[Federal Register Volume 60, Number 32 (Thursday, February 16, 1995)]
[Proposed Rules]
[Pages 8996-9001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3831]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 63
[CC Docket No. 87-266; FCC 95-20]
Telephone Company-Cable Television Cross-Ownership Rules
AGENCY: Federal Communications Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Commission adopted a Fourth Further Notice of Proposed
Rulemaking in Common Carrier Docket 87-266, with the intent of
soliciting information and comment on the extent to which Title II of
the Communications Act, Title VI, or both, apply to a telephone
company's provision of video programming directly to subscribers within
its telephone service area. The Commission also requested comment on
what changes, if any, need to be made to the video dialtone regulatory
framework if a telephone company decides to become a video programmer
on its own video dialtone platform in its telephone service area, and
in particular, whether telephone company provision of video programming
raises new concerns about anticompetitive behavior or cross-subsidy
that the Commission's existing regulatory framework may not
sufficiently address.
DATES: Comments must be submitted on or before March 6, 1995. Reply
comments are due on March 27, 1995.
ADDRESSES: Comments and Reply Comments may be mailed to the Office of
the Secretary, Federal Communications Commission, 1919 M Street NW.,
Washington, DC 20554. A copy of each filing should also be filed with
Peggy Reitzel of the Common Carrier Bureau, and James Yancey of the
Cable Services Bureau.
FOR FURTHER INFORMATION CONTACT:
Jane Jackson (202) 418-1593, Common Carrier Bureau, Policy and Program
Planning Division, and Larry Walke (202) 416-0847, Cable Services
Bureau.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Fourth Further
Notice of Proposed Rulemaking in Common Carrier Docket 87-266:
Telephone Company-Cable Television Cross-Ownership Rules, Sections
63.54-63.58, adopted January 12, 1995, and released January 20. 1995.
The complete text of this Fourth Further Notice of Proposed Rulemaking
is available for inspection and copying, Monday through Friday, 9:00
a.m.-4:30 p.m., in the FCC Reference Room (Room 239), 1919 M Street,
NW., Washington, DC 20554. The complete text of the Fourth Further
Notice of Proposed Rulemaking may also be purchased from the
Commission's copy contractor, International Transcription Services,
2100 M Street, NW., Suite 140, Washington, DC 20037, (202) 857-3800.
Synopsis of Fourth Further Notice of Proposed Rulemaking
A. Governing Statutory Provisions.
1. Local exchange carrier (LEC) provision of video programming
raises questions about whether Title II of the Communications Act,
Title VI of the Communications Act, or both, would govern particular
LEC video offerings, and how these provisions might apply to a LEC's
provision of video [[Page 8997]] programming directly to subscribers
within its telephone service area and over facilities used to provide
both voice and video services. We now seek comment on these issues and
on the analysis we offer below.
1. Application of Title II to LEC Video Programming Offerings
2. We first tentatively conclude that telephone companies should be
permitted to provide video programming over Title II video dialtone
platforms. We recently reaffirmed our conclusion that the construction
of video dialtone systems would serve the public interest goals of
facilitating competition in the provision of video programming
services, encouraging efficient investment in our national information
infrastructure, and fostering the availability to the American public
of new and diverse sources of video programming. Two U.S. Courts of
Appeals have now held unconstitutional the specific statutory basis for
prohibiting a telephone company from providing, directly or indirectly,
programming over its own video dialtone platform. In light of the
public interest benefits of a video dialtone platform, which provides
multiple video programmers with common carrier-based access to end
users, we tentatively conclude, in the absence of Section 533(b), that
we should not ban telephone companies from providing their own video
programming over their video dialtone platforms. We note that we allow
telephone companies to use their networks to provide their own enhanced
services today, subject to safeguards. Thus, in the absence of a
demonstration of a significant governmental interest to the contrary,
we propose to allow telephone companies to provide video programming
over their own video dialtone platforms, subject to appropriate
safeguards. We seek comment on this proposal, and on whether any such
significant governmental interest to support a ban exists and, if it
does, whether a ban would be a narrowly tailored restriction on the
telephone companies' First Amendment rights.
3. A second Title II issue is whether we can, and should, require
telephone companies to provide video programming only over video
dialtone platforms. Even before the recent court decisions invalidating
the telco-cable cross-ownership ban, there were three circumstances in
which LECs could provide video programming directly to subscribers. In
these circumstances, however, LECs have not been authorized to use
their local exchange facilities to provide cable service, but, rather,
to construct or purchase interests in separate cable facilities.
Indeed, as noted by the court in NCTA v. FCC (1994), it was not until
after the 1984 Cable Act that technological advances have made it
practical to deliver video signals over the same common carrier
networks that are used to provide telephone service. Previously, as the
court noted, ``[a] telephone company that wanted to provide cable
service would have had to construct a coaxial cable distribution system
parallel to its telephone system.''
4. We seek comment on whether we have authority under Section 214
to require LECs that seek to provide video programming directly to
subscribers in their telephone service areas to do so on a video
dialtone common carrier platform and not on a non-common carrier cable
television facility. We seek comment on what circumstance would warrant
such a requirement, and specifically on whether we should require use
of a video dialtone platform whenever a LEC provides video services
over facilities that are also used in the provision of telephone
services. We seek comment on our authority generally to require LECs
seeking Section 214 authority to acquire or construct video facilities
to comply with our video dialtone framework.
2. Application of Title VI to LEC Provision of Video Programming
5. We now seek comment on the circumstances, if any, in which a LEC
that, by court decision, is not subject to the 1984 Cable Act telco-
cable cross-ownership ban may offer a cable service subject to Title VI
in lieu of a Title II video dialtone offering. We also seek comment on
the extent to which Title VI should apply to video programming provided
by LECs on a Title II video dialtone system. We have previously held
that LEC provision of a common carrier video dialtone platform is not
subject to Title VI of the Act. In particular, we found that such LECs
are not offering ``cable service,'' and are not operating a ``cable
system'' within the meaning of Title VI. We reasoned that LECs did not
actively participate in the selection and distribution of video
programming because they were precluded from providing video
programming directly to subscribers in their telephone service areas.
We also concluded that video dialtone facilities are not cable systems
because they are common carrier facilities subject to title II of the
Act which, under Commission rules, could not be used for LEC provision
of video programming directly to subscribers in the LEC's telephone
service area. We now seek comment on whether, if a LEC, or its
affiliate, does provide video programming over its video dialtone
system and actively engages in the selection and distribution of such
programming, that LEC, or its affiliate, is subject to Title VI. We
seek comment on the Commission's legal authority to determine whether
some, but not all, provisions of Title VI relating to cable operators
would apply to a LEC that provides video programming over its video
dialtone platform. We also seek comment on whether the application of
some or all provisions of Title VI would result in a regulatory
framework that is duplicative of, or inconsistent with, federal or
state regulation of communications common carriage. For example, the
goals of the leased access provision of Title VI could be met through
obligations Title II imposes on a LEC as the provider of the video
dialtone platform whether or not the LEC as a video service provider
provides its own leased access channels. We seek comment on the
potential impact of our determinations in this proceeding on existing
grants by state and local authorities of public rights-of-way. We also
invite parties to discuss both the legal and practical implications of
requiring, or not requiring, telephone companies providing video
programming over their own video dialtone systems to comply with each
of the various provisions of Title VI. In the event that Title VI cable
rate regulation rules apply, we seek comment on how such rules would
apply to a LEC providing video programming directly to subscribers over
its own video dialtone platform.
6. In addition, we seek comment on whether, if Title VI does not
apply to telephone companies' provision of video programming on video
dialtone facilities, the Commission should adopt, under Title II,
provisions that are analogous to certain aspects of Title VI. For
example, we seek comment on whether we should adopt rules governing
program access by competing distributors, carriage agreements between
video service providers and unaffiliated programmers, and vertical
ownership restrictions.
7. Finally, we note that the court's opinion in NCTA v. FCC (1994)
is consistent with the Commission's reasoning in the First Report and
Order, 56 FR 65464-01 (December 17, 1991), that a LEC providing video
dialtone service does not require a local franchise because the LEC
does not provide the video programming. We seek comment on whether this
view would require a LEC offering video dialtone service to secure a
local [[Page 8998]] franchise if that LEC also engages in the provision
of video programming carried on its platform.
B. Regulatory Safeguards Governing a Local Exchange Carrier's Provision
of Video Programming on its Video Dialtone Platform
1. Introduction and Scope
8. In this section we consider what changes, if any, need to be
made to our video dialtone regulatory framework if a telephone company,
pursuant to an applicable court decision, decides to become a video
programmer on its own video dialtone platform in its telephone service
area. In addressing the issues identified below, parties should address
whether we should apply different safeguards for technical and market
trials than for commercial offerings of video dialtone.
2. Ownership Affiliation Standards
9. Under our current rules, LECs are prohibited from providing
video programming directly to subscribers, and from having a cognizable
(i.e., 5 percent or more) financial interest in, or exercising direct
or indirect control over, any entity that is deemed to provide video
programming in its telephone service area. We propose to retain these
ownership affiliation standards to identify those video dialtone
programmers that we will consider to be affiliated with LECs providing
the underlying common carriage. Under this proposal, if the Commission
determines that LEC ownership of video programming requires additional
safeguards, those safeguards would apply if the LEC owned five percent
or more of a video programmer. We seek comment on this proposal.
3. Safeguards Against Anticompetitive Conduct
a. Sufficient Capacity To Serve Multiple Service Providers
10. Under the video dialtone regulatory framework, a LEC is
required to provide sufficient capacity to serve multiple service
providers on a nondiscriminatory basis. In the Video Dialtone
Reconsideration Order, 59 FR 63909-01 (December 12, 1994), we rejected
use of an ``anchor programmer,'' that is, allocation of all or
substantially all of the analog capacity of the video dialtone platform
to a single programmer. We seek comment on whether there are other
across-the-board rules that we should adopt to ensure that video
dialtone retains its essential Title II character when a LEC becomes a
video programmer on its platform.
11. We seek comment, for instance, on whether we should limit the
percentage of its own video dialtone platform capacity that a LEC, or
its affiliate, may use. Such a limit could help ensure other
programmers access, but may create a risk that some capacity might go
unused. We seek comment on what an appropriate limit would be; whether
any percentage limit should vary with the platform's capacity; and
whether different rules should apply to analog and digital channels.
Video dialtone capacity constraints appear likely to be most severe in
the short-term, with respect to analog channels, and may be of less
concern on future all-digital systems. Commenters should address
whether LEC use of video dialtone capacity raises short-term or long-
term concerns, and how the probable duration of the problem should
affect our regulatory approach. Alternatively, we seek comment on
whether LECs that deny capacity to independent programmers should be
subject to procedural requirements more detailed than those imposed
inthe Video Dialtone Reconsideration Order.
12. In the Third Further Notice of Proposed Rulemaking, 59 FR
63971-01 (December 12, 1994), the Commission sought comment and
information regarding channel sharing mechanisms that LECs have
proposed as means of making analog capacity available to more customer-
programmers than might otherwise be accommodated. Parties addressing
limits on LEC use of the video dialtone platforms should comment in
this proceeding on the relationship between such channel sharing
mechanisms and any proposal to limit LEC use of analog channels. The
Third Further Notice of Proposed Rulemaking also sought comment on two
other signal carriage issues: (1) Whether the Commission should mandate
preferential video dialtone access or rates for commercial
broadcasters, public, educational and governmental (``PEG'') channnels,
or other not-for-profit programmers; and (2) whether the Commission
should permit LECs to offer preferential treatment to certain
programmers on a voluntary (``will carry'') basis. Parties should
comment in this proceeding on the relationships among mandatory
preferential treatment, ``will carry,'' and any proposed limits on a
LEC's use of its video dialtone capacity to provide programming
directly to subscribers.
13. Another example of potentially anticompetitive conduct that has
been cited in the context of cable television service under Title VI
involves channel positioning. Programmers assert that cable operators
can and do deliberately assign unaffiliated program services to
undesirable channel locations. Under Title II, such discriminatory
conduct is prohibited. We seek comment on whether LECs that are also
video program providers have an increased incentive to use their
control over the video dialtone platform to engage in such activities
and what, if any, specific safeguards we should implement to prevent
such conduct. In particular, we seek comment on whether the channel
positioning rules that apply to cable operators in the context of the
``must-carry'' requirement of Title VI should also apply to video
dialtone platform operators providing programming directly to
subscribers in their local exchange service areas.
b. Non-Ownership Relationships and Activities Between Telephone
Companies and Video Programmers
14. In the Video Dialtone Reconsideration Order, the Commission
affirmed, with certain modifications, its decision to permit LECs to
enter into non-ownership relationships with video programmers that
exceed a carrier-user relationship. We propose at a minimum, to retain
these restrictions as safeguards against LEC anticompetitive conduct
and to promote further LEC deployment of broadband services. We believe
that the restrictions on non-ownership affiliations between LECs and
cable operators are important to the Commission's goal of promoting
competition in the video services marketplace, and are not overbroad
infrigements on LEC First Amendment rights. Parties should comment on
the proposal to retain these safeguards and should describe any
specific additional measures they believe necessary to safeguard
against anticompetitive conduct by LECs that offer programming on their
own video dialtone system.
c. Acquisition of Cable Facilities
15. In the Video Dialtone Reconsideration Order, the Commission
substantially affirmed its decision to prohibit telephone companies
from acquiring cable facilities in their telephone service areas for
the provision of video dialtone. We continue to believe that this ban
will benefit the public interest by promoting greater competition in
the delivery of video services, increasing the diversity of video
programming available to consumers, and advancing the deployment of the
national communications infrastructure. We tentatively conclude that
the ban on LEC acquisition of cable facilities for the provision of
video dialtone does not impermissibly restrict LEC speech
[[Page 8999]] under C&P Tel. Co. v. U.S. and U S West v. U.S., and seek
comment on this conclusion.
16. In the Third Further Notice of Proposed Rulemaking, the
Commission recognized that some markets may be incapable of supporting
two video delivery systems. The Commission was concerned that, in such
markets, the prohibition could preclude establishment of video dialtone
service, thereby denying consumers the benefits of competition and
diversity of programming sources that our video dialtone regulatory
framework is designed to promote. As a result, the Commission requested
parties to suggest criteria that would permit us to identify those
markets in which two wire-based multi-channel video delivery systems
would not be viable. We seek comment on how, if at all, the decisions
in C&P Tel. Co. v. U.S. and U S West v. U.S. should affect our
consideration of criteria for allowing exceptions to our two-wire
policy. We also seek comment on whether we should ban telephone company
acquisition of cable facilities, with or without exceptions, if (a)
Title VI applies to telephone companies providing programming on their
own video dialtone platforms; or (b) telephone companies are permitted
to become traditional cable operators in their own service areas
instead of constructing video dialtone platforms.
d. Joint Marketing and Customer Proprietary Network Information
17. In the Video Dialtone Reconsideration Order, the Commission
also affirmed its decision to permit LECs to engage in joint marketing
of basic and enhanced video services, and of basic video and non-video
services. We found that significant public interest benefits can accrue
from the efficiencies and innovations that may be obtained by
permitting LECs to engage in joint marketing of basic and enhanced
video services, and of basic video and non-video services. We also
found that the record on reconsideration did not support a finding that
joint marketing of common carrier video and telephony services would
have an anticompetitive impact on the provision of video programming to
end users. We now seek comment on whether LEC provision of video
programming directly to end users requires that we revisit our analysis
of joint marketing issues.
18. In the Bell Atlantic Market Trial Order, released on January
20, 1995, the Commission authorized Bell Atlantic to conduct a six-
month video dialtone market trial that will include provision of video
programming directly to subscribers by a Bell Atlantic affiliate as
well as by independent video programmers.
Pending resolution of the instant rulemaking proceeding, we
conditioned Bell Atlantic's authorization on its compliance with
existing safeguards for the provision of nonregulated services,
including enhanced services, and with several additional, interim
safeguards against discrimination. We seek comment on whether any or
all of these interim safeguards should be adopted as permanent
requirements for LECs that provide video programming over their own
video dialtone platforms.
19. Under the Commission's customer proprietary network information
(CPNI) requirements, the Commission limits the Bell Operating
Companies' (BOCs') and GTE Service Corporation's (GTE's) use of CPNI;
requires them to make CPNI available to competitive enhanced service
providers (ESPs) designated by a customer; and requires that they make
available to ESPs non-proprietary aggregated CPNI on the same terms and
conditions on which they make such CPNI available to their own enhanced
service personnel. In the Video Dialtone Reconsideration Order, the
Commission determined that there was insufficient evidence to conclude
that our existing CPNI rules do not properly balance our CPNI goals
relating to privacy, efficiency, and competitive equity in the context
of video dialtone. The Commission also required the BOCs and GTE to
provide additional information regarding the kinds of CPNI to which
they will have access as a result of providing video dialtone service
and indicated its intent to seek further comment on such information.
We now seek additional comment and information on whether LEC provision
of video programming impacts the balancing of our goals for CPNI.
20. In addition to concerns over possible anticompetitive use of
CPNI, parties should discuss whether LEC provision of video programming
raises new concerns regarding consumer privacy. Parties that perceive a
greater threat to consumer privacy should describe with specificity
their concerns, and suggest specific safeguards for protecting consumer
privacy, and explain how these suggestions benefit the public interest.
21. We also seek comments on safeguards to ensure nondiscriminatory
access to network technical information. In the Bell Atlantic Market
Trial Order, the Commission required Bell Atlantic to provide all video
programmers with nondiscriminatory access to technical information
concerning the basic video dialtone platform and related equipment. The
Commission also noted that, in the circumstances of the market trial,
Bell Atlantic would also be subject to the more specific Computer III
network disclosure rules. We seek comment on whether the Bell Atlantic
condition should be adopted as a permanent safeguard. We also seek
parties to address whether the Computer III network disclosure rules
should be modified in any way for application in the video dialtone
context.
4. Safeguards Against Cross-Subsidization of Video Programming
Activities
22. In the Video Dialtone Reconsideration Order, the Commission
determined that price cap regulation and accounting safeguards would be
effective to prevent cross-subsidization of video dialtone-related
nonregulated activities. We tentatively conclude that these safeguards
against cross-subsidization apply to LEC provision of video programming
just as they would to any other activity not regulated as Title II
common carrier service, and that the existing rules are adequate to
forestall cross-subsidy of the video programming activity. We seek
comment on these tentative conclusions.
23. Assuming we do not require structural separation, LECs will
have the flexibility to conduct video programming activities both
within the telephone operating company and through affiliates. For
those video programming activities conducted in the operating company,
the LEC will be required to record costs and revenues in accordance
with Part 32 of the Commission's Rules, the Uniform System of Accounts
(USOA), and to separate the costs of video programming activity from
the costs of regulated telephone service in accordance with the part 64
joint cost rules. We tentatively conclude that these rules are adequate
to prevent cross-subsidization of video programming activities. We also
tentatively conclude that we will apply to video programming activities
the rule adopted in the Video Dialtone Reconsideration Order requiring
LECs to amend their cost allocation manuals to reflect video dialtone-
related nonregulated activities within 30 days of receiving video
dialtone facilities authorization. We seek comment on these tentative
conclusions.
24. H a LEC chooses for business reasons to provide video
programming through an affiliate, the accounting treatment of operating
company transactions with that affiliate will be governed by the
affiliate transactions rules. We seek comment on whether amendments to
those rules are needed [[Page 9000]] to safeguard against abuses in
transactions between LECs and affiliated video program providers.
Specifically, we seek comment on whether we should amend Section 32.27
to clarify that any video program provider that is considered, because
of a LEC's five percent ownership interest, to be a LEC affiliate for
purposes of applying video dialtone safeguards will also be considered
an ``affiliate'' for purposes of the affiliate transactions rule.
5. Structural Separation
25. In the Computer III proceeding, the Commission replaced its
requirement that BOCs offer enhanced services through separate
subsidiaries with a set of nonstructural safeguards. Those
nonstructural safeguards were intended to protect against
discrimination and cross-subsidization while avoiding the
inefficiencies associated with structural separation. We seek comment
on whether our approach to these questions should differ when BOCs
provide video programming. Specifically, we seek comment as to whether
there are aspects of the video programming business that warrant our
treating BOC provision of video programming differently from the way we
treat BOC provision of customer premises equipment (CPE) and enhanced
services generally. We also seek comment on whether any structural
separation requirement should apply to LECs other than the BOCs.
Commenting parties should specifically identify what aspects warrant
different treatment, and what form of separation would be appropriate.
Parties should also offer information concerning the relative costs and
benefits of structural separation.
6. Pole Attachments
26. Section 63.57 of our rules requires LECs seeking to provide
channel service to show in their Section 214 applications that the
cable system for which they would be providing channel service had pole
attachment rights or conduit space available ``at reasonable charges
and without undue restrictions on the uses that may be made of the
channel by the operator.'' In the Third Further Notice of Proposed
Rulemaking, the Commission sought comment on whether a similar rule
should apply to LECs providing video dialtone service. We now seek
additional comment on that proposal in light of C&P Tel. Co. v. U.S.
and U S West v. U.S. Parties should address whether incentives to abuse
control over pole and conduit space are increased if a LEC decides to
offer video programming within its telephone service area. In addition,
as requested in the Third Further Notice of Proposed Rulemaking,
advocates of such a rule should propose specific language, and should
explain how the rule would prevent anticompetitive conduct.
7. Legal and Constitutional Issues
a. Waiver of the Cross-Ownership Ban
27. Section 533(b)(4) of the Communications Act provides that, upon
a ``showing of good cause,'' the Commission may waive the 1984 Cable
Act's cross-ownership ban. Under Section 533(b)(4), a waiver ``shall be
granted by the Commission upon a finding that the issuance of such
waiver is justified by the particular circumstances demonstrated by the
petitioner, taking into account the policy of this subsection.'' In GTE
California v. FCC, the United States Court of Appeals for the Ninth
Circuit raises the question whether the Commission may establish
conditions under which it will waive the telco-cable cross-ownership
ban in order to obviate potential constitutional difficulties. We
tentatively conclude that such a reading of Section 533(b)(4) is
consistent with the terms of the statute. ``Good cause'' is commonly
interpreted to include changed circumstances, and the circumstances
that led us to institute the cross-ownership rule in 1970 have changed
dramatically. The cable industry is no longer a fledgling industry.
Instead, as the Supreme Court recently recognized, ``Congress found
that over 60 percent of the households with television sets subscribe
to cable * * * and for those households cable has replaced over-the-air
broadcast television as the primary provider of video programming.''
28. We also tentatively conclude that the safeguards we will
establish will constitute ``particular circumstances * * *, taking into
account the policy'' of Section 533(b), under which waivers are
warranted. We do not intend to waive the telco-cable cross-ownership
rule altogether, so that telephone companies may purchase cable
companies that do not face competition and offer their own programming
via a monopoly cable system. Rather, and in fulfillment of the policy
underlying Section 533(b), we intend to promote competition in the
multi-channel video programming market by establishing particular
conditions under which telephone companies may establish video dialtone
systems that will compete with existing cable operators, thus providing
consumers with a choice of multi-channel video systems.
29. The United States Court of Appeals for the District of Columbia
Circuit recognized, in NCTA v. FCC (1990), that ``the policy of this
subsection is to promote competition.'' However, in that decision the
D.C. Circuit also appeared to give a narrow reading to the scope of the
waiver provision. Specifically, the court of appeals remanded a
decision in which the Commission had granted a waiver because the court
concluded that the Commission had not shown that the participation of
an affiliate of a telephone company in constructing transmission
facilities was ``essential to the success'' of an experimental video
programming project. But at that time no court had declared Section
533(b) unconstitutional, and the D.C. Circuit did not consider whether
a broader reading of Section 533(b)(4) was appropriate to render the
provision constitutional. The Supreme Court has recently reiterated
that ``a statute is to be construed where fairly possible so as to
avoid substantial constitutional questions.'' A reading of the waiver
provision that authorizes telephone companies that comply with the
safeguards we will establish to provide video programming should render
Section 533(b) constitutional, because in those circumstances any
burden on speech by telephone companies will be minimal. Hence, under
U.S. v. X-Citement Video, a broad interpretation of Section 533(b)(4)
seems warranted. We seek comment on these tentative conclusions.
b. Constitutionality of Proposed Safeguards
30. As the Court of Appeals for the Fourth Circuit stated in C&P
Tel. Co. v. U.S., in order for a content-neutral government regulation
of speech, such as the cross-ownership ban, to be constitutional, that
regulation must be ``narrowly tailored to serve a significant
governmental interest, and * * * leave open ample alternative channels
for communication of the information.'' With respect to all proposals
set forth above for safeguards on LEC provision of video programming,
we seek comment on whether such safeguards, whether individually, or in
any combination, would be consistent with the First Amendment, the
Fourth Circuit's decision in C&P Tel. Co. v. U.S., and the Ninth
Circuit's decision in U.S. West v. U.S.
Ex Parte Presentations
31. This Fourth Further Notice of Proposed Rulemaking is a non-
restricted notice-and-comment rulemaking proceeding. Ex parte
presentations are [[Page 9001]] permitted, except during the Sunshine
Agenda period, provided that they are disclosed as provided in the
Commission's rules. See generally 47 CFR 1.1202, 1.1203, 1.1206.
Comment Filing Dates
32. Pursuant to applicable procedures set forth in Sections 1.415
and 1.419 of the Commission's rules, 47 C.F.R. 1.415, 1.419, interested
parties may file comments on or before March 6, 1995, and reply
comments on or before March 27, 1995. To file formally in this
proceeding, you must file an original and four copies of all comments,
reply comments, and supporting comments. If you want each Commissioner
to receive a personal copy of your comments, you must file an original
and nine copies. Comments and reply comments should be sent to Office
of the Secretary, Federal Communications Commission, Washington, DC
20554, with a copy to Peggy Reitzel of the Common Carrier Bureau, Room
544, and James Yancey of the Cable Services Bureau, Room 408C. Parties
should also file one copy of any documents filed in this docket with
the Commission's copy contractor, International Transcription Services,
Inc., 2100 M Street, NW., Suite 140, Washington, DC 20037. Comments and
reply comments will be available for public inspection during regular
business hours in the FCC Reference Center (Room 239), 1919 M Street
NW., Washington, DC.
Initial Regulatory Flexibility Analysis Statement
33. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C.
601-612, the Fourth Further Notice of Proposed Rulemaking, seeking
comment and information regarding whether additional or modified
safeguards and rule changes may be necessary or appropriate in the
context of the Commission's video dialtone regulatory framework, when a
telephone company provides video programming directly to subscribers in
its telephone service area may directly impact entities that are small
business entities, as defined in Section 601(3) of the Regulatory
Flexibility Act.
34. The Secretary shall send a copy of this Fourth Further Notice
of Proposed Rulemaking, including the Initial Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration in accordance with Section 603(a) of the Regulatory
Flexibility Act, Pub. L. 96-354, 94 Stat. 1164, 5 U.S.C. 601, et seq.
Ordering Clauses
35. It is ordered that, pursuant to Sections 1, 4, 201-205, 215,
and 218 of the Communications Act of 1934, as amended, 47 U.S.C. 151,
154, 201-205, 215, and 218, a Fourth Further Notice of Proposed
Rulemaking is hereby adopted.
36. It is further ordered that, the Secretary shall send a copy of
the Fourth Further Notice of Proposed Rulemaking, including the
regulatory flexibility certification, to the Chief Counsel for Advocacy
of the Small Business Administration, in accordance with paragraph
603(a) of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (1981).
List of Subjects in 47 CFR Part 63
Cable television, Communications common carriers, Reporting and
recordkeeping requirements, Telephone, Video dialtone.
Federal Communications Commission
William F. Caton,
Secretary.
[FR Doc. 95-3831 Filed 2-15-95; 8:45 am]
BILLING CODE 6712-01-M
