; Bell Atlantic Reply Comments at 18; WCA Comments at 23; PacTel Comments at 10. They contend that increased competition among broadband service providers reduces the  S - d(#need to rely on Commission rules to ensure delivery of adequate levels of service.  (] {O8- d(#,ԍSee PacTel Comments at 10; NYNEX Comments at 19; GTE Comments at 14; GTE Reply Comments at 13; WCA Comments at 23; Bell Atlantic Reply Comments at 18; DIRECTV Comments at 11. These commenters  d(#believe that in a competitive marketplace providers of broadband service will be motivated to deliver an  S- d(#yacceptable level of signal quality to attract and retain customers.(] {OB"- d(#;ԍSee PacTel Comments at 10; NYNEX Comments at 19; GTE Comments at 14; GTE Reply Comments at 13; WCA Comments at 23; Bell Atlantic Reply Comments at 18; DIRECTV Comments at 11. Cable operators, in contrast, support  S- d(#extension of signal quality requirements to all broadband service providers.@(] {Ot%- d(#ԍAdelphia Comments at 5; Cox Comments at 2427; Time Warner Comments at 3637; see also New Jersey Ratepayer Advocate Comments at 3. Time Warner argues, for"q,`(`(88"  d(#instance, that while a competitive environment may render signal quality standards unnecessary, they  S-should be applied to all broadband service providers to the extent that they remain in force.F(] yO@-ԍTime Warner Comments at 3637.F  S-` ` 2. Discussion  S8- }245.` ` By statute, the Commission is charged with promulgating regulations governing the quality  S- d(#of television signals delivered to cable subscribers._X(] yO -ԍCommunications Act,  624(e), 47 U.S.C. 544(e)._ We believe that continued application of the  d(#Commission's signal quality standards to cable operators is necessary because, despite the recent entrance  d(#of other service providers into the video market, cable operators, in most areas of the country, still  S- d(#exercise significant market power.Z(] {O - d(#<ԍSee Third Annual Report, CS Docket No. 96133 (Annual Assessment of the Status of Competition in the  d(#Market for the Delivery of Video Programming), 12 FCC Rcd 4358, 4425 (1997) ("...cable MSOs continue to be the main distributors of multichannel video programming, with 89% of total MVPD subscribers."). We do not believe at this time that market forces alone will ensure  d(#zthat cable subscribers receive the quality picture they are entitled to expect. With regard to noncable  d(#broadband service providers, we believe that government regulation of signal quality would be unnecessary  d(#\and unduly intrusive. These alternative providers do not exercise market power and virtually always  S - d(#jcompete with an incumbent cable operator. (] {O- d(#ԍSee id. at para. 13 (revealing that at year end 1995 cable service was available to 96.7% of all television households in the United States). We agree with those comments that contend that headto d(#/head competition with a cable operator should ensure that alternative MVPDs deliver a good quality  d(#picture in order to attract and retain customers. We believe that, as cable operators become subject to  d(#Nvigorous competition, market forces will ensure that they, too, deliver a good quality picture. As  d(#ycompetition develops and its effects become clearer, we expect to leave the issue of signal quality wholly to market forces.  S- J.` ` Means of Connection  S- ` ` 1. Background  S@- }246.` ` In the Inside Wiring Notice, we sought comment on whether the Commission should adopt  S- d(#uniform technical standards for jacks and connectors for broadband service.$d (] {O - d(#ԍInside Wiring Notice, 11 FCC Rcd at 2761. While the Commission does not currently have specific rules  d(#governing the type of connectors used to attach coaxial cable to customer premises equipment, the Commission does  {O!- d(#define the technical specifications for jacks that interface with the telephone network.  See subpart F of 47 C.F.R. Part 68. We noted that adoption  d(#of uniform standards could yield certain benefits such as: (1) ensuring network integrity; (2) minimizing  d(#concerns over signal leakage and substandard signal quality by decreasing the frequency of incorrect  d(#connection by alternative providers; and (3) simplifying the use of existing wire and connections by  Sz- d(#-alternative service providers.WzP (] {Oj'-ԍInside Wiring Notice, 11 FCC Rcd at 2761.W We recognized, however, that use of a particular type of connector, known"zr,`(`(88"  d(# as the "Ftype connector," is already prevalent in the cable television industry and that Commission  S- d(#adoption of connection standards may, therefore, be unnecessary.=(] {O@-ԍId. at 276061.= We also solicited comment on  d(#whether the Commission should establish technical standards for connections to cable networks or  S-broadband service where multiple services are delivered over a single wire.;Z(] {O-ԍId. at 2761. ;  S8-  247.` ` Virtually all of the parties commenting on the means of connection focused on the issue  d(#of whether the Commission should adopt uniform technical requirements for connections to broadband  S- d(#\service.(] {Ot - d(#ԍBut see AT&T Comments at 19 (supporting the development of technical standards for jacks used to interface between broadband common carrier service and the telephone network). A majority of the commenters addressing the connection issue either oppose Commission  d(#adoption of specific standards for jacks and connectors for broadband service or believe that if broadband  d(#connections standards are to be established, they should be developed by industry standardsetting entities  Sp- d(#<rather than the Commission.; pF(] {OV- d(#ԍSee Time Warner Comments at 3136; NCTA Comments at 3536; Cox Reply Comments at 15; WCA  d(#hComments at 24; SBC Reply Comments at 6; New Jersey BPU Comments at 12; PacTel Reply Comments at 4 (also  d(#[supporting industry development of a universal connection device located at the demarcation point to which  d(#hbroadband and narrowband providers can connect their facilities); Building Owners, et al., Comments at 4142; Asset  d(#YMgt. & Consulting Comments at 1; Anthem Equity Comments at 2; Colonial Manor Apts. Comments at 2; Gorsuch  d(#Mgt. Comments at 2; Institute of Real Estate Mgt. Comments at 2; IPM Real Estate Comments at 1; Koll Real Estate  d(#Comments at 2; Lakeside Comments at 2; Lane Company Comments at 1; LCOR Comments at 1; Ledic Mgt.  d(#Comments at 2; Live Oak Properties Comments at 1; Lockwood Group Comments at 2; Mgt. Services Comments  d(#at 2; MarRayAsh Plaza Comments at 3; Mendik Realty Comments at 2; MetLife Comments at 45; Nat'l Assn. of  d(#Real Estate Investment Trusts Comments at 2; NP Dodge Mgt. Comments at 2; Patriot American Comments at 2;  d(#Southridge Manor Apts. Comments at 2; Spokane BOMA Comments at 2; Terry Johnson & Assoc. Comments at  d(#2; West World Mgt. Comments at 2; ZehmanWolf Mgt. Comments at 1; USTA Comments at 5; GTE Comments  d(#jat 1415; GTE Reply Comments at 14 (but suggesting establishment of minimum standards and qualifications  d(#applicable to third parties that install broadband wiring); Ameritech Comments at 1617; Ameritech Reply Comments at 9; DIRECTV Comments at 11; Charter/Comcast Comments at 19.; Commenters that oppose Commission adoption of uniform standards, such  d(#las cable interests and property management firms, generally contend that marketplace forces have  S - d(#established the Ftype connector as the de facto standard for connecting coaxial cable to CPE. (] yO- d(#ԍTime Warner Comments at 3136; NCTA Comments at 3536; WCA Comments at 24; New Jersey BPU  {OP- d(#iComments at 12; USTA Comments at 5; see also SBC Reply Comments at 6; Building Owners, et al., Comments  d(#at 4142; Asset Mgt. & Consulting Comments at 1; Anthem Equity Comments at 2; Colonial Manor Apts. Comments  d(#at 2; Gorsuch Mgt. Comments at 2; Institute of Real Estate Mgt. Comments at 2; IPM Real Estate Comments at 1;  d(#,Koll Real Estate Comments at 2; Lakeside Comments at 2; Lane Company Comments at 1; LCOR Comments at 1;  d(#Ledic Mgt. Comments at 2; Live Oak Properties Comments at 1; Lockwood Group Comments at 2; Mgt. Services  d(#Comments at 2; MarRayAsh Plaza Comments at 3; Mendik Realty Comments at 2; MetLife Comments at 45; Nat'l  d(# Assn. of Real Estate Investment Trusts Comments at 2; NP Dodge Mgt. Comments at 2; Patriot American Comments  d(#Yat 2; Southridge Manor Apts. Comments at 2; Spokane BOMA Comments at 2; Terry Johnson & Assoc. Comments at 2; West World Mgt. Comments at 2; ZehmanWolf Mgt. Comments at 1. These  d(#commenters maintain that, in light of the cable industry's pervasive use of the Ftype connector,  d(#Ostandardization of broadband connections already exists and Commission action in this area is" sb,`(`(88 "  d(#unwarranted. Other commenters argue that Commission action is unnecessary because an industry  S- d(#standardsetting body is more likely to be responsive to new and evolving technology.l(] {O@-ԍSee, e.g., PacTel Reply Comments at 4; DIRECTV Comments at 11.l These  d(#commenters maintain that, given the rapid pace of technological innovation, government regulations  S- d(#zestablished today may be irrelevant tomorrow.tZ(] {O-ԍSee, e.g., PacTel Reply Comments at 4; Charter/Comcast Comments at 19.t A few commenting parties urge the Commission to  S`- d(#iadopt technical standards, to be developed by the industry, for broadband connections."`(] yO- d(#ZԍCEMA Comments at 78; CEMA Reply Comments at 5; MCI Reply Comments at 2; US West Comments  {O - d(#at 1011 (urging Commission adoption of similar rules for both telephone and cable connectors); see also NYNEX  d(#Comments at 18 (recommending that the Commission utilize industry forums and standards bodies to develop minimum technical standards and guidelines for cable CPE, such as jacks, plugs, and set top boxes). CEMA and MCI  d(#claim that without the adoption of uniform standards for jacks and other connectors, service providers  d(#\would be free to use proprietary interfaces with which only their wiring and equipment can properly  S- d(#-connect.n(] yO^-ԍCEMA Comments at 8; CEMA Reply Comments at 5; MCI Reply Comments at 2.n CEMA argues that use of such proprietary interfaces would permit dominant service providers  d(#to maximize the sale of their own CPE and thwart competition among equipment manufacturers and  S-service providers.Uf (] yO-ԍCEMA Reply Comments at 5; CEMA Comments at 8.U  SH - ` ` 2. Discussion  S - 248.` ` Based on the record, we will not adopt uniform technical standards for jacks and  d(#connectors for broadband service. As several commenters in this proceeding have noted, the Ftype  d(# connector has emerged as the de facto broadband connection standard within the cable industry. We  d(#believe that, properly used, the Ftype connector is an effective means of connecting coaxial cable to CPE  d(#/while minimizing the potential for signal leakage. The comments additionally indicate that noncable  d(#video service providers use the Ftype connector to connect their services via coaxial cable to CPE.  d(#Further government action in this area is therefore unwarranted at this time. In addition, in light of the  d(#>fact that we are extending our cable signal leakage rules to all broadband service providers, we believe  d(#that such providers will have the incentive and obligation to ensure that connections are properly made with high quality materials, without the Commission mandating a connection standard.  S@- K.` ` Dual Regulation  S-` ` 1.  Background  S- 2249.` ` In the Inside Wiring Notice, we recognized that cable companies and telephone companies  Sz- d(#operate under different regulatory frameworks.Zz (] {O%-ԍInside Wiring Notice, 11 FCC Rcd at 277173.Z We indicated that as technology advances to permit the  d(#delivery of cable and telephone services over the same wire, and as single companies develop the capacity"t ,`(`(88"  d(#to deliver both of these services, confusion might arise as to which regulatory scheme would be  S- d(# applicable.=(] {Oh-ԍId. at 277273.= We sought comment on whether and how to harmonize the dual systems of regulation  d(#governing cable and telephone companies where broadband or multiple services are provided over a single  S-wire or multiple wires.1(] {O-ԍId.1  S8- B250.` ` State authorities generally contend that, for now, the existing systems of regulation for  S- d(#cable and telephony should remain intact.k(] yO -ԍCalifornia PUC Comments at 48; New York DPS Reply Comments at 47.k They argue for the preservation of state regulatory  d(#responsibility with respect to simple telephone inside wiring and are concerned about federal preemption  S- d(#of state regulations.(] yO - d(#ԍCalifornia PUC Comments at 49 (also suggesting that states be given the authority to regulate the maintenance of cable inside wire); New York DPS Reply Comments at 47. In contrast, a number of commenters addressing the issue of dual regulation urge  S- d(#ythe Commission to preempt state and local regulation of telephony and cable inside wire.Z(] yO4- d(#ԍPacTel Comments at 1415 (additionally advocating less Commission oversight of telephony and cable inside  d(#wire); PacTel Reply Comments at 67; AT&T Comments at 1920; DIRECTV Comments at 13; DIRECTV Reply  {O-Comments at 11; see also Building Industry Consulting Comments at 67; TIA Comments at 67. GTE argues  Sp- d(#for complete deregulation of cable inside wire.bXp (] yO.- d(#ԍGTE Comments at 20 (stating that neither the Commission nor local franchising authorities should continue  d(#to regulate rates for such wiring or, in the alternative, the Commission should discontinue cable inside wire rate regulation once a cable system faces effective competition).b Several commenters recommend that the Commission  d(#.take other steps to provide guidance on dual regulation. Charter/Comcast suggest the establishment of a  S - d(#.joint state/federal board to resolve issues related to dual regulation of wireline service providers.J > (] yO-ԍCharter/Comcast Comments at 2021.J RTE  d(#MGroup urges the Commission to develop guidelines to define the regulatory roles of both state public  S -utility commissions and local franchising authorities._ (] yO>-ԍRTE Group Comments at 4; RTE Group Reply Comments at 3._  S -` ` 2. Discussion  S0-  251.` ` We do not believe that the record before us provides sufficient information to address the  S- d(#issues raised in the Inside Wiring Notice. Based on the current record, it appears that service providers  d(#>will continue to use separate inside wiring to provide cable and telephone service for at least the near  d(#future. If and when circumstances change, we will revisit this issue with the goal of creating a single set of inside wiring rules. "ju^,`(`(88"Ԍ S-  L.` ` Regulation of Simple and Complex and(#`  S-` ` of Residential and NonResidential Wiring  S-` ` 1. Background  S8- 252.` ` In the Inside Wiring Notice, we described how Commission regulation of telephone inside  S- d(#[wiring varies depending on whether simple or complex wiring is used to receive service.Z(] {Oz-ԍInside Wiring Notice, 11 FCC Rcd at 276263.Z Simple wiring  d(# includes wiring installations of up to four access lines. Section 68.213 governs the connection of simple  S- d(#wiring to the network. Z(] yO - d(#ԍSection 68.213 allows customers to connect wiring installations involving up to four access lines. 47 C.F.R.  {O - 68.213; see also Common Carrier Wiring Reconsideration Order, supra.  Complex wiring refers to all wiring other than simple wiring. Section 68.215  S- d(#of our rules governs the connection of complex wiring to the network.>(] yO -ԍ47 C.F.R.  68.215.> Most single dwelling units  d(#require only simple wiring, while MDUs and commercial settings require complex wiring. Installation  d(#[and maintenance of complex inside wiring is largely unregulated. We note that, with respect to intrastate telephone service, the states regulate the prices, terms, and conditions of simple inside wire service.  S - ~253.` ` By contrast, while our cable inside wiring rules do not differentiate between simple and  d(#complex wiring, they often make other distinctions. For example, the rules governing the disposition of  d(#wiring upon termination of service apply only to cable wiring installed by cable operators in residential  SZ- d(#dwelling units.ZZD(] {O>-ԍSee Cable Wiring Order, 8 FCC Rcd at 1436. Z In the Inside Wiring Notice, we sought comment on whether, in light of the convergence  d(#of cable and telephone technologies, we should harmonize our rules with respect to simple versus complex  S -wiring and residential versus nonresidential wiring.Z (] {O-ԍInside Wiring Notice, 11 FCC Rcd at 276465.Z  S-  254. ` ` A number of commenters addressing this issue contend that there is no need to revisit the  d(#rules that have deregulated the installation and maintenance of simple and complex telephone inside  Sl- d(#wire.vlh (] {Ot-ԍSee USTA Comments at 5; NTCA Reply Comments at 34; GTE Comments at 15. v NYNEX maintains that, as long as telephone and video services are provided over separate  SD- d(#facilities, there is no need to change existing rules.<D (] yO -ԍNYNEX Comments at 3.< Building Owners, et al., contend that, while it may  d(#make sense to account for the convergence in telephone and cable technologies, it does not make sense  S- d(#=to adopt uniform rules for all kinds of property.P (] yO$-ԍBuilding Owners, et al., Comments at 43.P GTE believes that it would be beneficial to establish  d(#jstandards governing the type and installation of both cable and telephone inside wire installed by carriers  S- d(#and independent contractors.;(] yO^'-ԍGTE Comments at 15.; New Jersey Ratepayer Advocate argues that the Commission should"v,`(`(88"  d(#harmonize the definitions within the common carrier and cable rules with regard to simple versus complex  S- d(#Lwiring and residential versus nonresidential wiring.T(] yO@-ԍNew Jersey Ratepayer Advocate Comments at 4.T U S West maintains that the treatment for simple  S- d(#inside wiring for singleline applications should be consistent for cable and telephony.@X(] yO-ԍU S West Comments at 12.@ Building Industry  d(#Consulting recommends that the complex versus simple classifications be removed from Part 68 of our  d(#rules rather than extended to cable wiring and that a single set of regulations be applied to all  S8-telecommunications wiring.U8(] yO -ԍBuilding Industry Consulting Comments at 45.U  S-` ` 2. Discussion  S-  `255.` ` We will not, at this time, establish common definitions in the common carrier and cable  d(#rules with regard to simple versus complex wiring and residential versus nonresidential wiring. Relatively  d(#few parties commented on this specific issue, and even fewer parties proposed a change in our existing  d(#rules. In the telephone context, we believe that our distinction between simple and complex wiring has  d(#proven to be a workable and effective way to promote competition while ensuring network protection.  d(#Similarly, in the cable context, we agree with Building Owners, et al., that there may be substantial  d(#=differences between residential and commercial buildings which would make it difficult to adopt uniform  S - d(#rules for all kinds of property.Z x(] {O-ԍSee Building Owners, et al., Comments at 43.Z We do not believe that the current record provides sufficient evidence  d(#to support the need for a modification of our rules, nor does it provide adequate guidance on the direction any such modification should take. We therefore will not modify our rules at this time.  S- M.` ` Customer Premises Equipment  S-  $256.` ` In the Inside Wiring Notice, we sought comment generally on the costs and benefits of  d(#harmonizing or revising our rules regarding customer premises equipment ("CPE") to accommodate the  d(#Npossible convergence of technologies used to receive and to interact with networkdelivered video  d(#programming and telephony. We asked for comment on whether to establish rights of customers to  S-provide and connect unregulated CPE to cable operators' networks.W (] {O-ԍInside Wiring Notice, 11 FCC Rcd at 2779.W  S-  257. ` ` We believe that the issues raised in the Inside Wiring Notice have been superseded by the  d(#L1996 Act. The issues will be addressed in a separate ongoing Commission rulemaking proceeding arising  ST-under new Section 629 of the Communications Act."ZT(] {O#- d(#MԍSee Notice of Proposed Rulemaking, CS Docket No. 9780 (Implementation of Section 304 of the  d(#Telecommunications Act of 1996, Commercial Availability of Navigation Devices), FCC 9753 (released February 20, 1997)." "w ,`(`(88z"Ԍ S- IV.SECOND FURTHER NOTICE OF PROPOSED RULEMAKING  S- A.` ` Exclusive Service Contracts   S`- 258.` ` We believe that exclusive service contracts between MDU owners and MVPDs can be pro d(#competitive or anticompetitive, depending upon the circumstances involved. Some alternative providers  d(#jhave commented that in order to initiate service in an MDU, they must be able to use exclusive contracts  S- d(#to ensure their ability to recover investment costs."(] yOP- d(#iԍICTA comments at 45; OpTel Comments at 78; OpTel Reply Comments at 2; OpTel Further Reply at 9;  {O - d(#OpTel/MTS ex parte submission, dated July 23, 1996, at 2; Wireless Holdings Reply Comments at 2; GTE ex parte  d(#wsubmission, dated May 15, 1997, at 12; ICTA ex parte submission, dated February 24, 1997, at 34; ICTA ex parte submission, dated February 27, 1997. Other alternative providers have argued that the  d(#Commission should limit the ability of incumbent cable operators to enter into exclusive contracts with  S-MDU owners.$(] {O - d(#ԍSee, e.g., Bell Atlantic Comments at 5; MCI Reply Comments at 3; NYNEX Comments at 17; Ameritech ex  {O- d(#[parte submission, dated May 15, 1997; GTE Comments at 22 (existing cable operators should be barred from  d(#entering into or enforcing any exclusive arrangements in excess of 12 months in markets where alternative providers have announced an intention to enter).  SH -  259.` ` We seek comment on whether the Commission should adopt a "cap" on the length of  d(#exclusive contracts for all MVPDs that would limit the enforceability of exclusive contracts to the amount  d(#of time reasonably necessary for an MVPD to recover its specific capital costs of providing service to that  d(#MDU, including, but not limited to, the installation of inside wiring, headend equipment and other startup  S - d(#.costs.~ (] {O- d(#ԍSee GTE ex parte submission, dated May 15, 1997, at 2 (arguing that any rule limiting exclusive contracts to  d(#new installations must consider the service providers' total investment and not just inside wiring). By "specific  d(#iinvestment costs" we mean those costs that are specific to a particular MDU and cannot be recovered elsewhere.  d(#=For example, if a rooftop antenna can be removed and reused on another building, it would not be a specific  {O- d(#investment cost; the costs of installing and removing the antenna, however, would be a specific investment cost. See  {O- d(#also OpTel ex parte submission, dated July 22, 1996 (advocating the difficulty of establishing any precise limit because of varying circumstances). Commenters have suggested exclusivity periods such as five to six years,! (] {O,- d(#ԍSee ICTA ex parte submission, dated February 27, 1997, at 3 (stating that it takes approximately 56 years for a service provider to recover its installment costs under an exclusive contract, disregarding the time value of money).! seven yearsZ >(] {O- d(#ԍSee SBC/PacTel/PacBell ex parte submission, dated April 28, 1997, at 1 (proposing a rule that exclusive  d(#contracts be allowed only where a service provider has newly installed at least 75% of the inside wiring in an MDU and that the contract term be limited to 7 years from the time of new installation). and  S - d(#=seven to ten years `(] {O#- d(#yԍSee Further Reply of OpTel at 9 (stating that an exclusive period of seven to ten years is the minimum required in most cases to recover the investment required to serve an MDU). as reasonable. We seek comment on what would be a reasonable period of time for  d(#=a provider to recoup its specific investment costs in an MDU. We seek comment on an approach under  d(#]which a presumption that all existing and future exclusivity provisions would be enforceable for a  d(#maximum term of seven years, except for exceptional cases in which the MVPD could demonstrate that"x,`(`(88"  S- d(#it has not had a reasonable opportunity to recover its specific investment costs.>D(] yOh- d(#ԍFor instance, the exclusivity of a "perpetual" exclusive contract entered into in 1983 would no longer be  d(#enforceable; however, if the service provider completed a substantial rebuild of its plant in 1996, the provider may  d(#be able to show that it has not had a reasonable opportunity to recover its investment costs notwithstanding the fact  d(#that the exclusive contract was entered into more than seven years ago. Similarly, a provider may be able to show  d(#that it has not had an opportunity to recover its costs where it provided discounted service in the early years of an  {OP- d(#xexclusive contract with the expectation of making its returns in later years. See Jones ex parte submission, dated  {O- d(#January 8, 1997, at 1, 4; see also NCTA Reply Comments at 2021 (any policy adopted by the Commission must protect the "legitimate business expectations" of the incumbent operator).> We inquire whether  d(#]there should be different treatment accorded existing contracts and future contracts. We also seek  d(#comment on the appropriate forum for such a showing and whether the enforceability of an exclusivity  d(#provision should be extended only for the time period reasonably necessary for the provider to recover its costs.  S-  260.` ` If a "cap" is adopted, we seek comment on whether service providers would generally be  S- d(#.able to structure their business arrangements so as to recover their capital costs within that time limit.H(] {O\- d(#.ԍSee ICTA ex parte submission, dated February 24, 1997, at 4 (broad provisos for the term of exclusive  d(#hcontracts to be extended to protect the service providers' business expectations and investments would spawn never d(#ending litigation and deprive the market of any certainty regarding the termination of these contracts, thus further  {O- d(#ihobbling competition). But see GTE ex parte submission, dated May 15, 1997, at 2 (arguing that too stringent a  d(#limit on the period in which a new entrant may recover its investment through an exclusive contract will force the new entrant to increase its price to subscribers, making it less able to compete with the entrenched cable operator).H  d(#LAfter a video service provider has had an opportunity to recover its costs under an exclusive contract on  d(#a particular property, we seek comment on whether we should prohibit future exclusive contracts between  d(#the video service provider and the property owner, unless the service provider can demonstrate that the  d(#exclusive contract is necessary to recoup a substantial new investment in the property. We also inquire  d(#whether MDU owners should be afforded an opportunity to terminate the exclusive contract and retain  d(#.the inside wiring, in exchange for a payment to the provider compensating it for unrecovered investment  d(#Lcosts. We seek to determine what circumstances allow MDU owners and tenants to receive the benefits  d(#Lof technological improvements most expeditiously, while at the same time enhancing competition among MPVDs.  S0- %261.` ` In the alternative, we seek comment on whether the Commission should only limit  d(#Lexclusive contracts where the MVPD involved possesses market power. The Supreme Court has noted:  d(#"Exclusive dealing is an unreasonable restraint on trade only when a significant fraction of buyers or  S-sellers are frozen out of a market by the exclusive deal."P (] {O - d(#ԍJefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 45 (1984), citing Standard Oil v. United States, 337 U.S. 293 (1949).  d(#0We seek comment on circumstances encompassing the video distribution market and whether the  d(#Commission can and should restrict or prohibit MVPDs with market power from entering into or enforcing  d(#exclusive service contracts. In particular, we seek comment on how to define "market power" for these purposes, as well as how to define the relevant geographic market.  S- 262.` ` We are concerned about the administrative practicability of making market power  d(#determinations on a widespread, casebycase basis and seek comment on whether we should establish any"y,`(`(88"  d(#ypresumptions in this regard. We seek comment on whether our decision not to preempt state mandatory  d(#access statutes effectively means that noncable MVPDs cannot enforce exclusive agreements in those  d(#jstates, even where such agreements may be procompetitive. We also seek comment on any other issues relevant to the analysis of market power and exclusive contracts in the context of this proceeding.  S8- a263.` ` In addition, we seek comment on whether the Commission can and should take any  d(#specific actions regarding socalled "perpetual" exclusive contracts (i.e., those running for the term of a  d(#zcable franchise and any extensions thereof). For instance, under the market power approach, we seek  d(#[comment on whether the Commission should adopt a presumption that the MVPDs involved possessed  d(#market power when such contracts were executed. Under the sevenyear "cap" approach, we seek  d(#comment on whether "perpetual" exclusive contracts would simply fall within the general rule limiting the  d(#enforceability of exclusive contracts to seven years from execution unless the MVPD can demonstrate that it has not had a reasonable opportunity to recover its specific capital costs.  S -  _264.` ` We also seek comment on whether we can and should adopt a "fresh look" for "perpetual"  d(#zexclusive contracts. In addition, we seek comment on several implementation issues: (1) whether the  d(#"fresh look" would apply only to "perpetual" exclusive contracts and, if so, how such contracts reasonably  d(#can be distinguished from other longterm exclusive contracts; (2) the scope of the "fresh look" and how  d(#the "fresh look" period would be triggered to ensure a viable choice exists (e.g., whether the "fresh look"  d(#xbe applied on an MDUbyMDU basis upon the request of a private cable operator able to serve the MDU,  d(#yor more generally on a franchisebyfranchise basis where competitive choices exist in the franchise area);  d(#and (3) whether the "fresh look" would be a onetime opportunity or whether there could be additional  d(#"fresh look" windows in light of the development of new technology and the entry of new video service providers.  S-  265.` ` If we were to adopt a "fresh look" for "perpetual" exclusive contracts, we seek comment  d(#[on whether we should open a 180day "fresh look" window for MDU owners upon the effective date of  d(#our rules, unless the "perpetual" exclusive contract was entered into less than seven years earlier, in which  d(#case the "fresh look" window would open for that MDU at the end of the sevenyear period. We also seek  d(#comment on whether the MVPD should be able to apply to the Commission for an extension if the MVPD  d(#-can demonstrate that it has not had a reasonable opportunity to recover its specific capital costs by the end  d(#=of this sevenyear period. Further, we seek comment on whether, if an MDU owner does not enter into  d(#a new contract during its initial "fresh look" period, a new 180day "fresh look" window should open at  d(# the expiration of each subsequent franchise period until the MDU owner opts out of its "perpetual"  d(#exclusive contract. We seek comment on whether this framework would protect MDU owners who do  d(#ynot have a competitive alternative and therefore would be prejudiced by a onetime "fresh look" window, while ensuring that the MVPDs involved have a reasonable opportunity to recover their costs.  S -  266.` ` We also seek comment on our statutory authority to adopt the exclusive contracts  d(#proposals discussed above. We also seek comment on any other constitutional, statutory or common law implications that these proposals raise.  Sp#- B.` ` Application of Cable Inside Wiring Rules to All MVPDs (#`  S %- 4 267.` ` We propose to apply our cable home wiring rules for singleunit installations to all  d(#[MVPDs in the same manner that they apply to cable operators. We believe that applying those rules to  d(#<all MVPDs would promote competitive parity and facilitate the ability of a subscriber whose premises was"&z,`(`(88n("  d(#initially wired by a noncable MVPD to change providers. We seek comment on this proposal and on our authority to adopt it.  S-   268. ` ` We also propose to expand to all MVPDs the rule we are adopting herein regarding cable  d(#jsubscribers' rights, prior to termination of service, to provide and install their own cable home wiring and  d(#to connect additional home wiring to the wiring installed and owned by the cable operator. We believe  S- d(#that applying this rule to all MVPDs will promote the same consumer benefits as in the cable context:  S- d(#increased competition and consumer choice, lower prices and greater technical innovation.G(] {OP-ԍSee Section III.G. above.G We seek  d(#.comment on this proposal, and in particular on the Commission's authority for expanding this rule to all  S-MVPDs.  SH - C.` ` Signal Leakage Reporting Requirements  S - 3 269.` ` Section 76.615 of the Commission's signal leakage rules requires cable operators to file  S - d(#certain information with the Commission when operating in the aeronautical radio frequency bands.> Z(] yO-ԍ47 C.F.R.  76.615.>  d(# In particular, Section 76.615(b)(7) requires cable operators to file annually with the Commission the  S - d(#results of their signal leakage tests conducted pursuant to Section 76.611.S (] yO -ԍ47 C.F.R.  76.611 and 76.615(b)(7).S We are concerned that the  d(#reporting requirements of Section 76.615(b)(7) may impose undue burdens on small broadband service  d(#yproviders, including small cable operators. We seek comment on whether certain categories of broadband  d(#service providers should be exempt from the filing requirements of Section 76.615(b)(7) and, if so, what  d(#criteria the Commission should use in defining those providers. We would not propose to exempt any  d(#broadband service providers from the testing requirements of Section 76.615(b)(7), but simply the  d(#requirement to report the results of such tests to the Commission. For instance, we seek comment on  d(#>whether we should exempt small broadband service providers from the filing requirements of Section  S@- d(#76.615(b)(7) based on an existing definition in the Commission's rules,6$@z(] yOZ- d(#ԍFor example, we have defined a small cable system as any system that serves 15,000 or fewer subscribers and  {O"- d(#a small cable company as one serving a total of 400,000 or fewer subscribers over all of its systems. Sixth Report  {O- d(#I and Order and Eleventh Order on Reconsideration, MM Docket Nos. 92266 and 93215 (Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992: Rate Regulation), 10 FCC Rcd at 7406.6 a particular number of  d(#subscribers served, the length of the cable plant or some other criteria. We seek comment on the risks  d(#to safety of life communications posed by such an exemption. We also seek comment on any other changes in this area that would reduce burdens, yet meet the goals of protecting against signal leakage.  Sx- D.` ` Simultaneous Use of Home Run Wiring   S(- 3 270.` ` As stated above, DIRECTV suggests that the Commission should establish a "virtual"  d(#demarcation point from which an alternative provider could share the wiring simultaneously with the cable  S- d(#<operator.Af (] yO&-ԍDIRECTV Comments at 810.A Other alternative providers endorse this view, if it is technically possible,i (] {O-ԍSee NYNEX Comments at 89; Batholdi Reply Comments at 16.i and CEMA states"{Z,`(`(88="  d(#\that some of its members are currently developing equipment that will allow multiple uses of a single  S- d(# broadband wire.BZ(] yO-ԍCEMA Reply Comments at 13.B Cable operators generally oppose DIRECTV's suggestion that two video service  S- d(#{providers may share a single wire, stating that the alternative provider would have to use different  d(#frequency bands to avoid interference, and, while theroetically possible, most systems do not have  S`- d(#sufficient bandwidth capacity to carry multiple MVPDs.`(] yO- d(#ԍCox Comments at 19; Marcus Cable, et al., Comments at 6; Adelphia Comments at 5; CATA Comments at 4; TKR Comments at 5. DIRECTV acknowledges that only service  S8-providers that use different parts of the spectrum technically may be able to share a single wire.S8B(] {O -ԍSee Further Comments of DIRECTV at 5.S  S-  271.` ` We believe that the sharing of a single wire by multiple service providers deserves further  d(#exploration. We seek comment on DIRECTV's proposal that we require competing broadband service  d(#providers to share a single home run wire in MDUs. In particular, we seek comment on the current  d(#technical, practical and economic feasibility and limitations of sharing of home run wiring. We also seek  d(#>comment on our legal authority to impose such a requirement and whether such a requirement would constitute an impermissible taking of private property under the Fifth Amendment.  S -  S -V.XREGULATORY FLEXIBILITY ACT ANALYSIS (#  SX- A.` ` Final Regulatory Flexibility Act Analysis   S-  Q272.` ` As required by Section 603 of the Regulatory Flexibility Act, 5 U.S.C.  603 ("RFA"),  S- d(#Initial Regulatory Flexibility Analyses ("IRFAs") were incorporated in the Inside Wiring Notice, the Cable  S- d(#\Home Wiring Further Notice, and the Inside Wiring Further Notice. The Commission sought written  S- d(#public comments on the proposals in these notices, including comments on the IRFAs. This Final  d(#KRegulatory Flexibility Analysis ("FRFA") conforms to the RFA, as amended by the Contract with America  SD-Advancement Act of 1996 ("CWAAA"), Pub. L. No. 104121, 110 Stat. 847 (1996).D(] yO- d(#iԍTitle II of the CWAAA is "The Small Business Regulatory Enforcement Fairness Act of 1996" (SBREFA),  {O-codified at 5 U.S.C.  601 et seq.  S- ` ` Need for Action and Objectives of the Rule  S- 273.` ` This Order adopts new procedural mechanisms to provide order and certainty regarding  S~- d(#the disposition of MDU home run wiring upon termination of existing service. In addition, this Order  d(#promotes competition and consumer choice by establishing rules for the disposition of cable "loop  S0- d(#through" wiring upon termination of service. This Order also permits consumers to provide or install their  d(#own cable home wiring, or redirect, reroute or connect additional wiring to the cable operator's home  d(#wiring. These rules will promote competition among MVPDs as well as cable wiring services, which will  S- d(#result in lower prices, greater technological innovation, and additional consumer choice. Finally, to protect"|. ,`(`(88"  S- d(#public safety and navigation frequencies, this Order applies the cable signal leakage rules to all broadband service providers that pose a similar threat of interference with licensed overtheair communications.  S-  ` ` Summary of Issues Raised by the Public Comments in Response to the Initial  Sb-Regulatory Flexibility Analysis (#`  S-  274.` ` In response to the IRFAs contained in the Inside Wiring Notice and the Cable Home  S- d(#zWiring Further Notice, Building Owners, et al., filed comments arguing that the proposed rules would  d(#have a significant effect on small residential and commercial building operators and that the Commission  S- d(#Mshould exempt these entities from any final rules.V(] yO -ԍBuilding Owners, et al., IRFA Comments at 25.V In response to the IRFA contained in the Inside  Sx- d(#Wiring Notice, CATA filed comments and an ex parte submission requesting that the Commission rescind  SR - d(#the Inside Wiring Notice and reissue it as a notice of inquiry or reissue it with specific proposed rules.  S, - d(#=CATA argues that the Inside Wiring Notice failed to propose specific rules, thereby preventing both the  d(#.Commission staff and small entities from analyzing and commenting on the effects of proposed rules on  S - d(#jsmall entities. X(] yO- d(#ԍCATA IRFA Comments at 4; Ex Parte Letter from Barry Pineles, Bienstock & Clark, on behalf of CATA, to William Kennard, General Counsel, Federal Communications Commission (April 22, 1996) at 2. RTE Group filed its comments and reply comments as "a response by a small business  S - d(#pursuant to Section 603 of the Regulatory Flexibility Act."_ (] yO-ԍRTE Group Comments at 1; RTE Group Reply Comments at 1._ The issues raised by RTE Group are  S - d(#addressed above. No comments were filed in response to the IRFA contained in the Inside Wiring Further  Sh-Notice.  S-` ` Description and Estimate of the Number of Small Entities Impacted  S- 275.` ` The RFA directs the Commission to provide a description of and, where feasible, an  S- d(#Lestimate 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  d(#the term "small entity" as having the same meaning as the terms "small business," "small organization,"  d(#and "small governmental jurisdiction," and the same meaning as the term "small business concern" under  S*- d(#LSection 3 of the Small Business Act.=*(] yO-ԍ5 U.S.C.  601(3).= Under the Small Business Act, a "small business concern" is one  d(#that: (1)is independently owned and operated; (2)is not dominant in its field of operation; and  S- d(#(3)satisfies any additional criteria established by the Small Business Administration ("SBA").;` (] yO!-ԍ15 U.S.C.  632.; The rules  S-we adopt in this Order will affect video service providers and MDU owners.  Sd-  276.` ` Small MVPDs: SBA has developed a definition of a small entity for cable and other pay  S>- d(#[television services, which includes all such companies generating $11 million or less in annual receipts.J> (] yO&-ԍ13 C.F.R. 121.201 (SIC 4841).J ">} ,`(`(88"  d(#This definition includes cable system operators, closed circuit television services, direct broadcast satellite  S- d(#services, multipoint distribution systems, satellite master antenna systems and subscription television  d(#services. According to the Bureau of the Census, there were 1423 such cable and other pay television  d(#Lservices generating less than $11 million in revenue that were in operation for at least one year at the end  S`- d(#of 1992.`(] yO- d(#-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- %277.` ` Cable Systems: The Commission has developed its own definition of a small cable  d(#company for the purposes of rate regulation. Under the Commission's rules, a "small cable company,"  S- d(#is one serving fewer than 400,000 subscribers nationwide.\ (] yOZ - d(#Kԍ47 C.F.R.  76.901(e). The Commission developed this definition based on its determinations that a small  {O" - d(#icable system operator is one with annual revenues of $100 million or less. Sixth Report and Order and Eleventh  {O -Order on Reconsideration in MM Docket Nos. 92266 and 93215, FCC 95196, 10 FCC Rcd 7393 (1995).  Based on our most recent information, we  Sr- d(#estimate that there were 1439 cable operators that qualified as small cable companies at the end of 1995.rD(] {OV-ԍPaul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 1996 (based on figures for Dec. 30, 1995).  d(#jSince then, some of those companies may have grown to serve over 400,000 subscribers, and others may  d(#have been involved in transactions that caused them to be combined with other cable operators.  d(#Consequently, we estimate that there are fewer than 1439 small entity cable system operators that may  S -be affected by the decisions and rules adopted in this Order.  S - 278.` ` The Communications Act also contains a definition of a small cable system operator,  d(#which is "a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1% of  d(#zall subscribers in the United States and is not affiliated with any entity or entities whose gross annual  S - d(#revenues in the aggregate exceed $250,000,000."A (] yO-ԍ47 U.S.C. 543(m)(2).A The Commission has determined that there are  d(#61,700,000 subscribers in the United States. Therefore, we found that an operator serving fewer than  d(#617,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total  S- d(#annual revenues of all of its affiliates, do not exceed $250 million in the aggregate.Bf (] yO-ԍ47 C.F.R.  76.1403(b).B Based on available  Sl- d(#data, we find that the number of cable operators serving 617,000 subscribers or less totals 1450.l (] {O -ԍPaul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 1996 (based on figures for Dec. 30, 1995).  d(#Although it seems certain that some of these cable system operators are affiliated with entities whose gross  d(#annual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the  d(#=number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.  S-  S|- R279.` ` MMDS: The Commission refined the definition of "small entity" for the auction of  d(#MMDS as an entity that together with its affiliates has average gross annual revenues that are not more"V~ ,`(`(88"  S- d(#[than $40 million for the preceding three calendar years.D(] yOh-ԍ47 C.F.R.  21.961(b)(1).D This definition of a small entity in the context  S-of the Commission's Report and Order concerning MMDS auctions has been approved by the SBA.X(] {O-ԍSee Report and Order in MM Docket No. 9431 and PP Docket No. 93253, 10 FCC Rcd 9589 (1995).  S- 280.` ` The Commission completed its MMDS auction in March 1996 for authorizations in 493  d(#!basic trading areas ("BTAs"). Of 67 winning bidders, 61 qualified as small entities. Five bidders  d(#indicated that they were minorityowned and four winners indicated that they were womenowned  d(#businesses. MMDS is an especially competitive service, with approximately 1573 previously authorized  d(#and proposed MMDS facilities. Information available to us indicates that no MMDS facility generates  d(#revenue in excess of $11 million annually. We believe that there are approximately 1634 small MMDS providers as defined by the SBA and the Commission's auction rules.  SJ - p281.` ` ITFS: There are presently 1,989 licensed educational ITFS stations and 97 licensed  S$ - d(#commercial ITFS stations. Educational institutions are included in the definition of a small business.2X$ (] yO- d(#ԍSBREFA also applies to nonprofit organizations and governmental organizations such as cities, counties, towns,  d(#Ztownships, villages, school districts, or special districts, with populations of less than 50,000. 5 U.S.C.  601(5). 2  d(#jHowever, we do not collect annual revenue data for ITFS licensees and are unable to ascertain how many  d(#=of the 97 commercial stations would be categorized as small under the SBA definition. Thus, we believe  S -that at least 1,989 ITFS licensees are small businesses.  S\-  282.` ` DBS: There are presently nine DBS licensees, some of which are not currently in  d(#koperation. The Commission does not collect annual revenue data for DBS and, therefore, is unable to  d(#ascertain the number of small DBS licensees that could be impacted by these proposed rules. Although  d(#DBS service requires a great investment of capital for operation, we acknowledge that there are several  d(#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.  SF-  2283.` ` HSD: The market for HSD service is difficult to quantify. Indeed, the service itself bears  d(#little resemblance to other MVPDs. HSD owners have access to more than 265 channels of programming  d(#placed on Cband satellites by programmers for receipt and distribution by video service providers, of  S- d(#which 115 channels are scrambled and approximately 150 are unscrambled._ (] {Oz-ԍ1996 Competition Report, FCC 96496, at para.49._ HSD owners can watch  d(#unscrambled channels without paying a subscription fee. To receive scrambled channels, however, an  d(#HSD owner must purchase an integrated receiverdecoder from an equipment dealer and pay a subscription  d(#0fee to an HSD programming packager. Thus, HSD users include: (1) viewers who subscribe to a  d(#packaged programming service, which affords them access to most of the same programming provided  d(#|to subscribers of other video service providers; (2) viewers who receive only nonsubscription  S- d(#programming; and (3) viewers who receive satellite programming services illegally without subscribing. ",`(`(88="  d(#Because scrambled packages of programming are most specifically intended for retail consumers, these  S-are the services most relevant to this discussion.1(] {O@-ԍId.1  S- 2284.` ` According to the most recently available information, there are approximately 30 program  S`- d(#packagers nationwide offering packages of scrambled programming to retail consumers.1`Z(] {OZ-ԍId.1 These program  S8- d(#packagers provide subscriptions to approximately 2,314,900 subscribers nationwide.18(] {O -ԍId.1 This is an average  d(#lof about 77,163 subscribers per program packager. This is substantially smaller than the 400,000  d(#subscribers 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.  Sp- Q285.` ` OVS: The Commission has certified nine OVS operators. Because these services were  d(#introduced so recently and only one operator is currently offering programming to our knowledge, little  d(#[financial information is available. Bell Atlantic (certified for operation in Dover) and Metropolitan Fiber  d(#=Systems ("MFS," certified for operation in Boston and New York) have sufficient revenues to assure us  d(#that they do not qualify as small business entities. Two other operators, Residential Communications  d(#KNetwork ("RCN," certified for operation in New York) and RCN/BETG (certified for operation in Boston),  d(#are MFS affiliates and thus also fail to qualify as small business concerns. However, Digital Broadcasting  d(#0Open Video Systems (a general partnership certified for operation in southern California), Urban  d(#Communications Transport Corp. (a corporation certified for operation in New York and Westchester),  d(#/and Microwave Satellite Technologies, Inc. (a corporation owned solely by Frank T. Matarazzo and  d(#certified for operation in New York) are either just beginning or have not yet started operations. Accordingly, we believe that three OVS licensees may qualify as small business concerns.  Sj- ~286.` ` SMATVs: Industry sources estimate that approximately 5200 SMATV operators were  SD- d(#lproviding service as of December 1995.>D~(] {Ob-ԍId. at para. 81.> Other estimates indicate that SMATV operators serve  S- d(#\approximately 1.05 million residential subscribers as of September 1996.1(] {O-ԍId.1 The ten largest SMATV  S- d(#operators together pass 815,740 units.1(] {O6 -ԍId.1 If we assume that these SMATV operators serve 50% of the  d(#units passed, the ten largest SMATV operators serve approximately 40% of the total number of SMATV  d(#subscribers. Because these operators are not rate regulated, they are not required to file financial data with  S|- d(#]the Commission. Furthermore, we are not aware of any privately published financial information  d(#regarding these operators. Based on the estimated number of operators and the estimated number of units  d(#served by the largest ten SMATVs, we believe that a substantial number of SMATV operators qualify as small entities. "4 ,`(`(88["Ԍ S- R287.` ` LMDS: Unlike the above pay television services, LMDS technology and spectrum  d(#/allocation will allow licensees to provide wireless telephony, data, and/or video services. An LMDS  d(#provider is not limited in the number of potential applications that will be available for this service.  d(#Therefore, the definition of a small LMDS entity may be applicable to both cable and other pay television  d(#(SIC 4841) and/or radiotelephone communications companies (SIC 4812). The SBA definition for cable  S:- d(#and other pay services is defined above. A small radiotelephone entity is one with 1500 employees or  S- d(#?less.?(] yOz-ԍ13 C.F.R.  121.201.? For the purposes of this proceeding, we include only an estimate of LMDS video service  d(#providers. The vast majority of LMDS entities providing video distribution could be small businesses  S- d(#under the SBA's definition of cable and pay television (SIC 4841). However, in the LMDS Second  S- d(#Report and Order, we defined a small LMDS provider as an entity that, together with affiliates and  d(#attributable investors, has average gross revenues for the three preceding calendar years of less than $40  SN -million. N X(] {OF -ԍSecond Report and Order in CC Docket No. 92297, FCC 9782 (released March 13, 1997). We have not yet received approval by the SBA for this definition.  S - 288.` ` There is only one company, CellularVision, that is currently providing LMDS video  d(#services. Although the Commission does not collect data on annual receipts, we assume that  d(#\CellularVision is a small business under both the SBA definition and our proposed auction rules. We  d(#tentatively conclude that a majority of the potential LMDS licensees will be small entities, as that term is defined by the SBA.  S- ~ 289.` ` MDU Operators: The SBA has developed definitions of small entities for operators of  d(#nonresidential buildings, apartment buildings and dwellings other than apartment buildings, which include  S- d(#[all such companies generating $5 million or less in revenue annually.^ (] yOJ-ԍ13 C.F.R.  121.601 (SIC 6512, SIC 6513, SIC 6514).^ According to the Census Bureau,  d(#kthere were 26,960 operators of nonresidential buildings generating less than $5 million in revenue that  Sp- d(#Lwere in operation for at least one year at the end of 1992.; Xpz(] yO- d(#ԍ1992 Economic Census of Financial, Insurance and Real Estate Industries, Establishment and Firm Size Report,  d(#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  d(# were 39,903 operators of apartment dwellings generating less than $5 million in revenue that were in  S - d(#operation for at least one year at the end of 1992.; X (] yOZ- d(#ԍ1992 Economic Census of Financial, Insurance and Real Estate Industries, Establishment and Firm Size Report,  d(#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  d(#regarding 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  S0-  !290.` ` Disposition of MDU Home Run Wiring: The Order requires MVPDs to comply with a  d(#set of procedural timetables for the disposition of home run wiring upon termination of service when an"  ,`(`(88k"  d(#LMDU owner invokes the Commission's procedures. In addition, it requires MVPDs to include in future  d(#?contracts with MDU owners a provision addressing the disposition of home run wiring upon the  d(#Ltermination of the contract. It also requires the parties to cooperate to ensure as seamless a transition as possible for subscribers.  S8-  a"291.` ` Sharing of Molding: The Order permits an MVPD to install home run wiring in an  d(#existing molding if the MDU owner determines that there is sufficient space, if the incumbent MVPD's  d(#\ability to provide service is not impaired, and if the MDU owner gives its affirmative consent. If the  d(#]MDU owner determines that there is not sufficient space, and the MDU owner will permit larger moldings, the MDU owner may install larger moldings at the alternative MVPD's expense.  SJ - #292.` ` Disposition of Cable Home Wiring: The Order requires MVPDs to implement their  d(#election to remove or abandon home wiring within seven days of learning that the home wiring will not be purchased.  S - a$293.` ` Customer Access to Cable Home Wiring before Termination of Service: The Order  d(#requires cable operators to permit subscribers to provide or install their own cable home wiring, or  d(#Lredirect, reroute or connect additional wiring to the cable operator's home wiring, so long as no electronic  d(#or physical harm is caused to the cable system and the physical integrity of the cable operator's wiring  d(#remains intact. The cable operator may choose to impose requirements that any home wiring meet  d(#reasonable technical specifications, not to exceed the technical specifications of such wiring installed by  d(#the cable operator; however, the cable operator may require additional technical specifications to eliminate electronic or physical harm.  SF- %294.` ` Signal Leakage: The Order extends the Commission's cable signal leakage rules to all  d(#broadband service providers that pose a similar threat of interference with frequencies used for overtheair  d(#kcommunications. Section 76.615(b)(7) of the cable signal leakage rules requires cable operators to file  d(# annually with the Commission the results of their signal leakage tests conducted pursuant to Section 76.611.  SX-  ` ` Significant Alternatives and Steps Taken to Minimize the Significant Economic  S0- d(#!Impact on a Substantial Number of Small Entities Consistent with the Stated Objectives This  d(#section analyzes the impact on small entities of the regulations adopted, amended, modified, or clarified  S-in this Order.  S- 4&295.` ` Disposition of MDU Home Run Wiring: We considered several alternatives for the  d(#kdisposition of MDU home run wiring, including: (1)creating a single demarcation point for cable and  d(#=telephony providers; (2)moving the cable demarcation point; and (3)maintaining our current rules. The  d(#record indicates that MDU owners often object to the installation of multiple home run wires for reasons  d(#including aesthetics, space limitations, the avoidance of disruption and inconvenience, and the potential  d(#for property damage. Small video service providers often are new entrants that will have to install new  d(# home run wiring (if they cannot use the existing wiring), while incumbent service providers often are  d(#established entities that may resist efforts by both new entrants and MDU operators to arrange for use of  d(#the existing wiring. By bringing order and certainty to the disposition of the home run wiring upon  d(#termination of service, the rules adopted herein advance the interests of both small video service providers and small MDU owners. "& ,`(`(88n("Ԍ S- p'296.` ` Transfer of Ownership of Home Run Wiring in Future Installations: We considered  d(#adopting a requirement that, for future installations, MVPDs transfer ownership of home run wiring to  d(#=MDU owners. We instead decided to require MVPDs to include in future contracts with MDU owners  d(#Na provision addressing the disposition of home run wiring upon termination of the contract. This  d(#requirement will provide all MDU owners, including small MDU owners, the flexibility to negotiate for ownership of the home run wiring.  S- a(297.` ` Sharing of Molding: We considered not requiring the sharing of molding even when  d(#\empty space exists. We concluded, however, that the ability to share molding often may assist small  d(#kMVPDs, which frequently are new entrants, to gain access to MDUs. We considered Time Warner's  d(#/proposal to allow affected MVPDs and the MDU owner to determine whether the molding contains  d(#adequate space. Our rule, however, does not require the concurrence of the affected MVPDs in the determination of whether adequate space exists.  S - )298.` ` Customer Access to Cable Home Wiring before Termination of Service: We believe that  d(#subscriber access to home wiring will advance the interests of small entities. As customers gain the ability  d(#to select who will install and maintain their home wiring, small entities will be able to compete with the incumbent cable operator to provide such services.  S- $*299.` ` Signal Leakage: This Order extends the Commission's cable signal leakage rules to all  d(#broadband service providers that pose a similar threat of interference with frequencies used for overtheair  d(#communications. Although this modification will impact small broadband service providers, we are  d(#exploring the possibility of exempting certain categories of broadband service providers from the reporting  Sp-requirements of the signal leakage rules.t p(] yO-ԍSee the discussion of signal leakage requirements in the IRFA section below.t  S - ` ` Report to Congress  S-  +300.` ` The Commission shall send a copy of this Order, including this FRFA, in a report to  d(#Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.   S- d(#=801(a)(1)(A). A copy of this Order and this FRFA (or summaries thereof) will also be published in the  d(#Federal Register, pursuant to 5 U.S.C.  604(b), and will be sent to the Chief Counsel for Advocacy of the Small Business Administration.  S -  S-B.` ` Initial Regulatory Flexibility Act Analysis   S-  ~,301.` ` As required by Section 603 of the Regulatory Flexibility Act, 5 U.S.C.  603, ("RFA"),  d(#]the Commission has prepared an Initial Regulatory Flexibility Analysis ("IRFA") of the expected  SD- d(#/significant impact on small entities by the policies and rules proposed in this Second Further Notice.  S - d(#=Written public comments are requested on the IRFA. These comments must be filed in accordance with  d(#the same filing procedures as other comments in this proceeding, but they must be have a separate and  d(# distinct heading designating them as responses to the IRFA. The Secretary shall send a copy of this  S"- d(#kSecond Further Notice, including the IRFA, to the Chief Counsel for Advocacy of the Small Business  S#- d(#Administration in accordance with Section 603(a) of the RFA. In addition, the Second Further Notice and IRFA (or summaries thereof) will be published in the Federal Register, pursuant to 5 U.S.C. 603(a)."Z$X ,`(`(88%"Ԍ S-ԙ ` ` Need for Action and Objectives of the Proposed Rules  S- n-302.` ` The Commission issues this Second Further Notice to consider additional rules to promote  d(#competition and enhance consumer choice. In particular, we seek comment on the competitive  d(#=implications of exclusive service contracts between MDU owners and MVPDs, and whether we should:  d(#(1) limitexclusive contracts to a time certain; (2)adopt restrictions on the ability of MVPDs to enter into  S- d(#exclusive contracts; or (3)adopt a "fresh look" for "perpetual" exclusive contracts. In addition, we  d(#propose to expand to all MVPDs the rule regarding cable subscribers' rights, prior to termination of  d(#service, to provide and install their own cable home wiring and to connect additional home wiring to the  d(#wiring installed and owned by the MVPD. We also ask whether certain categories of broadband service  d(#providers (e.g., small broadband service providers, including small cable operators) should be exempt from  d(#the signal leakage reporting requirements in Section 76.615(b)(7). Finally, we seek comment on the  d(#current technical, practical, economic, and legal limitations of requiring competing broadband service providers to share a single home run wire in MDUs.  S -` ` Legal Basis  SZ-  A.303.` ` This Second Further Notice is adopted pursuant to Sections 1, 4, 224, 251, 303, 601, 623,  d(#k624, and 632 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154, 224, 251, 303, 521, 543, 544, and 552.  S-` ` Description and Estimate of the Number of Small Entities Impacted  Sl- /304.` ` The RFA directs the Commission to provide a description of and, where feasible, an  SD- d(#Lestimate of the number of small entities that will be affected by the proposed rules.AD(] yO-ԍ5 U.S.C.  604(a)(3). A The RFA defines  d(#the term "small entity" as having the same meaning as the terms "small business," "small organization,"  d(#and "small governmental jurisdiction," and the same meaning as the term "small business concern" under  S- d(#LSection 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  d(#that: (1)is independently owned and operated; (2)is not dominant in its field of operation; and  S|- d(#(3)satisfies any additional criteria established by the Small Business Administration ("SBA").;|(] yO-ԍ15 U.S.C.  632.; The rules  ST-we propose in this Second Further Notice will affect MVPDs and MDU owners.  S-  0305.` ` Small MVPDs: SBA has developed a definition of a small entity for cable and other pay  S- d(#[television services, which includes all such companies generating $11 million or less in annual receipts.Jx(] yO"-ԍ13 C.F.R. 121.201 (SIC 4841).J  d(#This definition includes cable system operators, closed circuit television services, direct broadcast satellite  d(#services, multipoint distribution systems, satellite master antenna systems and subscription television  d(#services. According to the Bureau of the Census, there were 1423 such cable and other pay television  d(#Lservices generating less than $11 million in revenue that were in operation for at least one year at the end"@,`(`(88 "  S- d(#of 1992.(] yOh- d(#-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- %1306.` ` Cable Systems: The Commission has developed its own definition of a small cable  d(#company for the purposes of rate regulation. Under the Commission's rules, a "small cable company,"  S:- d(#is one serving fewer than 400,000 subscribers nationwide.\: (] yO- d(#Zԍ47 C.F.R.  76.901(e). The Commission developed this definition based on its determinations that a small  {O - d(#icable system operator is one with annual revenues of $100 million or less. Sixth Report and Order and Eleventh  {O -Order on Reconsideration in MM Docket Nos. 92266 and 93215, FCC 95196, 10 FCC Rcd 7393 (1995).  Based on our most recent information, we  S- d(#estimate that there were 1439 cable operators that qualified as small cable companies at the end of 1995.D(] {O -ԍPaul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 1996 (based on figures for Dec. 30, 1995).  d(#jSince then, some of those companies may have grown to serve over 400,000 subscribers, and others may  d(#have been involved in transactions that caused them to be combined with other cable operators.  d(#Consequently, we estimate that there are fewer than 1439 small entity cable system operators that may  Sr-be affected by the decisions and rules proposed in this Second Further Notice.  S$ - 2307.` ` The Communications Act also contains a definition of a small cable system operator,  d(#which is "a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1% of  d(#zall subscribers in the United States and is not affiliated with any entity or entities whose gross annual  S - d(#revenues in the aggregate exceed $250,000,000."A (] yO"-ԍ47 U.S.C. 543(m)(2).A The Commission has determined that there are  d(#61,700,000 subscribers in the United States. Therefore, we found that an operator serving fewer than  d(#617,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total  S4- d(#annual revenues of all of its affiliates, do not exceed $250 million in the aggregate.B4f (] yO:-ԍ47 C.F.R.  76.1403(b).B Based on available  S - d(#data, 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).  d(#Although it seems certain that some of these cable system operators are affiliated with entities whose gross  d(#annual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the  d(#=number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.  S- R3308.` ` MMDS: The Commission refined the definition of "small entity" for the auction of  d(#MMDS as an entity that together with its affiliates has average gross annual revenues that are not more  S- d(#[than $40 million for the preceding three calendar years.D (] yO$-ԍ47 C.F.R.  21.961(b)(1).D This definition of a small entity in the context  S-of the Commission's Report and Order concerning MMDS auctions has been approved by the SBA.(] {O^'-ԍSee Report and Order in MM Docket No. 9431 and PP Docket No. 93253, 10 FCC Rcd 9589 (1995).",`(`(88"Ԍ S- ԙ4309.` ` The Commission completed its MMDS auction in March 1996 for authorizations in 493  d(#!basic trading areas ("BTAs"). Of 67 winning bidders, 61 qualified as small entities. Five bidders  d(#indicated that they were minorityowned and four winners indicated that they were womenowned  d(#businesses. MMDS is an especially competitive service, with approximately 1573 previously authorized  d(#and proposed MMDS facilities. Information available to us indicates that no MMDS facility generates  d(#revenue in excess of $11 million annually. We believe that there are approximately 1634 small MMDS providers as defined by the SBA and the Commission's auction rules.  S- p5310.` ` ITFS: There are presently 1,989 licensed educational ITFS stations and 97 licensed  S- d(#commercial ITFS stations. Educational institutions are included in the definition of a small business.2X(] yO - d(#ԍSBREFA also applies to nonprofit organizations and governmental organizations such as cities, counties, towns,  d(#Ztownships, villages, school districts, or special districts, with populations of less than 50,000. 5 U.S.C.  601(5). 2  d(#jHowever, we do not collect annual revenue data for ITFS licensees and are unable to ascertain how many  d(#=of the 97 commercial stations would be categorized as small under the SBA definition. Thus, we believe that at least 1,989 ITFS licensees are small businesses.  S -  6311.` ` DBS: There are presently nine DBS licensees, some of which are not currently in  d(#koperation. The Commission does not collect annual revenue data for DBS and, therefore, is unable to  d(#ascertain the number of small DBS licensees that could be impacted by these proposed rules. Although  d(#DBS service requires a great investment of capital for operation, we acknowledge that there are several  d(#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-  27312.` ` HSD: The market for HSD service is difficult to quantify. Indeed, the service itself bears  S- d(#little resemblance to other MVPDs. HSD owners have access to more than 265 channels of programming  d(#placed on Cband satellites by programmers for receipt and distribution by video service providers, of  SF- d(#which 115 channels are scrambled and approximately 150 are unscrambled._F(] {O-ԍ1996 Competition Report, FCC 96496, at para.49._ HSD owners can watch  d(#unscrambled channels without paying a subscription fee. To receive scrambled channels, however, an  d(#HSD owner must purchase an integrated receiverdecoder from an equipment dealer and pay a subscription  d(#0fee to an HSD programming packager. Thus, HSD users include: (1) viewers who subscribe to a  d(#packaged programming service, which affords them access to most of the same programming provided  d(#|to subscribers of other video service providers; (2) viewers who receive only nonsubscription  d(#programming; and (3) viewers who receive satellite programming services illegally without subscribing.  d(#Because scrambled packages of programming are most specifically intended for retail consumers, these  S-are the services most relevant to this discussion.1z(] {O "-ԍId.1  S- 28313.` ` According to the most recently available information, there are approximately 30 program  S- d(#packagers nationwide offering packages of scrambled programming to retail consumers.1 (] {O:&-ԍId.1 These program",`(`(88"  S- d(#packagers provide subscriptions to approximately 2,314,900 subscribers nationwide.1(] {Oh-ԍId.1 This is an  S- d(#average of about 77,163 subscribers per program packager. This is substantially smaller than the 400,000  d(#subscribers 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.  S8- Q9314.` ` OVS: The Commission has certified nine OVS operators. Because these services were  d(#introduced so recently and only one operator is currently offering programming to our knowledge, little  d(#[financial information is available. Bell Atlantic (certified for operation in Dover) and Metropolitan Fiber  d(#=Systems ("MFS," certified for operation in Boston and New York) have sufficient revenues to assure us  d(#that they do not qualify as small business entities. Two other operators, Residential Communications  d(#KNetwork ("RCN," certified for operation in New York) and RCN/BETG (certified for operation in Boston),  d(#are MFS affiliates and thus also fail to qualify as small business concerns. However, Digital Broadcasting  d(#0Open Video Systems (a general partnership certified for operation in southern California), Urban  d(#Communications Transport Corp. (a corporation certified for operation in New York and Westchester),  d(#/and Microwave Satellite Technologies, Inc. (a corporation owned solely by Frank T. Matarazzo and  d(#certified for operation in New York) are either just beginning or have not yet started operations. Accordingly, we believe that three OVS licensees may qualify as small business concerns.  S2- ~:315.` ` SMATVs: Industry sources estimate that approximately 5200 SMATV operators were  S - d(#lproviding service as of December 1995.> Z(] {O-ԍId. at para.81.> Other estimates indicate that SMATV operators serve  S- d(#\approximately 1.05 million residential subscribers as of September 1996.1 (] {Op-ԍId.1 The ten largest SMATV  S- d(#operators together pass 815,740 units.1!~(] {O-ԍId.1 If we assume that these SMATV operators serve 50% of the  d(#units passed, the ten largest SMATV operators serve approximately 40% of the total number of SMATV  d(#subscribers. Because these operators are not rate regulated, they are not required to file financial data with  d(#]the Commission. Furthermore, we are not aware of any privately published financial information  d(#regarding these operators. Based on the estimated number of operators and the estimated number of units  d(#served by the largest ten SMATVs, we believe that a substantial number of SMATV operators qualify as small entities.  S|- R;316.` ` LMDS: Unlike the above pay television services, LMDS technology and spectrum  d(#/allocation will allow licensees to provide wireless telephony, data, and/or video services. An LMDS  d(#provider is not limited in the number of potential applications that will be available for this service.  d(#Therefore, the definition of a small LMDS entity may be applicable to both cable and other pay television  d(#.(SIC 4841) and/or radiotelephone communications companies (SIC 4812). The SBA definition for cable  S- d(#and other pay services is defined above. A small radiotelephone entity is one with 1500 employees or  S- d(#?less.?"(] yO>&-ԍ13 C.F.R.  121.201.? For the purposes of this proceeding, we include only an estimate of LMDS video service  d(#providers. The vast majority of LMDS entities providing video distribution could be small businesses"f",`(`(88"  S- d(#under the SBA's definition of cable and pay television (SIC 4841). However, in the LMDS Second Report  S- d(#=and Order, we defined a small LMDS provider as an entity that, together with affiliates and attributable  S- d(#investors, has average gross revenues for the three preceding calendar years of less than $40 million.#(] {O-ԍSecond Report and Order in CC Docket No. 92297, FCC 9782 (released March 13, 1997). We have not yet received approval by the SBA for this definition.  S<- <317.` ` There is only one company, CellularVision, that is currently providing LMDS video  S- d(#services. Although the Commission does not collect data on annual receipts, we assume that  d(#\CellularVision is a small business under both the SBA definition and our proposed auction rules. We  d(#tentatively conclude that a majority of the potential LMDS licensees will be small entities, as that term is defined by the SBA.  SL - ~=318.` ` MDU Operators: The SBA has developed definitions of small entities for operators of  d(#nonresidential buildings, apartment buildings and dwellings other than apartment buildings, which include  S - d(#[all such companies generating $5 million or less in revenue annually.^$ Z(] yO-ԍ13 C.F.R.  121.601 (SIC 6512, SIC 6513, SIC 6514).^ According to the Census Bureau,  d(#kthere were 26,960 operators of nonresidential buildings generating less than $5 million in revenue that  S - d(#Lwere in operation for at least one year at the end of 1992.;%X (] yO8- d(#ԍ1992 Economic Census of Financial, Insurance and Real Estate Industries, Establishment and Firm Size Report,  d(#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  d(# were 39,903 operators of apartment dwellings generating less than $5 million in revenue that were in  S^- d(#operation for at least one year at the end of 1992.;&X^ (] yO- d(#ԍ1992 Economic Census of Financial, Insurance and Real Estate Industries, Establishment and Firm Size Report,  d(#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  d(#regarding 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  Sn- A>319.` ` The Second Further Notice seeks comment on whether small broadband service providers,  d(#including small cable operators, should be exempt from the signal leakage reporting requirements in  d(#jSection 76.615(b)(7). Such an exemption would relieve qualifying providers from only the relevant filing requirements, but not from the signal leakage testing requirements.  S-  S- ` ` Significant Alternatives and Steps Taken to Minimize the Significant Economic  S- d(#!Impact on a Substantial Number of Small Entities Consistent with the Stated Objectives This  SX- d(#Msection analyzes the impact on small entities of the regulations proposed or considered in the Second  S2-Further Notice.  S- Q?320.` ` The Second Further Notice seeks comment on several proposals which could minimize  S- d(#the economic impact on a substantial number of small entities. For instance, in seeking comment on what"* &,`(`(88"  d(#policies should be adopted with respect to exclusive contracts, the Commission raises the option of a limit  d(#on the length of exclusive contracts that would still permit a small MVPD to obtain exclusive contracts  d(#for the period of time necessary to recover its investment costs in the MDU building. In addition, the  d(#!Commission seeks comment on whether small broadband service providers, including small cable  d(#[operators, should be exempt from the signal leakage reporting requirements in Section 76.615(b)(7). The  d(#issue of whether competing providers should be required to share home run wiring explores the possibility  d(#>of another means by which small MVPDs may be able to access MDUs. Commenters are invited to address the economic impact of these proposals on small entities and offer any alternatives.  S- = ` ` Federal Rules That May Duplicate, Overlap, or Conflict with the Proposed Rules None.  S - Q#OM@  VI.PAPERWORK REDUCTION ACT OF 1995 ANALYSIS  S - @321.` ` The requirements adopted in this Report and Order and Second Further Notice of  S - d(#Proposed Rulemaking have been analyzed with respect to the Paperwork Reduction Act of 1995 (the  d(#"1995 Act") and found to impose modified information collection requirements on the public. The  d(#Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public to  S4- d(#take this opportunity to comment on the information collection requirements contained in this Report and  S- d(#Order and Second Further Notice of Proposed Rulemaking, as required by the 1995 Act. Public  S- d(#Lcomments are due 60 days from date of publication of this Report and Order and Second Further Notice  S- d(#of Proposed Rulemaking in the Federal Register. Comments should address: (1) whether the proposed  d(#collection of information is necessary for the proper performance of the functions of the Commission,  d(#including whether the information shall have practical utility; (2) the accuracy of the Commission's burden  d(#Lestimates; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways  d(#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.  S-  S- A322.` ` Written comments by the public on the modified information collection requirements are  S- d(#due 60 days from date of publication of this Report and Order and Second Further Notice of Proposed  S^- d(#Rulemaking in the Federal Register. Comments on the information collections contained herein should  d(#be submitted to Judy Boley, Federal Communications Commission, Room 234, 1919 M Street, N.W.,  d(#]Washington, DC 20554, or via the Internet to jboley@fcc.gov. For additional information on the  d(#yinformation collection requirements, contact Judy Boley at 2024180214 or via the Internet at the above address.   Sp- VII.PROCEDURAL PROVISIONS  S - BB323.` ` Ex parte Rules "PermitbutDisclose" Proceeding. This proceeding will be treated as  d(#a "permit-but-disclose" proceeding subject to the "permit-but-disclose" requirements under Section  S!- d(#1.1206(b) of the rules.M'!(] yO:$-ԍ47 C.F.R.  1.1206(b), as revised.M Ex parte presentations are permissible if disclosed in accordance with  S"- d(#LCommission rules, except during the Sunshine Agenda period when presentations, ex parte or otherwise,  d(#are generally prohibited. Persons making oral ex parte presentations are reminded that a memorandum  d(#ysummarizing a presentation must contain a summary of the substance of the presentation and not merely"Z$X',`(`(88%"  d(#?a listing of the subjects discussed. More than a one or two sentence description of the views and  S- d(#arguments presented is generally required.Z((] {O@-ԍSee 47 C.F.R.  1.1206(b)(2), as revised.Z Additional rules pertaining to oral and written presentations  S-are set forth in Section 1.1206(b).A)Z(] yO-ԍ47 C.F.R. 1.1206(b).A  S-  S`- C324.` ` Filing of Comments and Reply Comments. Pursuant to applicable procedures set forth in  S:- d(#Sections 1.415 and 1.419 of the Commission's Rules,K*:(] yO -ԍ47 C.F.R.  1.415 and 1.419.K interested parties may file comments on or before  d(#December 16, 1997, and reply comments on or before January 15, 1998. To file formally in this  d(#proceeding, you must file an original plus four copies of all comments, reply comments, and supporting  d(# comments. If you want each Commissioner to receive a personal copy of your comments and reply  d(#comments, you must file an original plus nine copies. You should send comments and reply comments  d(#.to Office of the Secretary, Federal Communications Commission, 1919 M Street, NW, Washington, DC  d(#z20554. Comments and reply comments will be available for public inspection during regular business  d(#hours in the FCC Reference Center, Room 239, Federal Communications Commission, 1919 M Street NW, Washington DC 20554.  S - VIII.ORDERING CLAUSES  S -  SZ-  PD325.` ` IT IS ORDERED that, pursuant to Sections 1, 4(i), 201205, 214215, 220, 303, 623, 624  d(#and 632 of the Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i), 201205, 214215, 220, 303, 543, 544 and 552, the Commission's rules are hereby amended as set forth in Appendix A.  S- E326.` ` IT IS FURTHER ORDERED that the rules as amended in Appendix A will become  d(#effective upon approval by OMB. The Commission will publish a document at a later date announcing the effective date of these rules.  S- F327.` ` IT IS FURTHER ORDERED that, pursuant to Sections 1, 4(i), 201205, 214215, 220,  d(#303, 623, 624 and 632 of the Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i), 201 d(#205, 214215, 220, 303, 543, 544 and 552, NOTICE IS HEREBY GIVEN of proposed amendments to  d(#zthe Commission's rules, in accordance with the proposals, discussions and statements of issues in the  Sz- d(#Second Further Notice of Proposed Rulemaking, and COMMENT IS SOUGHT regarding such proposals, discussions and statements of issues.  S- G328.` ` IT IS FURTHER ORDERED that the Commission SHALL SEND a copy of this Report  S- d(#and Order and Second Further Notice of Proposed Rulemaking, including the Initial and Final Regulatory Flexibility Analyses, to the Chief Counsel for Advocacy of the Small Business Administration. ` ` hhCFEDERAL COMMUNICATIONS COMMISSION ` `  hhC ` `  hhCWilliam F. Caton  S!-` `  hhCActing Secretary Q#OMB "!z*,`(`(88U#"  S-Q#OMC   ` APPENDIX A  S-ă  S-]Revised Rules à  S8- Part 76 of title 47 of the Code of Federal Regulations is amended as follows: PART 76 CABLE TELEVISION SERVICE  S-1.` ` The authority citation for Part 76 continues to read as follows:  d(#AUTHORITY: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 307, 308, 309, 312, 315, 317, 325,  d(#>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 amended by revising paragraph (mm)(2) to read as follows: Sec. 76.5 Definitions. * * * * * (mm) * * *  d(#(2) For new and existing multiple dwelling unit installations with nonloopthrough wiring configurations,  d(#the demarcation point shall be a point at (or about) twelve inches outside of where the cable wire enters  d(#the subscriber's dwelling unit, or, where the wire is physically inaccessible at such point, the closest practicable point thereto that does not require access to the individual subscriber's dwelling unit.  d(#(3) For new and existing multiple dwelling unit installations with loopthrough wiring configurations, the  d(#jdemarcation points shall be at (or about) twelve inches outside of where the cable wire enters or exits the  d(#first and last individual dwelling units on the loop, or, where the wire is physically inaccessible at such  d(#point(s), the closest practicable point thereto that does not require access to an individual subscriber's dwelling unit.  d(# (4) As used in this subsection, the term "physically inaccessible" describes a location that (i)would  d(#require significant modification of, or significant damage to, preexisting structural elements, and (ii)would add significantly to the physical difficulty and/or cost of accessing the subscriber's home wiring.  v Note to paragraph (mm)(4): For example, wiring embedded in brick, metal conduit or cinder  d(#blocks with limited or without access openings would likely be physically inaccessible; wiring enclosed within hallway molding would not.  Sp#-   3.` ` Section 76.613 is amended by revising the heading and by revising paragraphs (b), (c), and (d) to read as follows: Sec. 76.613 Interference from a multichannel video programming distributor ("MVPD"). * * * * * "(*,**880*"Ԍ d(#(b) An MVPD that causes harmful interference shall promptly take appropriate measures to eliminate the harmful interference.  d(#(c) If harmful interference to radio communications involving the safety of life and protection of property  d(#<cannot be promptly eliminated by the application of suitable techniques, operation of the offending MVPD  d(#or appropriate elements thereof shall immediately be suspended upon notification by the District Director  d(#and/or Resident Agent of the Commission's local field office, and shall not be resumed until the  d(#jinterference has been eliminated to the satisfaction of the District Director and/or Resident Agent. When  d(#[authorized by the District Director and/or Resident Agent, short test operations may be made during the period of suspended operation to check the efficacy of remedial measures.  d(#(d) The MVPD may be required by the District Director and/or Resident Agent to prepare and submit  d(#=a report regarding the cause(s) of the interference, corrective measures planned or taken, and the efficacy of the remedial measures.  S -4.` ` Section 76.620 is added to read as follows: Sec. 76.620 Noncable multichannel video programming distributors ("MVPDs").  d(#\(a) Sections 76.605(a)(12), 76.610, 76.611, 76.612, 76.614, 76.615(b)(16), 76.616, and 76.617 shall  d(#apply to all noncable MVPDs. However, noncable MVPD systems that are substantially built as of  d(#January 1, 1998 shall not be subject to these sections until January 1, 2003. "Substantially built" shall  d(#be defined as having 75 percent of the distribution plant completed. As of January 1, 2003, Section 76.615(b)(7) shall apply to all noncable MVPDs.  d(#(b) To comply with Section 76.615(b)(2), a noncable MVPD shall submit its Internal Revenue Service's Employer Identification (E.I.) number instead of an FCC identifier.  S-5.` ` Subpart M is amended by revising the heading to read as follows: Subpart M Cable Inside Wiring  S-6.` ` Section 76.800 is added to read as follows: Sec. 76.800 Definitions.  S`- v (a) MDU. A multiple dwelling unit building (e.g., an apartment building, condominium building or cooperative).  S - v (b) MDU owner. The entity that owns or controls the common areas of a multiple dwelling unit building.  St#- v (c) MVPD. A multichannel video programming distributor, as that term is defined in Section 602(13) of the Communications Act, 47 U.S.C. 522(13).  S%- v !(d) Home run wiring. The wiring from the demarcation point to the point at which the MVPD's wiring becomes devoted to an individual subscriber or individual loop."&*,`(`(88n("Ԍ S- 3ԙ7.` ` Section 76.802 is amended by revising paragraphs (a) and (g), and adding paragraph (l) to read as follows: Sec.76.802 Disposition of cable home wiring.  v |(a) (1) Upon voluntary termination of cable service by a subscriber in a single unit installation,  d(#=a cable operator shall not remove the cable home wiring unless it gives the subscriber the opportunity to  d(#Mpurchase the wiring at the replacement cost, and the subscriber declines. If the subscriber declines to  d(#purchase the cable home wiring, the cable system operator must then remove the cable home wiring within  d(#seven days of the subscriber's decision, under normal operating conditions, or make no subsequent attempt to remove it or to restrict its use.  v ^(2) Upon voluntary termination of cable service by an individual subscriber in a multipleunit  d(#.installation, a cable operator shall not be entitled to remove the cable home wiring unless: (i) it gives the  d(#subscriber the opportunity to purchase the wiring at the replacement cost; (ii) the subscriber declines, and  S - d(#-(iii) neither the MDU owner nor an alternative MVPD, where permitted by the MDU owner, has provided  d(#{reasonable advance notice to the incumbent provider that it would purchase the cable home wiring  d(#/pursuant to this section if and when a subscriber declines. If the cable system operator is entitled to  d(#remove the cable home wiring, it must then remove the wiring within seven days of the subscriber's  d(#decision, under normal operating conditions, or make no subsequent attempt to remove it or to restrict its use.  v (3) The cost of the cable home wiring is to be based on the replacement cost per foot of the  d(#wiring 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. * * * * *  d(#>(g) If the cable operator adheres to the procedures described in paragraph (b) of this section, and the  d(# subscriber asks for more time to make a decision regarding whether to purchase the home wiring, the  d(#Lseven (7) day period described in paragraph (b) of this section will not begin running until the subscriber declines to purchase the wiring; *** * * * * *  d(#(l) The provisions of Section 76.802, except for Section 76.802(a)(1), shall apply to all MVPDs in the same manner that they apply to cable operators.  S -8.` ` Section 76.804 is added to read as follows: Sec. 76.804 Disposition of home run wiring.  Sp#- v (a) Buildingbybuilding disposition of home run wiring: (1) Where an MVPD owns the home  d(#/run wiring in an MDU and does not (or will not at the conclusion of the notice period) have a legally  d(#enforceable right to remain on the premises against the wishes of the MDU owner, the MDU owner may  d(#?give the MVPD a minimum of 90 days' written notice that its access to the entire building will be  d(#Zterminated to invoke the procedures in this section. The MVPD will then have 30 days to notify the MDU"&*,`(`(88n("  d(#owner in writing of its election for all the home run wiring inside the MDU building: (i) to remove the  d(#wiring and restore the MDU building consistent with state law within 30 days of the end of the 90day  d(#notice period or within 30 days of actual service termination, whichever occurs first; (ii) to abandon and  d(#not disable the wiring at the end of the 90day notice period; or (iii) to sell the wiring to the MDU  d(#building owner. If the incumbent provider elects to remove or abandon the wiring, and it intends to  d(#terminate service before the end of the 90day notice period, the incumbent provider shall notify the MDU  d(#owner at the time of this election of the date on which it intends to terminate service. If the incumbent  d(#provider elects to remove its wiring and restore the building consistent with state law, it must do so within  d(#30 days of the end of the 90day notice period or within 30 days of actual service termination, which ever  d(#=occurs first. For purposes of abandonment, passive devices, including splitters, shall be considered part  Sp- d(#of the home run wiring. The incumbent provider that has elected to abandon its home run wiring may  d(#remove its amplifliers or other active devices used in the wiring if an equivalent replacement can easily  d(#be reattached. In addition, an incumbent provider removing any active elements shall comply with the  d(#lnotice requirements and other rules regarding the removal of home run wiring. If the MDU owner  d(#declines to purchase the home run wiring, the MDUowner may permit an alternative provider that has been authorized to provide service to the MDU to negotiate to purchase the wiring.  v (2) If the incumbent provider elects to sell the home run wiring under paragraph (a)(1), the  d(#incumbent and the MDU owner or alternative provider shall have 30 days from the date of election to  d(#negotiate a price. If the parties are unable to agree on a price within that 30day time period, the  d(#incumbent must elect: (i) to abandon without disabling the wiring; (ii) to remove the wiring and restore  d(#the MDU consistent with state law; or (iii) to submit the price determination to binding arbitration by an  d(#independent expert. If the incumbent provider chooses to abandon or remove its wiring, it must notify  d(#the MDU owner at the time of this election if and when it intends to terminate service before the end of  d(#ythe 90day notice period. If the incumbent service provider elects to abandon its wiring at this point, the  d(#abandonment shall become effective at the end of the 90day notice period or upon service termination,  d(#Lwhichever occurs first. If the incumbent elects at this point to remove its wiring and restore the building  d(#consistent with state law, it must do so within 30 days of the end of the 90day notice period or within 30 days of actual service termination, which ever occurs first.  v (3) If the incumbent elects to submit to binding arbitration, the parties shall have seven days to  d(#agree on an independent expert or to each designate an expert who will pick a third expert within an  d(#additional seven days. The independent expert chosen will be required to assess a reasonable price for  d(#ythe home run wiring by the end of the 90day notice period. If the incumbent elects to submit the matter  d(#]to binding arbitration and the MDU owner (or the alternative provider) refuses to participate, the  d(#incumbent shall have no further obligations under the Commission's home run wiring disposition  d(#/procedures. If the incumbent fails to comply with any of the deadlines established herein, it shall be deemed to have elected to abandon its home run wiring at the end of the 90day notice period.  v !(4) The MDU owner shall be permitted to exercise the rights of individual subscribers under this  d(#subsection for purposes of the disposition of the cable home wiring under Section 76.802. When an MDU  d(#owner notifies an incumbent provider under this section that the incumbent provider's access to the entire  d(#building will be terminated and that the MDU owner seeks to use the home run wiring for another service,  d(#the incumbent provider shall, in accordance with our current home wiring rules: (1) offer to sell to the  d(#MDU owner any home wiring within the individual dwelling units that the incumbent provider owns and  d(#intends to remove; and (2) provide the MDU owner with the total perfoot replacement cost of such home  d(#wiring. This information must be provided to the MDU owner within 30 days of the initial notice that"&*,`(`(88n("  d(#the incumbent's access to the building will be terminated. If the MDU owner declines to purchase the  d(#cable home wiring, the MDU owner may allow the alternative provider to purchase the home wiring upon  d(#service termination under the terms and conditions of Section 76.802. If the MDU owner or the  d(#alternative provider elects to purchase the home wiring under these rules, it must so notify the incumbent  d(#MVPD provider not later than 30 days before the incumbent's termination of access to the building will  d(#become effective. If the MDU owner and the alternative provider fail to elect to purchase the home  d(#wiring, the incumbent provider must then remove the cable home wiring, under normal operating  d(#conditions, within 30 days of actual service termination, or make no subsequent attempt to remove it or to restrict its use. (5) The parties shall cooperate to avoid disruption in service to subscribers to the extent possible.  S - v N(b) Unitbyunit disposition of home run wiring: (1) Where an MVPD owns the home run wiring  d(#zin an MDU and does not (or will not at the conclusion of the notice period) have a legally enforceable  d(#right to maintain any particular home run wire dedicated to a particular unit on the premises against the  d(#MDU owner's wishes, the MDU owner may permit multiple MVPDs to compete for the right to use the  d(#individual home run wires dedicated to each unit in the MDU. The MDU owner must provide at least  d(#60 days' written notice to the incumbent MVPD of the MDU owner's intention to invoke this procedure.  d(#[The incumbent MVPD will then have 30 days to provide a single written election to the MDU owner as  d(#to whether, for each and every one of its home run wires dedicated to a subscriber who chooses an  d(#alternative provider's service, the incumbent MVPD will: (i) remove the wiring and restore the MDU  d(#building consistent with state law; (ii) abandon the wiring without disabling it; or (iii) sell the wiring to  d(#the MDU owner. If the MDU owner refuses to purchase the home run wiring, the MDU owner may  d(#zpermit the alternative provider to purchase it. If the alternative provider is permitted to purchase the  d(#Mwiring, it will be required to make a similar election within this 30day period for each home run wire solely dedicated to a subscriber who switches back from the alternative provider to the incumbent MVPD.  v (2) If the incumbent provider elects to sell the home run wiring under paragraph (b)(1), the  d(#incumbent and the MDU owner or alternative provider shall have 30 days from the date of election to  d(#negotiate a price. During this 30day negotiation period, the parties may arrange for an upfront lump sum  d(#payment in lieu of a unitbyunit payment. If the parties are unable to agree on a price during this 30day  d(#Mtime period, the incumbent must elect: (i) to abandon without disabling the wiring; (ii) to remove the  d(#wiring and restore the MDU consistent with state law; or (iii) to submit the price determination to binding  d(#yarbitration by an independent expert. If the incumbent elects to submit to binding arbitration, the parties  d(#shall have seven days to agree on an independent expert or to each designate an expert who will pick a  d(#third expert within an additional seven days. The independent expert chosen will be required to assess  d(#a reasonable price for the home run wiring within 14 days. If subscribers wish to switch service providers  d(#after the expiration of the 60day notice period but before the expert issues its price determination, the  d(#procedures set forth in paragraph (b)(3) shall be followed, subject to the price established by the arbitrator.  d(#If the incumbent elects to submit the matter to binding arbitration and the MDU owner (or the alternative  d(#.provider) refuses to participate, the incumbent shall have no further obligations under the Commission's home run wiring disposition procedures.  v (3) When an MVPD that is currently providing service to a subscriber is notified either orally or  d(#in writing that that subscriber wishes to terminate service and that another service provider intends to use  d(#the existing home run wire to provide service to that particular subscriber, a provider that has elected to  d(#\remove its home run wiring pursuant to paragraph (b)(1) or (b)(2) will have seven days to remove its"&*,`(`(88n("  d(#home run wiring and restore the building consistent with state law. If the subscriber has requested service  d(#termination more than seven days in the future, the sevenday removal period shall begin on the date of  d(#actual service termination (and, in any event, shall end no later than seven days after the requested date  d(#=of termination). If the provider has elected to abandon or sell the wiring pursuant to paragraph (b)(1) or  d(#N(b)(2), the abandonment or sale will become effective upon actual service termination or upon the  d(#requested date of termination, whichever occurs first. For purposes of abandonment, passive devices,  S- d(#including splitters, shall be considered part of the home run wiring. The incumbent provider may remove  d(#?its amplifliers or other active devices used in the wiring if an equivalent replacement can easily be  d(#reattached. In addition, an incumbent provider removing any active elements shall comply with the notice  d(#requirements and other rules regarding the removal of home run wiring. If the incumbent provider intends  d(#to terminate service prior to the end of the sevenday period, the incumbent shall inform the party  d(#requesting service termination, at the time of such request, of the date on which service will be terminated.  d(# The incumbent provider shall make the home run wiring accessible to the alternative provider within twentyfour (24) hours of actual service termination.  v |(4) If the incumbent provider fails to comply with any of the deadlines established herein, the  d(#home run wiring shall be considered abandoned, and the incumbent may not prevent the alternative  d(#[provider from using the home run wiring immediately to provide service. The alternative provider or the  d(#MDU owner may act as the subscriber's agent in providing notice of a subscriber's desire to change  d(#services, consistent with state law. If a subscriber's service is terminated without notification that another  d(#service provider intends to use the existing home run wiring to provide service to that particular  d(#subscriber, the incumbent provider will not be required to carry out its election to sell, remove or abandon  d(#zthe home run wiring; the incumbent provider will be required to carry out its election, however, if and  d(#when it receives notice that a subscriber wishes to use the home run wiring to receive an alternative  d(#\service. Section 76.802 of the Commission's rules regarding the disposition of cable home wiring will  d(#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. (5) The parties shall cooperate to avoid disruption in service to subscribers to the extent possible.  v (6) Section 76.802 of the Commission's 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.  v (c) The procedures set forth in paragraphs (a) and (b) shall apply unless and until the incumbent  d(#\provider obtains a court ruling or an injunction within fortyfive (45) days following the initial notice enjoining its displacement.  v (d) After the effective date of this rule, MVPDs shall include a provision in all service contracts  d(#entered into with MDU owners setting forth the disposition of any home run wiring in the MDU upon the termination of the contract.  v "(e) Incumbents are prohibited from using any ownership interest they may have in property  d(#located on or near the home run wiring, such as molding or conduit, to prevent, impede, or in any way interfere with, the ability of an alternative MVPD to use the home run wiring pursuant to this section. (f) Section 76.804 shall apply to all MVPDs. "&*,`(`(88n("Ԍ S-9.` ` Section 76.805 is added to read as follows: Sec. 76.805 Access to molding.  v }(a) An MVPD shall be permitted to install one or more home run wires within the existing  d(#[molding of an MDU where the MDU owner finds that there is sufficient space to permit the installation  d(#.of the additional wiring without interfering with the ability of an existing MVPD to provide service, and  d(#gives its affirmative consent to such installation. This paragraph shall not apply where the incumbent provider has an exclusive contractual right to occupy the molding.  v (b) If an MDU owner finds that there is insufficient space in existing molding to permit the  d(#installation of the new wiring without interfering with the ability of an existing MVPD to provide service,  d(# but gives its affirmative consent to the installation of larger molding and additional wiring, the MDU  d(#owner (with or without the assistance of the incumbent and/or the alternative provider) shall be permitted  d(#to remove the existing molding, return such molding to the incumbent, if appropriate, and install additional  d(#jwiring and larger molding in order to contain the additional wiring. This paragraph shall not apply where  d(#kthe incumbent provider possesses a contractual right to maintain its molding on the premises without alteration by the MDU owner.  v ](c) The alternative provider shall be required to pay any and all installation costs associated with  d(#=the implementation of paragraphs (a) or (b), including the costs of restoring the MDU owner's property  d(#to its original condition, and the costs of repairing any damage to the incumbent provider's wiring or other property.  S@-10.` ` Section 76.806 is added to read as follows: Sec. 76.806 Pre-termination access to cable home wiring.  v (a) Prior to termination of service, a customer may: (1) install or provide for the installation of  d(#their own cable home wiring; or (2) connect additional home wiring, splitters or other equipment within  d(#\their premises to the wiring owned by the cable operator, so long as no electronic or physical harm is caused to the cable system and the physical integrity of the cable operator's wiring remains intact.  v ^(b) Cable operators may require that home wiring (including passive splitters, connectors and  d(#jother equipment used in the installation of home wiring) meets reasonable technical specifications, not to  d(#=exceed the technical specifications of such equipment installed by the cable operator; provided however,  d(#that if electronic or physical harm is caused to the cable system, the cable operator may impose additional  d(#technical specifications to eliminate such harm. To the extent a customer's installations or rearrangements  d(#kof wiring degrade the signal quality of or interfere with other customers' signals, or cause electronic or  d(#physical harm to the cable system, the cable operator may discontinue service to that subscriber until the degradation or interference is resolved.  v m(c) Customers shall not physically cut, substantially alter, improperly terminate or otherwise destroy cable operatorowned home wiring. " %*,`(`(88&"  S-  ` APPENDIX B Parties that Filed Comments and Reply Comments  S-  S`-  S8- v @Note: XIf no abbreviation appears in parentheses following the full name, the full name is used in this  S-Order and Second Further Notice.(#  S- Comments in CS Docket No. 95184 Adelphia Communications Corp. (Adelphia) Ameritech, Inc. (Ameritech) AT&T Corp. (AT&T) BellSouth Corp. and BellSouth Telecommunications, Inc. (BellSouth) Building Industry Consulting Service International (Building Industry Consulting) Building Owners and Managers Association International, National Realty Committee, National Multi Housing Council, National Apartment Association, Institute of Real Estate Management and National Assocation of Home Builders (Building Owners, etal.) Cable Telecommunications Assocation (CATA) CAI Wireless Charter Communications & Comcast Cable (Charter/Comcast) Cincinnati Bell Telephone Company (Cincinnati Bell) Circuit City Stores, Inc. (Circuit City) Compaq Computer Corp. (Compaq) Consumer Electronics Manufacturers Assocation (CEMA) Consumer Project on Technology Continental Cablevision, Inc. and Cablevision Systems Corp. (Continental/Cablevision) Cox Communications, Inc. (Cox) DIRECTV, Inc. (DIRECTV) General Instrument Corp. (General Instrument)  d(#.GTE Service Corp., on behalf of its domestic telephone operating companies and GTE Media Ventures, Inc. (GTE) Guam Cable TV Heartland Wireless Independent Cable & Telecommunications Association (ICTA) Independent Data Communications Manufacturers Association (Independent Data Comm. Mfrs. Assn.) Information Technology Industry Council (Info. Tech. Industry Council) Interactive Cable Systems, Inc. and ActiveTel. L.D., Inc. (Interactive Cable/ActiveTel) International Council of Shopping Centers (Shopping Centers) Liberty Cable Company (Liberty)  d(#Marcus Cable Company; American Cable Entertainment; Greater Media, Inc.; Cable Television  v lXAssociation of Maryland, Delaware and the District of Columbia; Cable Television Assocation of  v 0Georgia; Minnesota Cable Communications Association; New Jersey Cable Telecommunications  v !Association; Ohio Cable Telecommunications Assocation; Oregon Cable Television Association;  v ]South Carolina Cable Television Association; Tennessee Cable Television Association; and Texas Cable TV Association (Joint Cable Parties)(# Media Access Project and Consumer Federation of America (Media Access/CFA) MFS Communications Company, Inc. (MFS)"(*,**880*"ԌMotorola, Inc. (Motorola) Multimedia Development Corp. (Multimedia Development) MultiTechnologies Services, L.P. (MultiTechnologies Services) National Association of Realtors (NAR) National Cable Television Association (NCTA) National Private Telecommunications Association (NPTA) 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)  d(#People of the State of California and the Public Utilities Commission of the State of California (California PUC) Printz, Michael (Mr. Michael Printz) R & B Realty Group (R&B Realty) Residential Communications, Inc. (RCN) Riser Management Systems, L.P. (Riser Mgmt.) Siecor Corp. (Siecor) State of New Jersey Board of Public Utilities (New Jersey BPU) State of New Jersey, Department of the Treasury, Division of the Ratepayer Advocate (New Jersey Ratepayer Advocate) Stellarvision Tandy Corp. (Tandy) TeleCommunications, Inc. (TCI) Telecommunications Industry Association/User Premises Equipment Division (TIA) Time Warner Cable and Time Warner Communications (Time Warner) TKR Cable Company (TKR) United States Telephone Association (USTA) U S West, Inc. (U S West) UTC, the Telecommunications Association (UTC) Wireless Cable Association International, Inc. (WCA)  S- Informal Comments in CS Docket No. 95184 1st Lake Properties, Inc. (1st Lake Properties) 101 Hudson Leasing Associates (101 Housing) Accredited Management Organization (Accredited Mgmt.) Adler Management Services, Inc. (Adler Mgmt.) AlanBen Properties, Inc. (AlanBen Properties) Albert B. Ashforth, Inc. (Albert B. Ashforth) Allen Morris Company (Allen Morris) American Apartment Communities (American Apts.) American Baptist Homes of the West AMLI Residential Amurcon Corporation (Amurcon) Andrews, Victoria (Ms. Victoria Andrews) Anthem Equity Group, Inc."&*,`(`(88n("ԌApartment Investment and Management Company (AimCo) Aransas Princess Condominiums Homeowners Association (Aransas Princess Assn.) The Armiger Group Ash Tree Apartments (Ash Tree Apts.) Asset Management & Consulting Services, Inc. (Asset Mgmt. & Consulting) Atlanta Apartment Association (Atlanta Apt. Assn.) Avalon Properties Avery Construction Company (Avery Construction) Bankers Trust Company (Bankers Trust) Beacon Centre Beacon Properties, L.P. (Beacon Properties) BenSteele Properties BOMA of Chicago (Chicago BOMA) Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone (Brach, Eichler, et al.) Brandel, Nancy (Ms. Nancy Brandel) Brookfield Management Colorado, Inc. (Brookfield Mgmt.) Building Owners and Managers Association of Greater Miami, Inc. (Miami BOMA) Building Owners and Managers Association of Southern California (So. California BOMA) Building Owners and Managers Association of Metropolitan St. Louis (St. Louis BOMA) Calders Corner Apartments (Calders Corner Apts.) Cambridge Square Candlestick Apartments (Candlestick Apts.) Center Management Corp. (Center Mgmt.) Centrefirst Management Corp. (Centrefirst Mgmt.) Charles Dunn Company (Charles Dunn) Charles E. Smith Realty Companies (Charles E. Smith Realty) Clark Realty Capital, LLC (Clark Realty) Clinton International Group, Inc. (Clinton International) Codina Real Estate Management, Inc. (Codina Mgmt.) Colliers ABR, Inc. (Colliers ABR) Colonial American Development Corp. (Colonial American) Colonial Manor Apartments (Colonial Manor Apts.) Columbus Realty Trust (Columbus Realty) Community Associations Institute Community Housing Improvement Program, Inc. (CHIP) Compass Management and Leasing, Inc. (Compass Mgmt.) Corum Real Estate Group (Corum Real Estate) Court Street East, Ltd. (Court Street) Courtyard Place Crossings Dayton Power & Light Company (DP&L) Dietrich Apartments (Dietrich Apts.) Dominion Management, Inc. (Dominion Mgmt.) D Squared Duke Realty Investments (Duke Realty) Eakin & Smith, Inc. (Eakin & Smith) 81st Street Realty Company (81st Street Realty)"&*,`(`(88n("ԌEnglish Village Apartments (English Village Apts.) Equitable Real Estate Investment Management, Inc. (Equitable Real Estate) Faison FDC Management, Inc. (FDC Mgmt.) First Capital Corp. (First Capital) First Union Management Inc. (First Union Mgmt.) Flourney Properties, Inc. (Fourney Properties) Four Seasons Apartments (Four Seasons Apts.) Galbreath Company (Galbreath) Gebhart Management, Inc. (Gebhart Mgmt.) Georgia Apartment Association (Georgia Apt. Assn.) Glenwood Management Corp. (Glenwood Mgmt.) Glick, Gene B. (Mr. Gene Glick) Goodman Segar Hogan Hoffler (Goodman Segar) Gorsuch Management (Gorsuch Mgmt.) Green Oaks Apartments (Green Oaks Apts.) Greensview Apartments (Greensview Apts.) Hall, M. Wesley, III and Wall, Thomas Patrick, III (Messrs. Wesley Hall and Thomas Wall) Hampton Enterprises Harbert Properties Corporation (Harbert Properties) Harbor Village Apartments (Harbor Village Apts.) Harris Group Haygood Management Company (Haygood Mgmt.) H&M Management Company (H&M Mgmt.) Hickory Woods Highpoint Home Builders Association of Maryland (Maryland Home Builders Assn.) Host Apartments (Host Apts.) HRO International Huntington Insignia Management Group (Insignia Mgmt.) Institute of Real Estate Management (Institute of Real Estate Mgmt.) IPM Real Estate Services, Inc. (IPM Real Estate) Jack Resnick & Sons, Inc. (Jack Resnick & Sons) Jacobs Development Company (Jacobs Development) Jefferson West Apartments (Jefferson West Apts.) John Alden Life Insurance Company (John Alden Life) John Hancock Mutual Life Insurance Company (John Hancock Life) JonMark Properties LLC (JonMark Properties) Jupiter Western National Keptel, an Antec Company (Keptel) Keystone Realty, Inc. (Keystone Realty) Kings Point Apartments (Kings Point Apts.) Koll Real Estate Services Company (Koll Real Estate) Lafayette Place Condominiums LaFontenay Apartments (LaFontenay Apts.) Lakeside Luxury Living (Lakeside)"&*,`(`(88n("ԌLake Terrace Gardens Lane Company LaSalle Partners L&B Multifamily Advisors, Inc. (L&B Advisors) LCOR, Inc. (LCOR) Ledic Management Group (Ledic Mgmt.) Legow Management Company (Legow Mgmt.) Live Oaks Properties Lockwood Group Lowe Enterprises Colorado, Inc. (Lowe Enterprises) Management Services Corporation I (Mgmt. Services I) Management Services Corporation II (Mgmt. Services II) Mara Enterprises, Inc. (Mara Enterprises) MarRayAsh Plaza, Inc. (MarRayAsh Plaza) MarRayPCP 1500, Inc. (MarRayPCP 1500) Massachusetts Institute of Technology (MIT) Mathews, Click, Bauman, Inc. (Mathews, Click, et al.) MatthewsBrown Contractors, Inc. (MatthewsBrown) Meadow Run Apartments (Meadow Run Apts.) Meca Properties MEGA Corporation (MEGA) Mendik Company, Inc. (Mendik) Mendik Realty Company, Inc. (Mendik Realty) Metropolitan Life Insurance Corp., Corporate Property Management (MetLife) Mid State Management Corp. (Mid State Mgmt.) Mink and Mink, Inc. (Mink & Mink) Edward J. Minskoff Equities, Inc. Missouri Apartment Association (Missouri Apt. Assn.) MPMS, Inc. Murray Land Clearing National Association of Industrial and Office Properties (NAIOP) National Assocation of Real Estate Investment Trusts (National Assn. of REITs) Network Property Services (Network Property) New Plan Realty Trust (New Plan Realty) NHP Incorporated (NHP) Niles Investment Corp. (Niles Investment) 92nd Realty Co. Norman Management Company (Norman Mgmt.) Norris & Stevens North Village Apartments (North Village Apts.) NP Dodge Management Company, Inc. (NP Dodge Mgmt.) O'Conor Real Estate Management (O'Conor Real Estate) One Brickell Square Oxford Hill Apartments (Oxford Hill Apts.) Pace Realty Corporation (Pace Realty) Pache Management Company, Inc. (Pache Mgmt.) Pacific Tower Properties "&*,`(`(88n("ԌParamount Group, Inc. (Paramount) Partners Management Company (Partners Mgmt.) Patriot American Pecan Valley Apartments (Pecan Valley Apts.) Picor Commercial Real Estate Services (Picor Real Estate) Pleasanton Village Apartments (Pleasanton Village Apts.) Preston Square Apartments (Preston Square Apts.) Rafanelli, Nahas & Ambrose Real Estate Development (Rafanelli, et al., Real Estate) Real Estate Board of New York, Inc. Regent Management, Inc. (Regent Mgmt.) Robbins Realty Rose's Down Home Cleaning (Rose's Cleaning) RTE Group, Inc. (RTE Group) Sandor, Gress & Company (Sandor, Gress) Santa Fe Apartments (Santa Fe Apts.) Schuparra Properties Sentinel Real Estate Corporation (Sentinel Real Estate) 79th Realty Co. Signature Silverstein Properties 650 Fifth Avenue Company SNK Realty Group (SNK Realty) Soniat Realty Inc. (Soniat Realty) South Park Apartments (South Park Apts.) Southern Engineering Corporation (Southern Engineering) Southridge Manor Apartments (Southridge Manor Apts.) Spokane Building Owners and Managers Association (Spokane BOMA) Springfield Public Storage Summit Properties SunTrust Bank, Central Florida, N.A. (SunTrust Bank) Sylvan Lawrence Company, Inc. (Sylvan Lawrence) Tarragon Realty Advisors, Inc. (Tarrogon Realty) Teligent, L.L.C. (Teligent) Terry Johnson & Associates, Inc. (Terry Jonson & Assoc.) Thomas Group, Inc. (Thomas Group) Thompson Place Apartments (Thompson Place Apts.) Timberweld Laminated Structural Wood (Timberweld) Time Group TishmanSpeyer Properties, Inc. (TishmanSpeyer Properties) Tomlinson Black Management, Inc. (Tomlinson Black Mgmt.) Town & Country Apartments (Town & Country Apts.) Town Homes Management Inc. (Town Homes Mgmt.) Trammell Crow Dallas Transwestern Property Company (Transwestern Property) Trump Managment, Inc. (Trump Mgmt.) Tuck Investments and Rental Properties (Tuck Properties) Tulsa Properties Management, Inc. (Tulsa Properties) "&*,`(`(88n("Ԍ1221 Brickell United Dominion Realty Trust (United Dominion Realty) ViewPointe Villa del Lago Apartments (Villa del Lago Apts.) Villages of Thousand Oaks, Texas (Thousand Oaks) Vinings Group VRS Realty Services Florida, Inc. (VRS Realty) Wallick Companies Washington Place Management (Washington Place Mgmt.) Weeks Corporation West Group, Inc. (West Group) West World Management, Inc. (West World Mgmt.) Western National Property Management (Western Nat'l Property Mgmt.) Wildwood Management Group (Wildwood Mgmt.) WinStar Communications, Inc. (WinStar) Woodmont Real Estate Services (Woodmont Real Estate) Woodrow Apartments (Woodrow Apts.) Yarmouth Group, Inc. (Yarmouth Group) ZehmanWolf Management, Inc. (ZehmanWolf Mgmt.)  S- Reply Comments in CS Docket No. 95184 Ameritech, Inc. (Ameritech) Armstrong Holdings, Inc. (Armstrong) AT&T Corp. (AT&T) Bartholdi Cable Company, Inc. (Bartholdi) Bell Atlantic Telephone Companies (Bell Atlantic) Building Industry Consulting Service International (Building Industry Consulting)  d(#Building Owners and Managers Association International, National Realty Committee, National Multi  v XHousing Council, National Apartment Association, Institute of Real Estate Management and National Association of Real Estate Investment Trusts (Building Owners, etal.)(# Cable Telecommunications Assocation (CATA) Chudnow, Law Office of David (Mr. David Chudnow) Circuit City Stores, Inc. (Circuit City) Consumer Electronics Manufacturers Assocation (CEMA) Continental Cablevision, Inc. and Cablevision Systems Corp. (Continental/Cablevision) Cox Communications, Inc. (Cox) DIRECTV, Inc. (DIRECTV) Echelon Corporation (Echelon) General Instrument Corp. (General Instrument)  d(#.GTE Service Corp., on behalf of its domestic telephone operating companies and GTE Media Ventures, Inc. (GTE) Independent Cable & Telecommunications Association (ICTA)  d(#Marcus Cable Company; American Cable Entertainment; Greater Media, Inc.; Cable Television  v lXAssociation of Maryland, Delaware and the District of Columbia; Cable Television Assocation of  v 0Georgia; Minnesota Cable Communications Association; New Jersey Cable Telecommunications"&*,`(`(88n("  v !Association; Ohio Cable Telecommunications Assocation; Oregon Cable Television Association;  v ]South Carolina Cable Television Association; Tennessee Cable Television Association; and Texas Cable TV Association (Joint Cable Parties)(# Media Access Project and Consumer Federation of America (Media Access/CFA) MCI Telecommunications Corporation and MCImetro (MCI) MFS Communications Company, Inc. (MFS) Multimedia Development Corp. (Multimedia Development) National Cable Television Association, Inc. (NCTA) National Private Telecommunications Association (NPTA) National Telephone Cooperative Association (NTCA) Optel, Inc. (Optel) Pacific Bell and Pacific Telesis Video Services (PacTel) Residential Communications, Inc. (RCN) Riser Management Systems (Riser Mgmt.) RTE Group, Inc. (RTE Group) SBC Communications, Inc. (SBC) ScientificAtlanta, Inc. (ScientificAtlanta) Siecor Corp. (Siecor) Southern New England Telecommunications Corp. (SNET) State of Florida Public Service Commission (Florida PSC) State of New York Department of Public Service (New York DPS) State of Texas Office of Administrative Hearings (Texas OAH) Tandy Corp. (Tandy) Telecommunications Industry Association/User Premises Equipment Division (TIA) TKR Cable Company (TKR) Time Warner Cable and Time Warner Communications (Time Warner) United States Telephone Association (USTA) Wireless Cable Association International, Inc. (WCA) Wireless Holdings, Inc. (Wireless Holdings)  S(- Comments in MM Docket No. 92260 Ameritech New Media, Inc. (Ameritech) 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) Charter Communications, Inc., and Comcast Cable Communications, Inc. (Charter/Comcast) Consumer Electronics Manufacturers Association (CEMA) Cox Communications, Inc. (Cox) GTE Service Corporation (GTE) Guam Cable TV Independent Cable and Telecommunications Association (ICTA) Interactive Cable Systems, Inc., and ActiveTel, L.D., Inc. (Interactive/ActiveTel) Liberty Cable Company, Inc. (Liberty)"&*,`(`(88n("ԌMultiTechnologies Services, L.P. (MultiTechnologies) National Cable Television Association (NCTA) New Jersey Office of the Ratepayer Advocate (New Jersey Ratepayer Advocate) New York City Department of Information Technology and Telecommunications (New York City) NYNEX Telephone Companies (NYNEX) OpTel, Inc. (OpTel) Pacific Bell and Pacific Telesis (PacTel) R&B Realty Group, d/b/a R&B Cable Company (R&B Realty) Residential Communications Network, Inc. (RCN) Stellarvision TeleCommunications, Inc. (TCI) Time Warner Cable (Time Warner) United States Telephone Association (USTA) Wireless Cable Association International, Inc. (WCA)  SX- Reply Comments in MM Docket No. 92260 Ameritech New Media, Inc. (Ameritech) Armstrong Holdings, Inc. (Armstrong) Bartholdi Cable Company, Inc. (Bartholdi) Cable Telecommunications Association (CATA) Cox Communications, Inc. (Cox) Marcus Cable Co., American Cable Entertainment, Greater Media, Inc., TCA Cable TV, Inc.,  v XCable Television Association of Maryland, Delaware and the District of Columbia, Cable  v Television Association of Georgia, Minnesota Cable Communications Association, New Jersey  v |Cable Telecommunications Association, Ohio Cable Telecommunications Association, Oregon  v ?Cable Telecommunications Association, South Carolina Cable Television Association, Tennessee  v !Cable Television Association, and Texas Cable Telecommunications Association (Marcus Cable, et al.)(# MultiMedia Development Corp. (MultiMedia Development) National Cable Television Association, Inc. (NCTA) New York State Department of Public Service (New York DPS) OpTel, Inc. (OpTel) Pacific Bell and Pacific Telesis (PacTel) Southern New England Telecommunications Corporation (SNET) Time Warner Cable (Time Warner) Wireless Cable Association International, Inc. (WCA)  S"- Comments on Initial Regulatory Flexibility Analysis Building Owners and Managers Association International, National Realty Committee,  v }XNational Multi Housing Council, National Apartment Association, Institute of Real Estate Management, and National Assocation of Home Builders (Building Owners, et al.)(# Cable Telecommunications Assocation (CATA)"&*,`(`(88n("ԌRTE Group, Inc. (RTE Group)  S-   Further Comments Adelphia Cable Communications, Arizona Cable Telecommunications Association, Cable One,  v XInc., Insight Communications Company, L.P., Pennsylvania Cable and Telecommunications Association, State Cable TV Corporation, Suburban Cable TV Co. Inc. (Adelphia, et al.)(# Ameritech Building Owners and Managers Association International, Institute of Real Estate  v XManagement, International Council of Shopping Centers, National Apartment Association, National Multi Housing Council and National Realty Committee (Building Owners, et al.)(# CableVision Communications, Inc., Classic Cable Inc, and Comcast Cable Communications  S - (Comcast, et al.) Cablevision Systems Corporation (Cablevision Systems) Cable Telecommunications Association (CATA) Community Associations Institute Consumer Electronics Manufacturers Association (CEMA) DIRECTV, Inc. (DIRECTV) Echostar Communications Corporation (Echostar) GTE Heartland Wireless Communications, Inc. (Heartland) Independent Cable and Telecommunications Association (ICTA) Jones Intercable, Marcus Cable, Century Communications Corp., Charter Communications,  v {XInc., Cable Television Asso. of Georgia, Cable Telecommunications Asso. of Maryland, Delaware  v and the District of Columbia, Florida Cable Telecommunications Association, New Jersey Cable  v |Telecommunications Association, Ohio Cable Telecommunications Association, Oregon Cable  v ?Telecommunications Association, South Carolina Cable Television Association, Tennessee Cable  v Telecommunications Association, Texas Cable & Telecommunications Association, Virginia Cable Telecommunications Association (Jones Intercable, et al.)(# Leaco Rural Telephone Cooperative, Inc. (Leaco) Media Access Project and Consumer Federal of America (Media Access/CFA) National Association of Broadcasters (NAB) National Association of Realtors (Nat'l Assn. of Realtors) National Cable Television Association, Inc. (NCTA) OpTel, Inc. (OpTel) Philips Electronics North America Corporation and Thomson Consumer Electronics, Inc. (Philips, et al.) RCN Telecom Services (RCN) SBC Communications, Inc. (SBC) Skyzone Media Access (Skyzone) State of New York Department of Public Service (New York DPS) TeleCommunications, Inc. (TCI) Time Warner Cable (Time Warner) U S West, Inc. (U S West) Wireless Cable Association International, Inc. (WCA)  S&-  "&*,`(`(88n("Ԍ S- Further Reply Comments Bell Atlantic  d(#Building Owners and Managers Association International, Institute of Real Estate Management,  v XInternational Council of Shopping Centers, National Apartment Association, National Multi Housing Council and National Realty Committee (Building Owners, et al.)(#  d(#CableVision Communications, Inc., Classic Cable, Inc., and Comcast Cable Communications (Comcast, et al.) Community Associations Institute Consumer Electronics Manufacturers Association (CEMA) Cox Communications, Inc. (Cox) DIRECTV, Inc. (DIRECTV) Independent Cable & Telecommunications Association (ICTA) Information Technology Industry Council (Info. Tech. Industry Council)  d(#Jones Intercable, Marcus Cable, Century Communications Corp., Charter Communications, Inc., New  v XJersey Cable Telecommunications Association, Oregon Cable Telecommunications Association,  v ?South Carolina Cable Television Association, Tennessee Cable Telecommunications Association,  v ]Texas Cable & Telecommunications Association, Virginia Cable Telecommunications Association (Jones Intercable, et al.)(# National Cable Television Association, Inc. (NCTA) National Rural Telecommunications Cooperative (Nat'l Rural Telecom. Coop.) North Carolina Cable Telecommunications Association (North Carolina Cable Assn.) Philips Electronics North America Corporation and Thomson Consumer Electronics, Inc. (Philips, et al.) Telebeam, Inc. (Telebeam) TeleCommunications, Inc. (TCI) Time Warner Cable (Time Warner) United States Satellite Broadcasting Company, Inc. (USSB) United States Wireless Systems, Inc., and Ohio Valley Wireless, Inc. (U.S. Wireless/Ohio Valley Wireless)