PUBLIC NOTICE FEDERAL COMMUNICATIONS COMMISSION 1919 M STREET, N.W. WASHINGTON, D.C. 20554 DA 98-687 News media information 202/418-0500 Fax-On-Demand 202/418-2830 Internet: http://www.fcc.gov ftp.fcc.gov CABLE SERVICES ACTION April 10, 1998 "RESTRICTED PROCEEDINGS" EX PARTE PROCEDURES ESTABLISHED FOR WEDGEWOOD COMMUNICATIONS CERTIFICATION APPLICATION AS WELL AS FOR THE MOTION FOR DECLARATORY RULING FILED BY ENTERTAINMENT CONNECTIONS, INC. Entertainment Connections, Inc. ("ECI") has filed a motion pursuant to Section 1.2 of the Commission's rules (47 C.F.R. 1.2) for a declaratory ruling that it is not required to obtain a cable television franchise pursuant to Section 621 of the Communications Act (47 U.S.C. 541) under the following circumstances: ECI currently purchases service offered by common carriers whereby video programming is transmitted through the common carriers' facilities before connecting to ECI's facilities inside the private property line for ultimate distribution to subscribers. ECI states that the video programming transmission service complies with all Title II requirements and is provided on a common carrier basis. ECI maintains that it is not a cable operator and not required to obtain a franchise because its facilities are located entirely on private property and the common carriers retain ownership, control, and responsibility for all facilities located outside of the private property line. Wedgewood Communications Company ("Wedgewood"), provides video programming distribution using common carrier service. Wedgewood has filed comments and reply comments supporting ECI's motion. Wedgewood also filed an application for certification to operate as an open video system in the City of Chicago, Illinois. The Cable Services Bureau ("Bureau") rejected Wedgewood's certification without prejudice finding that an issue existed regarding Wedgewood's candor regarding its current regulatory status in completing the open video certification application. Wedgewood refiled its open video certification application. The Bureau rejected Wedgewood's second application because of the uncertain status of its cable franchise negotiations with the City of Chicago, as well as the unresolved allegations that Wedgewood was an unfranchised cable operator ineligible to become an open video system operator. Wedgewood filed an application for review of both of the Bureau's orders denying Wedgewood's open video system applications. On December 29, 1997, the Bureau issued a Public Notice in which it determined, pursuant to its authority under Section 1.1200(a), that both the ECI and Wedgewood proceedings would be treated the same for ex parte purposes subjecting both proceedings to the "permit but disclose" procedural requirements of Section 1.1206. The Bureau determined that ECI's declaratory motion and Wedgewood's certification application proceeding raised policy issues relating to regulatory status and the need to obtain a cable franchise, the resolution of which could have significant impact on the public interest. In order to ensure the staff's ability to discuss and obtain the information needed to resolve the issues raised expeditiously, as well as to reduce possible confusion and uncertainty as to the applicability of the ex parte rules to these proceedings, the Bureau adopted modified ex parte procedures. By order released January 6, 1998, the Bureau granted the unopposed joint motion submitted by Wedgewood and the City of Chicago to temporarily stay Wedgewood's application for review proceedings. The stay is currently still in effect. At this point in each proceeding, having had the benefit of extensive public comment through the filing of formal comments and reply comments in response to ECI's motion and Wedgewood's two open video system certification applications and the submission of numerous of ex parte letters and presentations, we believe it appropriate to convert both proceedings to restricted status. This action is necessary to enable the Commission staff to evaluate the record and proceed to resolve ECI's motion. Accordingly, pursuant to Section 1.1200(a), we convert these proceedings to the status of "restricted proceeding" for purposes of ex parte presentations (47 C.F.R. 1.1208). Under Section 1.1202(b) of the Commission's rules, an "ex parte presentation" is defined as any presentation which: "(1) if written, is not served on the parties to the proceeding; or (2) if oral, is made without advance notice to the parties and without opportunity to be present" (47 C.F.R. 1.1202(b)). Under the Commission's rules, parties and other interested persons may, if they wish, supplement the record at any time with written presentations in a restricted proceeding if the written presentation is served upon all parties to the proceeding, and may make oral presentations if advance notice and the opportunity to be present is given to the parties. Id. Media Contact: Morgan Broman at (202) 418-2358 Cable Services Bureau Contact: Steve Broeckaert at (202) 418-1075 TTY: (202) 418-7172. --FCC--