Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Telecommunications Services ) CS Docket No. 95-184 Inside Wiring ) ) Customer Premises Equipment ) ) ) In the Matter of ) ) Implementation of the Cable ) Television Consumer Protection ) MM Docket No. 92-260 and Competition Act of 1992: ) ) Cable Home Wiring ) REPORT AND ORDER AND SECOND FURTHER NOTICE OF PROPOSED RULEMAKING Adopted: October 9, 1997 Released: October 17, 1997 By the Commission: Comment Date: December 23, 1997 Reply Comment Date: January 22, 1998 Table of Contents Paragraph No. I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . .1 II. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 A. Telephone Inside Wiring Rules. . . . . . . . . . . . . . . . . . .4 B. Cable Inside Wiring Rules. . . . . . . . . . . . . . . . . . . . 10 III. Report and Order . . . . . . . . . . . . . . . . . . . . . . . . 18 A. Disposition of Home Run Wiring . . . . . . . . . . . . . . . . . 18 1. Background . . . . . . . . . . . . . . . . . . . . . . . . 18 a. Commission Proposal. . . . . . . . . . . . . . . . . . . . 18 b. Comments . . . . . . . . . . . . . . . . . . . . . . . . . 23 2. Discussion . . . . . . . . . . . . . . . . . . . . . . . . 35 a. The MDU Competitive Environment. . . . . . . . . . . . . . 35 b. Procedures for Disposition of Home Run Wiring. . . . . . . 39 (1) Building-by-Building Procedures. . . . . . . . . . . . . . 41 (2) Unit-by-Unit Procedures. . . . . . . . . . . . . . . . . . 49 (3) Ownership of Home Run Wiring . . . . . . . . . . . . . . . 58 (4) Impact on Incumbent Video Service Providers. . . . . . . . 68 (5) Application of Procedural Framework. . . . . . . . . . . . 69 c. Statutory Authority. . . . . . . . . . . . . . . . . . . . 81 d. Constitutional Arguments . . . . . . . . . . . . . . . . .102 B. Sharing of Molding . . . . . . . . . . . . . . . . . . . . . . .104 C. Disposition of Cable Home Wiring . . . . . . . . . . . . . . . .113 1. Disposition of Home Wiring When Service Is Terminated for an Entire MDU. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115 2. Disposition of Home Wiring When Service Is Terminated by an Individual Subscriber . . . . . . . . . . . . . . . . . . . . . . . .119 3. Effect of Subscriber Vacating the Premises on the Application of Cable Home Wiring Rules. . . . . . .125 D. MDU Demarcation Point. . . . . . . . . . . . . . . . . . . . . .129 E. Loop-Through Cable Wiring Configurations . . . . . . . . . . . .152 F. Video Service Provider Access to Private Property. . . . . . . .167 1. Federal Mandatory Access Requirements. . . . . . . . . . .167 2. State Cable Mandatory Access Requirements. . . . . . . . .181 3. Exclusive Service Contracts. . . . . . . . . . . . . . . .191 G. Customer Access to Cable Home Wiring Before Termination of Service204 H. Signal Leakage . . . . . . . . . . . . . . . . . . . . . . . . .231 I. Signal Quality . . . . . . . . . . . . . . . . . . . . . . . . .243 J. Means of Connection. . . . . . . . . . . . . . . . . . . . . . .246 K. Dual Regulation. . . . . . . . . . . . . . . . . . . . . . . . .249 L. Regulation of Simple and Complex and of Residential and Non-Residential Wiring . . . . . . . . . . . . . . . . . . . . .252 M. Customer Premises Equipment. . . . . . . . . . . . . . . . . . .256 IV. Second Further Notice of Proposed Rulemaking . . . . . . . . . .258 A. Exclusive Service Contracts. . . . . . . . . . . . . . . . . . .258 B. Application of Cable Inside Wiring Rules to All MVPDs. . . . . .267 C. Signal Leakage Reporting Requirements. . . . . . . . . . . . . .269 D. Simultaneous Use of Home Run Wiring. . . . . . . . . . . . . . .270 V. Regulatory Flexibility Act Analysis. . . . . . . . . . . . . . .272 A. Final Regulatory Flexibility Act Analysis. . . . . . . . . . . .272 B. Initial Regulatory Flexibility Act Analysis. . . . . . . . . . .301 VI. Paperwork Reduction Act of 1995 Analysis . . . . . . . . . . . .321 VII. Procedural Provisions. . . . . . . . . . . . . . . . . . . . . .323 VIII. Ordering Clauses . . . . . . . . . . . . . . . . . . . . . . . .325 Appendix A: Revised Rules Appendix B: Parties that Filed Comments and Reply Comments I. INTRODUCTION 1. This Report and Order and Second Further Notice of Proposed Rulemaking ("Order" and "Second Further Notice") addresses the issues raised in the Notice of Proposed Rulemaking in CS Docket No. 95-184 ("Inside Wiring Notice"), the Order on Reconsideration and Further Notice of Proposed Rulemaking in MM Docket No. 92-260 ("Cable Home Wiring Further Notice") and the Further Notice of Proposed Rulemaking in CS Docket No. 95-184 and MM Docket No. 92-260 ("Inside Wiring Further Notice") regarding potential changes in our telephone and cable inside wiring rules in light of the evolving telecommunications marketplace. We adopt the amended rules as provided in Appendix A. 2. In this Order, we reach the following conclusions: (a) Disposition of Home Run Wiring 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 individual 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 run wiring where the MDU owner (1) terminates service for the entire building and wishes to use the home run wiring for an alternative video service provider, or (2) wants to permit more than one multichannel video programming distributor ("MVPD") to compete for the right to use the home run wiring on a unit-by-unit basis. We will apply our rules regarding the disposition of cable home run wiring to all MVPDs. (b) Sharing of Molding We generally will allow MVPDs to install one or more home run wires within the molding of an MDU where the MDU owner finds that there is sufficient space within existing 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 costs and damages associated with the addition of wiring and/or any larger molding that is necessary. (c) Disposition of Cable Home Wiring 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 operator 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. (d) MDU Demarcation Point We conclude that it is premature to establish a common telephone and cable demarcation point. 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 wide-scale basis over the same inside wiring, we will revisit this issue. We therefore maintain the current telephone and cable demarcation points. (e) Loop-through cable inside wiring We conclude that cable operators should be required to allow MDU owners to purchase loop-through 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 loop-through wiring outside the individual unit up to the riser or feeder cable. (f) Video service provider access to private property 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 exclusive 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. (g) Subscriber access to cable home wiring prior to termination of service 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 wiring 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. (h) Signal leakage We will apply our cable signal leakage rules to non-cable MVPDs that pose a similar threat of interference with frequencies used for over-the-air communications. We will provide a five-year transition period for certain non-cable MVPDs to comply with some of the signal leakage rules. (i) Signal quality We will not apply our cable rules regarding signal quality to other MVPDs. (j) Means of connection We will not mandate a specific type of connector that broadband service providers must use. (k) Dual regulation 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. (l) Simple/complex and residential/non-residential 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 non- residential wiring. (m) Customer premises equipment We conclude that the issues raised in the Inside Wiring Notice regarding customer premises equipment ("CPE") have been superseded by the Telecommunications Act of 1996 (the "1996 Act"), and that the issues will be addressed in our proceeding arising under new Section 629 of the Communications Act. 3. We believe that the record would benefit from additional comment on the following issues described in the Second Further Notice: (1) exclusive service contracts between service providers and 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. II. BACKGROUND A. Telephone Inside Wiring Rules 4. Part 68 of the Commission's rules governs the terms and conditions under which customer premises equipment ("CPE") and wiring may be connected to the telephone network. Part 68 is designed to ensure that terminal equipment and wiring can be connected to the network without causing harm to the network. We have previously stated that Part 68 restrictions should be no greater than necessary to ensure network protection. Furthermore, carriers generally have the burden of showing that any particular Part 68 restriction is necessary. 5. In 1984, the Commission adopted Section 68.213 of the Commission's rules, which allowed customers to connect one and two-line business and residential telephone wiring to the network. The Commission established a demarcation point to mark the end of the carrier network and the beginning of customer-controlled wiring. Under Section 68.213, the demarcation point would "be located on the subscriber's side of the telephone company's protector, or the equivalent thereof in cases where a protector is not employed, as provided under the local telephone company's reasonable and nondiscriminatory standard operating practices." 6. The Commission also issued orders detariffing the installation and maintenance of telephone inside wiring. The Commission first detariffed the installation of complex wiring. In 1986, the Commission extended detariffing to the installation of simple inside wiring and the maintenance of all inside wiring. The Commission allowed carriers to retain ownership of telephone inside wiring, but prohibited carriers from: (1) using their ownership to restrict the removal, replacement, rearrangement or maintenance of telephone inside wiring; (2) requiring customers to purchase telephone inside wiring; and (3) imposing a charge for the use of such wiring. By these detariffing orders, the Commission sought to "foster competition in the inside wiring installation and maintenance markets, to promote new entry into those markets, . . . and to foster the development of an unregulated, competitive telecommunications marketplace." 7. In 1990, the Commission issued a Report and Order and Further Notice of Proposed Rulemaking in CC Docket No. 88-57 ("Common Carrier Wiring Order"), which, among other things, amended the definition of the demarcation point for both simple and complex wiring to ensure that the demarcation point would be near the point where the wiring entered the customer's premises. The revised definition required that the demarcation point generally be no further than twelve inches inside the customer's premises. For single unit installations, the demarcation point must be within twelve inches of the protector, or if there is no protector, within twelve inches of the point at which the wiring enters the customer's premises. For existing multiunit installations, the demarcation point is determined in accordance with the carrier's reasonable and nondiscriminatory standard operating practices. For new wiring installations in multiunit premises, including additions, modifications and rearrangements of existing wiring, the carrier may establish a reasonable and nondiscriminatory practice of placing the demarcation point at the minimum point of entry. When the carrier does not have such a practice, the multiunit premises owner determines the location of the demarcation point or points. If there are multiple demarcation points for either existing or new multiunit installations, the demarcation point for any particular customer may not be further inside the customer's premises than twelve inches from the point at which the wiring enters the customer's premises. 8. In June 1997, the Commission issued the Common Carrier Wiring Reconsideration Order. Among other things, the Commission clarified that the carrier standard operating practices which determine the demarcation point for multiunit installations under Section 68.3(b)(1) are those practices in effect on August 13, 1990, and that Section 68(b)(1) does not authorize changing the demarcation point for an existing building to the minimum point of entry. Reiterating that carriers may not require the customer or building owner to purchase or pay for the use of carrier-installed wiring that is now on the customer's side of the demarcation point, the Commission concluded that the carrier may not remove such wiring. 9. The Common Carrier Wiring Reconsideration Order also amended the telephone demarcation point definition to do the following: (1) clarify that the demarcation point may be located within twelve inches of the point at which the wiring enters the customer's premises "or as near thereto as practicable;" (2) indicate that only major additions or rearrangements of existing wiring are to be treated as new installations under the rule; (3) allow multiunit building owners to restrict customer access to only that wiring located in the customers' individual unit; and (4) require local telephone companies to provide building owners with all available information regarding carrier-installed wiring on the customer's side of the demarcation point (in order to facilitate owners' service and maintenance of such wiring). The Common Carrier Wiring Reconsideration Order also requested comment on certain issues pertaining to the application of the telephone demarcation point rule to complex wiring, the location of the telephone demarcation point away from a building, and telephone wire quality standards for simple inside wiring. B. Cable Inside Wiring Rules 10. Section 16(d) of the Cable Television Consumer Protection and Competition Act of 1992 (the "1992 Cable Act"), codified at Section 624(i) of the Communications Act, requires the Commission to "prescribe rules concerning the disposition, after a subscriber terminates service, of any cable installed by the cable operator within the premises of such subscriber." In February 1993, the Commission issued a Report and Order implementing Section 624(i) (the "Cable Wiring Order"). The Cable Wiring Order provided that when a subscriber voluntarily terminates cable service, the operator is required, if it proposes to remove the wiring, to inform the subscriber: (1) that he or she may purchase the wire; and (2) what the cost per-foot charge is. If the subscriber declined to purchase the home wiring, the operator was required to remove it within 30 days or make no subsequent attempt to remove it or to restrict its use. These rules were designed to advance Section 624(i)'s goals of avoiding the disruption of having the wiring removed and permitting subscribers to use the wiring with an alternative video service provider. 11. We further provided that the subscriber may purchase the cable home wiring inside his or her premises up to the demarcation point. From the customer's point of view, the demarcation point is significant because it defines the wiring that he or she may own or control. For purposes of 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. 12. For single family homes, the cable demarcation point generally is at (or about) 12 inches outside of where the cable wire enters the subscriber's premises. For MDUs with non-"loop-through" wiring, the cable demarcation point is at (or about) 12 inches outside of where the cable wire enters the subscriber's individual dwelling unit. Generally, in a non-loop-through configuration, each subscriber in an MDU has a dedicated line (often called a "home run") running to his or her premises from a common "feeder line" or "riser cable" that serves as the source of video programming signals for the entire MDU building. The riser cable typically runs vertically in a multi-story building (e.g., up a stairwell) and connects to the dedicated home run wiring at a "tap" or "multi-tap," which extracts portions of the signal strength from the riser and distributes individual signals to subscribers. Depending on the size of the building, the taps are usually located in a security box (often called a "lockbox") or utility closet located on each floor, or at a single point in the basement. Each time the riser cable encounters a tap its signal strength decreases. In addition, the strength of a signal diminishes as the signal passes through the coaxial cable. As a result, cable wiring often requires periodic amplification within an MDU to maintain picture quality. Amplifiers are installed at periodic intervals along the riser based upon the number of taps and the length of coaxial cable within the MDU. Non-cable video service providers typically employ a similar inside wiring scheme, except that many of them (e.g., multichannel multipoint distribution services ("MMDS"), satellite master antenna services ("SMATV") and direct broadcast satellite ("DBS") providers) 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. 13. In the Cable Wiring Order, we said that it was not "necessary or appropriate under the statute" to apply our cable home wiring rules prior to the time the customer terminates cable service. We noted that the plain language of Section 624(i) refers only to the disposition of cable home wiring after termination of service, and that cable home wiring is different from telephone wiring in that, for example, cable operators have the responsibility to prevent signal leakage, a responsibility telephone companies do not have. We also cited the House Report on the 1992 Cable Act which stated that Section 16(d) itself "does not address matters concerning the cable facilities inside the subscriber's home prior to termination of service." Also in the Cable Wiring Order, the Commission stated: [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 Cable Act of 1992, we decline to address such rule proposals in this proceeding. 14. In January 1996, the Commission issued the Cable Home Wiring Further Notice. Among other things, the Commission clarified that, during the initial telephone call in which a subscriber voluntarily terminates cable service, if the operator owns and intends to remove the home wiring, it must inform the subscriber: (1) that the cable operator owns the home wiring; (2) that it intends to remove the home wiring; (3) that the subscriber has a right to purchase the home wiring; and (4) what the per-foot replacement cost and total charge for the wiring would be, including the replacement cost for any passive splitters attached to the wiring on the subscriber's side of the demarcation point. Where an operator fails to adhere to these procedures, it is deemed to have relinquished immediately any and all ownership interests in the home wiring, and thus, is not entitled to compensation for the wiring and may make no subsequent attempt to remove it or restrict its use. If the cable operator informs the subscriber of his or her rights and the subscriber agrees to purchase the wiring, constructive ownership over the home wiring transfers immediately to the subscriber, who may authorize a competing service provider to connect with and use the home wiring. If, on the other hand, the subscriber declines to purchase the home wiring, the operator has seven business days to remove the wiring or make no subsequent attempt to remove it or restrict its use. 15. The Cable Home Wiring Further Notice also requested comment on certain issues pertaining to home wiring. These issues included: (1) whether cable operators should be required to allow a building owner to purchase loop-through home wiring where all subscribers on a loop want to switch to a new video service provider; (2) whether our home wiring rules should apply when an MDU owner terminates service for the entire building; (3) the disposition of cable home wiring when a subscriber terminates cable service, elects not to purchase the wiring and vacates the premises within the time period the operator has to remove the home wiring; and (4) whether, when a subscriber voluntarily terminating service does not own the premises, the premises owner should have the right to purchase the home wiring if the subscriber declines to purchase it. 16. Also in January 1996, the Commission issued the Inside Wiring Notice, where we sought comment on whether and how we should revise our current telephone and cable inside wiring rules to reflect these new realities and promote competition, by ensuring that the Commission's inside wiring rules continue to facilitate the development of new and diverse services for the American public. In particular, we sought comment on whether it is technically and competitively desirable to create a uniform set of inside wiring rules that would apply to telephone companies and cable operators alike, or, in the alternative, that would apply according to the technical characteristics of the service -- e.g., narrowband or broadband -- or the type of wiring used -- e.g., fiber optics, coaxial cable or twisted-pair wiring. Specific issues on which we sought comment include: (1) the location of the demarcation point; (2) the legal and practical impediments faced by telecommunications service providers in gaining access to subscribers; (3) subscriber ownership of, or access to, inside wiring; (4) technical connection parameters; (5) issues arising from the dual regulation of inside wiring by federal and local authorities; (6) the regulation of telephone simple and complex inside wiring, and of residential and non-residential wiring; and (7) the regulation of customer premises equipment used to receive cable and telephone service. 17. In addition, as described below, the Commission issued the Inside Wiring Further Notice in August 1997 to request comment on proposed procedures for the disposition of home run wiring in MDUs when an MDU owner decides to terminate service for the entire building and when an MDU owner is willing to permit two or more video service providers to compete for subscribers in the MDU on a unit- by-unit basis. III. REPORT AND ORDER A. Disposition of Home Run Wiring 1. Background a. Commission Proposal 18. In the Inside Wiring Further Notice, we sought comment on a proposal to establish procedures for building-by-building disposition of the home run wiring (where the MDU owner decides to convert the entire building to a new video service provider) and for unit-by-unit disposition of the home run wiring (where an MDU owner is willing to permit two or more video service providers to compete for subscribers on a unit-by-unit basis) where the MDU owner wants the alternative provider to be able to use the existing home run wiring. The Commission's proposal was a modified version of a procedural mechanism proposed by ICTA, which ICTA argued would accomplish many of the same objectives as moving the cable demarcation point. 19. We generally proposed that, under our building-by-building procedures, where the incumbent service provider owns the home run wiring in an MDU and does not (or would not at the conclusion of the notice period) have a legally enforceable right to remain on the premises, and the MDU owner wants to be able to use the existing home run wiring for service from another provider, the MDU owner may give the incumbent service provider a minimum of 90 days' notice that the provider's access to the entire building will be terminated. The incumbent provider would then have 30 days to notify the MDU owner in writing of its election to do one of the following for all the home run wiring inside the MDU: (1) to remove the wiring and restore the MDU to its prior condition by the end of the 90-day notice period; (2) to abandon and not disable the wiring at the end of the 90-day notice period; or (3) to sell the wiring to the MDU owner. 20. We also generally proposed that, under the unit-by-unit procedures, where the incumbent video service provider owns the home run wiring in an MDU and does not (or would not at the conclusion of the notice period) have a legally enforceable right to maintain its home run wiring on the premises, the MDU owner may permit multiple service providers to compete head-to-head in the building for the right to use the individual home run wires dedicated to each unit. Where an MDU owner wishes to permit such head-to-head competition, the MDU owner would have to provide at least 60 days' notice to the incumbent provider of the owner's intention to invoke the following procedure. The incumbent service provider would then have 30 days to provide the MDU owner with a written election as to whether, for all of the incumbent's home run wires dedicated to individual subscribers who may later choose the alternative provider's service, it would: (1) remove the wiring and restore the MDU to its prior condition; (2) abandon the wiring without disabling it; or (3) sell the wiring to the MDU owner. 21. After completion of this initial process, a provider's election would be carried out if and when the provider is notified either orally or in writing that a subscriber wishes to terminate service and that an alternative service provider intends to use the existing home run wire to provide service to that particular subscriber. We proposed that, at that point, a provider that has elected to remove its home run wiring would have seven days to do so and to restore the building to its prior condition. We proposed that if the current service provider elected to abandon or sell the wiring, the abandonment or sale would become effective seven days from the date it receives a request for service termination or upon actual service termination, whichever occurs first. 22. We expressed a preference that, where the incumbent provider elects to sell the wiring in either the building-by-building or the unit-by-unit context, the price be determined through private negotiations. We also sought comment, however, on whether the Commission should establish broad guidelines, a default price or a general rule or formula if market forces are insufficient to ensure a reasonable price. We proposed that, if the parties could not agree on a price during the 30-day negotiation period, the incumbent provider would be required to elect one of the other two options (i.e., abandonment or removal). We sought comment on whether we should impose penalties on incumbent providers that elect to remove their home run wiring and then fail to do so. b. Comments 23. Several parties offer general support for the Commission's disposition of home run wiring proposals. For example, GTE asserts that the Commission's proposals would resolve current uncertainties over wiring ownership and would foster competition. Ameritech and SBC state that the Commission's proposals would promote competition and customer choice. OpTel believes that the proposed disposition procedures would reduce entry barriers and increase competition. Certain cable interests concede that the proposed procedures for the unit-by-unit disposition of home run wiring would promote competition and consumer choice. 24. Cable interests generally argue that the Commission lacks statutory authority to adopt the proposed procedures. They also claim that the procedures will not further Congressional objectives or the Commission's stated goals of promoting consumer choice and competition in the multichannel video programming delivery marketplace. NCTA, for example, claims that Congress did not intend for the Commission's rules to deal with MDU wiring outside the individual subscriber's premises, and that the rules do nothing to achieve their intended purpose of bringing order and certainty to the disposition of home run wiring. 25. GTE appears to support the Commission's proposed time frames for the procedures, claiming in its comments that they would afford incumbents an adequate opportunity to evaluate their options, without causing unnecessary delay. Comcast, et al., contend that the time periods under the procedures must be flexible because the incumbent may need more time to remove the wiring or the new MVPD may not be ready to provide service. Other commenters urge the Commission to shorten the time periods. For example, ICTA proposes shortening the time frame for unit-by-unit dispositions of home run wiring. ICTA recommends giving MDU owners 15 days to provide notice to the incumbent that it intends to allow a second provider access. The incumbent would then have to provide its written election notice by the end of that same 15-day period. An abandonment election would become effective immediately and a removal election would have to be implemented within seven days after the second provider gives notice to the incumbent that the replacement wire is installed and functional. ICTA proposes that, under a sale election, the parties would have 30 days to negotiate a price and, after an agreement is reached, the parties would have seven days to effectuate the sale on a per unit basis if there has been no lump sum purchase. If within the 30-day period, negotiations are terminated or if the 30-day period closes, the incumbent would have seven days to elect removal or abandonment. To speed negotiations, ICTA suggests that the incumbent provider be required to include its asking price at the time of its written election for a sale. 26. Community Associations Institute, on the other hand, suggests that a longer notice period might be appropriate for deciding the sale of wiring and negotiating a price. Community Associations Institute suggests that community association boards be allowed to make an initial election regarding the desire to purchase wiring on day 30, or as soon thereafter as the association board is able to meet, and that the negotiation period be extended to 60 days after the date of the board's decision with transfer of ownership on the earlier of (1) 30 days following the end of the negotiation period, or (2) the date of actual service termination. Community Associations Institute also believes that, under the unit-by-unit procedure for the disposition of home run wiring, MDU owners should be allowed to decide whether they or the alternative provider will purchase the wiring when the subscriber declines to do so on day 60, after they have received the per foot replacement cost from the incumbent, rather than on day one. 27. With regard to imposing penalties for an incumbent's failure to fulfill a removal election, SBC argues that the incumbent's desire to maintain good will in the community obviates the need to adopt such penalties. Several commenters, however, recommend imposing steep fines on cable operators that, in an effort to discourage MDU owners from switching providers, falsely elect the removal option when they have no intention of removing the wire. Nat'l Assn. of Realtors recommends that the Commission give MDU owners the right to have incumbent service providers remove all wiring belonging to the incumbent provider that cannot be used by the owner or the incoming provider. 28. In their reply comments, cable operators generally oppose any rule that would make an election to remove irrevocable or that would impose any penalty on an incumbent's failure to remove its wiring after electing to do so. Time Warner and NCTA argue that to make a removal election irrevocable would interfere with the parties' ability to reach a negotiated settlement after such an election. In addition, NCTA argues that the Commission's existing complaint procedures can address the issue of penalties on a case-by-case basis. 29. Several parties support the adoption of a general rule requiring the parties to cooperate in good faith to ensure a seamless transition in order to protect new entrants against anticompetitive tactics not otherwise covered by the Commission's rules. RCN proposes that an incumbent not be allowed to remove or disable any equipment until the earlier of the date upon which the alternative provider is ready to initiate service or 30 days after the incumbent elects to abandon or remove the wiring. ICTA urges the Commission to clarify that "any service termination by the incumbent provider prior to the end of the established date certain cannot abrogate any contractual right of the MDU owner and that such termination cannot occur in advance of the alternative service provider's initiation of service" (unless both the incumbent and alternative provider agree in writing on a different date certain). ICTA argues that allowing the incumbent to terminate service before the end of the notice period would cause a disruption in service and thus discourage MDU owners from switching providers. Building Owners, et al., suggest that, in order to assure proper performance during removal of the wiring and restoration of the building, the Commission require that the incumbent post a security bond worth twice the value the operator sets for the wiring. 30. DIRECTV believes that in order for the proposed rules to be effective: (1) the incumbent must remove the wiring in its entirety without disabling the ability of other providers to connect new home run wiring; (2) incumbents must be required to coordinate removal of the home run wiring with the MDU owner so that the new provider can lay new wiring before the old wiring is removed; (3) restoration should not occur until the new home run wiring is installed; and (4) the MDU owner must be allowed to restore the building itself and charge the incumbent all reasonable restoration costs, if the incumbent completes removal before the new MVPD is ready to replace the wiring. 31. In reply, NCTA argues that state courts should decide whether and in what circumstances incumbents have a duty to restore a building after termination, and whether and to what extent damages are appropriate. Time Warner proposes that, instead of a restoration requirement, the Commission simply require the removing MVPD to "repair any damages to the MDU building directly caused by negligent removal of such wiring," similar to the standard in Section 621(a)(2)(C) of the Communications Act. Cable operators argue that the proposal to require a performance bond is merely an effort to restrict the incumbent's ability to remove the wiring, in the hope of receiving a windfall, and that there is no evidence that failure to repair damage is a problem. 32. Media Access/CFA argues that because the removal option would allow incumbents to add cost and delay to the commencement of an alternative service, removal or abandonment should not become options unless the subscriber, MDU owner, and alternative provider have declined to purchase the wiring. GTE argues that since access to molding and conduits is essential to effectuate access to cable wiring, the Commission must clarify that incumbents are required to transfer or relinquish all rights in molding or conduit when they sell, remove, or abandon their wiring. 33. DIRECTV believes that, if the Commission fails to move the demarcation point, it should at least apply the rules adopted for home wiring to home run wiring so that cable operators will be required to offer to sell home wiring to the subscriber at the replacement cost of the wire. DIRECTV would define the replacement cost for wiring tendered at the conclusion of the contract term as the salvage value, while it would define the replacement cost for wiring tendered at any other time as the wholesale replacement cost. DIRECTV states that the rules should also provide the option for an incumbent to sell the wiring at a nominal price or abandon it, and that removal should only occur after an offer for sale has been declined. 34. Media Access/CFA claims that, by impeding viewers' access to a multiplicity of news and information sources, the proposed framework would contravene the First Amendment, Section 624 of the Communications Act, and Section 207 of the 1996 Act. Media Access/CFA argues that this proceeding and the Commission's Section 207 proceeding are interdependent and must be considered together because a viewer's ability to install an over-the-air reception device under Section 207 is meaningless without access to inside wiring. Similarly, NAB argues that the Commission's proposals overlook the fact that Section 207 grants individual viewers the right to access over-the-air broadcast signals including, if necessary, via a rooftop antenna. 2. Discussion a. The MDU Competitive Environment 35. We continue to believe, as discussed at length in the Inside Wiring Further Notice, that more is needed to foster the ability of subscribers who live in MDUs to choose among competing service providers. As we found in the Inside Wiring Further Notice, we believe that one of the primary competitive problems in MDUs is the difficulty for some service providers to obtain access to the property for the purpose of running additional home run wires to subscribers' units. The record indicates that MDU property owners often object to the installation of multiple home run wires in the hallways of their properties, for reasons including aesthetics, space limitations, the avoidance of disruption and inconvenience, and the potential for property damage. 36. We also continue to believe that property owners' resistance to the installation of multiple sets of home run wiring in their buildings may deny MDU residents the ability to choose among competing service providers, thereby contravening the purposes of the Communications Act, and particularly Section 624(i), which was intended to promote consumer choice and competition by permitting subscribers to avoid the disruption of having their home wiring removed upon voluntary termination and to subsequently utilize that wiring for an alternative service. We continue to believe that the impact is substantial. As of 1990, there were almost 31.5 million multiple dwelling units in the United States, comprising approximately 28% of the total housing units nationwide. Moreover, the trend between 1980 and 1990 indicates that the number of MDUs is growing at a much faster rate than the number of single family dwellings. Data also shows that MDUs make up between 32% and 84% of the housing market in cities with the greatest numbers of households receiving cable service. 37. Although some cable operators argue that the current cable demarcation point rule should be maintained in order to encourage property owners to permit the installation of multiple sets of wires, the record does not demonstrate that the current cable home wiring rules, having been in place for four years, provide adequate incentives for MDU owners to permit the installation of multiple home run wires. In its most recent comments, Time Warner asserts that over 104 MDU buildings in Manhattan have opted to allow two-wire competition in the first eight months of 1997, bringing the total to 247 such MDUs. While we do not dispute Time Warner's count, we note that Time Warner has not provided any estimate of the total number of MDUs in Manhattan, nor has Time Warner challenged our stated belief in the Inside Wiring Further Notice that the presence of multiple wires in MDUs is substantially due to the existence of state mandatory access statutes (such as New York's) and not to a desire for multi- wire competition on the part of property owners. Even assuming that this belief is incorrect and MDU owners perceive a competitive benefit to two-wire competition, there is nothing in the procedures we adopt today that will prevent or impair an MDU owner's ability to insist that all MVPDs install their own home run wiring. 38. As set forth in the Inside Wiring Further Notice, we believe that disagreement over ownership and control of the home run wire substantially tempers competition. The record indicates that, where the property owner or subscriber seeks another video service provider, instead of responding to competition through varied and improved service offerings, the incumbent provider often invokes its alleged ownership interest in the home run wiring. Incumbents invoke written agreements providing for continued service, perpetual contracts entered into by the incumbent and previous owner, easements emanating from the incumbent's installation of the wiring, assertions that the wiring has not become a fixture and remains the personal property of the incumbent, or that the incumbent's investment in the wiring has not been recouped, and oral understandings regarding the ownership and continued provision of services. Written agreements are frequently unclear, often having been entered into in an era of an accepted monopoly, and state and local law as to their meaning is vague. Invoking any of these reasons, incumbents often refuse to sell the home run wiring to the new provider or to cooperate in any transition. The property owner or subscriber is frequently left with an unclear understanding of why another provider cannot commence service. The litigation alternative, an option rarely conducive to generating competition, while typically not pursued by the property owner or subscriber, can be employed aggressively by the incumbent. The result, regardless of the cable operators' motives, is to chill the competitive environment. b. Procedures for the Disposition of Home Run Wiring 39. In this Order, we establish procedures for building-by-building disposition of the home run wiring (where the MDU owner decides to convert the entire building to a new video service provider) and for unit-by-unit disposition of the home run wiring (where an MDU owner is willing to permit two or more video service providers to compete for subscribers on a unit-by-unit basis) where the MDU owner wants the alternative provider to be able to use the existing home run wiring. We believe that our procedural mechanisms will not create or destroy any property rights, but will promote competition and consumer choice by bringing order and certainty to the disposition of the MDU home run wiring upon termination of service. 40. As we noted in the Inside Wiring Further Notice, alternative video service providers currently have no timely and reliable way of ascertaining whether they will be able to use the existing home run wiring upon a change in service. As explained above, MDU owners are similarly unsure of their legal rights. Because of this uncertainty, an MDU owner seeking to change providers may be confronted with choosing among: (1) allowing the alternative provider to install duplicative home run wiring before it knows whether the incumbent will abandon the existing home run wiring when it leaves; (2) waiting to see what the incumbent does with the home run wiring when it leaves the building, risking a potential disruption in service to its residents; (3) staying with the incumbent provider; or (4) allowing the alternative provider to use the home run wiring and risking litigation. This dilemma can impede competition by discouraging MDU owners from considering a change in service. The procedures we are adopting are intended to provide all parties sufficient notice and certainty of whether and how the existing home run wiring will be made available to the alternative video service provider so that a change in service can occur efficiently. We clarify that riser cable is not covered by the following procedures. 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. (1) Building-by-Building Procedures 41. We adopt the following rule: where the incumbent service provider owns the home run wiring in an MDU and does not (or will not at the conclusion of the notice period) have a legally enforceable right to remain on the premises, and the MDU owner wants to be able to use the existing home run wiring for service from another provider, the MDU owner may give the incumbent service provider a minimum of 90 days' written notice that the provider's access to the entire building will be terminated. The incumbent provider will then have 30 days to notify the MDU owner in writing of its election to do one of the following for all the home run wiring inside the MDU: (1) to remove the wiring and restore the MDU consistent with state law within 30 days of the end of the 90-day notice period or within 30 days of actual service termination, whichever occurs first; (2) to abandon and not disable the wiring at the end of the 90-day notice period; or (3) to sell the wiring to the MDU owner. If the MDU owner refuses to purchase the home run wiring, the MDU owner may permit the alternative video service provider to purchase it. If the incumbent provider elects to remove or abandon the wiring, and it intends to terminate service before the end of the 90-day notice period, the 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. 42. Certain cable operators argue that the proposed procedures should not apply when an MDU owner terminates service for an entire building. These commenters assert that these circumstances do not engender a competitive choice for each resident. We disagree that the building-by-building procedural mechanism does not benefit consumer choice because it merely substitutes one MVPD for another. This argument assumes that any MVPD that serves the entire building has the ability to act like an entrenched monopolist, without regard to the quality and quantity of the video service provided. We do not believe this assumption is valid. Generally, MVPDs encounter an environment in which the MDU owner must compete with similarly-situated MDU owners to attract and retain tenants. Commenters have not demonstrated that the type of video services offered is irrelevant to such competition among MDUs. 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. 43. Where the incumbent provider elects to sell the home run wiring, we will allow the parties to negotiate the price of the wiring. We agree with commenters that argue market forces will provide adequate incentives for the parties to reach a reasonable price, particularly in these circumstances where the incumbent has no legally enforceable right to remain on the premises. The parties will have 30 days from the date of the incumbent's election to negotiate a price for the home run wiring. The parties may also negotiate to purchase additional wiring (e.g., riser cables) at their option. If the parties are unable to agree on a price, the incumbent will then be required to elect: (1) to abandon without disabling the wiring; (2) to remove the wiring and restore the MDU consistent with state law; or (3) to submit the price determination to binding arbitration by an independent expert. If the incumbent fails to comply with any of the deadlines established herein, it will be deemed to have elected to abandon its home run wiring at the end of the 90-day notice period. If the incumbent service provider elects to abandon its wiring at this point, the abandonment will become effective at the end of the 90-day notice period or upon service termination, whichever occurs first. Similarly, if the incumbent elects at this point to remove its wiring and restore the building consistent with state law, it will have to do so within 30 days of the end of the 90-day notice period or within 30 days of actual service termination, whichever occurs first. 44. At this time we decline to establish a penalty for an incumbent provider that fails to remove wiring after electing to do so, or, for that matter, for any other party that violates our cable inside wiring rules. As a result, we do not need to establish any particular penalty amounts. We think that our procedures and present and future opportunities provided by the market will afford all parties the necessary incentives to create an effective and efficient transition. We expect all parties participating in the procedures for the disposition of home run wiring to cooperate and act in full compliance with our rules and the policies underlying them. Similarly, at this time we will not require the incumbent to post a 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. 45. If the incumbent chooses to abandon or remove its wiring, it must notify the MDU owner at the time of this election if and when it intends to terminate service before the end of the 90-day notice period. In addition to this and other notice requirements, we will adopt a general rule requiring the parties to cooperate to avoid service disruption to subscribers to the extent possible. One of our overriding goals in this proceeding is to ensure as seamless a transition as possible. Our rules are premised on the good faith cooperation of all parties to protect against such disruption. We expect service providers to cooperate and to make all necessary efforts to minimize any service disruption when a transition is undertaken. 46. If the parties are unable to agree on a price and the incumbent elects to submit to binding arbitration, the parties will have seven days to agree on an independent expert or to each designate an expert who will pick a third expert within an additional seven days. The independent expert chosen will be required to assess a reasonable price for the home run wiring by the end of the 90-day notice period. We believe that it is not practical for the Commission to set a default price or formula that could apply to the widely varying circumstances throughout the country. We think that this process should help ensure that the parties reach a fair price, while not creating a lengthy and complicated mechanism. If the incumbent elects to submit the matter to binding arbitration and the MDU owner (or, in some cases, the alternative provider) refuses to participate, the incumbent will have no further obligations under our home run wiring disposition procedures. 47. We decline to adopt the proposal of Adelphia, et al., and Time Warner to require the MDU owner, rather than the incumbent provider, to elect: (1) to buy the wiring; (2) to pay to remove it; or (3) to allow the incumbent to leave the wiring in place and restrict others from using it. Similarly, we decline to adopt the proposal of NCTA and others that, if the MDU owner refuses to buy the wiring at an established default price, or if the MDU owner cannot demonstrate that the incumbent has failed to negotiate in good faith, the procedures should terminate and the incumbent provider should not be obligated to abandon or remove the home run wiring. We believe that the binding arbitration option described above addresses these commenters' underlying concern that incumbents should be assured of receiving a reasonable price for the wiring. As we have noted, we think competition has been deterred by prolonged assertions of ownership interest in the wiring by incumbents, not by MDU owners' reluctance to purchase the wiring. Our procedures are meant to bring the process of switching video service providers to an expeditious resolution. 48. We will not adopt the suggestion of several cable operators that the proposed building-by- building procedures not apply where the MDU owner receives any excess compensation for allowing the alternative provider into the premises, or where the MDU owner bundles video service with rent. We do not believe that there is sufficient record evidence to establish that such practices are per se anti- competitive and, if they are, that market forces will not address them. (2) Unit-by-Unit Procedures 49. We adopt the following procedures for unit-by-unit disposition of home run wiring. Where the incumbent video service provider owns the home run wiring in an MDU and does not (or will not at the conclusion of the notice period) have a legally enforceable right to maintain its home run wiring on the premises, the MDU owner may permit multiple service providers to compete head-to-head in the building for the right to use the individual home run wires dedicated to each unit. Where an MDU owner wishes to permit such head-to-head competition, the MDU owner must provide at least 60 days' written notice to the incumbent provider of the owner's intention to invoke the following procedure. The incumbent service provider will then have 30 days to provide the MDU owner with a written election as to whether, for all of the incumbent's home run wires dedicated to individual subscribers who may later choose the alternative provider's service, it will: (1) remove the wiring and restore the MDU consistent with state law; (2) abandon the wiring without disabling it; or (3) sell the wiring to the MDU owner. In other words, the incumbent service provider will be required to make a single election for how it will handle the disposition of individual home run wires whenever a subscriber wishes to switch video service providers; that election will then be implemented each time an individual subscriber switches service providers. If the MDU owner permits the alternative service provider to purchase the home run wiring, the alternative service provider will be required to make a similar election within this same 30-day period for any home run wiring that the alternative provider subsequently owns (i.e., after the alternative provider 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. 50. In the Inside Wiring Further Notice, we tentatively concluded that it would streamline and expedite the process of changing service providers if alternative service providers and MDU owners were permitted to act as subscribers' agents in providing notice of a subscriber's desire to change services. We continue to believe that this is the case. However, consistent with our intention not to "create or destroy any property rights" by these procedures, we will not create any new right of MDU owners and alternative providers to act on behalf of subscribers in terminating service. Nor will we restrict the rights of such MDU owners and alternative providers under state law. We therefore decline at this time to adopt specific procedures to guard against unauthorized changes in service, i.e., "slamming." Given that an unauthorized change of MVPDs would likely be apparent to consumers (e.g., differing channel line-ups), we do not believe that slamming poses the same dangers in the video context as in the telephony context. We will take additional steps to curb slamming if, once our new rules have become effective, slamming becomes a problem. 51. As with the proposed building-by-building procedures, we will permit the parties to negotiate for the sale of the home run wiring. If one or both of the video service providers elects to negotiate for the sale of the home run wiring it may own, the parties will have 30 days from the date of such election to reach an agreement. During this 30-day negotiation period, the incumbent, the MDU owner and/or the new provider may also work out arrangements for an up-front lump sum payment in lieu of a unit-by-unit payment. An up-front lump sum payment would permit either service provider to use the home run wiring to provide service to a subscriber without the administrative burden of paying separately for each home run wire every time a subscriber changes providers. 52. If the parties cannot agree on a price, the provider that has elected to sell the wiring will be required to elect: (1) to abandon without disabling the wiring; (2) to remove the wiring and restore the MDU consistent with state law; or (3) to submit the price determination to binding arbitration by an independent expert. If the incumbent fails to comply with any of the deadlines established herein, the 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. 53. If the incumbent elects to submit to binding arbitration, the parties will have seven days to agree on an independent expert or each designate an expert who will pick a third expert within an additional seven days. The independent expert chosen would be required to assess the price for the wiring within 14 days. We realize that the expert's price determination may not be issued for up to 28 days after the 60-day notice period has expired. If subscribers wish to switch service providers during this period, the procedures set forth below should be followed, subject to the price established by the arbitrator. As stated above with regard to the building-by-building procedures, we believe that it is not practical for the Commission to set a default price or formula that would apply to the widely varying circumstances throughout the country. 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. 54. After completion of this initial process, a provider's election will be carried out if and when the provider is notified either orally or in writing that a subscriber wishes to terminate service and that an alternative service provider intends to use the existing home run wire to provide service to that particular subscriber. At that point, a provider that has elected to remove its home run wiring will have seven days to do so and to restore the building consistent with state law. If the subscriber has requested service termination more than seven days in the future, the seven-day removal period will begin on the date of actual service termination (and, in any event, shall end no later than seven days after the requested date of termination). We conclude that seven days is adequate for removal because we believe that, unlike in the building-by-building context, the provider will only be required to remove a single home run wire. 55. If the current service provider has elected to abandon or sell the wiring, the abandonment or sale will become effective upon actual service termination or upon the requested date of termination, whichever occurs first. If the incumbent provider intends to terminate service prior to the end of the seven-day period, the incumbent will be required to inform the subscriber or the subscriber's agent (whichever is notifying the incumbent that the subscriber wishes to terminate service) at the time of the request for service termination of the date on which service will be terminated. In addition, the incumbent 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. 56. We base the above procedures on the assumption that the alternative service provider will have an incentive to ensure that the incumbent is notified that the alternative service provider intends to use the existing home run wire to provide service. If, however, the subscriber's service is simply terminated without any indication that a competing service provider wishes to use the home run wiring, the incumbent service provider will not be required to carry out its election to sell, remove or abandon the home run wiring. This might occur, for instance, where an MDU tenant is moving out of the building. In such cases, we do not believe that it would be appropriate to require the incumbent to sell, remove or abandon the home run wiring when it might have every reasonable expectation that the next tenant will request its service. However, the incumbent provider will be required to carry out its election with regard to 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. 57. Where the incumbent receives a request for service termination but does not receive notice that an alternative provider wishes to use the home run wiring, the incumbent will still be required to follow the procedures set forth in our cable home wiring rules -- e.g., to offer to sell to the subscriber any cable home wiring that the incumbent provider otherwise intends to remove. The required notice in the unit-by-unit context may be effected in two stages (i.e., the subscriber may call to terminate service and the alternative provider may separately notify the incumbent that it wishes to use the home run wiring). In order for the home run wiring and the home wiring to be disposed of in a coordinated manner, we believe that our cable home wiring rules must apply upon any termination of service. In addition, we believe that subscribers should have the right to purchase their home wiring to protect themselves from unnecessary disruption associated with removal of home wiring, regardless of whether they intend to subscribe to an alternative service. (3) Ownership of Home Run Wiring 58. In both the building-by-building and unit-by-unit approaches, the MDU owner will have the initial option to negotiate for ownership and control of the home run wiring because the property owner is responsible for the common areas of a building, including safety and security concerns, compliance with building and electrical codes, maintaining the aesthetics of the building and balancing the concerns of all of the residents. Moreover, vesting ownership of the home run wiring in the MDU owner, as opposed to the alternative service provider, will reduce future transaction costs since the above procedures will not need to be repeated if service is subsequently switched again. Nevertheless, we recognize that some MDU owners may not want to own the home run wiring in their buildings; in such cases, the MDU owner may permit the alternative service provider to purchase the wiring. 59. We do not believe that individual subscribers will be disadvantaged by having the MDU owner own the home run wiring. If a subscriber has the ability to choose between multiple service providers in the unit-by-unit context, the MDU owner has already concluded that it is willing to permit multiple service providers on the premises in order to compete for subscribers. Since the MDU owner will have voluntarily opened its building to multiple competitors, we do not believe that it will deny a resident the ability to use the home run wiring for the resident's provider of choice. Furthermore, we believe that, if the alternative service provider purchases the home run wiring, that provider will not be able to act as a bottleneck and the individual subscriber will continue to be protected because, as described herein, the alternative service provider will also be subject to these same procedures if and when the alternative provider's service is terminated. 60. As we have noted, several cable interests contend that the Commission's belief that MDU owners will act in the best interest of the residents in their buildings is misplaced. According to these commenters, MDU owners more often act based on their own immediate financial interest. They contend that MDU owners are the true bottlenecks to competition in that they have a direct financial interest in granting exclusive access to alternative MVPDs, either because of a direct financial investment in a non-cable MVPD seeking to serve the building or because of large "kickbacks." Time Warner claims that the Commission cannot point to any reliable evidence that the real estate market is responsive to the video service interests of MDU residents. TCI, however, supports the Commission's proposal to give MDU owners, rather than the competing MVPDs, the initial option to negotiate for ownership and control of the home run wiring. Not only is the MDU owner responsible for the safety and security concerns in the common areas, TCI asserts, but MDU owner control could reduce future transaction costs and administrative hassles, particularly in the unit-by-unit context where service may be switched back and forth between providers. The result will reduce disruption to the subscriber. 61. We agree with those commenters that argue that MDU owners seek to maximize their profits, but disagree that this incentive always leads them to be willing and able to ignore their tenants' desires. Even some cable operators recognize that many MDU owners (e.g., condominium associations and cooperative boards) are representative of their residents' interests. We continue to believe that, in rental MDUs, market forces will compel MDU owners in competitive real estate markets to take their tenants' desires into account. It is not, as some commenters suggest, that we assume that viewers will move from one MDU to another based on the video services provided. Rather, it is that a significant percentage of MDU renters move each year, and MDU owners must compete with rival owners to keep current residents and attract additional residents. In this context, an MDU owner that agrees to an exclusive contract in exchange for a monetary payment but does not somehow flow that payment through to its residents (e.g., a new swimming pool, a security system, or discounting the rent below the competitive level) is vulnerable to competition from similarly situated MDUs offering a more attractive mix of price and amenities to prospective tenants. If the MDU owner tries to simply keep the payment, new tenants will not be as attracted to the building and existing tenants will have an additional reason to relocate to another MDU (e.g., an otherwise similar residence where, to attract tenants, the owner has utilized its exclusive access payment to reduce rent or improve amenities). We believe that consumer welfare will be maximized by letting the market determine the appropriate mix of price and amenities in the MDU marketplace. 62. In the Inside Wiring Further Notice, we also sought comment on whether we should adopt a rule requiring video service providers to transfer to the MDU owner upon installation ownership of the home wiring and home run wiring installed in MDUs under contracts entered into on or after the effective date of any rules we may adopt. We stated that such a rule might increase competition and consumer choice in future installations by permitting MDU owners to control access to the home run wiring from the start. 63. Cable commenters that addressed the issue of requiring video providers to transfer ownership of the wiring to the MDU owner upon installation generally contend that, not only does the Commission not have authority to establish such a restriction, but as a policy matter, MDU owners and video providers are capable of protecting their own interests in contracts and the Commission should not interfere. Adelphia, et al., and Time Warner, however, suggest that, instead of adopting the proposed procedures, the Commission should require video providers and MDU owners to include in their service contracts a clear provision which specifically provides for the disposition of home run wiring. 64. Several other commenters also argue that the Commission should not adopt a rule requiring video service providers to transfer ownership of all newly installed cable wiring upon installation. GTE and Heartland Wireless claim that such a rule would be outside the Commission's statutory authority and would be inconsistent with the procompetitive, deregulatory nature of the 1996 Act. Media Access/CFA maintains its position that tenants should be given the first opportunity to purchase the wire. 65. Ameritech argues that ownership of inside wire in future installations should be transferred to the MDU owner. Ameritech proposes that the MVPD should be able to dedicate ownership of the inside wiring to the MDU owner free of charge in exchange for the MDU owner's agreement not to grant exclusive rights to any other MVPD, unless the second MVPD pays the first MVPD 100% of the first MVPD's original cost to install its cable inside wire. RCN believes the Commission should require video providers to transfer to the MDU owner, upon installation, ownership of inside wiring, but only to the extent that the MDU owner desires ownership. RCN proposes the same transfer for molding and conduits. 66. We will not require video service providers to transfer ownership of cable inside wiring to MDU owners upon installation. At this time, we believe this issue is best left to marketplace negotiations between the service provider and the MDU owner. Some MDU owners may choose to bargain for ownership of the inside wiring, while others may prefer to let the service provider maintain ownership. We are not convinced that MDU owners have insufficient bargaining power in this situation to protect their interests. Even under the home run disposition procedures adopted above, we recognize that 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. 67. We do believe, however, that all parties involved would benefit from additional certainty regarding ownership of the home run wiring upon termination of a service contract. For any contracts between MVPDs and MDU owners entered into after the effective date of our rules, we will require the MVPD to include a provision describing the disposition of the home run wiring upon the contract's termination. We believe that such a rule will provide certainty to the parties and permit them to address the disposition of home run wiring in light of their circumstances. Where the parties' contract clearly and expressly addresses the disposition of the home run wiring, our procedures will not apply. We also reiterate that the parties may rely upon any existing contractual rights upon termination, in addition to the procedures we are adopting. (4) Impact on Incumbent Video Service Providers 68. We conclude that cable operators' argument that the loss of their home run wiring eliminates their ability to provide other telecommunications services is misplaced. Cable operators' ability to compete in the telephony market should be largely unaffected. The procedures adopted herein apply where the incumbent has no legally enforceable right to remain on the premises and the MDU owner and/or the individual subscriber has selected another provider's package -- notwithstanding the incumbent's other telecommunications services. We think that affording the incumbent the ability to remain in the building on the premise that it has a service to offer in addition to video undermines this proceeding's effort to enhance competition. Cable operators continue to have the opportunity to market video or any other service. The procedures we implement seek to afford the MDU owner or resident with an ability to make a choice. In addition, MDU owners will remain free to implement the type of multiple- wire model advocated by the cable industry by requiring all service providers to install their own home run wires. (5) Application of Procedural Framework 69. As noted above, the procedural mechanisms we are adopting will apply only where the incumbent provider no longer has an enforceable legal right to maintain its home run wiring on the premises against the will of the MDU owner. These procedures will not apply where the incumbent provider has a contractual, statutory or common law right to maintain its home run wiring on the property. We also reiterate that we are not preempting any rights the incumbent provider may have under state law. In the building-by-building context, the procedures will not apply where the incumbent provider has a legally enforceable right to maintain its home run wiring on the premises, even against the MDU owner's wishes, and to prevent any third party from using the wiring. In the unit-by-unit context, the procedures will not apply where the incumbent provider has a legally enforceable right to keep a particular home run 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. 70. In the Inside Wiring Further Notice, we sought comment on whether we should create any presumptions or other mechanisms regarding the rights of the parties if the incumbent's right to maintain its home run wiring on the premises is disputed. Many of the cable interests focus their comments on when an incumbent provider does not have a "legally enforceable right to remain on the premises." Operators ask the Commission to clarify that the procedures will not apply when the incumbent provider and the MDU owner have entered into a contract which specifically deals with the disposition of the home run wiring following termination of service. They assert that this is important if the Commission is to be true to its assertion that the proposed rules are not intended to create or destroy any property rights. Adelphia, et al., and TCI ask the Commission to make clear that the proposed rules do not give MDU owners a new right to terminate service outside the contract or state law. 71. Several commenters also ask the Commission to state specifically that the procedures would not apply in any jurisdiction with a mandatory access law. The cable commenters are troubled by the Commission's notation in footnote 100 of the Inside Wiring Further Notice that where a mandatory access statute is triggered by a tenant requesting service, the incumbent provider may not have the right to maintain its facilities on the premises if no tenant is currently requesting service. The commenters contend that most mandatory access statutes do not hinge on a tenant's request for service, and that in those few that do, franchised cable operators have the right to maintain their cable wiring throughout the MDU indefinitely. 72. Cable interests generally claim that the proposed procedures should not apply until the incumbent provider's rights are "fully exhausted." NCTA suggests that, if the incumbent provider notifies the MDU owner of its intent to initiate a state court proceeding to enforce its rights within 30 days of the MDU owner's notice that it intends to use the Commission's procedures, the procedures should be stayed until the judicial proceeding is terminated. Cable operators also state that the Commission must determine how the incumbent's rights will be established. Cable commenters believe, however, that the Commission should not establish any presumptions as to whether the incumbent has the right to remain on the premises. For the most part, these parties contend that establishing any presumption in this area would be contrary to the Commission's decision not to create or destroy any property rights nor to preempt state law. NCTA claims that the Commission would be "wholly outside its area of expertise" if it were to attempt to determine an appropriate presumption, which would have to be based on complex contractual, statutory and common law issues. Cablevision Systems asserts that the benefits of its substantial investments in upgrading its network to offer new services will be denied subscribers if a presumption adopted by the Commission prevents Cablevision Systems from exercising its right to remain in an MDU under state law or contractual agreement. 73. Ameritech objects to the Commission's proposal to exempt incumbents with a legally enforceable right to remain on the premises and argues that, at a minimum, such an exemption should not apply to future agreements. Ameritech reasons that incumbents could otherwise easily evade the Commission's new rules by entering into long-term contracts. DIRECTV argues that the Commission has the authority to provide that MDU owners may notify incumbent operators at any time that their exclusive use of the inside wiring will be terminated in 90 days in spite of the existence of contracts that may support such exclusive use. Community Associations Institute urges the Commission to establish the presumption that the incumbent operator does not have the right to maintain wiring on the property without securing a ruling from a court of law; and argues that any action to establish such a right should not stay the proposed disposition procedures. Similarly, Media Access/CFA argues that by refusing to preempt mandatory access statutes and contractual rights of access, the Commission would be creating an exception that would swallow the rule. WCA contends that ultimately the Commission should preempt all state mandatory access statutes, but in the interim, it should clarify that, in the case of a dispute regarding the incumbent's right to remain on the premises, the disposition procedures will take effect until a court rules otherwise. OpTel argues that incumbents should be required, when service termination is requested, to make "an affirmative good faith showing" of its legally enforceable right to remain on the property. RCN argues that an incumbent claiming the legal right to control wiring, molding, or conduits or to exclude an alternative service provider should obtain a court order affirming its rights within 30 days of receiving notice from the MDU owner, and forfeitures should be imposed for non-compliance. ICTA asks the Commission to create a presumption that the incumbent provider does not have a legally enforceable right to remain on the premises so that the Commission's rules would have full force and effect until the incumbent proved its claim through whatever judicial proceeding was appropriate. 74. RCN and WCA also urge the Commission to make it clear that state mandatory access statutes do not authorize MVPDs to block moldings or conduits with unused wire. They state that incumbents have no right to maintain unused home run wiring that is blocking competitive access merely because a state does not make mandatory access contingent upon a subscriber's request for service. 75. Both CEMA and Philips, et al., note that the Commission's proposal will not apply in many situations because of state mandatory access statutes. Building Owners, et al., believe that the proposed rules may serve to confuse matters by raising the issue of possible preemption of state law and contract rights. CEMA suggests that the Commission preempt these statutes if it decides to adopt the proposal because Sections 1 and 601 of the Communications Act should take precedence over state law. Philips, et al., also argue that exclusive contracts will limit the usefulness of the proposed rules. 76. In reply comments, cable operators object to RCN's proposal that the incumbent obtain a final court ruling or an injunction within 30 days in order to toll the wiring disposition procedures. First, absent a statutory right, they argue that a cable operator cannot force a court to issue a final ruling within 30 days. Second, they argue that the failure to obtain a temporary restraining order or an injunction is no basis on which to conclude that the incumbent will not ultimately prevail on the merits. Third, they argue that if the proposed procedures proceed before it is clear that the incumbent does not have a right to maintain its wires on the premises, the Commission's intent to provide "order and certainty" and not to disturb existing property rights would be undermined. Fourth, they argue that an incumbent's damages for being wrongly forced to remove or abandon its wiring will be virtually impossible to calculate and difficult to prove. 77. After consideration of the comments, we adopt a presumption that the building-by-building and unit-by-unit procedural mechanisms will apply unless and until the incumbent obtains a court ruling or an injunction enjoining its displacement during the 45-day period following the initial notice. The incumbent will still be required to make its election to sell, remove or abandon the wiring by the end of the initial 30-day period in the absence of such a ruling or injunction. In light of this rule, we decline to adopt the suggestions of various commenters that we shorten the initial election period. We also decline to adopt the cable operators' proposal to stay our procedures until all judicial procedures are terminated, including all appeals. We have not received evidence sufficient to persuade us that state courts will not respond expeditiously. Significantly, the record indicates state courts' ability to protect incumbents' rights. The record continues to support our judgment that an incumbent's failure to obtain a state court injunction justifies a presumption that the incumbent no longer has an enforceable legal right to remain on the premises. Contrary to some commenters' assertions, we do not believe that this presumption interferes with the incumbent's state law rights. A court applying state law will continue to be the ultimate arbiter of whether the incumbent has a legally enforceable right to remain on the premises, and possesses the ability to take any necessary and appropriate steps to make the parties whole under state law. Our presumption simply means that if the incumbent cannot obtain an injunction to maintain its home run wiring on the premises, it is appropriate to permit the MDU owner to invoke our procedures pending any further litigation. 78. We will adopt one exception to our presumption that our procedures will apply in the absence of a state court ruling or injunction obtained within 45 days of the initial notice. We will not require an incumbent provider to obtain such a ruling or injunction where a state's highest court has found that, under its state mandatory access statute, the incumbent always has an enforceable right to maintain its home run wiring on the premises. We believe that to require the incumbent to initiate court 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. 79. We decline, however, to adopt some commenters' request that we provide that our procedures do not apply in states that have enacted mandatory access statutes. Several commenters take issue with our statement that where the incumbent provider's mandatory right of access is dependent upon a subscriber's request for service, the provider may no longer have a legally enforceable right to maintain that subscriber's home run wiring on the premises against the MDU owner's wishes once the subscriber no longer requests service. We clarify that we did not intend to and do not now express any opinion on the merits of this issue. The enforceability of a state mandatory access statute is an issue for the state courts to decide under their particular statutes. We are unwilling to conclude that state mandatory access statutes always grant incumbents the right to maintain their home run wiring in an MDU over the MDU owner's objection. Contrary to the arguments of some cable operators, this is not an issue of the right to install wiring. Rather, the issue is whether the incumbent has a legally enforceable right to maintain its home run wiring on the premises over the objection of the MDU owner. Accordingly, our procedures will apply in mandatory access states to the extent state law does not permit the incumbent to maintain its home run wiring (in the case of a building-by-building disposition) or a particular home run wire to a particular subscriber (in the case of a unit-by-unit disposition) against the will of the MDU owner. 80. The above procedural mechanisms will apply regardless of the identity of the incumbent video service provider involved. While initially this incumbent would commonly be a cable operator, it could also be a SMATV provider, an MMDS provider, a DBS provider or others. We believe that this 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. c. Statutory Authority (1) Background 81. Several commenters agree with the Commission's position that it has statutory authority under Section 623 to adopt its proposed framework. GTE reasons that the proposed disposition procedures fall within the Commission's obligation under Section 623 to ensure reasonable rates for programming, installation, and equipment, which the Commission has defined to include inside wiring. 82. Building Owners, et al., argue that while Section 623(b) might grant the Commission authority to regulate the rates at which operators may sell cable home wiring, it does not authorize the Commission to give building owners the right to acquire wiring or to require cable operators to sell it. Cable interests generally contend that the Commission does not have the statutory authority to adopt the proposed procedures because the procedures: (1) are inconsistent with Section 624(i) and its legislative history which clearly state that the statute only applies to wiring within the unit; (2) are not necessary to the Commission's functions under Sections 624(i), 623 or 601; and (3) would not serve the stated purposes of promoting consumer choice and competition. NCTA asserts that Section 4(i) does not provide the Commission with any independent authority, and the Commission cannot do whatever it wants to promote competition in the video service marketplace. (2) Discussion 83. We conclude that the Commission has authority under Sections 4(i) and 303(r) of the Communications Act, in conjunction with the pervasive regulatory authority committed to the Commission under Title VI, and particularly Section 623, to establish procedures for the disposition of MDU home run wiring upon termination of service. Section 4(i) permits the Commission to "perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this Act, as may be necessary in the execution of its functions." The Commission may properly take action under Section 4(i) even if such action is not expressly authorized by the Communications Act, as long as the action is not expressly prohibited by the Act and is necessary to the effective performance of the Commission's functions. We invoke Section 4(i) here because, contrary to the arguments posed by some commenters, the Communications Act does not prohibit the Commission from adopting procedures regarding the disposition of home run wiring and because adopting such procedures is necessary to implement several provisions of the Communications Act by effectuating and broadening the range of competitive opportunities in the multichannel video distribution marketplace. 84. Courts have upheld various Commission regulations that were not within explicit grants of authority under the "wide-ranging source of authority" of Section 4(i). In these cases, the courts found that the Commission's regulations were not inconsistent with the Communications Act because they did not contravene any provision of the Act and were "appropriate and reasonable" exercises of authority. 85. Recently, in Mobile Communications Corp. v. FCC ("Mtel"), the United States Court of Appeals for the District of Columbia Circuit acknowledged the Commission's authority under Section 4(i) to regulate even where the Communications Act does not explicitly authorize such action. In that case, the D.C. Circuit held that the Commission had authority under Section 4(i) to require Mtel, which held a pioneer's preference, to pay for a narrowband personal communications service ("PCS") license, despite the fact that the Communications Act did not specifically authorize the Commission to charge a price for a license granted to a pioneer's preference holder. The court denied Mtel's argument that the Commission's action was inconsistent with the Communications Act and therefore not within the Commission's Section 4(i) power. Mtel argued that Congress' explicit grant of authority to the Commission to collect certain fees and to conduct auctions for specified types of licenses denied the Commission authority to impose other fees. The court found Mtel's reliance on the expressio unius maxim -- that the expression of one is the exclusion of other -- misplaced. According to the court, "[t]he maxim has little force in the administrative setting,' where we defer to an agency's interpretation of a statute unless Congress has " directly spoken to the precise question at issue.'" The court also denied Mtel's argument that, in the absence of an affirmative statutory mandate to support the payment requirement, the Commission's action was not "necessary in the execution of [the Commission's] functions," as required by Section 4(i). 86. Similarly, in New England Telephone & Telegraph Co. v. FCC, the court affirmed a Commission order requiring telephone companies to refund charges they had collected in excess of the authorized rate of return, even though the Communications Act's only provision explicitly mentioning refunds "does not apply to the circumstances of this case," because refunds were necessary to remedy the violation of the Commission's rate of return order. In North American Telecommunications Association v. FCC, the court affirmed a Commission order pursuant to Section 4(i) requiring the Bell holding companies to file capitalization plans for subsidiary companies organized to sell telephone equipment, even though the Communications Act conferred no authority on the Commission over holding companies and the legislative history of the Communications Act suggested that Congress had considered granting such authority but ultimately denied it, because such a requirement "was necessary and proper to the effectuation of" the Commission's functions. The court stated that "Section 4(i) empowers the Commission to deal with the unforeseen -- even if that means straying a little way beyond the apparent boundaries of the Act -- to the extent necessary to regulate effectively those matters already within the boundaries." 87. Applying these principles here, we conclude that the Commission is authorized under Section 4(i) and 303(r), in conjunction with Section 623, to establish procedures regarding the disposition of MDU home run wiring upon termination of service. Establishing rules regarding the disposition of the home run wiring upon termination is "necessary" to the execution of the Commission's functions. Courts have made clear that they will defer to the Commission's judgment as to what actions are "necessary in the execution of its functions" under Section 4(i). In New England Telephone & Telegraph Company, the court emphasized that "the Commission enjoys significant discretion to choose among a range of reasonable remedies . . . ." Furthermore, the Commission "does not have to show that it selected the only conceivably appropriate remedy in order to invoke its 4(i) powers." Rather, " [t]he question eventually reduces to one of judgment, informed by the policy of the statute that Congress has seen fit to enact.'" The court held that although the Commission might have adopted other corrective measures, "the measure it adopted in this case was appropriate and reasonable," and therefore authorized by Section 4(i). 88. We believe that establishing procedures regarding the disposition of MDU home run wiring will assist the Commission in discharging its statutory obligations under Section 623 and its overall responsibility to pursue Congress' preference for competition stated in the 1992 Cable Act. Section 623(b) of the Communications Act requires the Commission to prescribe rules to ensure that rates for basic cable service are "reasonable" and provides that such regulations "shall include standards to establish, on the basis of actual cost, the price or rate for . . . installation and lease of equipment used by subscribers . . . ." Some commenters point out, concerning equipment, that Section 623(b) deals with rates for the "installation and lease" of equipment and argue that our authority under Section 623 to regulate equipment rates does not relate to the disposition of wiring upon termination of service. We agree that our authority more properly rests on the requirement in Section 623(b)(1) that the Commission ensure, by regulation, that the rates for the basic service tier are reasonable. Section 623 seeks to foster services to the subscriber at reasonable prices. We believe that establishing the above procedures regarding the disposition of MDU home run wiring is a necessary, "appropriate and reasonable" method to fulfill Section 623's mandate of reasonable cable rates. We believe that these procedures will provide certainty for property owners, alternative video service providers and subscribers regarding the disposition of the home run wiring when the existing service is terminated, thereby alleviating current circumstances that deter the property owner from considering alternative service providers and fostering competition among 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. 89. In the 1992 Cable Act, Congress specifically embraced a "[p]reference for competition" over regulation in setting rates for cable services. Fostering competition among service providers through the adoption of rules regarding the disposition of MDU home run wiring is a fundamental means to ensure that cable service rates remain "reasonable." The legislative history of Section 623(b) states that Congress agreed that "[r]ather than requiring the Commission to adopt a formula to set a maximum rate for basic cable service, the conferees agree to allow the Commission to adopt formulas or other mechanisms and procedures to carry out this purpose. The purpose of these changes [in the legislation] is to give the Commission the authority to choose the best method of ensuring reasonable rates for the basic service tier and to encourage the Commission to simplify the regulatory process." We therefore find that it is within our scope of authority under the 1992 Cable Act and Section 4(i) to establish procedural mechanisms that encourage reasonable rates through a competitive environment rather than a regulatory one. 90. Further, our decision to establish procedures regarding the disposition of home run wiring in MDUs is consistent with the Communications Act's fundamental purpose of "regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all people of the United States . . . a rapid, efficient, Nation-wide, and world-wide wire and radio communications service . . . ." Similarly, Section 601 of the Communications Act states that one of the purposes of Title VI of the Act -- relating to cable communications -- is to promote competition in cable communications. Due to the lack of competitive alternatives in multichannel video programming services, Congress has authorized the Commission to ensure that basic cable services are available at reasonable rates, to ensure that cable programming service rates are not unreasonable, and to establish standards whereby cable operators fulfill customer service requirements. That is what we do here. 91. We also believe that our rules will help fulfill Congress' mandate in the 1996 Act to "provide for a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans." We believe that our procedural mechanisms will enhance competition, fostering the deployment of innovative technologies and expanded services. Based on the record before us, we find that failing to establish such procedures would continue existing barriers to competitive choice for individuals residing in MDUs. Individuals residing in MDUs often are currently limited to receiving service from only one provider. Although we recognize that subscriber choice would be enhanced by the use of multiple wires, we do not believe that requiring MDU owners to permit multiple wires is a viable option at this point in time. We believe that the inability of the MDU owner to use the existing home run wiring deters consideration of alternative providers, and that providing certainty with regard to the disposition of the MDU home run wiring provides a reasonable means of increasing choice and promoting competition. 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). 92. Turning to the other component of Section 4(i), we also conclude that the procedural mechanisms we are adopting are "not inconsistent" with any provision of the Communications Act. The crux of the commenters' argument that adoption of these procedures is beyond the Commission's authority is that they conflict with Section 624(i) of the Act. To the contrary, Section 624(i) does not prohibit the Commission from adopting rules concerning wiring outside the subscriber's premises. By its plain language, Section 624(i) mandates that the Commission take certain action, but does not preclude any other exercise of our authority. It states: "Within 120 days after the date of enactment of this subsection, the Commission shall prescribe rules concerning the disposition, after a subscriber to a cable system terminates service, of any cable installed by the cable operator within the premises of such subscriber." This provision only mandates that the Commission adopt rules regarding the disposition of wiring installed within subscribers' premises, it does not limit the Commission's existing authority with respect to wiring outside those premises. Indeed, in Mtel, the court rejected the argument that Congress's specific grant of authority to charge for certain licenses suggested that without that explicit grant of authority the Commission did not otherwise have the authority. Even more so here, given that Section 624(i) requires the Commission to adopt rules in certain circumstances rather than authorizes it to do so, it cannot be read as a limit on the Commission's authority found elsewhere in the Communications Act. Furthermore, as the Mtel court found, the expressio unius maxim -- that the expression of one is the exclusion of other -- " has little force in the administrative setting,' where [a court] defer[s] to an agency's interpretation of a statute unless Congress has " directly spoken to the precise question at issue.'" Indeed, the Mtel court stated: "[W]e think the nature of Congress's auction authorization more supports than undermines the Commission's decision here." 93. Thus, this is not a circumstance where the general canon of statutory construction, the "specific governs the general," applies. The courts have found this canon applicable only where there "is an inescapable conflict' between the specific provision and the general provision." Section 624(i) does not prohibit the Commission from adopting rules affecting home run wiring. We conclude that there is no "inescapable conflict" between Section 624(i) and the procedures discussed above. 94. To the contrary, we believe that the rules we are adopting will further promote Section 624(i)'s underlying purpose of promoting consumer choice and competition by permitting subscribers to use their existing home wiring to receive an alternative video programming service. Section 624(i) directs the Commission to prescribe rules regarding the disposition of wiring within a subscriber's premises in order to promote consumer choice and competition by permitting subscribers to avoid the disruption of having their home wiring removed upon voluntary termination and subsequently to utilize that wiring for an alternative service. We believe that, under our current rules, we cannot fully meet those objectives in the MDU context because, as described above, MDU owners often will not permit multiple home run wires to be installed in their buildings. In order to promote consumer choice and competition, therefore, we are prescribing additional rules regarding the disposition of the existing home run wiring upon termination of service. 95. Furthermore, the statement in the legislative history regarding limiting the "right to acquire home wiring to the cable installed within the interior premises of a subscriber's dwelling unit," which some parties read out of context to suggest a limitation on our authority, was made in conjunction with Congress' expression of concern about the potential for theft of service and signal leakage. The procedures we are adopting, however, do not grant alternative providers, subscribers, or MDU owners access to the incumbent provider's riser cable or lockbox and therefore do not pose the safety concerns about which Congress was concerned. We do not believe that the procedural mechanisms we are adopting will increase the frequency of service theft; a provider's control over its network security is unaffected by our rules. In addition, our rules do not affect the service provider's signal leakage responsibilities. It will remain the duty of the provider to protect against signal leakage while it is providing service, regardless of who owns the home run wiring in the building. 96. In addition, cable operator reliance on the "Joint Use" provision of the 1996 Act (codified at Section 652(d)(2) of the Communications Act) as evidence of Congress' intent that cable operators retain ownership and control of the home run wiring is misplaced. Section 652(d)(2) provides generally that a local exchange carrier ("LEC") may obtain permission from the cable operator to use that part of the transmission facilities extending from the last multi-user terminal to the premises of the end user, and that such use must be reasonably limited in scope and duration. Cable operators assert that this provision invests them with ownership and control of all cable wiring outside the subscriber demarcation point, including the home run wiring, even after a subscriber terminates service, as Congress otherwise would not have established rules allowing cable operators to set the terms and conditions for a LEC's use of the facilities. 97. We disagree. Notably, Section 652(d)(2) is entitled "Joint Use," indicating Congress' intent for the provision to govern only the joint use of the facilities by a cable operator and a LEC. It is an exception to the general prohibition in Section 652(c) on joint ventures or partnerships between cable operators and LECs that serve the same market area. We believe that Section 652(d)(2) does not constrain our authority to establish procedures governing the disposition of the home run wiring because the provision only addresses use of the wiring while the cable operator continues to own or use the facilities. 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. 98. Additionally, we believe that had Congress intended the "Joint Use" provision to govern cable wiring, it would have placed the provision in Section 624, which sets forth the existing wiring provisions, rather than in Section 652, which concerns telephone company-cable television cross-ownership restrictions. We also agree with alternative video service providers that Congress would have enumerated additional types of potential users of cable operators' wiring, other than telephone companies, if it had intended this provision to cover uses of the wiring other than the limited situation of wiring being shared between a LEC and a cable operator. 99. In sum, we conclude that the procedures we are adopting are "not inconsistent" with the Act. As the court found in Mtel, "we see no conflict between the language and structure of the Communications Act" and our adoption of procedural rules regarding disposition of home run wiring. 100. In addition, we believe that we have authority under Sections 4(i) and 303(r) to apply our cable inside wiring rules to all MVPDs, and not just to cable operators. Section 303(r) of the Communications Act authorizes the Commission, as required by public convenience, interest, or necessity, to promulgate rules and restrictions, not inconsistent with law, as may be necessary to carry out the provisions of the Act. We believe that applying these rules to all Commission licensees that are MVPDs would be in the public interest. The same competitive concerns described above exist regardless of whether a cable operator or some other video service provider initially installed a subscriber's or an MDU's inside wiring. In addition, we believe that applying our cable home wiring rules to MVPDs that are Commission licensees would not be inconsistent with Section 624(i) and would further its purposes, since subscribers could use their existing inside wiring to receive an alternative service. Further, for similar reasons to those discussed above in adopting procedures for disposition of the home run wiring in MDUs for cable operators, such procedures are not inconsistent with Section 624(i) if applied to MVPDs that are radio licensees. 101. In addition, we conclude that we have the authority under Sections 4(i), 201 to 205, and 303(r) to extend our cable inside wiring rules to common carriers engaged in the transmission of video programming. Section 201(b) in particular requires that "practices . . . for and in connection with [common carrier services] be reasonable." For the same reasons that we are applying these rules to cable operators, we believe they are appropriately applied to common carrier practices consistent with Section 201(b). We conclude that Section 4(i) also invests the Commission with authority to expand our rules in this manner with regard to MVPDs that are neither radio licensees nor common carriers. Again, we conclude that the same competitive concerns are present regardless of the type of service provider that initially installs the broadband inside wiring. In addition, we conclude that such an extension of our rules is necessary in the execution of our functions and is not inconsistent with the Communications Act, as described above. To promote parity among broadband competitors and to fulfill the directives of the 1992 Cable Act and the 1996 Act, we will apply our cable inside wiring rules to all MVPDs. d. Constitutional Arguments (1) Background 102. Time Warner argues that the proposed procedures constitute an impermissible taking under the Fifth Amendment. Comcast, et al., believe that takings concerns would be alleviated if a just compensation formula is implemented. However, Building Owners, et al., argue that the Commission should allow the price for wiring to be set by the marketplace because the Commission might infringe on Fifth Amendment property rights if it sets a price that presents the parties with an unrealistic choice of how to deal with the property. GTE asserts that the proposed disposition procedures would not amount to an unconstitutional taking because property will not be deemed abandoned unless the incumbent fails to act and because this proceeding has afforded incumbents adequate process. (2) Discussion 103. We conclude that the procedural mechanisms we have adopted do not constitute an impermissible "taking" under the Fifth Amendment. First, there is no forced taking of the incumbent's physical property, since the incumbent has a reasonable opportunity to remove, abandon, or sell the wiring. The Fifth Amendment cannot be construed to allow a service provider with no contractual or other legal right to remain on a person's property to leave its wiring on the property indefinitely and prohibit the property owner from using it. There can be no taking of the incumbent's access rights because the procedures expressly apply only where the incumbent does not have a contractual, statutory or other legal right to maintain its wiring on the premises. If the incumbent fails to act within the reasonable periods set forth and its wiring is deemed abandoned, it is the operator's failure to act, not the Commission's rule, that would extinguish the cable operator's rights. B. Sharing of Molding 104. In the Inside Wiring Further Notice, we noted that RCN argued that some MDU owners do not object to a second set of home run wires but to the installation of a second set of hallway molding or conduits, and that in some cases there is room in the molding or conduit for it to install its home run wiring without interfering with the incumbent's wiring. We sought comment on a proposal to permit the alternative service provider to install its wiring within the incumbent provider's existing molding or conduit, even over the incumbent's objection, where there is room in the molding or conduit and the MDU owner does not object. We tentatively concluded that such a rule would promote competition and consumer choice and would not constitute a taking of the incumbent provider's private property without just compensation under the Fifth Amendment. 105. A number of commenters support the Commission's proposal. Community Associations Institute further suggests that the Commission allow MDU owners to permit the addition of wiring to existing moldings and conduits except where contracts bar such action. Building Owners, et al., specifically argue that access to molding and conduits should only be permitted with the prior consent of the building owner. Cox supports the proposal so long as the incumbent has not bargained for and received the exclusive right to use the molding or conduit. DIRECTV, however, suggests that such actions be allowed regardless of whether the incumbent has a contract purportedly giving it the right to exclusive use of the molding or conduit. 106. NCTA argues that forced sharing would be an impermissible taking, and that the Commission should leave the issue to contract and property law. On reply, NCTA states that if the Commission adopts its proposal, it should apply only where the incumbent has no statutory, contractual or common law right to exclude or limit such access. 107. Time Warner offers a proposal under which sharing of molding or conduit would be permitted if all affected MVPDs and the MDU owner agree that there is adequate space, subject to appropriate compensation. Where the parties cannot agree that there is adequate space for additional wires, and the MDU owner is willing to allow installation of larger molding or conduit, the party owning the molding or conduit would install larger molding or conduit at the expense of the party seeking occupancy. 108. Several parties also believe that the incumbent should be compensated for an alternative provider's access to its molding or conduits. RCN proposes that if parties cannot reach a negotiated price for access, the cost for each wire would be determined by calculating the incumbent's documented installation costs for the molding or conduit minus depreciation. According to RCN, the new provider's share of the costs would be the depreciated per wire cost times the number of wires it installs in the molding or conduit. Similarly, Media Access/CFA argues that the price should be prorated to reflect the percentage of empty space actually used and should be based on depreciation value, rather than replacement value. 109. We will adopt a rule that permits an alternative MVPD to install its wiring within an incumbent's existing molding, even over the incumbent provider's objection, where the MDU owner agrees that there is adequate space in the molding and the MDU owner gives its affirmative consent. We believe that such a rule will promote head-to-head competition among MVPDs by overcoming the resistance of MDU owners to the installation of redundant molding. At this time we will not require the sharing of space within conduits. The record does not contain sufficient evidence regarding the practicability of such a requirement. 110. We have authority to adopt these rules on the sharing of molding under Sections 4(i) and 303 of the Communications Act, for similar reasons described in the disposition of home run wiring section, above. 111. We agree with RCN that such a rule would not constitute a "taking" of private property because, absent a contractual right of exclusive occupation, the incumbent would not have a property interest in the air space between the molding and the hallway wall or ceiling. We do not believe -- and commenters have not adduced any case law to the contrary -- that merely attaching hallway molding to a third party's real property ordinarily gives the attaching party any property interest in the vacant air space covered by the molding. However, we will not apply this rule where the incumbent has an exclusive contractual right to occupy the molding. Since we do not believe that the incumbent ordinarily will have a property interest in the vacant air space inside the hallway molding, we will not require the alternative MVPD to compensate the incumbent for the placement of its wires. The alternative provider 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. 112. We also will adopt a variant of Time Warner's proposal for those situations in which the molding may not have sufficient space for the alternative MVPD's wiring. Under the rule we will adopt, where the MDU owner does not agree that there is adequate space in the molding for the additional wiring, and the MDU owner is willing to permit the installation of larger molding that could contain both the incumbent's and the alternative MVPD's wiring, the the MDU owner (with or without the assistance of the incumbent and/or the alternative provider) shall be permitted to remove the existing molding (and return the molding to the incumbent, if appropriate) and replace it with the larger molding at the alternative MVPD's expense. Again, the alternative MVPD would 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. This rule will not apply if the incumbent has contracted for the right to maintain its molding on the MDU owner's property without alteration by the 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. C. Disposition of Cable Home Wiring 113. As we stated in the Inside Wiring Further Notice, we believe that fostering competitive choice in MDUs requires the coordinated disposition of two segments of cable wiring: (1) the home run wiring from the point where the wiring becomes devoted to an individual unit to the cable demarcation point; and (2) the cable home wiring from the demarcation point to the subscriber's television set or other customer premises equipment. Without clear and predictable rules for the disposition of each of these segments, an alternative provider's ability to convince an MDU owner or individual subscriber to switch services could be significantly compromised. The procedural framework discussed above addresses the disposition of MDU home run wiring. Here, we set forth specific rules on how to address certain issues regarding the disposition of MDU cable home wiring that were not addressed in our prior home wiring order. 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. 114. As in the context of home run wiring, our MDU home wiring rules will apply regardless of the identity of the incumbent video service provider involved. While initially this incumbent will commonly be a cable operator, it could also be a SMATV provider, an MMDS provider, a DBS provider 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. 1. Disposition of Home Wiring When Service Is Terminated for an Entire MDU 115. In the Cable Home Wiring Further Notice, we requested comment on, among other issues, whether, in order to promote the goals of Section 624(i) and our rules thereunder, the subscriber (on a non-loop-through wiring configuration) or the building owner (with a loop-through wiring configuration) should be given the opportunity to purchase the cable home wiring when the MDU owner terminates cable service for the entire building. For the most part, alternative service providers support having the cable home wiring procedures apply where the building owner terminates service on behalf of the entire building. Some commenters believe that when the building owner terminates service the individual subscriber should be given the opportunity to purchase the home wiring; others believe only the building owner should have that right. GTE asserts that cable "subscriber" should be defined as the one that contracts or arranges for service. Bell Atlantic contends that the building owner may be acting as the subscriber's authorized agent if the subscriber agrees in its lease agreement that the landlord may terminate service. Building Owners, et al., oppose applying the Commission's rules under Section 624(i) when service for the entire building is terminated, because much of the building wiring is not cable home wiring and because a landlord is allegedly not a "subscriber" under the Commission's rules. 116. In the Inside Wiring Further Notice, we tentatively concluded that, if the MDU owner has the legal right, either by law or by contract, to terminate the subscriber's cable service, the owner terminating service for the entire building is effectively voluntarily terminating service on the subscriber's behalf, and our home wiring rules would be triggered. We affirm this conclusion. We conclude that providing the cable operator a single point of contact (i.e., the MDU owner) will further the statutory purposes of minimizing disruption and facilitating the transfer of service to a competing video service provider. Because we believe that it would be impractical and inefficient for the incumbent provider to deal with each individual subscriber regarding the disposition of his or her cable home wiring when the entire MDU is switching providers, we will deem the MDU owner to be acting as the terminating "subscriber" for purposes of the disposition of the cable home wiring within the individual dwelling unit where the cable home wiring is not already owned by a resident. We clarify, however, that, contrary to Time Warner's contention, we are not changing our definition of subscriber to include MDU owners. We believe that, when as a matter of law or contract, the MDU owner has the right to terminate service, the MDU owner is effectively terminating service on behalf of the subscriber. 117. For those MDU owners proceeding under our home run wiring disposition procedures, we will adopt the following framework in order to ensure the orderly disposition of the home wiring. When an incumbent provider is notified under our home run wiring disposition procedures that the incumbent provider's access to the entire building will be terminated and that the MDU owner seeks to use the home run wiring for another service, the incumbent provider must, within 30 days: (1) offer to sell to the MDU owner any home wiring within the individual dwelling units which the incumbent provider owns and intends to remove; and (2) provide the MDU owner with the total per-foot replacement cost of such home wiring. 118. As with the home run wiring, if an MDU owner declines to purchase the cable home wiring not already owned by a resident, the MDU owner may permit the alternative service provider to purchase the wiring upon service termination under our rules. We will require that the MDU owner decide whether it or the alternative provider will purchase the cable home wiring and so notify the incumbent provider no later than 30 days before the termination of access to the building will become effective. If the MDU owner and the alternative service provider decline to purchase the home wiring, the incumbent provider will not be permitted to remove the home wiring until the date of actual service termination, i.e., likely 90 days after the building owner notified the incumbent that its access to the entire building will be terminated. We will modify our current home wiring rules to allow the incumbent provider 30 days after service termination, rather than the current seven days, to remove all of the cable home wiring for the entire building if the MDU owner has terminated service for the entire building and has declined to purchase the home wiring. We believe this is appropriate given the amount of home wiring that may need to be removed from an entire building. Under these circumstances, if the incumbent 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. 2. Disposition of Home Wiring When Service Is Terminated by an Individual Subscriber 119. In the Cable Home Wiring Further Notice, we sought comment on whether, when a subscriber who voluntarily terminates cable service does not own the premises and elects not to purchase the wiring, the premises owner should have the right to purchase the cable home wiring. Alternative service providers contend that the premises owner should have this right to purchase when the individual subscriber declines to purchase the wiring, if not at all times. ICTA claims that this arrangement would promote competition and, consistent with Section 624(i), would avoid damage, cost and inconvenience to the owner's property. Building Owners, et al., claim that only owner residents (as opposed to tenants) should have the right to purchase cable home wiring in the first place. In addition, Building Owners, et al., contend that it is essential for the building owner to have full control over its property, including the wiring, subject only to state property law, a lease or other contract. Time Warner claims that Congress did not confer benefits or opportunities on landlords. NCTA asserts that the wiring should be available to subsequent residents unless the operator removes the wiring. 120. In the Inside Wiring Further Notice, we proposed two modifications to our cable home wiring rules. First, we proposed to permit the MDU owner or the alternative service provider to purchase the cable home wiring within each unit if the subscriber declines, provided that the MDU owner provides adequate notice to the incumbent provider that it or the alternative provider wants to purchase the home wiring under those circumstances. Second, we proposed to change the time in which an incumbent provider must remove the home wiring or make no further effort to use it or restrict its use from seven business days to seven calendar days after the individual subscriber terminates service. 121.In response to the Inside Wiring Further Notice, Comcast, et al., and ICTA agree that an MDU owner should have the opportunity to purchase the home wiring should one or more of its tenants decline to do so, but Time Warner and Building Owners, et al., argue that MDU owners should not be allowed to purchase home wiring. Comcast, et al., state that while it does not challenge the Commission's proposal to allow the MDU owner to purchase the home wiring when a tenant declines to do so, it does believe that just compensation for the wiring must be "more than simply the replacement value of that wiring." They also state that the home wiring rules should not apply when the home run wiring rules do not apply (e.g., when a subscriber terminates service without informing the incumbent that it wishes to use the home run wiring for another video provider). Media Access/CFA, however, argue that preventing individual subscribers from exercising the option to purchase their home wiring would unlawfully subordinate individual choice and place the MDU in a gatekeeper position. 122. We will continue to apply our rules permitting individual terminating subscribers (or their agents) to purchase the cable home wiring up to a point at or about 12 inches outside their individual units. We continue to believe that this is consistent with the purposes of Section 624(i) to promote consumer choice and competition by permitting subscribers to avoid the disruption of having their home wiring removed upon voluntary termination and to subsequently utilize that wiring for an alternative service. If the subscriber declines to purchase its home wiring, we believe that the premises owner should be permitted to purchase the cable home wiring within the individual's premises based on the per- foot replacement cost. This approach will preserve the current subscriber's rights, and still allow the premises owner to act on behalf of future tenants, thus promoting competition and consumer choice. As with 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. 123. Where an individual MDU resident terminates service, the MDU owner must provide reasonable advance notice to the incumbent provider if it wishes to purchase the home wiring (or that the alternative provider will purchase it) if and when an individual subscriber declines. The MDU owner will be required to inform the incumbent provider one time for the entire building. If the MDU owner fails to provide the incumbent with such notice, the incumbent will be under no obligation to sell the home wiring to the MDU owner or the alternative provider when an individual subscriber terminates and declines to purchase the wiring. Where an MDU owner does not or cannot invoke our unit-by-unit home run wiring disposition procedures (e.g., if it elects to have two-wire competition to each unit), we will 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. 124. In addition, where an individual subscriber is terminating service, we will change the time in which an incumbent provider must remove the home wiring or make no further effort to use it or restrict its use in single unit installations from seven business days to seven calendar days after the individual subscriber terminates service. We believe that this minor change is sufficient time for removal of a single subscriber's cable home wiring, and will avoid customer confusion by having the time permitted for the provider to remove the home wiring within the individual unit run concurrently with the time permitted for the provider to remove, sell or abandon the home run wiring under our procedural framework. 3. Effect of Subscriber Vacating the Premises on the Application of Cable Home Wiring Rules 125. We also sought comment in the Cable Home Wiring Further Notice on the disposition of cable home wiring in the event that a subscriber terminates cable service, elects not to purchase the wiring and vacates the premises within the time period the operator has to remove the home wiring. We stated that we believed that, as long as the cable operator is allowed access to the premises to remove its wiring if it so wishes, whether the subscriber vacates the premises has no bearing on the application of our rules. The cable operator would be required to remove the wiring within seven days of the subscriber's termination of service, or make no subsequent attempt to remove it or to restrict its use, regardless of who subsequently resides in the premises. 126. Several commenters believe that whether a subscriber vacates the premises should have no bearing on the application of the home wiring rules. NYNEX asserts that the cable operator must ascertain when the wire can be removed during the time period allowed and that, if the cable operator fails to act promptly and the new tenant refuses to grant access, the operator loses its right to remove the wiring or restrict its use. WCA states that the operator's failure to act should extinguish any claim of ownership or control over the home wiring. PacTel contends that once the unit is vacant, all service providers should have equal access to the next tenants. 127. We conclude that our cable home wiring rules should apply even when the subscriber is vacating the premises within the seven day period. A cable operator that owns the wiring and intends to remove it must offer to sell the cable home wiring to the subscriber upon voluntary termination, and if the subscriber declines, the operator must remove the wiring within seven days or make no further effort to remove it or restrict its use. We expressly state that the cable operator must be given reasonable access to the individual premises during the removal period. We believe that the foregoing policy will 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. 128. The disposition of the cable home wiring under these circumstances will not affect our rules for the unit-by-unit disposition of the MDU home run wiring. As described above, our rules regarding the disposition of the home run wiring are not triggered where a subscriber terminates service and vacates the premises unless and until a new or subsequent subscriber (or his or her agent) notifies the incumbent service provider that the subscriber wishes to receive service from an alternative service provider lawfully serving the premises. D. MDU Demarcation Point 1. Background 129. In the Inside Wiring Notice, we sought comment on "whether and how our wiring rules can be structured to promote competition both in the markets for multichannel video programming delivery and in the market for telephony and advanced telecommunications services." In particular, we requested comment on whether and where the Commision should establish a common demarcation point for wireline communications networks, regardless of the type of wiring they employ (e.g., coaxial cable or "twisted-pair" copper wiring) or the type(s) of services provided (e.g., video or telephony). We stated that sound reasons for creating a common demarcation point may exist, such as when cable and telephony services are provided over a single broadband wire. In that situation, we posited that a common demarcation point could facilitate competition by decreasing confusion over where a particular service's demarcation point is located and reducing the possibility that conflicting property rights could impede a transfer of service. 130. We sought comment on whether, alternatively, we should continue to establish demarcation points based on the services provided over facilities (i.e., telephony or cable), or whether we should create demarcation points based upon the nature of the facilities ultimately used to deliver the service (i.e., narrowband termination facilities or broadband termination facilities). We noted that we "recognize that numerous other factors may affect the proper location of the cable network's demarcation point, as well as one's control over cable inside wiring and cable service generally." We also sought comment on the "legal and practical impediments faced by telecommunications service providers in gaining access to subscribers." 131. Several commenters support the establishment of a common demarcation point in single family homes for both cable and telephone wiring. These commenters state that a common demarcation point would foster competition by easing a subscriber's transition among services providers. A common point would permit a subscriber to switch service providers by simply disconnecting the inside wiring from one provider's network and reconnecting it to another network, all at one location. Time Warner and others support a common point set at or about 12 inches outside of the point where the wiring enters the customer's home, because this will allow service transfers without requiring the presence of the consumer to allow access to the interior of the home. They assert that this approach will accommodate future competition between cable and telephone companies, while also facilitating testing and complying with existing electric codes. Other commenters would modify this approach to allow a common point set at or about 12 inches outside the premises or 12 inches inside the premises, or the closest practicable point to that location, "provided that the point is reasonably accessible to competing providers." Bell Atlantic would allow multiple demarcation points anywhere between the property line (i.e., a terminating device) and 12 inches inside the premises, but adds that the demarcation rules for existing single-family homes should be grandfathered. 132. The New Jersey BPU, in contrast, believes that the current demarcation points offer sufficient access to competitors, and that changing these rules would not benefit consumers at this time. Building Industry Consulting adds that, in practice, the telephone demarcation point has moved gradually closer to the cable point. For this reason, Building Industy Consulting believes that establishing a common demarcation point would not be burdensome, while TIA relies on the same reasoning to argue that setting a common demarcation point is unnecessary. 133. Many commenters argue that the current cable demarcation point in MDUs (at or about 12 inches outside of where the cable wire enters the subscriber's individual dwelling unit) is anticompetitive. These commenters assert that, as a physical matter, the cable wiring at the demarcation point is often embedded in brick, plaster, or cinder blocks, or encased in conduits or moldings, particularly in older MDUs. These commenters state that, as a practical matter, a large majority of property owners refuse to allow installation of a second set of cable wires in their buildings due to the risk of property damage, space limitations and aesthetic concerns. Alternative MVPDs contend that property owners routinely insist that a competitor to the incumbent cable operator may only provide service to the consumers residing in the MDU if the competitor uses the existing wiring within the building. These commenters assert that, given the growing number of MDU residents, this is a significant nationwide problem. 134. Alternative providers make several different proposals. Most commenters urge the Commission to establish a new cable demarcation point at the point at which the wiring becomes solely dedicated to an individual subscriber -- e.g., at the lockbox, where the riser cable connects to each unit's dedicated home run wiring. Other proposals include: (1) placing the cable demarcation point at the minimum point of entry, as it typically is located in the telephone context; (2) moving the cable demarcation point to a location near the entry to the building, such as a basement, telephone vault or frameroom; and (3) placing the cable demarcation point within the MDU's common areas where existing wiring is first readily accessible to competitors. 135. Alternative service providers argue that moving the cable demarcation point to the point where the wiring becomes dedicated to an individual unit will promote competition in the video marketplace. They assert that adopting their proposal would allow an alternative service provider, upon termination of the incumbent provider's service by a subscriber, to attach its network quickly and easily to the wiring solely dedicated to the individual subscriber's use. They also argue that this new demarcation point would permit a second entrant to provide service without disrupting hallway walls or ceilings, or installing additional hallway molding in order to conceal a second set of home run wiring. These commenters contend that this would greatly increase property owners' willingness to allow them to enter the building and compete, thereby fostering competition and enhancing consumer choice. 136. Some commenters that advocate moving the cable demarcation point to the "solely dedicated" point, as described above, urge the Commission to deem the MDU property owner the "subscriber" for purposes of Section 624(i) and to allow the property owner to purchase the home run wiring upon termination of the cable service. These commenters argue that to permit a tenant to purchase the wiring would constitute an impermissible taking of the property owner's property, would be beyond the Commission's authority under Section 624(i), and would not be sound policy since only the MDU owner has a long term interest in the property and the services available to the MDU. 137. DIRECTV suggests that the Commission should establish a "virtual" demarcation point from which an alternative provider could share the wiring simultaneously with the cable operator. Other alternative providers endorse this view, if it is technically possible. CEMA states that some of its members "are currently developing equipment that will allow multiple uses of a single broadband wire, including the potential for simultaneous use, and the high-speed, real-time transport of digitally encoded information to the customer premises." Cable operators generally oppose DIRECTV's suggestion that two video service providers may share a single wire, stating that the alternative provider would have to use different frequency bands to avoid interference, and, while theroetically possible, most systems do not have sufficient bandwidth capacity to carry multiple MVPDs. 138. Cable operators generally argue that the Commission should not modify the current cable demarcation point in MDUs. Some cable operators argue that the alternative service providers have failed to support their assertions that the current cable demarcation point is often inaccessible and that the cost of installing additional home run wiring is prohibitive. Cable operators contend that they often are the second entrant into an MDU, and that in such circumstances they install their own inside wiring, including home runs. In addition, some cable operators assert that alternative service providers typically assuage concerns of landlords through compensation for access to the MDU, which they claim cable operators may be precluded by law from doing. Alternatively, Charter/Comcast urges the Commission to move the demarcation point for broadband services inside the customer's premises, such as to the wall plate. 139. Cable operators argue that moving the cable demarcation point would restrict their ability to compete to provide telephony and other telecommunications services, such as Internet access, if a subscriber chose a competitor's video services. They assert that consumers would benefit from additional broadband wires to their premises, since they could then have the flexibility of receiving different services from different providers, rather than simply choosing among service providers. Cable operators argue that they should be permitted to maintain control over their wire in order to compete to provide such services, rather than have to relinquish their wire to a competitor and be forced to re-wire in the future. 140. Cable operators also argue that allowing competitors to take over the cable operators' existing plant would undercut their incentives to upgrade and deploy end-to-end broadband networks. Cox states that it is not surprising that telephone companies and other alternative service providers favor a rule that allows them to take over the cable operator's plant, since this allows them to reduce costs while also protecting them from competition from cable operators in the provision of telephony, video and data services. Some cable commenters contend that moving the cable demarcation point would slow network upgrades in areas with a high concentration of MDUs and disadvantage those subscribers residing in MDUs vis-a-vis subscribers residing in single family homes. 141. The end result of moving the cable demarcation point in MDUs, according to cable operators, would be a "one-wire world" in which the MDU owner or manager would become the "gatekeeper" with the power to determine which services and service providers have access to subscribers. Some cable commenters believe that the premises owner will generally promote its own interests at the expense of subscribers residing in the building. These parties believe that, rather than enhancing property owners' power to control access to MDUs, the property owners' power should be minimized, in order to promote competition and enhance consumer choice. 142. In reply, GTE disputes the claim that moving the demarcation point necessarily "would lead to a one-wire world and would discourage the offering of new services." GTE states that, if a building owner wants to allow service providers to duplicate the wiring that exists in its structure, there is nothing in the current rules preventing this. Similarly, ICTA argues that moving the demarcation point would not discourage investment because a cable operator may protect itself by obtaining a property owner's agreement guaranteeing the operator access to the property for a period of time sufficient for the operator to recoup its investment in the wiring and make a reasonable profit. 143. Alternative service providers also dispute the cable industry's argument that moving the cable demarcation point would impair cable operators' ability to offer additional services because the operator will no longer control the existing home run wiring. WCA asserts that this is a consumer decision and that MDU subscribers will do what all consumers do when choosing among providers -- i.e., evaluate the options and determine which one will provide the highest quality service at the lowest price. WCA believes it would be anti-competitive for the cable operator to hold a subscriber hostage to the operator's video programming service only because the cable operator may offer telephony or other services in the future. In addition, ICTA argues that the cable industry should not be able to use its competitive advantage with respect to video programming, which results from its control over inside wiring, to inhibit competition in other markets as well. 144. Finally, some commenters contest cable operators' arguments that property owners will function as anti-competitive gatekeepers if the cable demarcation point is changed. First, these parties state that the cable industry's arguments ignore property owners' incentives to act in tenants' best interests if the owners want to avoid vacancies in their buildings. These parties add that the cable industry ignores the "thousands of times" landlords seek to act in the best interests of their tenants but are "hamstrung" by cable operators' assertions of ownership over wiring, even after the cable operator's service has been terminated. Second, some commenters argue that the issue is not whether there will be or should be a gatekeeper to an MDU, but whether the property owner or the cable operator would make a better gatekeeper. Ameritech, for instance, believes that given cable operators' incentives to preclude competition as compared with property owners' incentives to maintain and attract tenants, the property owners are the better candidates to act in the tenants' interests. 145. In the Inside Wiring Further Notice, we sought additional comment on our tentative conclusion that where the cable demarcation point is truly physically inaccessible to the alternative provider, the demarcation point should be moved back to the point at which it first becomes physically accessible. Several commenters support the Commission's proposal to require relocation of the demarcation point when it is "physically inaccessible" to a point where it first becomes accessible. Media Access/CFA propose a two-part definition that would ask whether accessing the demarcation point would: (1) require modification or damage to preexisting structural elements and (2) add significantly to the difficulty and/or cost of accessing the subscriber's home wiring. A number of other definitions were also suggested. 146. In reply, Time Warner suggests adoption of the Commisison's "bright-line" test that the cable demarcation point would be physically "inaccessible" where it is embedded in brick, metal conduit or cinderblocks, not simply within hallway molding. Cable commenters propose that in such circumstances the demarcation point would be moved as close as practicable thereto (either closer to the unit or farther away) to permit access. 2. Discussion 147. We believe that it is not necessary to establish a common cable and telephone demarcation point at this time. At least as far as inside wiring is concerned, telephony generally appears to continue to be delivered over twisted pair wiring and multichannel video programming generally appears to be delivered over coaxial cable. The record before us indicates that this distinction is likely to continue for at least the near future. If and when circumstances change, we will revisit this issue with the goal of creating a single set of inside wiring rules. 148. We are not prepared at this time to adopt DIRECTV's proposal that we could promote competition and consumer choice by having competing service providers share a single home run wire. The record reflects varied and contradictory perspectives that we cannot yet resolve. Several commenters have argued that transmitting competing services over a single wire is technically and/or practically infeasible. DIRECTV acknowledges that its proposal has limitations, since only service providers that use different parts of the spectrum technically can share a single wire. We do believe, however, that the technical, practical and economic feasibility of multiple services sharing a single wire deserves further exploration. We will therefore seek comment on DIRECTV's proposal in the Second Further Notice. 149. Nor at this time will we adopt any of the other proposals for modifying the cable demarcation point in MDUs (e.g., moving the demarcation point to the point at which it becomes dedicated to an individual subscriber). We reach no conclusions here on the merits of such proposed modifications. We believe that the procedures for disposition of MDU home run wiring adopted above address many competitive concerns that commenters proposed to address by moving the cable demarcation point. 150. We will, however, adopt our tentative conclusion that where the cable demarcation point is "physically inaccessible" to an alternative MVPD, the demarcation point should be moved to the point at which it first becomes physically accessible. We clarify that this movement should be the closest point at which the wiring becomes physically accessible that does not require access to the subscriber's unit. Moving the demarcation point into the unit in such situations would add significantly to the disruption and inconvenience of switching service providers, contrary to the intent of Section 624(i). 151. In addition, we will adopt a definition of "physically inaccessible" which asks whether accessing the demarcation point (1) would require significant modification or damage of preexisting structural elements, and (2) would add significantly to the physical difficulty and/or cost of accessing the subscriber's home wiring. For example, wiring embedded in brick, metal conduit or cinder blocks would likely be "physically inaccessible" under this definition; wiring simply enclosed within hallway molding would not. E. Loop-Through Cable Wiring Configurations 1. Background 152. As described in the Cable Home Wiring Further Notice, in a loop-through cable wiring system, a single cable is used to provide service to either a portion of or an entire MDU. Every subscriber on the loop is therefore limited to receiving video services from the same provider. If the cable is broken or removed, signals to all succeeding units are interrupted. In the Cable Wiring Order, we excluded MDU loop-through wiring from the cable home wiring rules, reasoning that applying our rules to loop-through wiring would give the initial subscriber control over cable service for all subscribers in the loop. Because loop-through configurations are excluded from the home wiring rules, cable operators are not currently required to offer to sell the wire to subscribers upon termination of service, and no subscriber on the loop has the right to purchase that portion of the loop-through cable wiring located inside his or her dwelling unit. The ownership of loop-through wiring therefore currently depends on the circumstances (e.g., who installed the wire, whether the wire has been sold and state fixture law) and is not affected by our rules. 153. On reconsideration in the Cable Home Wiring Further Notice, we maintained our decision to generally exclude loop-through wiring from our cable home wiring rules. We found that inclusion of loop-through systems within these rules would be impractical, in part because establishing a separate demarcation point for each subscriber on a loop-through system and deciding how much wiring each subscriber should have the option to purchase are not feasible. Furthermore, loop-through configurations, by their nature, limit individual subscriber control, an essential element of the Commission's cable home wiring rules. 154. In the Cable Home Wiring Further Notice, we asked whether the Commission should require cable operators to allow MDU owners to purchase loop-through wiring in the limited situation where all subscribers in a building want to switch to a new service provider. We also asked for comment on whether we should apply the same rules regarding compensation and technical standards to loop- through wiring that we now apply to non-loop-through wiring, and on the appropriate demarcation point for this limited circumstance. We solicited comment on how to apportion control of a loop-through wiring system, including how to assure that subscribers have a choice of multichannel video programming service providers. We further requested comment on whether we should prohibit future installations of loop- through wiring configurations. 155. Alternative video service providers generally support the Commission's proposal to allow MDU owners to purchase loop-through wiring in the limited situation where all subscribers in a building want to switch to a new service provider. These commenters assert that allowing the MDU owner to purchase the loop-through wiring under these circumstances will further the purposes of Section 624(i) by fostering competition and promoting consumer choice to the greatest extent possible, given the limitations of loop-through wiring configurations. Ameritech and USTA also contend that individuals should always have the right to obtain service from another service provider that is willing to dedicate a wire to the subscriber's unit. 156. Cable operators, on the other hand, generally oppose the proposal, asserting that it is impractical, that competition would not be served, that consumer choice would be restricted and that the Commission does not have the authority to establish such a rule. NCTA further contends that such a rule will ensure that cable operators hesitate before wiring a building. Cox asserts that contracts and state law should govern, while Time Warner states that it is better to require each service provider to install its own wiring. Charter/Comcast and Building Owners, et al., contend that, rather than focusing on the loop-through non-loop-through distinction, the Commission should be focusing on whether to apply the cable home wiring rules to MDUs at all. Both parties assert that non-owner residents of MDUs should not have the right to purchase cable home wiring. Charter/Comcast believes that allowing the cable operator to retain control is the best way to ensure choice and that our wiring rules should not apply to rental buildings. Charter/Comcast also asks that condominiums with bulk service arrangements be exempt from the Commission's home wiring rules. 157. Alternative service providers also urge the Commission to apply the same compensation scheme (i.e., per-foot replacement cost) and technical standards for loop-through wiring as we do for non- loop-through wiring. With respect to the demarcation point for loop-through wiring, commenters variously assert that it should be (1) the same as for non-loop-through configurations, (2) at the minimum point of entry, (3) at the point where the wiring loop connects to the common feeder line, or (4) at the wall plate in each apartment. 158. Some commenters argue that the Commission should prohibit future installations of loop- through wiring in order to promote competition, while others claim that loop-through wiring configurations are often necessary in order to provide any video service, or that the Commission does not have the authority to prohibit its use. GTE asserts that the only solution is to deregulate rates for home wiring and give subscribers immediate pre-termination rights. GTE contends that after deregulation the building owner would have control over all existing loop-through inside wiring. 2. Discussion 159. As with other cable inside wiring configurations in MDUs, a wiring loop may include both wiring inside the individual dwelling unit and wiring in common areas which extends outside the individual dwelling unit to the riser or feeder cable. We believe that, for purposes of our cable inside wiring rules, all loop-through wiring should not be treated the same. We therefore conclude that, when the property owner or the entity that owns or controls the common areas elects to switch to a new service provider, our cable home wiring rules will apply to that portion of the loop-through wiring that is inside the individual dwelling unit (up to the demarcation point(s) discussed below). For example, when an MDU owner wishes to terminate service for a building with loop-through wiring and invokes our building- by-building procedures for disposition of the home run wiring, those procedures will govern the disposition of the wiring that is dedicated to each loop other than the cable home wiring within each unit. Consistent with our building-by-building procedures, the MDU owner will be permitted to purchase the loop-through home wiring pursuant to our cable home wiring rules. In addition, where the MDU owner terminates service for the entire loop but does not or cannot invoke our procedures for the disposition of home run wiring, the MDU owner will nevertheless have certain rights to the home wiring within the individual dwelling units. 160. Where a building is comprised of rental units, the building owner will have the right to elect to switch service providers and the right to purchase the loop-through home wiring. In buildings in which persons have a direct or indirect ownership interest in individual units (as with condominiums and cooperatives), the election of whether to switch service providers will be determined under the rules of the association or entity that owns and controls the building's common areas, in a manner similar to other decisions made by the entity with respect to the common areas. If the MDU owner elects to switch to a new service provider but does not wish to purchase the loop-through home wiring, the new service provider may elect to purchase the wiring. 161. Allowing the MDU owner to purchase loop-through home wiring under these circumstances will allow that party to control the wiring. We agree with the commenters that assert that, at least in competitive markets, the MDU owner has a significant incentive to represent the subscribers' interests. In addition, the management structures of condominium or cooperative buildings are designed to reflect their residents' interests. Allowing the MDU owner to control loop-through home wiring gives the subscriber an opportunity for increased choice and enhanced service, and furthers Section 624(i)'s statutory purpose of facilitating the transfer to an alternate service provider with minimal disruption to the subscriber. We previously excluded loop-through wiring from our cable home wiring rules because we did not believe it was appropriate to give the initial individual subscriber in the loop control over the cable service of all remaining subscribers on the loop. Under the procedures we adopt today, that situation cannot occur. 162. We note that New York City appears to misunderstand our proposal when it complains that our proposal will turn the wiring over to an alternative service provider "replacing one monopoly for another" and requires the cable operator to rewire if it is subsequently asked to provide service. We clarify that, as we have stated, our rules will provide the MDU owner, not the alternative provider, with the first opportunity to purchase the loop-through wiring. Once the MDU owner owns and controls the wiring, the cable operator will be on equal footing under our rules with other video service providers with regard to subsequently providing service to the tenants. Only if the MDU owner declines to purchase the wiring will the alternative provider have the opportunity to purchase the loop-through wiring. 163. Contrary to the arguments of some cable interests, the Commission has the authority to apply our home wiring and home run wiring rules to loop-through wiring configurations. We have the express authority under Section 624(i) to apply our home wiring rules to the loop-through wiring that is within the individual dwelling units because it is within the subscriber's premises. In addition, we believe, for reasons described above, that Sections 4(i) and 303(r) provide us with the authority to apply our rules regarding the disposition of home run wiring to loop-through wiring in the common areas of MDUs. We disagree with Time Warner's assertion that including loop-through wiring in our rules would constitute a taking under the Fifth Amendment. Including loop-through wiring within our rules as explained herein will not result in cable operators' entire distribution systems "essentially be[ing] confiscated." 164. We will set the demarcation points, i.e., the points between which the MDU owner may purchase the loop-through home wiring under our cable home wiring rules, at or about 12 inches outside the point at which the loop enters or exits the first and last individual dwelling units on the loop, or as close as practicable where 12 inches outside is physically inaccessible. In some cases, the loop may begin and end outside of the same unit, and thus the demarcation points shall be 12 inches outside the point at which the loop enters and exits that one unit, or as close as practicable where 12 inches outside is physically inaccessible. We believe that this is consistent with Section 624(i), i.e., the loop-through home wiring is within the customer's premises, and with the cable demarcation point for non-loop-through configurations. We note that one of our prior concerns was that establishing a separate demarcation point for each subscriber on the loop was not feasible. Under the rules set forth herein, however, one entity will be purchasing the entire home wiring loop, making it unnecessary to set a demarcation point for each subscriber's unit. 165. We will apply the same rules with respect to compensation and technical standards that we apply to non-loop-through wiring systems as well. In other words, the loop-through wiring on the subscriber's side of the demarcation point may be purchased by the MDU owner at the replacement cost as defined in Section 76.802(a). The loop-through wiring outside the demarcation points up to the point 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. 166. Despite the competitive drawbacks of loop-through wiring, we do not believe it necessary for the Commission to prohibit future installations of loop-through wiring configurations. We believe that such a prohibition would unduly restrict the configuration options available to building owners and service providers. We have found no evidence in the record that cable operators have installed loop-through wiring in order to evade our rules since they were implemented in 1993. Also, the application of our home wiring rules to loop-through systems where the MDU owner seeks to switch service providers should reduce any incentive cable operators may have to install loop-through configurations for anti- competitive reasons. F. Video Service Provider Access To Private Property 1. Federal Mandatory Access Requirements a. Background 167. In the Inside Wiring Notice, we sought comment on the ability of various service providers to obtain access to private property. Specifically, we sought comment on the legal and practical impediments faced by telecommunications service providers in gaining access to subscribers, and on the current status of the law regarding access to private property by cable operators and telephone companies. We also sought comment on whether allowing a company that holds an easement for one service to rely on that same easement to provide another service would constitute a "taking" under the Fifth Amendment. The Inside Wiring Notice further sought comment on whether the Commission can and should attempt to create access parity among service providers and, if so, what the rules regarding such parity should be, and whether there were any statutory or constitutional impediments to this goal. 168. Telephone companies and alternative video providers generally assert that there is a need for rules that will provide comparable property access rights for the delivery of all services. NYNEX explains that, while state laws give telephone companies the authority to use public rights-of-way, the laws do not always provide access to private property. NYNEX claims that, in states that do provide telephone companies with the power of eminent domain over private property, the use of such eminent domain in MDUs or commercial buildings is "impractical due to statutory time periods, costs, and survey requirements." NYNEX states that its telephone companies have obtained access to MDUs not through easements or eminent domain proceedings, but with the tacit or express consent of the landlords. 169. PacTel argues that the notion of allowing competition would be purely illusory if alternative video service providers did not have access to private easements and rights-of-way. AT&T states that the Commission must assure that competitive service providers have the same access rights to the subscriber's or building owner's property as incumbent service providers currently enjoy. AT&T argues that, pursuant to Sections 251(b)(4) and 251(c)(3) of the 1996 Act, the Commission should require that all new service providers have access to portions of incumbents' network access facilities, including rights-of-way, easements and other pathways to customer wiring. MFS argues that government intervention is appropriate and necessary to proscribe discriminatory actions by owners and managers that stymie competition. NYNEX also supports the adoption of rules that would promote open access for alternative telephone and video service providers on a going forward basis. NYNEX notes, however, that legislation may be the only way to ensure comparable access for competing telephone and video service providers, and further cautions that courts may deem laws or regulations that force landlords to allow providers access to their buildings to be a taking, requiring payment of just compensation. 170. Two wireless competitive LECs, Teligent and WinStar, urge the Commission to adopt a rule ensuring reasonable and nondiscriminatory access to inside wiring. WinStar proposes that the Commission issue a rule requiring owners of multiple tenant units to grant telecommunications service providers physical access to inside wiring on nondiscriminatory terms, so long as the owners are allowed to demand just compensation from the providers after access has occurred. Teligent argues that the Commission should mandate building access through an interpretation of Section 224 that encompasses private rights-of-way to building rooftops, and should ensure that competitive carriers have access to the riser cables of office buildings as part of the incumbent LEC's unbundling requirement. 171. Generally, proponents of a federal mandatory access law argue that such a law would promote competition through ensuring competitors uniform access to MDUs. These commenters claim that property owners often block building entry for service providers, or are willing to grant access only on unreasonable or discriminatory terms. They further claim that building owners and managers are motivated to exploit business opportunities, rather than by a desire to provide tenants with access to diverse and advanced telecommunications services. 172. Two commenters suggest that existing telephone easements should be construed to allow incumbent service providers access to provide additional services. Bell Atlantic seeks "clarification" that a provider that has obtained access to provide any service (e.g., telephone service or cable television service) may use that access to provide additional services. NYNEX contends that, if it delivered video programming using a common carrier service, it would "arguably" have the same access rights as a telephone company providing any other common carrier service. 173. Cable operators also note the disparity in property access rights which exists among service providers. NCTA claims that "[b]y virtue of their status as monopoly providers, telephone companies benefit . . . from access statutes and easements that are not available to cable and other providers." Thus, NCTA argues, the Commission must promote policies that broaden access for all competitors. Charter/Comcast notes that public utilities are often granted private easements because property owners would otherwise be unable to obtain the utilities' monopoly services; however, property owners have fewer incentives to grant easements to franchised cable operators due to existing choices among video providers. Charter/Comcast urges the Commission to rectify this incongruity by construing Section 621(a)(2) of the Communications Act as prohibiting a property owner from denying a franchised cable operator access to an easement on the property when the owner has already granted or is obligated to grant an easement to other utilities, whether public or private. Other cable operators urge the Commission to adopt an access rule that would allow residents to choose among providers instead of having to accept the property owner's choice of provider. 174. Marcus Cable, et al., claim that, under Section 706 of the 1996 Act, the Commission must adopt an access rule. Section 706 directs the Commission to encourage deployment of advanced telecommunications capability to all Americans by promoting competition and removing barriers to infrastructure investment, and, according to the Marcus Cable, et al., the record in this proceeding demonstrates that MDU property owners stand as a barrier to continued development of broadband services. 175. Several commenters believe that there may be limits to the Commission's authority to enact a federal rule mandating access to MDUs in order to resolve variations in access rights. Time Warner argues that the Commission must ensure that a landlord's ability to restrict access is not enhanced as a result of any rules adopted, but cautions that the adoption of a federal uniform access policy may be premature and the subject is better left to the states. ICTA argues that the Commission does not possess the power of eminent domain and that a mandatory cable access law will lead to a lessening of competition rather than an expansion of competition. ICTA also notes that Congress has repeatedly considered and rejected a federal mandatory cable access law. 176. Building Owners, et al., argue that requiring a landlord to permit a third party to occupy the premises and attach wires to the building is legally indistinguishable from the intrusion which the Supreme Court invalidated in Loretto v. Teleprompter Manhattan CATV Corp. Building Owners, et al., claim the real estate market is thriving, competitive, and responsive to the needs of tenants, and that government regulation would interfere with the "on-the-spot management" needed to effectively address safety and security concerns, assure compliance with building codes, coordinate the needs of different tenants and service providers, and generally oversee efficient day-to-day operations. TKR, however, asserts that if the market were already providing tenants with the services they need, alternative providers would not be complaining about their inability to gain access. According to TKR, the Commission should remove MDU owner gatekeeper control by requiring that each subscriber be entitled to the services of his/her choice. 177. Building Owners, et al., also point to property owners' responsibility for tenant security as a concern. But others state that concerns regarding safety, security and aesthetics can be easily addressed. b. Discussion 178. While we agree that nondiscriminatory access for video and telephony service providers enhances competition, we will not adopt a federal mandatory access requirement at this time. We note that telecommunications carriers' access to telephone companies' facilities and rights-of-way under the 1996 Act are currently under reconsideration in First Report and Order in CC Docket No. 96-98 and CC Docket No. 95-185 ("Interconnection Order"). We do not believe that the record in this proceeding provides a sufficient basis for us to address these issues. We will defer decisions on these issues to that proceeding. 179. In addition, as stated above, Charter/Comcast urges the Commission to construe Section 621(a)(2) to prohibit a property owner from denying a franchised cable operator access to an easement on the property when the owner has already granted or is obligated to grant an easement to other utilities, whether public or private. Section 621(a)(2) provides that "[a]ny franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which is within the area to be served by the cable system and which have been dedicated for compatible uses . . . . " Numerous court decisions have interpreted the statutory language and legislative history of Section 621(a)(2), several finding that this section does not provide cable operators access to purely private easements granted to utilities. We decline to address those rulings here, but will continue to examine these issues as we seek to ensure parity of access among all telecommunications and video services providers. Similarly, we decline at this time to adopt a mandatory access rule under Section 706 of the 1996 Act, but may revisit this issue as we consider issues of service provider access in the broader competitive context. 180. We believe that whether an incumbent provider may use its existing easements or rights- of-way to provide new or additional services generally depends on state law interpretations of the terms of the easements or rights-of-way. While we decline at this time to decide as a general matter whether such easements and rights-of-way permit the provision of additional services, we believe that we do have the authority in certain instances to review restrictions imposed upon such use. 2. State Cable Mandatory Access Requirements a. Background 181. In the Inside Wiring Notice, we sought comment on the types of access provided by state mandatory access statutes and who qualifies for such access. We sought comment on what type of access is provided to cable operators under statutes granting mandatory access and what type(s) of access to private property states grant to telephone companies. 182. According to the record in this proceeding, some form of mandatory access law may exist in approximately 18 U.S. jurisdictions, including Connecticut, Delaware, the District of Columbia, Florida, Illinois, Iowa, Kansas, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, West Virginia and Wisconsin. The record also indicates that there may be local ordinances that provide similar access rights. Commenters claim that these statutes were generally enacted due to local franchising authorities' efforts to ensure that MDUs would have cable programming service and to prevent owners from denying access based on aesthetic or other considerations. Commenters further contend that state mandatory access statutes were intended to serve as consumer protection laws at a time before franchised cable operators faced competition from alternative video service providers. 183. According to NYNEX, while state laws give telephone companies the authority to use public rights-of-way, they do not always provide access to private property. In states that do provide the telephone company with the power of eminent domain over private property, NYNEX claims that the use of such eminent domain in MDUs or commercial buildings is not practical due to statutory time periods, costs, and survey requirements. NYNEX asserts that its telephone companies generally obtain access to MDUs not through easements or eminent domain proceedings but by tacit or express agreements with the property owner. 184. Alternative video service providers raise concerns over the disparity in access rights to private property that exists between new entrants and franchised cable operators or incumbent LECs. Specifically, these commenters contend that the most serious barrier to competition in the multichannel video programming service market is the unfair advantage that franchised cable operators have as a result of state mandatory cable access laws. They argue that state mandatory access laws guarantee access only to franchised cable operators and therefore unfairly advantage the franchised cable operator. They also allege that mandatory access laws reduce competition in the MVPD market, and, if such laws are not eliminated, a competitive marketplace for multichannel video programming services will be virtually impossible to promote. OpTel argues that because current state access laws overwhelmingly favor franchised cable operators, they slow the growth of competition. OpTel explains that, where franchised cable operators have a legal right of access under state law, property owners are reluctant to provide alternative providers with access, because the owner knows that the franchised cable operator will likely demand access and overbuild the property, causing great disruption. 185. Several commenters request that the Commission preempt state mandatory access laws. Commenters assert that such preemption would be consistent with prior Commission actions, including the Commission's preemtion of laws that effectively hinder the use of satellite television receive-only antennas ("TVROs") and state regulation of SMATV systems. ICTA advocates federal preemption of state mandatory access laws, arguing that the Commission has independent preemption authority to act, even in the absence of congressional direction, as long as its action is neither arbitrary nor exceeds its statutory authority. Such preemption would not be arbitrary if it represents a reasonable accommodation of conflicting policies that are within the Commission's statutory authority. According to ICTA, state mandatory access laws unfairly advantage the franchised cable operator, discourage competition, provide no benefit to the public, and conflict with the Commission's mandate to promote the growth of competition in the cable industry. ICTA asserts that preemption of such state laws would therefore be a reasonable accommodation of conflicting policies. 186. Telephone providers also urge the Commission to preempt state mandatory access laws that confer exclusive or preferential rights on incumbent service providers. These commenters argue that the Commission has the authority under Section 253 of the 1996 Act to preempt state or local legal requirements that have the effect of prohibiting carriers from providing telecommunications services, and that the Commission should therefore exercise its preemption authority under Section 253(b) to nullify the offending portions of the state mandatory access laws. AT&T argues that existing state laws granting access are not uniform and are often unclear, and that, to the extent competitive service providers are prevented by state or local law from having the same access as incumbents, the Commission can preempt that state or local law. 187. Most cable operators oppose the preemption of state cable mandatory access laws. According to these parties, there is no basis in policy or law for the Commission to preempt statutes that guarantee subscribers access to franchised cable service. Marcus Cable, et al., argue that the Commission's prior preemption actions were undertaken to preempt laws that prohibited competitive services, not laws that guarantee subscribers a choice of video service providers. Continental notes that state access laws are a response to landlords' access bottleneck, and that the preemption of existing access laws would only strengthen landlords' power to make both service and provider choices for tenants, by resurrecting the landlords' power to contract exclusively with service providers. NCTA maintains that mandatory access laws are not discriminatory. Such laws do not exclude others from providing service, but merely ensure that consumers have access to multichannel video programming services. NCTA further argues that there is no need for preemption of such laws because alternative providers may avail themselves of access statutes by becoming franchised, now that exclusive franchises are prohibited. Time Warner claims that franchise service obligations, such as universal service requirements, sufficiently distinguish franchised operators so as to merit special treatment under state access laws. b. Discussion 188. Many commenters argue that parity of access rights is necessary to foster a fully competitive market for multichannel video programming and telecommunications services. To achieve such parity, several alternative service providers urge the preemption of state mandatory access laws. Franchised cable operator interests, however, oppose federal preemption of state mandatory access laws and claim that parity of access should be achieved by granting franchised cable operators the same access to easements and rights-of-way as provided to telephone companies and other utilities. They also contend that there are valid distinctions between franchised and non-franchised video service providers, which justify disparate treatment under state access laws. 189. We believe that the record in this proceeding does not support the preemption of state mandatory access laws at this time. While commenters opposing state mandatory access laws argue that these laws act as a barrier to entry, the record also indicates that property owners deny access for reasons unrelated to the state laws, including property damage, aesthetic considerations and space limitations. We believe that our rules regarding the building-by-building and unit-by-unit disposition of home run wiring 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. 190. We remain concerned, however, about disparate regulation of MVPDs that unfairly skews competition in the multichannel video programming marketplace. Despite our decision not to preempt state and local mandatory access laws at this time, we encourage these jurisdictions to evaluate present laws and circumstances to determine whether a nondiscriminatory and competitively neutral environment exists. We believe that establishing competitive parity under these statutes will promote competition among MVPDs and will expand consumer choice. 3. Exclusive Service Contracts a. Background 191. In discussing provider access to MDUs, many commenters raise the issue of exclusive service contracts between MDU owners and video service providers. Telephony providers generally argue for rules banning cable operators from entering into exclusive contracts for the provision of video service to MDUs and prohibiting cable operators from enforcing the exclusivity provisions of any existing contract. Bell Atlantic argues that prohibiting exclusive contracts would be consistent with the Commission's restrictions on exclusive contracts in other contexts where necessary to increase competition and enhance consumer choice, and that the Commission has directly prohibited exclusive contracts between regulated providers and unregulated parties in the past. AT&T argues that long-term, exclusive service contracts with MDUs are an impermissible barrier to entry and should be preempted under Section 253(d) of the 1996 Act. AT&T further argues that state and local laws which allow for discriminatory application of charges imposed on franchised service providers should also be preempted. 192. Some cable operators also support a ban on exclusive contracts. Cox argues that the Commission should preempt state laws that permit exclusive contracts if they interfere with federal policies, claiming that the policy which led Congress to prohibit exclusive franchises supports a limitation on exclusive contracts for provision of service in MDUs. Continental contends that competition will be impossible where control over access to potential customers is wielded by landlords that decide to contract exclusively with a particular provider, and argues that proposals that empower landlords to make such choices must be rejected in favor of proposals that empower tenants to make those choices themselves. 193. Some alternative video providers, private cable interests and property owners argue that exclusive contracts are imperative for viable competition and oppose the prohibition of exclusive contracts, claiming that: (1) such contracts are private agreements beyond the scope of the Commission's preemption authority under Section 253; (2) it would be cost-prohibitive for new entrants to install facilities in MDUs without service exclusivity; (3) exclusivity is often necessary to attract investment, given the smaller subscriber base and the provider's need to guarantee a return on its investment;and (4) prohibiting exclusive contracts will never promote unlimited competition in MDUs, since such competition is physically impossible. 194. GTE contends that the Commission does not have jurisdiction to prohibit these exclusive contracts or to limit their duration, because the Commission has no authority over MDU owners and the rates of cable operators facing "effective competition" under Section 623 of the 1992 Cable Act. GTE argues that any use of Section 628(b) of the Communications Act is improper as it does not expand the Commission's jurisdiction to reach these exclusive contracts, since such action would go beyond the Congressional purpose of ensuring video service providers' access to video programming. Such regulation, GTE argues, would contravene the 1996 Act's purpose to promote competition. Similarly, Section 4(i), authorizing the Commission to perform all acts necessary in the execution of its functions, provides no jurisdiction to regulate these contracts since such regulation is directly inconsistent with the Commission's authority. 195. While alternative video providers and private cable interests generally argue that exclusive contracts are imperative for viable competition to exist, they argue that "perpetual" exclusive contracts are anti-competitive. These commenters define "perpetual" exclusive contracts as exclusive service contracts which extend for the life of the provider's franchise and any extensions or renewals thereof. ICTA argues that such contracts are perpetual because it is exceedingly rare that a franchise is not renewed, and that the practical result is that an owner's choice of provider is restricted forever. ICTA further contends that these contracts cannot be justified as a business necessity because they extend well beyond the period necessary for a cable operator to recoup its investment. 196. OpTel recommends a rule requiring future contracts to include a specific term of years, and requiring existing perpetual contracts to expire at the end of the service provider's current franchise term. Similarly, ICTA proposes that all future service agreements between franchised operators and property owners include a durational provision, and that existing perpetual agreements should be void 15 years after the effective date of the contract or upon expiration of the initial franchise term, whichever is sooner. For contracts that would be already void under this standard, ICTA proposes that the Commission allow a six-month period in which franchised operators may phase out service or negotiate new contracts for a term of years if the owner so desires. 197. NCTA proposes a rule to be applied solely in mandatory access states, providing that exclusive contracts ordinarily shall not extend past the end of a current franchise term (or, in the case of a noncable video service provider, until the end of the cable franchisee's term) or a date certain in the contract. NCTA emphasizes, however, that the Commission must enforce this rule in a manner that protects operators' "legitimate business expectations" and operators near the end of their franchise terms. ICTA, WCA, OpTel and MTS argue that there is no reason for the rule to be limited to states where franchised cable operators have mandatory access to all MDUs. Moreover, ICTA opposes linking the duration of exclusive contracts to the current franchise term. ICTA further argues that the proviso for protection of operators' business interests and operators near the end of their franchise term would spawn never-ending litigation and deprive the market of any certainty regarding the termination of these contracts, thus further hobbling competition. 198. SBC and PacTel advocate a rule that exclusive 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 seven years from the time of new installation. GTE argues that any rule limiting exclusive contracts to new installations must consider the service providers' total investment and not just inside wiring. Furthermore, GTE, ICTA, and WCA oppose any absolute limitation on the duration of exclusive contracts. GTE argues that limitation of the period that a SMATV operator has to recover on its investment would force the operator to raise its price to subscribers, thereby making it less able to compete with an entrenched cable operator. Finally, GTE contends that the Commission has no authority to prohibit exclusive contracts or to limit their duration. 199. In addition to a brief reference in PacTel's Reply Comments, several commenters also have submitted ex parte presentations suggesting that a "fresh look" policy be applied to certain exclusive contracts executed prior to the effective date of our rules. For example, OpTel/MTS has suggested applying a "fresh look" to "perpetual" exclusive contracts between property owners and cable operators. Under the OpTel/MTS proposal, property owners that have committed to long-term perpetual exclusive contracts would have a window of 180 days to take a "fresh look" at the marketplace to renegotiate or terminate those contracts without liability in order to avail themselves of a competitive alternative service provider. The "fresh look" period would be initiated at any given MDU upon the request of a private cable operator able to serve the MDU or where the Commission has determined that the cable operator is subject to effective competition. If a property owner wished to enter into another perpetual contract after being given the opportunity for a "fresh look," it would not be prohibited. The Commission would not dictate an acceptable term length for exclusive contracts. OpTel/MTS argues that the Commission's responsibility to regulate cable rates under Title VI is comparable to its regulation responsibilities under Title II, and that therefore analogies to "fresh look" proceedings under Title II are appropriate. OpTel/MTS further claims a "fresh look" application will also fulfill our obligations to small businesses under Section 257 of the 1996 Act. 200. Similarly, WCA supports the application of a "fresh look" policy to exclusive contracts entered into prior to the emergence of competition. While generally supporting the OpTel/MTS proposal, WCA proposes that the "fresh look" period only apply upon a finding by the Commission that the cable operator is subject to effective competition. The "fresh look" period would be available to a franchised cable operator and an MDU owner that had entered into an exclusive arrangement that extended either for the life of the operator's franchise and any renewals thereof, or for three years or longer. WCA contends that the "fresh look" period should remain open until 180 days after a determination of effective competition to assure MDU owners a reasonable opportunity to consider competitive alternatives and pinpoint precisely when the "fresh look" window expires. SBC agrees with this calculation of the "fresh look" period. 201. GTE likewise supports a "fresh look" policy toward existing exclusive contracts which, GTE argues, were imposed by cable operators not subject to "effective competition." GTE argues that the Commission has jurisdiction to adopt this policy under Section 623 of the Comunications Act, which authorizes the Commission to choose the best method to ensure "reasonable rates" for cable service, and requires that any such regulations "achieve the goal of protecting subscribers" where "effective competition" is not present. 202. NCTA and Jones, however, argue that the "fresh look" policy is inappropriate and the Commission has no authority to adopt it in this situation. The "fresh look" policy applies only where an area previously subject to monopoly opens to competition or where an area is subject to significant changed circumstances. NCTA and Jones argue that these conditions do not exist in the video services market because SMATV systems have competed vigorously with cable services since the 1980s. b. Discussion 203. We recognize the significant competitive issues raised by commenters regarding exclusive contracts. We are concerned that long-term exclusive contracts may raise anti-competitive concerns because they "lock up" properties, preventing consumers from receiving the benefits of a newly competitive market. However, we also note that alternative providers cite the competitive benefits of exclusive contracts as a means of financing "specialized investments." Without exclusive contracts to allow recovery over time on the cost of new installation, these parties assert that they will be unable to compete with the incumbent cable operator. We believe that the record would benefit from further comment on these issues. In the Second Further Notice below, we seek comment on various options, including: (1) adopting a maximum "cap" on the enforceability of all MVPDs' exclusive contracts; (2) limiting the ability of MVPDs with market power from entering into exclusive contracts; and (3) adopting a "fresh look" period for so-called "perpetual" exclusive contracts. G. Customer Access to Cable Home Wiring Before Termination of Service 1. Background 204. In the Inside Wiring Notice, we noted that Section 624(i) required us to prescribe rules concerning the disposition, upon termination of service by a subscriber, of cable home wiring installed by a cable operator. We also noted that our current rules do not require cable operators to allow subscribers to install their own wiring or to rearrange operator-owned wiring. In contrast, telephone inside wiring has been deregulated for nearly ten years, and we tentatively concluded that there was no reason to change the telephone inside wiring rules. We asked for comment as to whether consumers should have the right to install and own their broadband inside wiring and to access wiring on their premises prior to termination of service where such wiring was installed and is owned by the broadband video service provider. 205. We also sought comment on how to protect against signal leakage and maintain signal quality if subscribers were given pre-termination access to their cable inside wiring, and whether the Commission has the authority to promulgate a requirement of pre-termination access. We asked whether the Commission can and should create a presumption that the subscriber owns his or her cable inside wiring and, if so, what kind of showing would be necessary to overcome that presumption. We also sought comment on any statutory or constitutional impediments to creating such a presumption. Finally, we sought comment on whether and how the rules governing access should be harmonized in a world where the cable operator, the telephone company and others may be offering a variety of services over a single wire. 206. Telephone companies, alternative video service providers and others support an extension of the telephone rules to the cable context, arguing that such deregulation would promote competition and customer choice, and that efficient competition requires that all customers have access to and control of all inside wiring within their premises. 207. WCA argues that precedent in the telephone context supports the transfer of cable inside wiring to property owners on installation. WCA further argues that the Commission should adopt a rule providing that ownership of wiring not designated as "cable home wiring" in an MDU transfers automatically to the property owner upon installation. WCA argues that, to the extent owners have already acquired the wiring by state law or separate contracts with incumbent operators, such an action will have no impact. WCA also claims that the cost of cable inside wiring lies primarily in installation, and the salvage value of the wiring pales in comparison to the cost of removal and restoration of the premises. WCA argues that a rule allowing operators to recover all of their inside wiring costs by including those costs in rates for basic service to MDUs or entering into separate service contracts for maintenance fees where wire is transferred at no cost will address any takings issues. 208. Multimedia Development argues that the only reason video service providers seek to protect their ownership of inside wiring is to protect their customer base against entry by competitors. Multimedia Development contends that we should require that title to cable inside wiring vest with the subscriber (or property owner for common wire in MDUs) upon installation, because the equipment has little or no residual value and is likely fully expensed for tax and regulatory purposes; Multimedia Development asserts that such a rule would not raise a takings issue if it were applied prospectively. Multimedia Development further argues that existing signal leakage rules adequately protect the public and there is no evidence that the proposed changes would undermine that protection. Multimedia Development notes that CATA admits that many subscribers routinely alter their cable home wiring, but offers no evidence of how such alteration has or will cause leakage problems. 209. DIRECTV seeks a presumption that the subscriber owns his or her cable inside wiring, and that the collective MDU community owns its common inside wiring. DIRECTV asserts that a cable operator could rebut these presumptions by providing proof that it had not recovered the investment cost of the wiring and that the salvage value of the wiring exceeds its unrecovered investment cost. DIRECTV recommends that where the cable operator is able to rebut these presumptions, the subscriber or MDU community should have the right to purchase the inside wiring or obtain access thereto prior to termination of service, arguing that our rules should allow for more than one provider to use the same wires in order to facilitate competition. Alternatively, DIRECTV suggests that, where significant value remains in the wiring and the wiring is owned by the incumbent provider, a competitive service provider could be allowed to co-invest in the wiring by purchasing a portion of the unrecovered value from the incumbent. 210. Property owners and managers claim that they have "no objection in principle" to allowing customers to install and maintain their own home wiring, so long as the property owner retains the right to obtain access to the wiring and to control the type and placement of such wiring. Furthermore, they contend that the building owner has, by contract, a superseding right to acquire or install any wiring. In any event, these commenters argue that tenants' rights to own, acquire or install wiring should be governed by state property law and the terms of the tenant's lease. 211. In contrast, cable interests oppose granting subscribers the right to own or access their cable inside wiring prior to termination of service. These commenters argue that Section 624(i) does not provide for subscriber ownership of wiring before termination of service, and that the Commission otherwise lacks the statutory authority to impose it. These commenters also argue that requiring pre- termination access would constitute an impermissible "takings" under the Fifth Amendment, and would raise signal leakage concerns. NCTA and Time Warner argue that while the Commission lacks the statutory authority to force cable operators to cede control of home wiring at the point of installation, it could adopt incentives for cable operators to voluntarily cede control of home wiring to consumers upon installation. Such incentives could include a relaxation of price regulation for inside wiring installation and maintenance fees and relaxation of signal quality and leakage regulations when an operator voluntarily allows pre-termination access. 212. Cable interests also object to any analogy to our telephone inside wiring rules. CATA contends that analogies to telephone inside wiring rules are inapposite for cable wiring because access to telephone wiring was required in order to encourage competition for telephony CPE, while the Commission's goal for cable wiring is to encourage competition among video service providers. NCTA argues that Congress did not intend operators to be treated as common carriers with respect to internal cable installed in subscriber homes, and that requiring cable operators to give up their facilities is inconsistent with their non-common carrier status. 213. In addition, Time Warner maintains that a rebuttable presumption of subscriber ownership constitutes an impermissible taking, because ownership of the wiring would automatically shift to the consumer without compensation to the cable operator. Time Warner contends that the 1992 Cable Act does not permit the promulgation of rules mandating that a cable operator yield ownership of home wiring prior to termination of service, even if just compensation is paid, and that Section 252(d)(2) of the 1996 Act presumes that the operator owns the wire over which it provides service, unless or until the operator cedes its ownership. According to Time Warner, a presumption that the subscriber owns the wiring will also discourage operators from installing wiring in the future. Similarly, ICTA argues that an irrebuttable presumption of ownership would be unconstitutional. ICTA also argues that the Commission probably does not have authority to create a rebuttable presumption, but that operators could easily overcome such a presumption by ensuring that their contracts specify operator retention of ownership. ICTA suggests that the Commission establish a "bright line" test of ownership, so there will be no question as to ownership at any point in time. 214. Finally, Media Access/CFA strongly opposes proposals to deregulate inside wiring rates, arguing that deregulation would risk monopolization by existing service providers. Media Access/CFA claims that the 1992 Cable Act expressed a fundamental preference for the protection of subscribers, noting that the Act exempted cable systems from rate regulation only if those systems were subject to effective competition. Otherwise, rate regulation is required, including regulation of equipment used by subscribers to receive the basic tier. ICTA also opposes rate deregulation, arguing that it would probably not result in subscriber access prior to termination. ICTA claims that operators are unwilling to sell their wiring at any price in order to force owners to let the operator stay in the building, and that permitting operators to receive replacement cost is eminently fair because the wiring is worth less than its removal cost and the operator has ordinarily more than fully recouped its investment by the time of termination. ICTA also states that, in the alternative, the Commission should not deregulate the rates for which inside wiring can be sold for the period after the operator receives notice of termination. 215. Time Warner also recommends that we continue to regulate prices for installation and maintenance of wiring if a cable operator retains ownership and control over that wiring upon installation. Prices should be deregulated if the operator chooses to cede control of the wiring to the subscriber on installation; this would foster a competitive installation and maintenance market, and would also eliminate the need to regulate inside wiring and maintenance prices. 2. Discussion 216. We now establish a rule that will allow customers to provide and install their own cable home wiring within their premises, and to connect additional home wiring within their premises to the wiring installed and owned by the cable operator prior to termination of service. Under this rule, customers will be able to select who will install their home wiring (e.g., themselves, the cable operator or a commercial contractor). In addition, customers may connect additional wiring, splitters or other equipment to the cable operator's wiring, or redirect or reroute the home wiring, 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. Subscribers will not be permitted to physically cut, improperly terminate, substantially alter or otherwise destroy cable operator-owned inside wiring. To protect cable operators' systems from signal leakage, electronic and physical harm and other types of degradation, we will permit cable operators to require that any home wiring (including any passive splitters, connectors and other equipment used in the installation of home wiring) meets reasonable technical specifications, not to exceed the technical specifications of such equipment installed by the cable operator. If, however, the subscriber's connection 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. 217. We believe that subscriber access to home wiring is necessary to enhance competition, which will result in lower and more reasonable rates for services such as the installation of additional outlets. Indeed, where competition is introduced, consumers benefit from lower prices, greater technological innovation, and additional consumer choice. 218. We take this action pursuant to Sections 4(i) and 303(r) of the Communications Act to further the purposes of Section 623 specifically and Title VI generally. The Commission has authority under Sections 4(i) and 303(r) to allow a subscriber to install and maintain its cable home wiring. As set forth above, Section 4(i) grants the Commission the authority to make such rules as are necessary to carry out its functions, so long as the rules are not inconsistent with the Communications Act. Section 303(r) grants the Commission similar authority. The rule adopted here is necessary to effectuate the purpose of the Communications Act of promoting reasonable rates through the introduction of competition and is not inconsistent with any provision of the Act. Congress, in enacting Section 623(b) of the Communications Act, expressed a clear preference for competition as a method to reach reasonable rates. Section 623(b) requires the Commission to ensure that the installation and lease charges for cable equipment, which include cable home wiring, are "reasonable" and based on "actual cost." We believe that, if subscribers are allowed to install and to maintain their own cable home wiring, or to pay an outside vendor to do it for them, the wiring installation and maintenance markets will be more competitive and operate to ensure reasonable rates, the goal of Section 623(b). 219. More generally, we believe our decision furthers the goal of competition which pervades Title VI. Section 601 states that one purpose of Title VI is to "promote competition in cable communications and minimize unnecessary regulation that would impose an undue economic burden on cable systems. Subscriber control over the installation and maintenance of home wiring will result in greater competition in cable wiring services, while deemphasizing the necessity for rate regulation for those services. In addition, Congress has expressed a preference for enhancing a subscriber's ability to connect equipment to the cable operator's home wiring. More broadly, Congress explicitly prohibited exclusive franchises, which indicates that Congress sought to encourage widespread competition in the cable communications area. We also note that Congress has shown its intent to introduce broader competition in the communications industry overall with the passage of the 1996 Act. Thus, we conclude that these provisions support the Commission's authority to take actions necessary to prompt evolution of a competitive environment. 220. Contrary to the assertions of cable operators, subscriber pre-termination access is not inconsistent with the Communications Act. Specifically, Section 624(i) does not limit our authority to take this action. The plain language of that provision refers only to the disposition of cable wiring "after a subscriber to a cable system terminates service . . . ." The rule we adopt here will have an impact on the rights and obligations of service providers and subscribers prior to termination of service. As discussed above with regard to our new rules regarding the disposition of home run wiring, we find no "inescapable conflict" between the establishment of customer pre-termination access rights to cable home wiring and the plain language of Section 624(i). 221. This rule does not impermissibly treat cable operators as common carriers. Functionally, our rule permitting subscribers to connect their own home wiring to the cable operator's wiring is no different than a subscriber connecting his or her own television or video cassette recorder to the cable operator's wiring. Indeed, as noted above, Congress has established policies designed to enhance subscribers' ability to connect their own equipment to the cable operator's wiring. 222. We also do not believe that the rule we are adopting will pose an undue risk of signal leakage or harm to the cable system. Many subscribers already own and control their home wiring -- e.g., where the cable operator charges for it upon installation or where state law deems home wiring to be a "fixture." Indeed, as many cable interests have pointed out in this proceeding, the marketplace has established the F-type connector as the de facto standard for connecting coaxial cable to CPE. Such connectors are readily available and, if properly used, provide adequate signal leakage protection. Also, as stated above, we will permit cable operators to establish reasonable technical specifications for subscriber-installed home wiring (including passive splitters, connectors and other equipment used in the installation of home wiring), not to exceed the specifications of their own wiring and equipment. 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. 223. We note that, although questioning the Commission's authority to require operators to allow subscribers to own and access their home wiring prior to termination of service, NCTA and Time Warner do not appear to believe that allowing subscriber access to home wiring poses substantial risks. Both parties suggest that the Commission might provide incentives, such as deregulation of wiring and equipment rates, for cable operators to voluntarily cede control of home wiring to consumers upon installation. Notably, Continental and Time Warner agreed, under the terms of their respective Social Contracts, to provide their subscribers with pre-termination access to their home wiring. Not only do we believe that it is unlikely that Continental and Time Warner would have agreed to do so if the signal leakage problems posed by such access were insurmountable, but we also have seen no evidence of 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. 224. We will not modify our current requirement that cable operators monitor signal leakage and eliminate harmful interference while they are providing service, regardless of who owns the home wiring. We also will continue to require cable operators to discontinue service to a subscriber where signal leakage occurs, until the problem is corrected. As stated in the Cable Wiring Order, a cable operator will not be held responsible for facilities over which it no longer provides service. We believe that the continuation of these requirements will appropriately balance the interests of subscribers with the interests of those engaged in licensed over-the-air communications and cable operators in maintaining the security and integrity of the cable systems. 225. Allowing subscribers to install their own cable home wiring prior to termination of service may raise concerns regarding physical and electronic harm to the cable system and degradation of signal quality, including interference with other customers' service. To the extent a customer's installations or rearrangements of wiring degrade the signal quality of or interfere with other customers' signals, or cause electronic or physical harm to the cable system, we will allow cable operators to discontinue service to that subscriber, as operators may do where a customer's wiring causes signal leakage, until the degradation or interference is resolved. We note, however, that cable operators are not responsible for degradation of signal quality to the subscriber where a subscriber has added outlets or owns and maintains his or her own wiring. While we recognize that theft of cable service is a legitimate concern, we do not agree that our rules granting customers pre-termination access to cable home wiring will promote theft of service. Some cable companies already provide customer pre-termination access to wiring, and there is no 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. 226. We do not believe that the above rule will result in an impermissible per se or regulatory "taking" under the Fifth Amendment. First, our rule does not authorize a permanent physical occupation of the cable operator's property, and thus does not constitute a per se taking under Loretto. To the contrary, the only physical "burden" that can be placed on the cable operator's wiring under our rules is its connection to wiring installed by the subscriber or the subscriber's redirecting of the wiring to another location. The rule specifically provides that subscribers may not physically cut, substantially alter or otherwise destroy operator-owned wiring. So long as the cable operator continues to own the wiring, the cable operator retains the right, prior to termination of service, to use and dispose of its property in any manner it sees fit. No government edict requires cable operators to place their wires in subscribers' homes, and no government edict requires cable operators to keep them there. So long as cable operators 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. 227. Nor do we believe that our rules effect a "regulatory taking" under the factors set forth in Penn Central Transportation Co. v. New York City, which examine: (1) the character of the governmental action; (2) the economic impact of the regulation; and (3) the regulation's interference with investment-backed expectations. First, the Penn Central court held that a taking "may more readily be found when the interference with property can be characterized as a physical invasion by government . . . than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good." Applying this principle, the Claims Court in American Continental Corporation v. United States found that the characterization of the governmental action as involving "an effort to promote the public interest militates against finding a fifth amendment taking." Here, our action seeks to promote competition and consumer choice in the marketplace for cable home wiring. We expect our action to produce the same benefits we have seen in the myriad of other areas of communications where we have introduced competition, including lower prices, greater technological innovation and additional consumer choice. We believe this factor weighs heavily against any finding of a regulatory taking. 228. Second, we do not believe that the economic impact of the rules we adopt argues in favor of a taking. Cable operators' home wiring will remain intact, and they may continue to use that property for the very purpose for which it was installed -- to provide video programming and other services to subscribers. While cable operators may lose some revenues relating to the installation of home wiring and additional 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: 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 to regulate by purchase. In addition, as the Supreme Court held, a "prediction of profitability is essentially a matter of reasoned speculation that courts are not especially competent to perform. Further, perhaps because of its very uncertainty, the interest in anticipated gains has traditionally been viewed as less compelling than other property-related interests." 229. Third, we believe that the rule we are adopting will not interfere with cable operators' legitimate "investment-backed expectations." As noted above, subscribers can already connect some of their own equipment to the cable operator's network in a manner similar to that provided for home wiring in our new rule. More importantly, we do not believe that cable operators could have a "reasonable expectancy" that the cable home wiring market would continue to be a monopoly service never subject to competition. Given that the cable industry and cable wiring are subject to significant regulation under Title VI of the Communications Act, the expectations of entities in the cable industry must be based on those regulations, the premise of the law underlying them, and that regulations are amended to respond to changing circumstances. This environment is consistent with the Commission's authority to evaluate changing circumstances and amend its policies as it determines necessary. We therefore believe that all three Penn Central factors weigh in favor of a finding that our pre-termination access rule does not effect a regulatory taking. 230. We will neither establish a presumption of ownership of cable home wiring nor deregulate home wiring rates at this time. These proposals encompass a range of issues beyond the scope of this proceeding. We believe that our rules allowing consumers to install, redirect and reroute their cable home wiring adequately promote the goals of expanded competition and consumer choice without the need to address ownership issues. We also note our obligation under Section 623 to regulate the rates of equipment used by subscribers to receive the basic service tier. H. Signal Leakage 1. Background 231. In the Inside Wiring Notice, we sought comment on whether and how to extend our signal leakage rules that currently apply only to traditional cable systems to others that provide service over broadband facilities. We noted that while signal leakage from the transmission of broadband video programming may interfere with licensed over-the-air communications, signal leakage from the transmission of narrowband telephony does not pose a similar threat to such communications. We recognize, however, that telephone companies and other telecommunications service providers now deliver broadband service over the same aeronautical and public safety frequencies, and at similar levels of power, as do cable systems. We are concerned that the risks posed by the delivery of cable signals also exist with respect to these providers of broadband service. We solicited comment on whether, if our cable signal leakage rules were to apply to all broadband service providers, our current signal leakage requirements are adequate or whether they should be modified in light of the additional types of broadband service providers that would be covered. 232. The comments filed in this proceeding overwhelmingly support extending the Commission's existing cable television signal leakage rules to all providers of broadband service. These commenters assert that broadband service providers, in addition to franchised cable systems, may transmit signals over aeronautical and public safety frequencies at power levels sufficient to cause potential interference. The commenters generally agree that where potential signal leakage from a broadband service provider poses a risk of interfering with air traffic and emergency communications, the Commission's cable signal leakage rules should apply. 233. A few commenters believe that extension of the Commission's cable signal leakage standards to all providers of broadband service is unnecessary. Ameritech argues, for instance, that the signal leakage rules should not apply to broadband digital transmissions that may not interfere with aeronautical and public safety bands. Tandy and Circuit City both insist that concerns about signal leakage from consumer-installed broadband wiring can be addressed through mandatory labeling requirements and installation instructions for broadband wiring and connectors. TIA asserts that leakage hazards can be diminished through minimum cable performance specifications and detailed customer installation guides. General Instrument and Media Access/CFA propose the adoption of cable shielding standards to reduce the risk of signal leakage. 234. In addition, while ICTA and Optel generally support application of the cable signal leakage standards to all providers of broadband service, they request the establishment of a transition period to permit private cable operators to bring existing systems into compliance with signal leakage rules. Specifically, ICTA proposes a five-year transition period. ICTA and Optel argue that a transition period is necessary in light of the costs associated with compliance and in order to afford private cable operators a reasonable time within which to upgrade their systems. They further urge the Commission to tailor signal leakage testing criteria to private cable operators serving MDUs. In particular, these commenters ask the Commission to consider each MDU connected via microwave link a separate cable system so that leakage from individual MDUs may be assessed individually rather than cumulatively. Time Warner opposes ICTA's and Optel's requests. Time Warner argues that the five- year period suggested by ICTA is too long and proposes a one-year transition period for non-cable broadband service providers to comply with the Commission's signal leakage rules. In response to ICTA's and Optel's request that the Commission modify its signal leakage testing criteria, Time Warner suggests that the Commission establish certain distance criteria that define when areas served by the same microwave system may be considered separate for testing purposes. 235. Finally, a number of parties suggest that, in the event that our signal leakage rules are extended to all broadband service providers, new techniques for identifying signal leakage may have to be devised. These commenters assert that pinpointing the source of a particular leak may be difficult in cases where several providers serve the same or overlapping geographic areas and propose methods for identifying the source of the signal leakage. Time Warner, Bartholdi, and Cox all suggest that the Commission implement signal leakage tracking procedures while Adelphia proposes that service providers themselves establish methods for pinpointing the source of leakage. 2. Discussion 236. The purpose of the Commission's signal leakage rules is to protect licensed over-the-air communications, including aeronautical, police, and fire safety communications, from interference caused by signal leakage. Until now, the Commission rules governing signal leakage have been applied only to cable systems, which often deliver signals over the same frequency bands as many over-the-air licensees. 237. An increasing number of MVPDs are competing with cable operators in the provision of video programming and other services. Because these MVPDs often transmit signals over the same public safety and navigation frequencies as cable operators, they may be a source of potentially harmful signal leakage. The public safety concerns that underlie application of our signal leakage regulations to cable operators are equally present with respect to other MVPDs such as SMATV, MMDS and open video system operators and others. We agree with the majority of commenters in this proceeding and will modify our rules to extend existing cable signal leakage requirements to non-cable MVPDs. In light of the potential harm to public safety that may be caused by broadband signal leakage interfering with aeronautical, navigational and communications radio systems, we will not rely on labelling requirements, installation instructions or cable performance specifications. 238. With regard to Ameritech's argument that our signal leakage rules should not apply to digital transmission, we note that systems transmitting digitized signals may operate in the restricted aeronautical and public safety bands. Our signal leakage rules provide that systems operating in the restricted bands are only subject to the testing and monitoring requirements when they operate above a threshold power level. Systems using digital transmissions normally operate below this power threshold. Systems using digital technology that operate below our threshold power level therefore would not generally be subject to the most rigorous sections of our signal leakage rules. MVPDs using digital transmission will, however, be subject to Section 76.605(a)(12) which sets forth the maximum signal leakage limits for systems, regardless of the frequency band or power level in use. 239. We will require that all MVPDs comply with Section 76.613 of our rules upon the effective date of this Order. Section 76.613 protects licensed over-the-air communications from harmful interference and requires prompt action to eliminate such interference. We believe that immediate compliance with Section 76.613 is necessary because, unlike our other signal leakage rules that are designed to minimize the risk of interference by requiring that leakage be detected and repaired, Section 76.613 provides that once harmful interference actually occurs it must be promptly eliminated. We recognize, however, that immediate compliance with many of our other signal leakage requirements may present hardships to existing MVPDs not previously subject to such rules. We will allow for a five-year transition period from the effective date of these rules to afford non-cable MVPDs time to comply with our signal leakage rules other than Section 76.613. We note that such a transition period is consistent with the time period allotted to cable operators in 1984 to comply with the more stringent signal leakage requirements imposed by the Commission. We disagree with Time Warner that non-cable MVPDs do not need five years to comply with signal leakage rules because they do not face many of the same obstacles cable operators confronted in the past in complying with such rules. We believe that a five-year transition period will provide a reasonable time period for existing non-cable MVPDs to undertake such functions as replacing equipment, upgrading existing wiring, and training personnel to conduct signal leakage measurements. The five-year transition period will apply only to the systems of those non-cable MVPDs that have been substantially built as of January 1, 1998. We will define "substantially built" as having 75% of the distribution plant completed. 240. Our rules require that each cable system perform an independent signal leakage test annually. Based on the current record, we will not amend our rules to treat MDUs or different geographic areas connected by microwave link as separate systems for testing purposes. We believe that for the past six years our testing criteria have provided effective standards for monitoring and rectifying signal leakage in 31,000 cable communities nationwide. Cognizant of the changing technologies 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. 241. We will not establish any new signal leakage testing procedures such as tracking systems to identify the source of signal leakage. We believe that MVPDs are capable of devising and selecting the most appropriate methods for detecting signal leakage on their own systems. We encourage MVPDs to work together to develop methods that will permit them to accurately identify the source of any signal leakage. 242. While our signal leakage rules generally require cable operators to perform signal leakage monitoring and testing, Section 76.615 requires cable operators to file specific information with the Commission. In particular, Section 76.615(b)(7) requires that cable operators annually file with the Commission the results of signal leakage testing. The reporting requirements of Section 76.615(b)(7) may impose undue burdens on small MVPDs. In the Second Further Notice below, we seek comment on whether certain MVPDs should be exempted from the reporting requirements of Section 76.615(b)(7). Since Section 76.615(b)(7) is one of the provisions covered by the five-year transition period, all non-cable MVPDs will have five years to comply with the filing requirements; the Second Further Notice seeks comment on whether we should create a permanent exemption for certain types of MVPDs. I. Signal Quality 1. Background 243. We sought comment in the Inside Wiring Notice on whether our cable signal quality standards should be extended to other broadband video service providers. We noted that signal strength can be reduced by the use of poor cable, signal splitting for additional television sets, improper termination, and improper attachments of and to CPE. We suggested, however, that the extension or further maintenance of signal quality standards may not be necessary due to the emergence of competition among broadband service providers. We further sought comment on how our decisions in this rulemaking concerning the issues of access to wiring prior to termination of service, ownership and control of the wiring, and the location of the demarcation point would affect our signal quality requirements should they be maintained or extended. We asked for comment generally on how any new or revised regulatory approaches proposed in the Inside Wiring Notice would affect signal leakage or signal quality considerations. 244. Alternative video service providers generally oppose extension of the Commission's cable signal quality standards to other broadband service providers or believe that such extension is unnecessary. They contend that increased competition among broadband service providers reduces the need to rely on Commission rules to ensure delivery of adequate levels of service. These commenters believe that in a competitive marketplace providers of broadband service will be motivated to deliver an acceptable level of signal quality to attract and retain customers. Cable operators, in contrast, support extension of signal quality requirements to all broadband service providers. Time Warner argues, for instance, that while a competitive environment may render signal quality standards unnecessary, they should be applied to all broadband service providers to the extent that they remain in force. 2. Discussion 245. By statute, the Commission is charged with promulgating regulations governing the quality of television signals delivered to cable subscribers. We believe that continued application of the Commission's signal quality standards to cable operators is necessary because, despite the recent entrance of other service providers into the video market, cable operators, in most areas of the country, still exercise significant market power. We do not believe at this time that market forces alone will ensure that cable subscribers receive the quality picture they are entitled to expect. With regard to non-cable broadband service providers, we believe that government regulation of signal quality would be unnecessary and unduly intrusive. These alternative providers do not exercise market power and virtually always compete with an incumbent cable operator. We agree with those comments that contend that head-to- head competition with a cable operator should ensure that alternative MVPDs deliver a good quality picture in order to attract and retain customers. We believe that, as cable operators become subject to vigorous competition, market forces will ensure that they, too, deliver a good quality picture. As competition develops and its effects become clearer, we expect to leave the issue of signal quality wholly to market forces. J. Means of Connection 1. Background 246. In the Inside Wiring Notice, we sought comment on whether the Commission should adopt uniform technical standards for jacks and connectors for broadband service. We noted that adoption of uniform standards could yield certain benefits such as: (1) ensuring network integrity; (2) minimizing concerns over signal leakage and substandard signal quality by decreasing the frequency of incorrect connection by alternative providers; and (3) simplifying the use of existing wire and connections by alternative service providers. We recognized, however, that use of a particular type of connector, known as the "F-type connector," is already prevalent in the cable television industry and that Commission adoption of connection standards may, therefore, be unnecessary. We also solicited comment on whether the Commission should establish technical standards for connections to cable networks or broadband service where multiple services are delivered over a single wire. 247. Virtually all of the parties commenting on the means of connection focused on the issue of whether the Commission should adopt uniform technical requirements for connections to broadband service. A majority of the commenters addressing the connection issue either oppose Commission adoption of specific standards for jacks and connectors for broadband service or believe that if broadband connections standards are to be established, they should be developed by industry standard-setting entities rather than the Commission. Commenters that oppose Commission adoption of uniform standards, such as cable interests and property management firms, generally contend that marketplace forces have established the F-type connector as the de facto standard for connecting coaxial cable to CPE. These commenters maintain that, in light of the cable industry's pervasive use of the F-type connector, standardization of broadband connections already exists and Commission action in this area is unwarranted. Other commenters argue that Commission action is unnecessary because an industry standard-setting body is more likely to be responsive to new and evolving technology. These commenters maintain that, given the rapid pace of technological innovation, government regulations established today may be irrelevant tomorrow. A few commenting parties urge the Commission to adopt technical standards, to be developed by the industry, for broadband connections. CEMA and MCI claim that without the adoption of uniform standards for jacks and other connectors, service providers would be free to use proprietary interfaces with which only their wiring and equipment can properly connect. CEMA argues that use of such proprietary interfaces would permit dominant service providers to maximize the sale of their own CPE and thwart competition among equipment manufacturers and service providers. 2. Discussion 248. Based on the record, we will not adopt uniform technical standards for jacks and connectors for broadband service. As several commenters in this proceeding have noted, the F-type connector has emerged as the de facto broadband connection standard within the cable industry. We believe that, properly used, the F-type connector is an effective means of connecting coaxial cable to CPE while minimizing the potential for signal leakage. The comments additionally indicate that non-cable video service providers use the F-type connector to connect their services via coaxial cable to CPE. Further government action in this area is therefore unwarranted at this time. In addition, in light of the fact that we are extending our cable signal leakage rules to all broadband service providers, we believe 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. K. Dual Regulation 1. Background 249. In the Inside Wiring Notice, we recognized that cable companies and telephone companies operate under different regulatory frameworks. We indicated that as technology advances to permit the delivery of cable and telephone services over the same wire, and as single companies develop the capacity to deliver both of these services, confusion might arise as to which regulatory scheme would be applicable. We sought comment on whether and how to harmonize the dual systems of regulation governing cable and telephone companies where broadband or multiple services are provided over a single wire or multiple wires. 250. State authorities generally contend that, for now, the existing systems of regulation for cable and telephony should remain intact. They argue for the preservation of state regulatory responsibility with respect to simple telephone inside wiring and are concerned about federal preemption of state regulations. In contrast, a number of commenters addressing the issue of dual regulation urge the Commission to preempt state and local regulation of telephony and cable inside wire. GTE argues for complete deregulation of cable inside wire. Several commenters recommend that the Commission take other steps to provide guidance on dual regulation. Charter/Comcast suggest the establishment of a joint state/federal board to resolve issues related to dual regulation of wireline service providers. RTE Group urges the Commission to develop guidelines to define the regulatory roles of both state public utility commissions and local franchising authorities. 2. Discussion 251. We do not believe that the record before us provides sufficient information to address the issues raised in the Inside Wiring Notice. Based on the current record, it appears that service providers will continue to use separate inside wiring to provide cable and telephone service for at least the near future. If and when circumstances change, we will revisit this issue with the goal of creating a single set of inside wiring rules. L. Regulation of Simple and Complex and of Residential and Non-Residential Wiring 1. Background 252. In the Inside Wiring Notice, we described how Commission regulation of telephone inside wiring varies depending on whether simple or complex wiring is used to receive service. Simple wiring includes wiring installations of up to four access lines. Section 68.213 governs the connection of simple wiring to the network. Complex wiring refers to all wiring other than simple wiring. Section 68.215 of our rules governs the connection of complex wiring to the network. Most single dwelling units require only simple wiring, while MDUs and commercial settings require complex wiring. Installation 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. 253. By contrast, while our cable inside wiring rules do not differentiate between simple and complex wiring, they often make other distinctions. For example, the rules governing the disposition of wiring upon termination of service apply only to cable wiring installed by cable operators in residential dwelling units. In the Inside Wiring Notice, we sought comment on whether, in light of the convergence of cable and telephone technologies, we should harmonize our rules with respect to simple versus complex wiring and residential versus non-residential wiring. 254. A number of commenters addressing this issue contend that there is no need to revisit the rules that have deregulated the installation and maintenance of simple and complex telephone inside wire. NYNEX maintains that, as long as telephone and video services are provided over separate facilities, there is no need to change existing rules. Building Owners, et al., contend that, while it may make sense to account for the convergence in telephone and cable technologies, it does not make sense to adopt uniform rules for all kinds of property. GTE believes that it would be beneficial to establish standards governing the type and installation of both cable and telephone inside wire installed by carriers and independent contractors. New Jersey Ratepayer Advocate argues that the Commission should harmonize the definitions within the common carrier and cable rules with regard to simple versus complex wiring and residential versus non-residential wiring. U S West maintains that the treatment for simple inside wiring for single-line applications should be consistent for cable and telephony. Building Industry Consulting recommends that the complex versus simple classifications be removed from Part 68 of our rules rather than extended to cable wiring and that a single set of regulations be applied to all telecommunications wiring. 2. Discussion 255. We will not, at this time, establish common definitions in the common carrier and cable rules with regard to simple versus complex wiring and residential versus non-residential wiring. Relatively few parties commented on this specific issue, and even fewer parties proposed a change in our existing rules. In the telephone context, we believe that our distinction between simple and complex wiring has proven to be a workable and effective way to promote competition while ensuring network protection. Similarly, in the cable context, we agree with Building Owners, et al., that there may be substantial differences between residential and commercial buildings which would make it difficult to adopt uniform rules for all kinds of property. We do not believe that the current record provides sufficient evidence 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. M. Customer Premises Equipment 256. In the Inside Wiring Notice, we sought comment generally on the costs and benefits of harmonizing or revising our rules regarding customer premises equipment ("CPE") to accommodate the possible convergence of technologies used to receive and to interact with network-delivered video programming and telephony. We asked for comment on whether to establish rights of customers to provide and connect unregulated CPE to cable operators' networks. 257. We believe that the issues raised in the Inside Wiring Notice have been superseded by the 1996 Act. The issues will be addressed in a separate ongoing Commission rulemaking proceeding arising under new Section 629 of the Communications Act. IV. SECOND FURTHER NOTICE OF PROPOSED RULEMAKING A. Exclusive Service Contracts 258. We believe that exclusive service contracts between MDU owners and MVPDs can be pro- competitive or anti-competitive, depending upon the circumstances involved. Some alternative providers have commented that in order to initiate service in an MDU, they must be able to use exclusive contracts to ensure their ability to recover investment costs. Other alternative providers have argued that the Commission should limit the ability of incumbent cable operators to enter into exclusive contracts with MDU owners. 259. We seek comment on whether the Commission should adopt a "cap" on the length of exclusive contracts for all MVPDs that would limit the enforceability of exclusive contracts to the amount of time reasonably necessary for an MVPD to recover its specific capital costs of providing service to that MDU, including, but not limited to, the installation of inside wiring, headend equipment and other start-up costs. Commenters have suggested exclusivity periods such as five to six years, seven years and seven to ten years as reasonable. We seek comment on what would be a reasonable period of time for a provider to recoup its specific investment costs in an MDU. We seek comment on an approach under which a presumption that all existing and future exclusivity provisions would be enforceable for a maximum term of seven years, except for exceptional cases in which the MVPD could demonstrate that it has not had a reasonable opportunity to recover its specific investment costs. We inquire whether there should be different treatment accorded existing contracts and future contracts. We also seek comment on the appropriate forum for such a showing and whether the enforceability of an exclusivity provision should be extended only for the time period reasonably necessary for the provider to recover its costs. 260. If a "cap" is adopted, we seek comment on whether service providers would generally be able to structure their business arrangements so as to recover their capital costs within that time limit. After a video service provider has had an opportunity to recover its costs under an exclusive contract on a particular property, we seek comment on whether we should prohibit future exclusive contracts between the video service provider and the property owner, unless the service provider can demonstrate that the exclusive contract is necessary to recoup a substantial new investment in the property. We also inquire whether MDU owners should be afforded an opportunity to terminate the exclusive contract and retain the inside wiring, in exchange for a payment to the provider compensating it for unrecovered investment costs. We seek to determine what circumstances allow MDU owners and tenants to receive the benefits of technological improvements most expeditiously, while at the same time enhancing competition among MPVDs. 261. In the alternative, we seek comment on whether the Commission should only limit exclusive contracts where the MVPD involved possesses market power. The Supreme Court has noted: "Exclusive dealing is an unreasonable restraint on trade only when a significant fraction of buyers or sellers are frozen out of a market by the exclusive deal." We seek comment on circumstances encompassing the video distribution market and whether the Commission can and should restrict or prohibit MVPDs with market power from entering into or enforcing 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. 262. We are concerned about the administrative practicability of making market power determinations on a widespread, case-by-case basis and seek comment on whether we should establish any presumptions in this regard. We seek comment on whether our decision not to preempt state mandatory access statutes effectively means that non-cable MVPDs cannot enforce exclusive agreements in those states, even where such agreements may be pro-competitive. We also seek comment on any other issues relevant to the analysis of market power and exclusive contracts in the context of this proceeding. 263. In addition, we seek comment on whether the Commission can and should take any specific actions regarding so-called "perpetual" exclusive contracts (i.e., those running for the term of a cable franchise and any extensions thereof). For instance, under the market power approach, we seek comment on whether the Commission should adopt a presumption that the MVPDs involved possessed market power when such contracts were executed. Under the seven-year "cap" approach, we seek comment on whether "perpetual" exclusive contracts would simply fall within the general rule limiting the 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. 264. We also seek comment on whether we can and should adopt a "fresh look" for "perpetual" exclusive contracts. In addition, we seek comment on several implementation issues: (1) whether the "fresh look" would apply only to "perpetual" exclusive contracts and, if so, how such contracts reasonably can be distinguished from other long-term exclusive contracts; (2) the scope of the "fresh look" and how the "fresh look" period would be triggered to ensure a viable choice exists (e.g., whether the "fresh look" be applied on an MDU-by-MDU basis upon the request of a private cable operator able to serve the MDU, or more generally on a franchise-by-franchise basis where competitive choices exist in the franchise area); and (3) whether the "fresh look" would be a one-time opportunity or whether there could be additional "fresh look" windows in light of the development of new technology and the entry of new video service providers. 265. If we were to adopt a "fresh look" for "perpetual" exclusive contracts, we seek comment on whether we should open a 180-day "fresh look" window for MDU owners upon the effective date of our rules, unless the "perpetual" exclusive contract was entered into less than seven years earlier, in which case the "fresh look" window would open for that MDU at the end of the seven-year period. We also seek comment on whether the MVPD should be able to apply to the Commission for an extension if the MVPD can demonstrate that it has not had a reasonable opportunity to recover its specific capital costs by the end of this seven-year period. Further, we seek comment on whether, if an MDU owner does not enter into a new contract during its initial "fresh look" period, a new 180-day "fresh look" window should open at the expiration of each subsequent franchise period until the MDU owner opts out of its "perpetual" exclusive contract. We seek comment on whether this framework would protect MDU owners who do not have a competitive alternative and therefore would be prejudiced by a one-time "fresh look" window, while ensuring that the MVPDs involved have a reasonable opportunity to recover their costs. 266. We also seek comment on our statutory authority to adopt the exclusive contracts proposals discussed above. We also seek comment on any other constitutional, statutory or common law implications that these proposals raise. B. Application of Cable Inside Wiring Rules to All MVPDs 267. We propose to apply our cable home wiring rules for single-unit installations to all MVPDs in the same manner that they apply to cable operators. We believe that applying those rules to all MVPDs would promote competitive parity and facilitate the ability of a subscriber whose premises was initially wired by a non-cable MVPD to change providers. We seek comment on this proposal and on our authority to adopt it. 268. We also propose to expand to all MVPDs the rule we are adopting herein regarding cable subscribers' rights, prior to termination of service, to provide and install their own cable home wiring and to connect additional home wiring to the wiring installed and owned by the cable operator. We believe that applying this rule to all MVPDs will promote the same consumer benefits as in the cable context: increased competition and consumer choice, lower prices and greater technical innovation. We seek comment on this proposal, and in particular on the Commission's authority for expanding this rule to all MVPDs. C. Signal Leakage Reporting Requirements 269. Section 76.615 of the Commission's signal leakage rules requires cable operators to file certain information with the Commission when operating in the aeronautical radio frequency bands. In particular, Section 76.615(b)(7) requires cable operators to file annually with the Commission the results of their signal leakage tests conducted pursuant to Section 76.611. We are concerned that the reporting requirements of Section 76.615(b)(7) may impose undue burdens on small broadband service providers, including small cable operators. We seek comment on whether certain categories of broadband service providers should be exempt from the filing requirements of Section 76.615(b)(7) and, if so, what criteria the Commission should use in defining those providers. We would not propose to exempt any broadband service providers from the testing requirements of Section 76.615(b)(7), but simply the requirement to report the results of such tests to the Commission. For instance, we seek comment on whether we should exempt small broadband service providers from the filing requirements of Section 76.615(b)(7) based on an existing definition in the Commission's rules, a particular number of subscribers served, the length of the cable plant or some other criteria. We seek comment on the risks 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. D. Simultaneous Use of Home Run Wiring 270. As stated above, DIRECTV suggests that the Commission should establish a "virtual" demarcation point from which an alternative provider could share the wiring simultaneously with the cable operator. Other alternative providers endorse this view, if it is technically possible, and CEMA states that some of its members are currently developing equipment that will allow multiple uses of a single broadband wire. Cable operators generally oppose DIRECTV's suggestion that two video service providers may share a single wire, stating that the alternative provider would have to use different frequency bands to avoid interference, and, while theroetically possible, most systems do not have sufficient bandwidth capacity to carry multiple MVPDs. DIRECTV acknowledges that only service providers that use different parts of the spectrum technically may be able to share a single wire. 271. We believe that the sharing of a single wire by multiple service providers deserves further exploration. We seek comment on DIRECTV's proposal that we require competing broadband service providers to share a single home run wire in MDUs. In particular, we seek comment on the current technical, practical and economic feasibility and limitations of sharing of home run wiring. We also seek 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. V. REGULATORY FLEXIBILITY ACT ANALYSIS A. Final Regulatory Flexibility Act Analysis 272. As required by Section 603 of the Regulatory Flexibility Act, 5 U.S.C.  603 ("RFA"), Initial Regulatory Flexibility Analyses ("IRFAs") were incorporated in the Inside Wiring Notice, the Cable Home Wiring Further Notice, and the Inside Wiring Further Notice. The Commission sought written public comments on the proposals in these notices, including comments on the IRFAs. This Final Regulatory Flexibility Analysis ("FRFA") conforms to the RFA, as amended by the Contract with America Advancement Act of 1996 ("CWAAA"), Pub. L. No. 104-121, 110 Stat. 847 (1996). Need for Action and Objectives of the Rule 273. This Order adopts new procedural mechanisms to provide order and certainty regarding the disposition of MDU home run wiring upon termination of existing service. In addition, this Order promotes competition and consumer choice by establishing rules for the disposition of cable "loop through" wiring upon termination of service. This Order also permits consumers to provide or install their own cable home wiring, or redirect, reroute or connect additional wiring to the cable operator's home wiring. These rules will promote competition among MVPDs as well as cable wiring services, which will result in lower prices, greater technological innovation, and additional consumer choice. Finally, to protect 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 over-the-air communications. Summary of Issues Raised by the Public Comments in Response to the Initial Regulatory Flexibility Analysis 274. In response to the IRFAs contained in the Inside Wiring Notice and the Cable Home Wiring Further Notice, Building Owners, et al., filed comments arguing that the proposed rules would have a significant effect on small residential and commercial building operators and that the Commission should exempt these entities from any final rules. In response to the IRFA contained in the Inside Wiring Notice, CATA filed comments and an ex parte submission requesting that the Commission rescind the Inside Wiring Notice and reissue it as a notice of inquiry or reissue it with specific proposed rules. CATA argues that the Inside Wiring Notice failed to propose specific rules, thereby preventing both the Commission staff and small entities from analyzing and commenting on the effects of proposed rules on small entities. RTE Group filed its comments and reply comments as "a response by a small business pursuant to Section 603 of the Regulatory Flexibility Act." The issues raised by RTE Group are addressed above. No comments were filed in response to the IRFA contained in the Inside Wiring Further Notice. Description and Estimate of the Number of Small Entities Impacted 275. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the proposed rules. The RFA defines the term "small entity" as having the same meaning as the terms "small business," "small organization," and "small governmental jurisdiction," and the same meaning as the term "small business concern" under Section 3 of the Small Business Act. Under the Small Business Act, a "small business concern" is one that: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration ("SBA"). The rules we adopt in this Order will affect video service providers and MDU owners. 276. Small MVPDs: SBA has developed a definition of a small entity for cable and other pay television services, which includes all such companies generating $11 million or less in annual receipts. This definition includes cable system operators, closed circuit television services, direct broadcast satellite services, multipoint distribution systems, satellite master antenna systems and subscription television services. According to the Bureau of the Census, there were 1423 such cable and other pay television services generating less than $11 million in revenue that were in operation for at least one year at the end of 1992. We will address each service individually to provide a more succinct estimate of small entities. 277. Cable Systems: The Commission has developed its own definition of a small cable company for the purposes of rate regulation. Under the Commission's rules, a "small cable company," is one serving fewer than 400,000 subscribers nationwide. Based on our most recent information, we estimate that there were 1439 cable operators that qualified as small cable companies at the end of 1995. Since then, some of those companies may have grown to serve over 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable operators. Consequently, we estimate that there are fewer than 1439 small entity cable system operators that may be affected by the decisions and rules adopted in this Order. 278. The Communications Act also contains a definition of a small cable system operator, which is "a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1% of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000." The Commission has determined that there are 61,700,000 subscribers in the United States. Therefore, we found that an operator serving fewer than 617,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all of its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that the number of cable operators serving 617,000 subscribers or less totals 1450. Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act. 279. MMDS: The Commission refined the definition of "small entity" for the auction of MMDS as an entity that together with its affiliates has average gross annual revenues that are not more than $40 million for the preceding three calendar years. This definition of a small entity in the context of the Commission's Report and Order concerning MMDS auctions has been approved by the SBA. 280. The Commission completed its MMDS auction in March 1996 for authorizations in 493 basic trading areas ("BTAs"). Of 67 winning bidders, 61 qualified as small entities. Five bidders indicated that they were minority-owned and four winners indicated that they were women-owned businesses. MMDS is an especially competitive service, with approximately 1573 previously authorized and proposed MMDS facilities. Information available to us indicates that no MMDS facility generates 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. 281. ITFS: There are presently 1,989 licensed educational ITFS stations and 97 licensed commercial ITFS stations. Educational institutions are included in the definition of a small business. However, we do not collect annual revenue data for ITFS licensees and are unable to ascertain how many 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. 282. DBS: There are presently nine DBS licensees, some of which are not currently in operation. The Commission does not collect annual revenue data for DBS and, therefore, is unable to ascertain the number of small DBS licensees that could be impacted by these proposed rules. Although DBS service requires a great investment of capital for operation, we acknowledge that there are several 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. 283. HSD: The market for HSD service is difficult to quantify. Indeed, the service itself bears little resemblance to other MVPDs. HSD owners have access to more than 265 channels of programming placed on C-band satellites by programmers for receipt and distribution by video service providers, of which 115 channels are scrambled and approximately 150 are unscrambled. HSD owners can watch unscrambled channels without paying a subscription fee. To receive scrambled channels, however, an HSD owner must purchase an integrated receiver-decoder from an equipment dealer and pay a subscription fee to an HSD programming packager. Thus, HSD users include: (1) viewers who subscribe to a packaged programming service, which affords them access to most of the same programming provided to subscribers of other video service providers; (2) viewers who receive only non-subscription programming; and (3) viewers who receive satellite programming services illegally without subscribing. Because scrambled packages of programming are most specifically intended for retail consumers, these are the services most relevant to this discussion. 284. According to the most recently available information, there are approximately 30 program packagers nationwide offering packages of scrambled programming to retail consumers. These program packagers provide subscriptions to approximately 2,314,900 subscribers nationwide. This is an average of about 77,163 subscribers per program packager. This is substantially smaller than the 400,000 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. 285. OVS: The Commission has certified nine OVS operators. Because these services were introduced so recently and only one operator is currently offering programming to our knowledge, little financial information is available. Bell Atlantic (certified for operation in Dover) and Metropolitan Fiber Systems ("MFS," certified for operation in Boston and New York) have sufficient revenues to assure us that they do not qualify as small business entities. Two other operators, Residential Communications Network ("RCN," certified for operation in New York) and RCN/BETG (certified for operation in Boston), are MFS affiliates and thus also fail to qualify as small business concerns. However, Digital Broadcasting Open Video Systems (a general partnership certified for operation in southern California), Urban Communications Transport Corp. (a corporation certified for operation in New York and Westchester), and Microwave Satellite Technologies, Inc. (a corporation owned solely by Frank T. Matarazzo and 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. 286. SMATVs: Industry sources estimate that approximately 5200 SMATV operators were providing service as of December 1995. Other estimates indicate that SMATV operators serve approximately 1.05 million residential subscribers as of September 1996. The ten largest SMATV operators together pass 815,740 units. If we assume that these SMATV operators serve 50% of the units passed, the ten largest SMATV operators serve approximately 40% of the total number of SMATV subscribers. Because these operators are not rate regulated, they are not required to file financial data with the Commission. Furthermore, we are not aware of any privately published financial information regarding these operators. Based on the estimated number of operators and the estimated number of units served by the largest ten SMATVs, we believe that a substantial number of SMATV operators qualify as small entities. 287. LMDS: Unlike the above pay television services, LMDS technology and spectrum allocation will allow licensees to provide wireless telephony, data, and/or video services. An LMDS provider is not limited in the number of potential applications that will be available for this service. Therefore, the definition of a small LMDS entity may be applicable to both cable and other pay television (SIC 4841) and/or radiotelephone communications companies (SIC 4812). The SBA definition for cable and other pay services is defined above. A small radiotelephone entity is one with 1500 employees or less. For the purposes of this proceeding, we include only an estimate of LMDS video service providers. The vast majority of LMDS entities providing video distribution could be small businesses under the SBA's definition of cable and pay television (SIC 4841). However, in the LMDS Second Report and Order, we defined a small LMDS provider as an entity that, together with affiliates and attributable investors, has average gross revenues for the three preceding calendar years of less than $40 million. We have not yet received approval by the SBA for this definition. 288. There is only one company, CellularVision, that is currently providing LMDS video services. Although the Commission does not collect data on annual receipts, we assume that CellularVision is a small business under both the SBA definition and our proposed auction rules. We tentatively conclude that a majority of the potential LMDS licensees will be small entities, as that term is defined by the SBA. 289. MDU Operators: The SBA has developed definitions of small entities for operators of nonresidential buildings, apartment buildings and dwellings other than apartment buildings, which include all such companies generating $5 million or less in revenue annually. According to the Census Bureau, there were 26,960 operators of nonresidential buildings generating less than $5 million in revenue that were in operation for at least one year at the end of 1992. Also according to the Census Bureau, there were 39,903 operators of apartment dwellings generating less than $5 million in revenue that were in operation for at least one year at the end of 1992. The Census Bureau provides no separate data 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. Reporting, Recordkeeping, and Other Compliance Requirements 290. Disposition of MDU Home Run Wiring: The Order requires MVPDs to comply with a set of procedural timetables for the disposition of home run wiring upon termination of service when an MDU owner invokes the Commission's procedures. In addition, it requires MVPDs to include in future contracts with MDU owners a provision addressing the disposition of home run wiring upon the termination of the contract. It also requires the parties to cooperate to ensure as seamless a transition as possible for subscribers. 291. Sharing of Molding: The Order permits an MVPD to install home run wiring in an existing molding if the MDU owner determines that there is sufficient space, if the incumbent MVPD's ability to provide service is not impaired, and if the MDU owner gives its affirmative consent. If the 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. 292. Disposition of Cable Home Wiring: The Order requires MVPDs to implement their election to remove or abandon home wiring within seven days of learning that the home wiring will not be purchased. 293. Customer Access to Cable Home Wiring before Termination of Service: The Order requires cable operators to permit subscribers to provide or install their own cable home wiring, or redirect, reroute or connect additional wiring to the cable operator's home wiring, 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. The cable operator may choose to impose requirements that any home wiring meet reasonable technical specifications, not to exceed the technical specifications of such wiring installed by the cable operator; however, the cable operator may require additional technical specifications to eliminate electronic or physical harm. 294. Signal Leakage: The Order extends the Commission's cable signal leakage rules to all broadband service providers that pose a similar threat of interference with frequencies used for over-the-air communications. Section 76.615(b)(7) of the cable signal leakage rules requires cable operators to file annually with the Commission the results of their signal leakage tests conducted pursuant to Section 76.611. Significant Alternatives and Steps Taken to Minimize the Significant Economic Impact on a Substantial Number of Small Entities Consistent with the Stated Objectives This section analyzes the impact on small entities of the regulations adopted, amended, modified, or clarified in this Order. 295. Disposition of MDU Home Run Wiring: We considered several alternatives for the disposition of MDU home run wiring, including: (1) creating a single demarcation point for cable and telephony providers; (2) moving the cable demarcation point; and (3) maintaining our current rules. The record indicates that MDU owners often object to the installation of multiple home run wires for reasons including aesthetics, space limitations, the avoidance of disruption and inconvenience, and the potential for property damage. Small video service providers often are new entrants that will have to install new home run wiring (if they cannot use the existing wiring), while incumbent service providers often are established entities that may resist efforts by both new entrants and MDU operators to arrange for use of the existing wiring. By bringing order and certainty to the disposition of the home run wiring upon termination of service, the rules adopted herein advance the interests of both small video service providers and small MDU owners. 296. Transfer of Ownership of Home Run Wiring in Future Installations: We considered adopting a requirement that, for future installations, MVPDs transfer ownership of home run wiring to MDU owners. We instead decided to require MVPDs to include in future contracts with MDU owners a provision addressing the disposition of home run wiring upon termination of the contract. This requirement will provide all MDU owners, including small MDU owners, the flexibility to negotiate for ownership of the home run wiring. 297. Sharing of Molding: We considered not requiring the sharing of molding even when empty space exists. We concluded, however, that the ability to share molding often may assist small MVPDs, which frequently are new entrants, to gain access to MDUs. We considered Time Warner's proposal to allow affected MVPDs and the MDU owner to determine whether the molding contains adequate space. Our rule, however, does not require the concurrence of the affected MVPDs in the determination of whether adequate space exists. 298. Customer Access to Cable Home Wiring before Termination of Service: We believe that subscriber access to home wiring will advance the interests of small entities. As customers gain the ability 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. 299. Signal Leakage: This Order extends the Commission's cable signal leakage rules to all broadband service providers that pose a similar threat of interference with frequencies used for over-the-air communications. Although this modification will impact small broadband service providers, we are exploring the possibility of exempting certain categories of broadband service providers from the reporting requirements of the signal leakage rules. Report to Congress 300. The Commission shall send a copy of this Order, including this FRFA, in a report to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.  801(a)(1)(A). A copy of this Order and this FRFA (or summaries thereof) will also be published in the 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. B. Initial Regulatory Flexibility Act Analysis 301. As required by Section 603 of the Regulatory Flexibility Act, 5 U.S.C.  603, ("RFA"), the Commission has prepared an Initial Regulatory Flexibility Analysis ("IRFA") of the expected significant impact on small entities by the policies and rules proposed in this Second Further Notice. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing procedures as other comments in this proceeding, but they must be have a separate and distinct heading designating them as responses to the IRFA. The Secretary shall send a copy of this Second Further Notice, including the IRFA, to the Chief Counsel for Advocacy of the Small Business 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). Need for Action and Objectives of the Proposed Rules 302. The Commission issues this Second Further Notice to consider additional rules to promote competition and enhance consumer choice. In particular, we seek comment on the competitive implications of exclusive service contracts between MDU owners and MVPDs, and whether we should: (1) limit exclusive contracts to a time certain; (2) adopt restrictions on the ability of MVPDs to enter into exclusive contracts; or (3) adopt a "fresh look" for "perpetual" exclusive contracts. In addition, we propose to expand to all MVPDs the rule regarding cable subscribers' rights, prior to termination of service, to provide and install their own cable home wiring and to connect additional home wiring to the wiring installed and owned by the MVPD. We also ask whether certain categories of broadband service providers (e.g., small broadband service providers, including small cable operators) should be exempt from the signal leakage reporting requirements in Section 76.615(b)(7). Finally, we seek comment on the current technical, practical, economic, and legal limitations of requiring competing broadband service providers to share a single home run wire in MDUs. Legal Basis 303. This Second Further Notice is adopted pursuant to Sections 1, 4, 224, 251, 303, 601, 623, 624, and 632 of the Communications Act of 1934, as amended, 47 U.S.C.  151, 154, 224, 251, 303, 521, 543, 544, and 552. Description and Estimate of the Number of Small Entities Impacted 304. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the proposed rules. The RFA defines the term "small entity" as having the same meaning as the terms "small business," "small organization," and "small governmental jurisdiction," and the same meaning as the term "small business concern" under Section 3 of the Small Business Act. Under the Small Business Act, a "small business concern" is one that: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration ("SBA"). The rules we propose in this Second Further Notice will affect MVPDs and MDU owners. 305. Small MVPDs: SBA has developed a definition of a small entity for cable and other pay television services, which includes all such companies generating $11 million or less in annual receipts. This definition includes cable system operators, closed circuit television services, direct broadcast satellite services, multipoint distribution systems, satellite master antenna systems and subscription television services. According to the Bureau of the Census, there were 1423 such cable and other pay television services generating less than $11 million in revenue that were in operation for at least one year at the end of 1992. We will address each service individually to provide a more succinct estimate of small entities. 306. Cable Systems: The Commission has developed its own definition of a small cable company for the purposes of rate regulation. Under the Commission's rules, a "small cable company," is one serving fewer than 400,000 subscribers nationwide. Based on our most recent information, we estimate that there were 1439 cable operators that qualified as small cable companies at the end of 1995. Since then, some of those companies may have grown to serve over 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable operators. Consequently, we estimate that there are fewer than 1439 small entity cable system operators that may be affected by the decisions and rules proposed in this Second Further Notice. 307. The Communications Act also contains a definition of a small cable system operator, which is "a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1% of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000." The Commission has determined that there are 61,700,000 subscribers in the United States. Therefore, we found that an operator serving fewer than 617,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all of its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that the number of cable operators serving 617,000 subscribers or less totals 1450. Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act. 308. MMDS: The Commission refined the definition of "small entity" for the auction of MMDS as an entity that together with its affiliates has average gross annual revenues that are not more than $40 million for the preceding three calendar years. This definition of a small entity in the context of the Commission's Report and Order concerning MMDS auctions has been approved by the SBA. 309. The Commission completed its MMDS auction in March 1996 for authorizations in 493 basic trading areas ("BTAs"). Of 67 winning bidders, 61 qualified as small entities. Five bidders indicated that they were minority-owned and four winners indicated that they were women-owned businesses. MMDS is an especially competitive service, with approximately 1573 previously authorized and proposed MMDS facilities. Information available to us indicates that no MMDS facility generates 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. 310. ITFS: There are presently 1,989 licensed educational ITFS stations and 97 licensed commercial ITFS stations. Educational institutions are included in the definition of a small business. However, we do not collect annual revenue data for ITFS licensees and are unable to ascertain how many 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. 311. DBS: There are presently nine DBS licensees, some of which are not currently in operation. The Commission does not collect annual revenue data for DBS and, therefore, is unable to ascertain the number of small DBS licensees that could be impacted by these proposed rules. Although DBS service requires a great investment of capital for operation, we acknowledge that there are several 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. 312. HSD: The market for HSD service is difficult to quantify. Indeed, the service itself bears little resemblance to other MVPDs. HSD owners have access to more than 265 channels of programming placed on C-band satellites by programmers for receipt and distribution by video service providers, of which 115 channels are scrambled and approximately 150 are unscrambled. HSD owners can watch unscrambled channels without paying a subscription fee. To receive scrambled channels, however, an HSD owner must purchase an integrated receiver-decoder from an equipment dealer and pay a subscription fee to an HSD programming packager. Thus, HSD users include: (1) viewers who subscribe to a packaged programming service, which affords them access to most of the same programming provided to subscribers of other video service providers; (2) viewers who receive only non-subscription programming; and (3) viewers who receive satellite programming services illegally without subscribing. Because scrambled packages of programming are most specifically intended for retail consumers, these are the services most relevant to this discussion. 313. According to the most recently available information, there are approximately 30 program packagers nationwide offering packages of scrambled programming to retail consumers. These program packagers provide subscriptions to approximately 2,314,900 subscribers nationwide. This is an average of about 77,163 subscribers per program packager. This is substantially smaller than the 400,000 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. 314. OVS: The Commission has certified nine OVS operators. Because these services were introduced so recently and only one operator is currently offering programming to our knowledge, little financial information is available. Bell Atlantic (certified for operation in Dover) and Metropolitan Fiber Systems ("MFS," certified for operation in Boston and New York) have sufficient revenues to assure us that they do not qualify as small business entities. Two other operators, Residential Communications Network ("RCN," certified for operation in New York) and RCN/BETG (certified for operation in Boston), are MFS affiliates and thus also fail to qualify as small business concerns. However, Digital Broadcasting Open Video Systems (a general partnership certified for operation in southern California), Urban Communications Transport Corp. (a corporation certified for operation in New York and Westchester), and Microwave Satellite Technologies, Inc. (a corporation owned solely by Frank T. Matarazzo and 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. 315. SMATVs: Industry sources estimate that approximately 5200 SMATV operators were providing service as of December 1995. Other estimates indicate that SMATV operators serve approximately 1.05 million residential subscribers as of September 1996. The ten largest SMATV operators together pass 815,740 units. If we assume that these SMATV operators serve 50% of the units passed, the ten largest SMATV operators serve approximately 40% of the total number of SMATV subscribers. Because these operators are not rate regulated, they are not required to file financial data with the Commission. Furthermore, we are not aware of any privately published financial information regarding these operators. Based on the estimated number of operators and the estimated number of units served by the largest ten SMATVs, we believe that a substantial number of SMATV operators qualify as small entities. 316. LMDS: Unlike the above pay television services, LMDS technology and spectrum allocation will allow licensees to provide wireless telephony, data, and/or video services. An LMDS provider is not limited in the number of potential applications that will be available for this service. Therefore, the definition of a small LMDS entity may be applicable to both cable and other pay television (SIC 4841) and/or radiotelephone communications companies (SIC 4812). The SBA definition for cable and other pay services is defined above. A small radiotelephone entity is one with 1500 employees or less. For the purposes of this proceeding, we include only an estimate of LMDS video service providers. The vast majority of LMDS entities providing video distribution could be small businesses under the SBA's definition of cable and pay television (SIC 4841). However, in the LMDS Second Report and Order, we defined a small LMDS provider as an entity that, together with affiliates and attributable investors, has average gross revenues for the three preceding calendar years of less than $40 million. We have not yet received approval by the SBA for this definition. 317. There is only one company, CellularVision, that is currently providing LMDS video services. Although the Commission does not collect data on annual receipts, we assume that CellularVision is a small business under both the SBA definition and our proposed auction rules. We tentatively conclude that a majority of the potential LMDS licensees will be small entities, as that term is defined by the SBA. 318. MDU Operators: The SBA has developed definitions of small entities for operators of nonresidential buildings, apartment buildings and dwellings other than apartment buildings, which include all such companies generating $5 million or less in revenue annually. According to the Census Bureau, there were 26,960 operators of nonresidential buildings generating less than $5 million in revenue that were in operation for at least one year at the end of 1992. Also according to the Census Bureau, there were 39,903 operators of apartment dwellings generating less than $5 million in revenue that were in operation for at least one year at the end of 1992. The Census Bureau provides no separate data 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. Reporting, Recordkeeping, and Other Compliance Requirements 319. The Second Further Notice seeks comment on whether small broadband service providers, including small cable operators, should be exempt from the signal leakage reporting requirements in Section 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. Significant Alternatives and Steps Taken to Minimize the Significant Economic Impact on a Substantial Number of Small Entities Consistent with the Stated Objectives This section analyzes the impact on small entities of the regulations proposed or considered in the Second Further Notice. 320. The Second Further Notice seeks comment on several proposals which could minimize the economic impact on a substantial number of small entities. For instance, in seeking comment on what policies should be adopted with respect to exclusive contracts, the Commission raises the option of a limit on the length of exclusive contracts that would still permit a small MVPD to obtain exclusive contracts for the period of time necessary to recover its investment costs in the MDU building. In addition, the Commission seeks comment on whether small broadband service providers, including small cable operators, should be exempt from the signal leakage reporting requirements in Section 76.615(b)(7). The issue of whether competing providers should be required to share home run wiring explores the possibility 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. Federal Rules That May Duplicate, Overlap, or Conflict with the Proposed Rules None. VI. PAPERWORK REDUCTION ACT OF 1995 ANALYSIS 321. The requirements adopted in this Report and Order and Second Further Notice of Proposed Rulemaking have been analyzed with respect to the Paperwork Reduction Act of 1995 (the "1995 Act") and found to impose modified information collection requirements on the public. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public to take this opportunity to comment on the information collection requirements contained in this Report and Order and Second Further Notice of Proposed Rulemaking, as required by the 1995 Act. Public comments are due 60 days from date of publication of this Report and Order and Second Further Notice of Proposed Rulemaking in the Federal Register. Comments should address: (1) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (2) the accuracy of the Commission's burden estimates; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. 322. Written comments by the public on the modified information collection requirements are due 60 days from date of publication of this Report and Order and Second Further Notice of Proposed Rulemaking in the Federal Register. Comments on the information collections contained herein should be submitted to Judy Boley, Federal Communications Commission, Room 234, 1919 M Street, N.W., Washington, DC 20554, or via the Internet to jboley@fcc.gov. For additional information on the information collection requirements, contact Judy Boley at 202-418-0214 or via the Internet at the above address. VII. PROCEDURAL PROVISIONS 323. Ex parte Rules - "Permit-but-Disclose" Proceeding. This proceeding will be treated as a "permit-but-disclose" proceeding subject to the "permit-but-disclose" requirements under Section 1.1206(b) of the rules. Ex parte presentations are permissible if disclosed in accordance with Commission rules, except during the Sunshine Agenda period when presentations, ex parte or otherwise, are generally prohibited. Persons making oral ex parte presentations are reminded that a memorandum summarizing a presentation must contain a summary of the substance of the presentation and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required. Additional rules pertaining to oral and written presentations are set forth in Section 1.1206(b). 324. Filing of Comments and Reply Comments. Pursuant to applicable procedures set forth in Sections 1.415 and 1.419 of the Commission's Rules, interested parties may file comments on or before December 16, 1997, and reply comments on or before January 15, 1998. To file formally in this proceeding, you must file an original plus four copies of all comments, reply comments, and supporting comments. If you want each Commissioner to receive a personal copy of your comments and reply comments, you must file an original plus nine copies. You should send comments and reply comments to Office of the Secretary, Federal Communications Commission, 1919 M Street, NW, Washington, DC 20554. Comments and reply comments will be available for public inspection during regular business hours in the FCC Reference Center, Room 239, Federal Communications Commission, 1919 M Street NW, Washington DC 20554. VIII. ORDERING CLAUSES 325. IT IS ORDERED that, pursuant to Sections 1, 4(i), 201-205, 214-215, 220, 303, 623, 624 and 632 of the Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i), 201-205, 214-215, 220, 303, 543, 544 and 552, the Commission's rules are hereby amended as set forth in Appendix A. 326. IT IS FURTHER ORDERED that the rules as amended in Appendix A will become effective upon approval by OMB. The Commission will publish a document at a later date announcing the effective date of these rules. 327. IT IS FURTHER ORDERED that, pursuant to Sections 1, 4(i), 201-205, 214-215, 220, 303, 623, 624 and 632 of the Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i), 201- 205, 214-215, 220, 303, 543, 544 and 552, NOTICE IS HEREBY GIVEN of proposed amendments to the Commission's rules, in accordance with the proposals, discussions and statements of issues in the Second Further Notice of Proposed Rulemaking, and COMMENT IS SOUGHT regarding such proposals, discussions and statements of issues. 328. IT IS FURTHER ORDERED that the Commission SHALL SEND a copy of this Report 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. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary APPENDIX A Revised Rules Part 76 of title 47 of the Code of Federal Regulations is amended as follows: PART 76 -- CABLE TELEVISION SERVICE 1. The authority citation for Part 76 continues to read as follows: AUTHORITY: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 503, 521, 522, 531, 532, 533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 552, 554, 556, 558, 560, 561, 571, 572, 573. 2. Section 76.5 is amended by revising paragraph (mm)(2) to read as follows: Sec. 76.5 Definitions. * * * * * (mm) * * * (2) For new and existing multiple dwelling unit installations with non-loop-through wiring configurations, the demarcation point shall be a point at (or about) twelve inches outside of where the cable wire enters 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. (3) For new and existing multiple dwelling unit installations with loop-through wiring configurations, the demarcation points shall be at (or about) twelve inches outside of where the cable wire enters or exits the first and last individual dwelling units on the loop, or, where the wire is physically inaccessible at such point(s), the closest practicable point thereto that does not require access to an individual subscriber's dwelling unit. (4) As used in this subsection, the term "physically inaccessible" describes a location that (i) would 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. Note to paragraph (mm)(4): For example, wiring embedded in brick, metal conduit or cinder blocks with limited or without access openings would likely be physically inaccessible; wiring enclosed within hallway molding would not. 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"). * * * * * (b) An MVPD that causes harmful interference shall promptly take appropriate measures to eliminate the harmful interference. (c) If harmful interference to radio communications involving the safety of life and protection of property cannot be promptly eliminated by the application of suitable techniques, operation of the offending MVPD or appropriate elements thereof shall immediately be suspended upon notification by the District Director and/or Resident Agent of the Commission's local field office, and shall not be resumed until the interference has been eliminated to the satisfaction of the District Director and/or Resident Agent. When 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) The MVPD may be required by the District Director and/or Resident Agent to prepare and submit a report regarding the cause(s) of the interference, corrective measures planned or taken, and the efficacy of the remedial measures. 4. Section 76.620 is added to read as follows: Sec. 76.620 Non-cable multichannel video programming distributors ("MVPDs"). (a) Sections 76.605(a)(12), 76.610, 76.611, 76.612, 76.614, 76.615(b)(1-6), 76.616, and 76.617 shall apply to all non-cable MVPDs. However, non-cable MVPD systems that are substantially built as of January 1, 1998 shall not be subject to these sections until January 1, 2003. "Substantially built" shall 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 non-cable MVPDs. (b) To comply with Section 76.615(b)(2), a non-cable MVPD shall submit its Internal Revenue Service's Employer Identification (E.I.) number instead of an FCC identifier. 5. Subpart M is amended by revising the heading to read as follows: Subpart M -- Cable Inside Wiring 6. Section 76.800 is added to read as follows: Sec. 76.800 Definitions. (a) MDU. A multiple dwelling unit building (e.g., an apartment building, condominium building or cooperative). (b) MDU owner. The entity that owns or controls the common areas of a multiple dwelling unit building. (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). (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. 7. 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. (a) (1) Upon voluntary termination of cable service by a subscriber in a single unit installation, a cable operator shall not remove the cable home wiring unless it gives the subscriber the opportunity to purchase the wiring at the replacement cost, and the subscriber declines. If the subscriber declines to purchase the cable home wiring, the cable system operator must then remove the cable home wiring within seven days of the subscriber's decision, under normal operating conditions, or make no subsequent attempt to remove it or to restrict its use. (2) Upon voluntary termination of cable service by an individual subscriber in a multiple-unit installation, a cable operator shall not be entitled to remove the cable home wiring unless: (i) it gives the subscriber the opportunity to purchase the wiring at the replacement cost; (ii) the subscriber declines, and (iii) neither the MDU owner nor an alternative MVPD, where permitted by the MDU owner, has provided reasonable advance notice to the incumbent provider that it would purchase the cable home wiring pursuant to this section if and when a subscriber declines. If the cable system operator is entitled to remove the cable home wiring, it must then remove the wiring within seven days of the subscriber's decision, under normal operating conditions, or make no subsequent attempt to remove it or to restrict its use. (3) The cost of the cable home wiring is to be based on the replacement cost per foot of the 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. * * * * * (g) If the cable operator adheres to the procedures described in paragraph (b) of this section, and the subscriber asks for more time to make a decision regarding whether to purchase the home wiring, the seven (7) day period described in paragraph (b) of this section will not begin running until the subscriber declines to purchase the wiring; *** * * * * * (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. 8. Section 76.804 is added to read as follows: Sec. 76.804 Disposition of home run wiring. (a) Building-by-building disposition of home run wiring: (1) Where an MVPD owns the home run wiring in an MDU and does not (or will not at the conclusion of the notice period) have a legally enforceable right to remain on the premises against the wishes of the MDU owner, the MDU owner may give the MVPD a minimum of 90 days' written notice that its access to the entire building will be terminated to invoke the procedures in this section. The MVPD will then have 30 days to notify the MDU owner in writing of its election for all the home run wiring inside the MDU building: (i) to remove the wiring and restore the MDU building consistent with state law within 30 days of the end of the 90-day notice period or within 30 days of actual service termination, whichever occurs first; (ii) to abandon and not disable the wiring at the end of the 90-day notice period; or (iii) to sell the wiring to the MDU building owner. If the incumbent provider elects to remove or abandon the wiring, and it intends to terminate service before the end of the 90-day notice period, the incumbent provider shall notify the MDU owner at the time of this election of the date on which it intends to terminate service. If the incumbent provider elects to remove its wiring and restore the building consistent with state law, it must do so within 30 days of the end of the 90-day notice period or within 30 days of actual service termination, which ever occurs first. For purposes of abandonment, passive devices, including splitters, shall be considered part of the home run wiring. The incumbent provider that has elected to abandon its home run wiring may remove its amplifliers or other active devices used in the wiring if an equivalent replacement can easily be reattached. In addition, an incumbent provider removing any active elements shall comply with the notice requirements and other rules regarding the removal of home run wiring. If the MDU owner 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. (2) If the incumbent provider elects to sell the home run wiring under paragraph (a)(1), the incumbent and the MDU owner or alternative provider shall have 30 days from the date of election to negotiate a price. If the parties are unable to agree on a price within that 30-day time period, the incumbent must elect: (i) to abandon without disabling the wiring; (ii) to remove the wiring and restore the MDU consistent with state law; or (iii) to submit the price determination to binding arbitration by an independent expert. If the incumbent provider chooses to abandon or remove its wiring, it must notify the MDU owner at the time of this election if and when it intends to terminate service before the end of the 90-day notice period. If the incumbent service provider elects to abandon its wiring at this point, the abandonment shall become effective at the end of the 90-day notice period or upon service termination, whichever occurs first. If the incumbent elects at this point to remove its wiring and restore the building consistent with state law, it must do so within 30 days of the end of the 90-day notice period or within 30 days of actual service termination, which ever occurs first. (3) If the incumbent elects to submit to binding arbitration, the parties shall have seven days to agree on an independent expert or to each designate an expert who will pick a third expert within an additional seven days. The independent expert chosen will be required to assess a reasonable price for the home run wiring by the end of the 90-day notice period. If the incumbent elects to submit the matter to binding arbitration and the MDU owner (or the alternative provider) refuses to participate, the incumbent shall have no further obligations under the Commission's home run wiring disposition 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 90-day notice period. (4) The MDU owner shall be permitted to exercise the rights of individual subscribers under this subsection for purposes of the disposition of the cable home wiring under Section 76.802. When an MDU owner notifies an incumbent provider under this section that the incumbent provider's access to the entire building will be terminated and that the MDU owner seeks to use the home run wiring for another service, the incumbent provider shall, in accordance with our current home wiring rules: (1) offer to sell to the MDU owner any home wiring within the individual dwelling units that the incumbent provider owns and intends to remove; and (2) provide the MDU owner with the total per-foot replacement cost of such home wiring. This information must be provided to the MDU owner within 30 days of the initial notice that the incumbent's access to the building will be terminated. If the MDU owner declines to purchase the cable home wiring, the MDU owner may allow the alternative provider to purchase the home wiring upon service termination under the terms and conditions of Section 76.802. If the MDU owner or the alternative provider elects to purchase the home wiring under these rules, it must so notify the incumbent MVPD provider not later than 30 days before the incumbent's termination of access to the building will become effective. If the MDU owner and the alternative provider fail to elect to purchase the home wiring, the incumbent provider must then remove the cable home wiring, under normal operating 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. (b) Unit-by-unit disposition of home run wiring: (1) Where an MVPD owns the home run wiring in an MDU and does not (or will not at the conclusion of the notice period) have a legally enforceable right to maintain any particular home run wire dedicated to a particular unit on the premises against the MDU owner's wishes, the MDU owner may permit multiple MVPDs to compete for the right to use the individual home run wires dedicated to each unit in the MDU. The MDU owner must provide at least 60 days' written notice to the incumbent MVPD of the MDU owner's intention to invoke this procedure. The incumbent MVPD will then have 30 days to provide a single written election to the MDU owner as to whether, for each and every one of its home run wires dedicated to a subscriber who chooses an alternative provider's service, the incumbent MVPD will: (i) remove the wiring and restore the MDU building consistent with state law; (ii) abandon the wiring without disabling it; or (iii) sell the wiring to the MDU owner. If the MDU owner refuses to purchase the home run wiring, the MDU owner may permit the alternative provider to purchase it. If the alternative provider is permitted to purchase the wiring, it will be required to make a similar election within this 30-day period for each home run wire solely dedicated to a subscriber who switches back from the alternative provider to the incumbent MVPD. (2) If the incumbent provider elects to sell the home run wiring under paragraph (b)(1), the incumbent and the MDU owner or alternative provider shall have 30 days from the date of election to negotiate a price. During this 30-day negotiation period, the parties may arrange for an up-front lump sum payment in lieu of a unit-by-unit payment. If the parties are unable to agree on a price during this 30-day time period, the incumbent must elect: (i) to abandon without disabling the wiring; (ii) to remove the wiring and restore the MDU consistent with state law; or (iii) to submit the price determination to binding arbitration by an independent expert. If the incumbent elects to submit to binding arbitration, the parties shall have seven days to agree on an independent expert or to each designate an expert who will pick a third expert within an additional seven days. The independent expert chosen will be required to assess a reasonable price for the home run wiring within 14 days. If subscribers wish to switch service providers after the expiration of the 60-day notice period but before the expert issues its price determination, the procedures set forth in paragraph (b)(3) shall be followed, subject to the price established by the arbitrator. If the incumbent elects to submit the matter to binding arbitration and the MDU owner (or the alternative provider) refuses to participate, the incumbent shall have no further obligations under the Commission's home run wiring disposition procedures. (3) When an MVPD that is currently providing service to a subscriber is notified either orally or in writing that that subscriber wishes to terminate service and that another service provider intends to use the existing home run wire to provide service to that particular subscriber, a provider that has elected to remove its home run wiring pursuant to paragraph (b)(1) or (b)(2) will have seven days to remove its home run wiring and restore the building consistent with state law. If the subscriber has requested service termination more than seven days in the future, the seven-day removal period shall begin on the date of actual service termination (and, in any event, shall end no later than seven days after the requested date of termination). If the provider has elected to abandon or sell the wiring pursuant to paragraph (b)(1) or (b)(2), the abandonment or sale will become effective upon actual service termination or upon the requested date of termination, whichever occurs first. For purposes of abandonment, passive devices, including splitters, shall be considered part of the home run wiring. The incumbent provider may remove its amplifliers or other active devices used in the wiring if an equivalent replacement can easily be reattached. In addition, an incumbent provider removing any active elements shall comply with the notice requirements and other rules regarding the removal of home run wiring. If the incumbent provider intends to terminate service prior to the end of the seven-day period, the incumbent shall inform the party requesting service termination, at the time of such request, of the date on which service will be terminated. The incumbent provider shall make the home run wiring accessible to the alternative provider within twenty-four (24) hours of actual service termination. (4) If the incumbent provider fails to comply with any of the deadlines established herein, the home run wiring shall be considered abandoned, and the incumbent may not prevent the alternative provider from using the home run wiring immediately to provide service. The alternative provider or the MDU owner may act as the subscriber's agent in providing notice of a subscriber's desire to change services, consistent with state law. If a subscriber's service is terminated without notification that another service provider intends to use the existing home run wiring to provide service to that particular subscriber, the incumbent provider will not be required to carry out its election to sell, remove or abandon the home run wiring; the incumbent provider will be required to carry out its election, however, if and when it receives notice that a subscriber wishes to use the home run wiring to receive an alternative service. Section 76.802 of the Commission's rules regarding the disposition of cable home wiring will apply where a subscriber's service is terminated without notifying the incumbent provider that the subscriber wishes to use the home run wiring to receive an alternative service. (5) The parties shall cooperate to avoid disruption in service to subscribers to the extent possible. (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. (c) The procedures set forth in paragraphs (a) and (b) shall apply unless and until the incumbent provider obtains a court ruling or an injunction within forty-five (45) days following the initial notice enjoining its displacement. (d) After the effective date of this rule, MVPDs shall include a provision in all service contracts entered into with MDU owners setting forth the disposition of any home run wiring in the MDU upon the termination of the contract. (e) Incumbents are prohibited from using any ownership interest they may have in property 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. 9. Section 76.805 is added to read as follows: Sec. 76.805 Access to molding. (a) An MVPD shall be permitted to install one or more home run wires within the existing molding of an MDU where the MDU owner finds that there is sufficient space to permit the installation of the additional wiring without interfering with the ability of an existing MVPD to provide service, and 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. (b) If an MDU owner finds that there is insufficient space in existing molding to permit the installation of the new wiring without interfering with the ability of an existing MVPD to provide service, but gives its affirmative consent to the installation of larger molding and additional wiring, the MDU owner (with or without the assistance of the incumbent and/or the alternative provider) shall be permitted to remove the existing molding, return such molding to the incumbent, if appropriate, and install additional wiring and larger molding in order to contain the additional wiring. This paragraph shall not apply where the incumbent provider possesses a contractual right to maintain its molding on the premises without alteration by the MDU owner. (c) The alternative provider shall be required to pay any and all installation costs associated with the implementation of paragraphs (a) or (b), including the costs of restoring the MDU owner's property to its original condition, and the costs of repairing any damage to the incumbent provider's wiring or other property. 10. Section 76.806 is added to read as follows: Sec. 76.806 Pre-termination access to cable home wiring. (a) Prior to termination of service, a customer may: (1) install or provide for the installation of their own cable home wiring; or (2) connect additional home wiring, splitters or other equipment within 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. (b) Cable operators may require that home wiring (including passive splitters, connectors and other equipment used in the installation of home wiring) meets reasonable technical specifications, not to exceed the technical specifications of such equipment installed by the cable operator; provided however, that if electronic or physical harm is caused to the cable system, the cable operator may impose additional technical specifications to eliminate such harm. To the extent a customer's installations or rearrangements of wiring degrade the signal quality of or interfere with other customers' signals, or cause electronic or physical harm to the cable system, the cable operator may discontinue service to that subscriber until the degradation or interference is resolved. (c) Customers shall not physically cut, substantially alter, improperly terminate or otherwise destroy cable operator-owned home wiring. APPENDIX B Parties that Filed Comments and Reply Comments Note: If no abbreviation appears in parentheses following the full name, the full name is used in this Order and Second Further Notice. Comments in CS Docket No. 95-184 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, et al.) 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) 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) Marcus Cable Company; American Cable Entertainment; Greater Media, Inc.; Cable Television Association of Maryland, Delaware and the District of Columbia; Cable Television Assocation of Georgia; Minnesota Cable Communications Association; New Jersey Cable Telecommunications Association; Ohio Cable Telecommunications Assocation; Oregon Cable Television Association; 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) Motorola, 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) 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) Tele-Communications, 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) Informal Comments in CS Docket No. 95-184 1st Lake Properties, Inc. (1st Lake Properties) 101 Hudson Leasing Associates (101 Housing) Accredited Management Organization (Accredited Mgmt.) Adler Management Services, Inc. (Adler Mgmt.) Alan-Ben Properties, Inc. (Alan-Ben 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. Apartment 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) Ben-Steele 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) English 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) Jon-Mark Properties LLC (Jon-Mark 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) Lake 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) MarRay-Ash Plaza, Inc. (MarRay-Ash Plaza) MarRay-PCP 1500, Inc. (MarRay-PCP 1500) Massachusetts Institute of Technology (MIT) Mathews, Click, Bauman, Inc. (Mathews, Click, et al.) Matthews-Brown Contractors, Inc. (Matthews-Brown) 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 Paramount 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) 1221 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) Zehman-Wolf Management, Inc. (Zehman-Wolf Mgmt.) Reply Comments in CS Docket No. 95-184 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) 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 Real Estate Investment Trusts (Building Owners, et al.) 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) GTE Service Corp., on behalf of its domestic telephone operating companies and GTE Media Ventures, Inc. (GTE) Independent Cable & Telecommunications Association (ICTA) Marcus Cable Company; American Cable Entertainment; Greater Media, Inc.; Cable Television Association of Maryland, Delaware and the District of Columbia; Cable Television Assocation of Georgia; Minnesota Cable Communications Association; New Jersey Cable Telecommunications Association; Ohio Cable Telecommunications Assocation; Oregon Cable Television Association; 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) Scientific-Atlanta, Inc. (Scientific-Atlanta) 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) Comments in MM Docket No. 92-260 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) MultiTechnologies 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 Tele-Communications, Inc. (TCI) Time Warner Cable (Time Warner) United States Telephone Association (USTA) Wireless Cable Association International, Inc. (WCA) Reply Comments in MM Docket No. 92-260 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., Cable Television Association of Maryland, Delaware and the District of Columbia, Cable Television Association of Georgia, Minnesota Cable Communications Association, New Jersey Cable Telecommunications Association, Ohio Cable Telecommunications Association, Oregon Cable Telecommunications Association, South Carolina Cable Television Association, Tennessee Cable Television Association, 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) Comments on Initial Regulatory Flexibility Analysis 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, et al.) Cable Telecommunications Assocation (CATA) RTE Group, Inc. (RTE Group) Further Comments Adelphia Cable Communications, Arizona Cable Telecommunications Association, Cable One, Inc., 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 Management, 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 (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, Inc., Cable Television Asso. of Georgia, Cable Telecommunications Asso. of Maryland, Delaware and the District of Columbia, Florida Cable Telecommunications Association, New Jersey Cable Telecommunications Association, Ohio Cable Telecommunications Association, Oregon Cable Telecommunications Association, South Carolina Cable Television Association, Tennessee Cable 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) Tele-Communications, Inc. (TCI) Time Warner Cable (Time Warner) U S West, Inc. (U S West) Wireless Cable Association International, Inc. (WCA) Further Reply Comments Bell Atlantic Building Owners and Managers Association International, Institute of Real Estate Management, 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 (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) Jones Intercable, Marcus Cable, Century Communications Corp., Charter Communications, Inc., New Jersey Cable Telecommunications Association, Oregon Cable Telecommunications Association, South Carolina Cable Television Association, Tennessee Cable Telecommunications Association, 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) Tele-Communications, 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)