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Before the
Federal Communications Commission
Washington, D.C. 20554
Texas and Kansas City Cable )
Partners, L.P., d/b/a Time )
Warner Cable, )
)
Co- )
mplainant, ) File No. EB-04-MD-013
)
)
v. )
)
Southwestern Bell Telephone
Company,
De-
fendant.
MEMORANDUM OPINION AND ORDER
Adopted: February 17, 2005 Released: February 17,
2005
By the Deputy Chief, Market Disputes Resolution Division,
Enforcement Bureau:
1. On December 3, 2004, Texas and Kansas City Cable
Partners, L.P., d/b/a Time Warner Cable (``Time
Warner'') filed a complaint1 against Southwestern Bell
Telephone Company (``Southwestern Bell'') pursuant to
section 224 of the Communications Act of 1934, as
amended (``Act''),2 and sections 1.1403(a) and 1.404 of
the Commission's rules.3
2. Time Warner owns and operates a cable television
system in Texas.4 Southwestern Bell, a subsidiary of
SBC Communications, Inc., provides telecommunications
and other services in Texas.5 Southwestern Bell owns
or controls conduit along the Queen Isabella Causeway
(``Causeway'') in Texas, which it uses for wire
communications.6 The Causeway provides the only bridge
to South Padre Island in Texas,7 where Time Warner
provides cable television, broadband, and information
services to South Padre Island through its microwave
facilities.8 In its Complaint, Time Warner alleges
that it wishes to deploy fiber in order to provide
better quality service and additional service
offerings.9 Time Warner contends that it must access
Southwestern Bell's conduit along the Causeway in order
to deploy fiber, but that Southwestern Bell has refused
to provide Time Warner access, in violation of section
224 of the Act and sections 1.1403(a) of the
Commission's rules (47 C.F.R. § 1.1403(a)).10
3. Shortly after Time Warner filed its Complaint, the
parties jointly advised the Commission that they wished
to attempt to settle their dispute, and requested that
the Commission suspend its consideration of the
Complaint and stay Southwestern Bell's obligation to
respond to the Complaint.11 Commission staff granted
that request on December 30, 2004. Since that time,
the parties have engaged in a continuing effort to
reach a negotiated resolution of this dispute. On
January 21, 2005, the parties filed a Joint Status
Report, which states that they have entered into an
agreement that they ``anticipate will resolve the
principal issue'' raised in the Complaint, i.e., access
to Southwestern Bell's conduit along the Causeway.12
The Joint Status Report requests that the Commission
hold the Complaint ``in abeyance'' until ``certain
milestones'' have transpired, after which Time Warner
anticipates withdrawing its Complaint.13 The parties
believe that these ``milestones'' will occur by April
2005.14
4. We believe that Time Warner and Southwestern Bell
have made significant progress in their efforts to
resolve this dispute, and that these settlement efforts
should continue. We conclude that the Complaint should
be transferred to the inactive case docket in order to
allow the parties to devote their full attention to
resolving this dispute by agreement, without having to
expend time and resources on the preparation of further
pleadings in this case.
5. Accordingly, we hereby direct that the Complaint
be converted to an inactive complaint with a new file
number of EB-05-MDIC-0011, maintaining its original
filing date of December 3, 2004. Commission staff will
continue to monitor closely the parties' efforts to
settle this dispute, and to offer their assistance in
mediating the dispute, as needed. This conversion to
inactive status is for administrative purposes only,
and in no way will affect the rights of the parties, or
any legal or factual issue in this proceeding.
6. At any time, either party, upon a showing of good
cause, may move to re-convert the inactive complaint
back to an active complaint. Upon the grant of such a
motion, Southwestern Bell will be required to file a
Response to the Complaint pursuant to section 1.1407 of
the Commission's rules,15 within 30 days following the
issuance of an order re-converting the Complaint back
to active status.
7. Accordingly, IT IS ORDERED, pursuant to sections
4(i), 4(j), and 224 of the Communications Act of 1934,
as amended, 47 U.S.C. §§ 154(i), 154(j), and 224, and
sections 1.1401-1418 of the Commission's rules, 47
C.F.R. § 1.1401-1.1418, and the authority delegated in
sections 0.111 and 0.311 of the Commission's rules, 47
C.F.R. §§ 0.111, 0.311, that Texas and Kansas City
Cable Partners, L.P., d/b/a Time Warner Cable's
Complaint be converted to an inactive complaint with a
file number of EB-05-MDIC-0011 and a filing date of
December 3, 2004.
8. IT IS FURTHER ORDERED, pursuant to sections 4(i),
4(j), and 224 of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 154(i), 154(j), and 224, and
sections 1.1401-1.1418 of the Commission's rules, 47
C.F.R. § 1.1401-1.1418, and the authority delegated in
sections 0.111 and 0.311 of the Commission's rules, 47
C.F.R. §§ 0.111, 0.311, that the docket established in
the above-captioned Complaint proceeding shall be
transferred in its entirety to the inactive complaint
docket.
9. IT IS FURTHER ORDERED, pursuant to sections 4(i),
4(j), and 224 of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 154(i), 154(j), and 224, and
sections 1.1401-1.1418 of the Commission's rules, 47
C.F.R. § 1.1401-1.1418, and the authority delegated in
sections 0.111 and 0.311 of the Commission's rules, 47
C.F.R. §§ 0.111, 0.311, that either party, upon a
showing of good cause, may move to re-convert the
inactive complaint back to an active complaint.
10. IT IS FURTHER ORDERED, pursuant to sections 4(i),
4(j), and 224 of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 154(i), 154(j), and 224, and
sections 1.1401-1.1418 of the Commission's rules, 47
C.F.R. § 1.1401-1.1418, and the authority delegated in
sections 0.111 and 0.311 of the Commission's rules, 47
C.F.R. §§ 0.111, 0.311, that within 30 DAYS following
the issuance of an order granting a request to re-
convert this proceeding back to active status,
Southwestern Bell Telephone Company shall file a
Response to the Complaint pursuant to section 1.1407 of
the Commission's rules, 47 C.F.R. § 1.1407.
11. IT IS FURTHER ORDERED, pursuant to sections 4(i),
4(j), and 224 of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 154(i), 154(j), and 224, and
sections 1.1401-1.1418 of the Commission's rules, 47
C.F.R. § 1.1401-1.1418, and the authority
delegated in sections 0.111 and 0.311 of the Commission's rules,
47 C.F.R. §§ 0.111, 0.311, that the parties shall participate in
a status telephone call with Commission staff on Thursday, March
17, 2005 at 10:00 a.m.
FEDERAL COMMUNICATIONS COMMISSION
Lisa B. Griffin
Deputy Chief, Market Disputes Resolution
Division
Enforcement Bureau
_________________________
1 Complaint, File No. EB-04-MD-013 (filed Dec. 3, 2004)
(``Complaint'').
2 47 U.S.C. § 224.
3 47 C.F.R. §§ 1.1403(a), 1.1404.
4 Complaint at 7, ¶ 12.
5 Complaint at 7, ¶ 13.
6 Complaint at 7, ¶ 15.
7 Complaint at 1, ¶ 2; 7, ¶ 15.
8 Complaint at 1-2, ¶ 2.
9 Complaint at 1-2, ¶ 2.
10 Complaint at 3-4, ¶¶ 5-6.
11 Letter from Gardner F. Gillespie, counsel for Time Warner,
and Jennifer Byrd, counsel for SBC Telecommunications, Inc., to
Marlene H. Dortch, Secretary, Federal Communications Commission,
File No. EB-04-MD-013 (filed Dec. 28, 2004). The parties later
renewed their request to the Commission to suspend consideration
of the Complaint and to stay Southwestern Bell's obligation to
respond to the Complaint, in light of the parties' on-going
mediation efforts. Letter from Gardner F. Gillespie, counsel for
Time Warner, and Jennifer Byrd, counsel for SBC
Telecommunications, Inc., to Marlene H. Dortch, Secretary,
Federal Communications Commission, File No. EB-04-MD-013 (filed
Jan. 21, 2005). Commission staff also granted this renewed
request.
12 Joint Status Report, File No. EB-04-MD-013 (Feb. 9, 2005)
(``Joint Status Report'').
13 Joint Status Report at 2.
14 Joint Status Report at 2.
15 47 C.F.R. § 1.1407.