[Federal Register Volume 62, Number 220 (Friday, November 14, 1997)]
[Proposed Rules]
[Pages 61065-61070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29513]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[CS Docket No. 95-184; MM Docket No. 92-260; FCC 97-376]
Inside Wiring
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: The Commission has adopted a Report and Order and Second
Further Notice of Proposed Rulemaking which addresses rules and
policies concerning cable inside wiring. The Report and Order segment
of this decision may be found elsewhere in this issue of the Federal
Register. The Second Further Notice of Proposed Rulemaking (``Second
Further Notice'') segment seeks comment on proposed amendments to the
Commission's regulations relating to exclusive service contracts,
application of cable inside wiring rules to all multichannel video
programming distributors (``MVPDs''), signal leakage reporting
requirements, and simultaneous use of home run wiring. This action was
necessary because exclusive service contracts and
[[Page 61066]]
access to home run wiring are significant competitive issues in
multiple dwelling unit buildings (``MDUs''). In addition, this action
was necessary in order to ensure that all MVPDs are treated equitably
under our inside wiring rules. The intended effect of this action is to
expand opportunities for new entrants seeking to compete in
distributing video programming and to ensure that the Commission's
inside wiring rules remain pro-competitive.
DATES: Comments must be submitted on or before December 23, 1997 and
reply comments must be submitted on or before January 22, 1998.
ADDRESSES: Comments and reply comments should be sent 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.
FOR FURTHER INFORMATION CONTACT: Rick Chessen, Cable Services Bureau,
(202) 418-7200.
SUPPLEMENTARY INFORMATION: The following is a synopsis of the Second
Further Notice segment of the Commission's Report and Order and Second
Further Notice of Proposed Rulemaking in CS Docket No. 95-184 and MM
Docket No. 92-260, FCC No. 97-376, adopted October 9, 1997 and released
October 17, 1997. The full text of this decision is available for
inspection and copying during normal business hours in the FCC
Reference Center (Room 239), 1919 M Street, NW, Washington, DC 20554,
and may be purchased from the Commission's copy contractor,
International Transcription Services, Inc. (202) 857-3800 (phone),
(202) 857-3805 (fax), 1231 20th Street, NW, Washington, DC 20036.
Synopsis
I. Introduction
1. The Second Further Notice addresses issues raised in the Notice
of Proposed Rulemaking in CS Docket No. 95-184, 61 FR 3657 (February 1,
1996) (``Inside Wiring Notice''), the Order On Reconsideration and
Further Notice of Proposed Rulemaking in MM Docket No. 92-260, 61 FR
6131 (February 16, 1996) and 61 FR 6210 (February 16, 1996) (``Cable
Home Wiring Further Notice''), and the Further Notice of Proposed
Rulemaking in CS Docket No. 95-184 and MM Docket No. 92-260, 62 FR
46453 (September 3, 1997) (``Inside Wiring Further Notice'') regarding
potential changes in our telephone and cable inside wiring rules in
light of the evolving telecommunications marketplace.
II. Second Further Notice of Proposed Rulemaking
A. Exclusive Service Contracts
2. We believe that exclusive service contracts between MDU owners
and MVPDs can be pro-competitive or anti-competitive, depending upon
the circumstances involved. The term ``MDU owner'' (sometime referred
to as the ``premises owner'') as used herein includes whatever entity
owns or controls the common areas of an apartment building, condominium
or cooperative. 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.
3. 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. For instance, the exclusivity of a ``perpetual''
exclusive contract entered into in 1983 would no longer be enforceable;
however, if the service provider completed a substantial rebuild of its
plant in 1996, the provider may be able to show that it has not had a
reasonable opportunity to recover its investment costs notwithstanding
the fact that the exclusive contract was entered into more than seven
years ago. Similarly, a provider may be able to show that it has not
had an opportunity to recover its costs where it provided discounted
service in the early years of an exclusive contract with the
expectation of making its returns in later years. 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.
4. 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 MVPDs.
5. 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.''
Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 45 (1984),
citing Standard Oil v. United States, 337 U.S. 293 (1949). 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.
6. 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
[[Page 61067]]
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.
7. 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.
8. Under one 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. We 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.
9. 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.
10. 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
11. 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.
12. 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
13. 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. 47
CFR 76.615. In particular, Sec. 76.615(b)(7) requires cable operators
to file annually with the Commission the results of their signal
leakage tests conducted pursuant to Sec. 76.611. 47 CFR 76.611 and
76.615(b)(7). We are concerned that the reporting requirements of
Sec. 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 Sec. 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 Sec. 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 Sec. 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. For example, we have defined a small cable system as any
system that serves 15,000 or fewer subscribers and a small cable
company as one serving a total of 400,000 or fewer subscribers over all
of its systems. Sixth Report and Order and Eleventh Order on
Reconsideration, MM Docket Nos. 92-266 and 93-215 (Implementation of
Sections of the Cable Television Consumer Protection and Competition
Act of 1992: Rate Regulation), 60 FR 35854 (July 12, 1995). 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
14. 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
[[Page 61068]]
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 theoretically
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.
15. 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.
III. Initial Regulatory Flexibility Act Analysis
16. 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
17. 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
Sec. 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
18. 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. Secs. 151, 154, 224, 251, 303, 521, 543,
544, and 552.
Description and Estimate of the Number of Small Entities Impacted
19. 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.
20. 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.
21. 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. 47 CFR 76.901(e). 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.
22. 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.
23. 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
[[Page 61069]]
concerning MMDS auctions has been approved by the SBA.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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.
31. 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.
32. 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.
33. 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
[[Page 61070]]
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
34. 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
Sec. 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.
35. 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
Sec. 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.
IV. Procedural Provisions
36. 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
Sec. 1.1206(b) of the rules. 47 CFR 1.1206(b), as revised. 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. See 47 CFR 1.1206(b)(2), as revised.
Additional rules pertaining to oral and written presentations are set
forth in Sec. 1.1206(b). 47 CFR 1.1206(b).
37. Filing of Comments and Reply Comments. Pursuant to applicable
procedures set forth in Secs. 1.415 and 1.419 of the Commission's
Rules, interested parties may file comments on or before December 23,
1997, and reply comments on or before January 22, 1998. 47 CFR 1.415
and 1.419. 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.
V. Ordering Clauses
38. 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. Secs. 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.
39. It is further ordered that the Commission SHALL SEND a copy of
this Second Further Notice of Proposed Rulemaking, including the
Initial Regulatory Flexibility Analysis, to the Chief Counsel for
Advocacy of the Small Business Administration.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 97-29513 Filed 11-13-97; 8:45 am]
BILLING CODE 6712-01-P
