[Federal Register Volume 61, Number 33 (Friday, February 16, 1996)]
[Rules and Regulations]
[Pages 6131-6138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3128]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[MM Docket No. 92-260; FCC 95-503]
Cable Home Wiring
AGENCY: Federal Communications Commission.
ACTION: Final rule; First Order on Reconsideration.
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SUMMARY: The First Order on Reconsideration denies petitions for
reconsideration of the Commission's cable home wiring rules, except to
specify the procedure a cable operator must follow when a subscriber
terminates cable service. This order will facilitate competition in the
video marketplace by clarifying rules governing the disposition of
wiring.
EFFECTIVE DATE: Upon approval by the Office of Management and Budget.
At a later date, the Commission will publish a document reflecting the
actual effective date.
FOR FURTHER INFORMATION CONTACT: Lynn Crakes or Rick Chessen, Cable
Services Bureau, (202) 416-0800. For additional information concerning
the information collections contained in this Order contact Dorothy
Conway at 202-418-0217, or via the Internet at dconway@fcc.gov.
SUPPLEMENTARY INFORMATION: This First Order on Reconsideration contains
proposed or modified information collections subject to the Paperwork
Reduction Act of 1995 (``PRA''), Pub. L. No. 104-13. It has been
submitted to the Office of Management and Budget (``OMB'') for review
under Section 3507(d) of the PRA. OMB, the general public, and other
Federal agencies are invited to comment on the proposed or modified
information collections contained in this proceeding.
Title: 47 CFR 76.802 Disposition of Cable Home Wiring
Type of Review: New Collection
Respondents: Business of other for profit; individuals or households
Number of Respondents: 11,400 cable operators
Estimated Time Per Response: .083 hours (5 minutes)
Total Annual Burden: 18,039 hours
Needs and Uses: This information disclosure requirement ensures
that consumers are informed of their cable home wiring purchase rights
upon termination of cable service, including information regarding the
purchase of their home wiring in a single contact, and the use of
wiring to connect to an alternative video programming service. This
rule promotes competition by clarifying the disposition of wiring upon
termination of cable service. Cable operators' responsibilities are
clearly defined and their property rights protected.
This is a synopsis of the Commission's First Order on
Reconsideration in MM Docket No. 92-260, FCC No. 95-508, adopted
December 15, 1995 and released January 26, 1996.
I. Introduction
1. In this First Order on Reconsideration, we grant in part and
[[Page 6132]]
deny in part petitions for reconsideration of the Commission's initial
cable home wiring regulations implementing Section 16(d) of the Cable
Television Consumer Protection and Competition Act of 1992 (the ``1992
Cable Act''). Generally, we: (1) deny the petitions for reconsideration
of the Commission's cable home wiring rules, except (a) to specify the
procedure a cable operator must follow when a subscriber voluntarily
terminates cable service, if the operator wishes to remove the home
wiring, and (b) to shorten from 30 days to seven business days the time
period after termination of service within which the cable operator has
the right to remove any home wiring it owns.
2. The Commission received three petitions for reconsideration of
the Report and Order in MM Docket No. 92-260 (``Cable Wiring Order''),
58 FR 11970 (March 2, 1993)--all from potential or current competitors
to cable operators--as well as replies to these petitions from cable
operators. Petitioners' arguments include the following (a) that
subscribers should be permitted to purchase or to control the cable
home wiring upon installation rather than upon termination of service,
(b) that cable operators should be prohibited from misrepresenting
whether they intend to remove or abandon the home wiring following
termination of service, (c) that the demarcation point for multiple
dwelling units should be relocated, (d) that loop-through wiring
configurations should be included within our rules under certain
circumstances, and (e) that passive cable equipment should be included
within the definition of cable home wiring.
II. Order on Reconsideration
A. Customer Access to Cable Home Wiring Prior to Termination of Service
1. Background
3. Section 16(d) of the 1992 Cable 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.'' The Commission's regulations
implementing Section 16(d) provide that, when a customer voluntarily
terminates service, the cable operator must give that subscriber the
opportunity to acquire the wiring before the operator removes it. The
subscriber may purchase the wiring inside his or her premises up to the
demarcation point, which we defined as a point at or about twelve
inches outside the subscriber's premises. The operator may not charge
the subscriber any more than the replacement cost of the wire, priced
on a per-foot basis. If the subscriber declines to purchase the wiring,
the operator must remove it within 30 days or make no subsequent
attempt to remove it or to restrict its use.
4. In the 1993 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 16(d) of the 1992 Cable Act
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 which can cause harmful interference to licensed
radio spectrum users, 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.'' At the same time, 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.
2. Petitions
5. Some petitioners urge the Commission to apply the cable home
wiring rules prior to termination of service so that the subscriber may
control cable home wiring immediately upon installation. NYNEX asserts,
among other things, that consumers should be able to control the cable
home wiring upon installation so that they can obtain additional
services from other multichannel video programming service providers
through simultaneous use of the wire's spare capacity. On the other
hand, NCTA states that the Commission's current rules fully effectuate
the statutory language and the underlying purposes of the 1992 Cable
Act. NCTA and Time Warner claim that the Commission lacks the authority
under the 1992 Cable Act to mandate that operators convey ownership to
subscribers at the time of installation. Time Warner also asserts that
the Commission's current rules violate the takings clause by providing
that if a cable operator fails to remove its home wiring within 30 days
following termination of service, the operator is prohibited from
subsequently attempting to remove the wiring or restrict its use.
3. Discussion
6. The Commission's current cable home wiring rules implement the
specific directive of Section 16(d) of the 1992 Cable Act, i.e., to
establish rules governing the disposition of cable home wiring upon
termination of cable service. Our current rules promote the goals of
Section 16(d), which are to protect customers from unnecessary
disruption and expense caused by the removal of home wiring and to
allow subscribers to use the wiring for an alternative multichannel
video programming delivery system. On reconsideration, we are not
persuaded, based on the record in this proceeding at this time, to
expand our cable home wiring rules under Section 16(d) of the 1992
Cable Act. At the same time, we recognize that new competitors, such as
wireless cable, satellite master antenna television services
(``SMATVs'') and telephone companies, and new technologies, such as
video dialtone, are likely to change the video programming delivery
marketplace. The Commission must therefore consider broad
telecommunications issues which extend beyond the 1992 Cable Act and
the record in this proceeding in determining whether to expand the
cable home wiring rules in ways that could have competitive
implications for cable operators and other multichannel video
programming providers, as well as other providers of telecommunications
services. Given the potential for the convergence of telephone, data
and video technologies, it may be appropriate to consider requiring
cable operators to permit subscriber access to inside wiring prior to
termination of service in order to promote consumer choice and
competition. Parity with telephone inside wiring may also be desirable
if a cable operator wants to provide telephone or other common carrier
service over its coaxial cable, but the record in this proceeding does
not provide us with sufficient information upon which to base such a
determination. The Commission will therefore further explore this issue
in the Notice of Proposed Rulemaking (``NPRM'') in CS Docket No. 95-184
being adopted concurrently herewith.
7. In addition, we determine that our current rules (as well as our
revised rules described below) do not constitute an unconstitutional
taking, because they implement a clear statutory directive and provide
that, upon termination of service, the cable operator can receive just
compensation for its home wiring or
[[Page 6133]]
remove the wiring. Nor do we believe that our rules are rendered
unconstitutional by the fact that the cable operator is deemed to have
waived the availability of compensation if it fails to remove its home
wiring within a given time period following termination of service.
Compensation is available, under reasonable terms and conditions, if
the cable operator chooses to take that option. See United States v.
Locke, 471 U.S. 84, 107 (1985), which rejects a Fifth Amendment taking
claim where the plaintiff failed to comply with a statutory requirement
for filing a mining claim that would have indicated its intent to
retain its property right. Texaco, Inc. v. Short notes that the U.S.
Supreme Court has never required giving compensation to a private
property owner who fails to take reasonable actions imposed by law for
the consequences of his own neglect, 454 U.S. 516, 530 (1982). We note
that the prescribed time period (formerly 30 days and, as described
below, now seven business days) within which a cable operator may
remove the cable home wiring it owns provides the operator with a
reasonable opportunity to remove the wire if it so wishes.
8. With regard to NYNEX's contention that consumer access to cable
home wiring prior to termination of service would allow consumers to
obtain broadband services from more than one multichannel video
programming service provider simultaneously over one coaxial cable, it
is our understanding that, while such simultaneous use may be possible
in the laboratory, it is not technically or economically feasible in
the marketplace at the present time. Apparently, for example, broadband
networks are highly susceptible to signal impairments from outside
sources, such as over-the-air broadcast signals, a danger that would be
magnified significantly by the insertion of an additional broadband
service within the wiring itself. Therefore, we deny NYNEX's petition
as premature insofar as it seeks rules designed to allow simultaneous
use by a broadband video competitor of excess capacity on cable home
wiring. Furthermore, we note that the current cable wiring rules do not
prohibit simultaneous use, regardless of whether the cable operator or
the subscriber owns or controls the cable home wiring. Because we agree
that simultaneous use of the same wire by competitors could promote
competition and increase consumer choice, however, if simultaneous use
of cable wiring becomes economically and technically feasible, the
Commission may address any issues raised at that time.
B. Disposition of Cable Home Wiring Upon Termination of Service
1. Background
9. The Cable Wiring Order provides that when a subscriber calls to
voluntarily terminate cable service, the operator is required, if it
proposes to remove the wiring, to inform the subscriber (a) that he or
she may purchase the wire, and (b) what the cost per-foot charge is. If
the subscriber declines to purchase the home wiring, the operator must
remove it within 30 days or lose the right to remove it or restrict its
use.
2. Petitions
10. Some petitioners assert that cable operators may attempt to
deter subscribers from switching to alternative multichannel video
programming service providers by claiming that they intend to remove
the cable wiring even if they intend to abandon it. They posit that the
cable operator might falsely proclaim such an intent in order to
prevent an alternative provider from using the wiring during the 30-day
period afforded the operator to remove the wiring, and that since some
subscribers might elect to remain with the incumbent cable operator
rather than face such a choice, the current rules could defeat the
purpose behind Section 16(d).
11. WCA proposes that the Commission: (a) decrease the period
following termination during which cable operators must remove cable
home wiring from 30 days to seven days; (b) prohibit cable operators
from terminating service until either the cable is removed or the
seven-day period expires; and (c) establish procedures for the filing
of complaints against cable operators that demonstrate a pattern of
misrepresenting their intentions to remove wiring. Finally, WCA
suggests that the ``appointment window'' rules adopted in MM Docket No.
92-263 (Customer Service Standards) apply to appointments to remove
wiring, and that a failure to comply would result in the automatic
transfer of the wiring to the subscriber.
12. In response, some cable companies argue that WCA's claim that
operators will falsely state their intention to remove the wiring is
``speculative,'' and, even if true, would not warrant action on
reconsideration. They assert that WCA's concern that cable operators
will discriminate against customers who choose an alternative service
provider is unfounded because a cable operator cannot require any
subscriber to purchase his home wiring. Moreover, NCTA argues that
WCA's proposals are merely an attempt by alternative video programming
service providers to gain a ``free ride'' off wiring installed by and
belonging to the incumbent cable operator. As an alternative, NCTA
states that alternative providers could offer to purchase the wiring
from the incumbent operator, or at least offer to reimburse the
subscriber if the subscriber chooses to purchase the wiring.
13. In reply, WCA asserts that none of the responses addresses the
fundamental unfairness of permitting cable operators to discriminate
against subscribers who terminate service in favor of an alternative
service provider.
14. Ameritech proposes that ownership of cable home wiring should
transfer to the subscriber upon termination. Ameritech proposes that,
at a minimum, in cases of voluntary termination where a subscriber is
notified of the right to purchase his or her home wiring and the
subscriber exercises that right, constructive ownership should vest
with the subscriber immediately and the subscriber should be free to
authorize the connection of the wiring to a competing service provider.
3. Discussion
15. As we noted in the Cable Wiring Order, the purpose of Section
16(d) is 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 video programming service. While we believe that our
current rules advance these goals, we believe that they do not address
certain issues--such as when actual control of the home wiring
transfers to the subscriber--that could cause needless consumer
confusion and marketplace uncertainty. We therefore believe that the
goals of Section 16(d) would be better served if our rules set forth a
simple, clear process by which: (a) consumers can obtain, in a single
contact, the information they need to decide whether they wish to
purchase their home wiring upon termination; (b) consumers can
thereafter quickly and easily use the wiring to connect to an
alternative video programming service provider; and (c) cable
operators' legitimate property rights are protected. Thus, we hereby
amend our rules regarding the disposition of home wiring upon the
voluntary termination of service as follows.
[[Page 6134]]
16. During the initial telephone call in which a subscriber advises
the cable operator that he or she is voluntarily terminating service,
the operator--if it owns and intends to remove the home wiring--must
inform the subscriber of four things:
(a) that the cable operator owns the home wiring--as discussed in
the Cable Wiring Order, the record reveals that, in many circumstances,
the subscriber already owns the home wiring at termination (e.g., where
the operator has charged the subscriber for the wiring upon
installation, has treated the wiring as belonging to the subscriber for
tax purposes, or where state and/or local law treats cable home wiring
as a fixture); it is the operator's responsibility to maintain adequate
records to document its ownership;
(b) that the cable operator intends to remove the home wiring;
(c) that the subscriber has a right to purchase the home wiring;
and
(d) 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--our current rules state that the operator must
inform the subscriber of the per-foot replacement cost, and that its
charge for the wiring may be based on ``a reasonable approximation'' of
the length of cabling in the subscriber's premises. In the Cable Wiring
Order (at n. 39), we stated that we expected the per foot charge to be
based on the replacement cost of coaxial cable in the community; for
instance, we noted that the record indicated that new coaxial cable was
being sold for six cents per foot by District Cablevision in
Washington, D.C. An operator has two options for making a ``reasonable
approximation'' of the total charge during the contact terminating
service. First, the operator can develop schedules to make such
approximations based on readily available information, such as whether
the subscriber lives in a single family dwelling or an apartment, the
number of outlets installed, or the number of television sets in use.
If the operator chooses to develop such schedules, it must place them
in a public file and make them available for public inspection during
regular business hours. In the alternative, the operator may maintain
records reflecting the actual amount of home wiring installed on
subscribers' premises, but this information must be available for
calculating the total charge for the wiring during the initial phone
call.
Where an operator fails to adhere to the above procedures, it will
be deemed to have relinquished immediately any and all ownership
interests in the home wiring; thus, the operator will not be entitled
to compensation for the wiring and may make no subsequent attempt to
remove it or restrict its use. By referring to ``subscriber'' herein,
we do not intend to prohibit a subscriber from delegating to an agent
the task of terminating service and authorizing the purchase of home
wiring on his or her behalf.
17. If a subscriber voluntarily terminates cable service in person
(i.e., at the cable operator's offices), the same procedures apply. If
a subscriber requests termination in writing, it is the operator's
responsibility--if it intends to remove the wiring--to make reasonable
efforts to contact the subscriber prior to the date of service
termination and provide the subscriber with the information set forth
above.
18. If the cable operator informs the subscriber as described
above, and, at that point, the subscriber agrees to purchase the
wiring, constructive ownership over the home wiring will transfer to
the subscriber immediately, and the subscriber will be permitted to
authorize a competing service provider to connect with and use the home
wiring. Of course, the alternative video programming service provider
is free to reimburse the subscriber for the cost of the home wiring. We
believe that such a transfer of control presents no Fifth Amendment
difficulties, since the operator will ultimately be compensated for its
wiring (at which point actual ownership of the wiring will transfer to
the subscriber). We are, however, cognizant of the potential for
harmful signal leakage if this change-over is mishandled. Thus, where
the incumbent cable operator has not yet terminated service and
``capped off'' its line, the alternative video programming service
provider will be responsible for ensuring that the incumbent's wiring
is properly capped off in accordance with the Commission's signal
leakage requirements. ``Capping off'' is a procedure whereby a
terminating ``cap'' is placed over a wire to prevent potentially
harmful signal leakage. If there is no alternative provider--i.e., if
the subscriber is terminating service but will not be using the home
wiring to receive another multichannel video service--the cable
operator will remain responsible for properly capping off its own line.
We require incumbent cable operators to take reasonable steps within
their control to ensure that the alternative service provider has
access to the home wiring at the demarcation point (e.g., by providing
prompt access to the cable operator's lockbox where the placement of
the lockbox impedes access to the demarcation point), and for
incumbents and alternative multichannel video programming delivery
service providers to minimize the potential for signal leakage, theft
of service and unnecessary disruption of the consumer's premises.
19. If, on the other hand, the subscriber declines to purchase the
home wiring, the operator will have seven business days, rather than
the current 30 days, to remove the wiring. If the operator does not
remove the home wiring within this seven business day period, the
operator may make no subsequent attempt to remove it or restrict its
use. We believe that requiring subscribers to wait 30 days before
learning whether the cable operator would remove its wiring causes
needless uncertainty for the consumer and the possibility of a lengthy
disruption in service. We also believe that, under normal operating
conditions, it is not unreasonable to require cable operators to remove
their wiring within seven business days. However, we decline at this
time to apply the Commission's ``appointment window'' rules to
appointments to remove wiring; we believe that WCA has not submitted
sufficient evidence to demonstrate that such a change is necessary at
this time. Given the uniform federal and industry standard on
installations, we reject Time Warner's contention that a seven-day
removal period is a forced, rather than a voluntary, abandonment of
property. It is the operator's failure to act within a reasonable time
after the subscriber requests that its wiring be removed--not the
Commission's rule--that extinguishes the cable operator's rights. We
also reject NCTA's assertion that a 30-day removal period is required
to ensure that consumers have adequate time to decide whether or not to
purchase the wiring. If the subscriber asks for more time to make a
decision on whether to purchase the home wiring, the seven business-day
period will not begin running until the subscriber declines to purchase
the wiring. Until the subscriber contacts the operator with a decision,
he or she may not use the wiring to connect to an alternative service
provider.
20. We believe that the above procedures may not be necessary in
most circumstances. We understand that cable operators typically
abandon cable home wiring because the cost and effort required to
remove it generally outweigh its value. Accordingly, in most cases, the
cable operator may simply remain silent on the subject of home wiring
when the subscriber requests termination of service. If, for whatever
reason, the cable operator does not
[[Page 6135]]
discuss the disposition of the home wiring with the subscriber in
accordance with the above procedures, the operator will be deemed to
have relinquished immediately any and all ownership interests in the
home wiring. Thus, the operator will not be entitled to compensation
for the wiring and may make no subsequent attempt to remove it or
restrict its use.
21. While we acknowledge WCA's concerns that cable operators could
misrepresent their intention to remove the wiring, or that operators
may discriminate against subscribers who terminate service in favor of
an alternative provider, there is no evidence in the record for us to
conclude that these are significant problems. Moreover, we believe we
have alleviated WCA's concern regarding subscribers being without
service for up to 30 days by requiring cable operators to remove the
home wiring within seven business days.
C. Demarcation Point for Multiple Dwelling Units With Non-Loop-Through
Wiring
1. Background
22. Section 16(d) of the 1992 Cable Act states that the Commission
shall prescribe rules concerning cable wire ``within the premises of
[the] subscriber.'' Section 76.5(ll) of the Commission's rules defines
cable home wiring as the ``internal wiring contained within the
premises of a subscriber which begins at the demarcation point.'' Under
the current rules, the demarcation point is the point from which the
customer has the right to purchase cable home wiring upon voluntary
termination of service, the location from which the subscriber may
control the internal home wiring if he or she owns it, and the point
where a potential alternative multichannel video programming service
provider can attach its wiring to the subscriber's wiring in order to
provide service.
23. The wiring in multiple dwelling unit buildings is generally in
either a non-loop-through or loop-through configuration. In a non-loop-
through configuration, each subscriber has a dedicated line extending
from a trunk or feeder line to the individual's premises. The point at
which the drop meets the feeder line in multiple dwelling unit
buildings is usually in a security box or utility closet. A loop-
through configuration is one in which a single cable provides service
to a group of subscribers by being strung from one subscriber's unit to
the next subscriber's unit in the same building.
2. Petitions
24. Some commenters ask that the Commission reconsider its decision
to locate the demarcation point for multiple dwelling units at or about
twelve inches outside of where the cable enters a subscriber's
individual dwelling unit. NYNEX states that the Commission's current
rules are anti-competitive because they require an alternative cable
service provider to install duplicate wire up to the twelve-inch point
outside of where the wire enters the subscriber's premises, which would
either be prohibitively expensive or impossible due to space
limitations or the location of the wiring inside a wall in a building.
Liberty asks that the demarcation point for multiple dwelling units be
at the point outside a subscriber's premises and within the common
areas of the multiple dwelling unit building where the individual
subscriber's wires can be detached from the cable operator's common
wires without harming the multiple dwelling unit and without
interfering with the cable operator's provision of service to other
residents in the building. Liberty contends that this would enhance
competition by making it easier for the subscriber to switch from one
alternative multichannel video programming service provider to another.
25. On the other hand, cable companies oppose proposals to change
the demarcation point for multiple dwelling units, arguing that the
proposals do not definitively measure the exact point of demarcation
and are contrary to the plain language of the statute. NCTA states that
allowing a new service provider to go much beyond twelve inches invades
the common wiring, which is the cable operator's property. Time Warner
recommends that the most practical demarcation point in multiple
dwelling units is the wall plate in each individual unit, not beyond
twelve inches from where the wiring enters the individual dwelling
unit.
3. Discussion
26. We deny reconsideration of our rule setting the demarcation
point for multiple dwelling units at or about twelve inches outside of
where the cable wire enters the subscriber's dwelling unit. While the
record in this proceeding does indicate that the Commission's current
rules with regard to location of the demarcation point in multiple
dwelling units may impede competition in the multichannel video
programming delivery marketplace, the record is insufficient at this
time to indicate whether a different demarcation point might better
promote competition and consumer choice in the multichannel video
programming delivery marketplace without an undue impact on competition
in the market for other telecommunications services. We are concerned
with more than simple competition in the broadband multichannel video
programming market. We want to promote competition and consumer choice
in all types of telecommunications markets through multiple
technologies and services. The Commission therefore must consider broad
telecommunications issues which extend beyond the 1992 Cable Act and
the record in this proceeding before modifying the cable home wiring
rules in ways that could have competitive implications for cable
operators and other telecommunications service providers. Accordingly,
while we deny reconsideration of our current definition of the cable
demarcation point for multiple dwelling unit buildings, we believe that
it would be appropriate to revisit this issue in a broader competitive
context. We are, therefore, requesting comment on this demarcation
point issue in our NPRM in CS Docket No. 95-184 being adopted
concurrently herewith. We expect to act quickly in the NPRM proceeding
to resolve the demarcation point issue.
D. Multiple Dwelling Unit Buildings With Loop-Through Wiring
1. Background
27. In a loop-through cable wiring system, a single cable is used
to provide service to either a portion of or an entire multiple
dwelling unit building. Every subscriber on the loop is limited to
receiving video services from the same provider; there is no capacity
for individual choice. In the Cable Wiring Order, the Commission
excluded multiple dwelling unit loop-through wiring from the cable home
wiring rules, reasoning that applying our rules to loop-through wiring
would give the building manager or the initial subscriber control over
cable service for all subscribers in the loop.
2. Petitions
28. Telephone companies ask that loop-through cable be included in
the home wiring rules and controlled by the multiple dwelling unit
building owner, and propose that the Commission require that loop-
through and other configurations based on common use of unpowered
coaxial cable be eliminated in all future multiple dwelling unit
installations of cable home wiring. In
[[Page 6136]]
addition, Bell Atlantic urges the Commission to bar exclusive contracts
between cable operators and the owners or managers of multiple dwelling
unit buildings, because such contracts allegedly circumvent the
Commission's cable home wiring rules and deny residents the ability to
choose between competing services. While the current record does not
contain sufficient evidence to bear out Bell Atlantic's assertions--and
thus we do not address them further here--the parties are free to raise
this issue in the context of the NPRM in CS Docket No. 95-184, adopted
concurrently herewith.
29. On the other hand, cable companies agree with the Commission's
exclusion of multiple dwelling unit building loop-through
configurations from the home wiring rules. Time Warner argues that the
frequent turnover of multiple dwelling unit residents makes inclusion
of loop-through multiple dwelling units impractical.
3. Discussion
30. On reconsideration, we continue to exclude loop-through wiring
from our cable home wiring rules. 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
buy are not feasible. Furthermore, loop-through configurations, by
their nature, preclude individual subscriber control, an essential
element of the Commission's cable home wiring rules. Therefore, cable
operators are not required to offer to sell loop-through wiring to
subscribers upon termination of service, and no loop-through subscriber
has the right to purchase loop-through home wiring. We will, however,
consider and request comment in our Further Notice of Proposed
Rulemaking (``FNPRM'') published simultaneously in this issue regarding
Liberty's proposal that we allow the building owner to purchase the
home wiring when all of the subscribers on a loop simultaneously decide
to switch to an alternative video programming service provider. We will
also request comment on NYNEX's and USTA's proposal that we prohibit
future loop-through wiring installations and our authority, if any, to
do so.
E. Inclusion of Passive Splitters Within Cable Home Wiring
1. Background and Petitions
31. Section 76.5(ll) of the Commission's rules defines cable home
wiring as the internal wiring contained within the subscriber's
premises which begins at the demarcation point. The rule specifically
excludes from cable home wiring any active elements such as amplifiers,
converter or decoder boxes, or remote control units. In its petition
for reconsideration, Liberty asks the Commission to ``clarify that
cable home wiring includes passive ancillary equipment such as
splitters and conduits or molding in which the cable is installed.''
Liberty asserts that including such passive equipment within the
definition of cable home wiring will allow Liberty and other cable
competitors to avoid problems that arise when space constraints
prohibit the installation of multiple splitters or conduits to access
an individual subscriber's wires. Cable companies oppose this request,
contending that it was the specific intent of Congress to exclude any
cable equipment other than actual wiring. Time Warner further contends
that conduit and molding should be excluded from the Commission's
definition of cable home wiring because they are not cable equipment,
but rather the property of the premises owner. Time Warner states that,
at a minimum, splitters, which are passive cable equipment, should only
be considered part of the home wiring if located within, or up to
twelve inches outside the subscriber's premises.
2. Discussion
32. We grant Liberty's request that we include passive splitters
within the definition of cable home wiring. Because passive splitters
are a physically integral part of the home wiring, we believe that
their exclusion could frustrate the purposes behind Section 16(d) of
the 1992 Cable Act--i.e., to permit subscribers to avoid the disruption
of having their home wiring removed, and to subsequently utilize the
home wiring for an alternative video programming service. Therefore,
operators will be required to offer to sell to a terminating subscriber
any passive splitters attached to the home wiring on the subscriber's
side of the demarcation point, at no more than the replacement cost of
the splitters.
33. However, we deny Liberty's request that other passive equipment
be included within the cable home wiring definition. We believe that
molding and conduit are not necessarily cable equipment and are often
the property of the premises owner. In addition, we believe that,
considering the wide variety of passive equipment and related property,
it would be too burdensome to require cable operators to be prepared to
quote the replacement cost of such equipment and property upon the
subscriber's termination of service. Nevertheless, we understand
Liberty's concern that cable operators not be permitted to use their
ownership of other property relating to the cable home wiring to
frustrate the purposes of our cable home wiring rules and Section 16(d)
of the 1992 Cable Act. We will therefore prohibit cable operators from
using any ownership interests they have in property located on the
subscriber's side of the demarcation point, for example, cable molding
or conduit, to prevent, impede, or in any way interfere with, a
subscriber's right to use his or her home wiring to receive an
alternative service.
III. Regulatory Flexibility Analysis
34. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C.
601-612, the Commission's final analysis with respect to the First
Order on Reconsideration is as follows:
35. Need and Purpose of this Action. The Commission amends its
rules pertaining to cable home wiring to better effectuate the purposes
of Section 16(d) of the Cable Television Consumer Protection and
Competition Act of 1992, 47 U.S.C. 544(i) (1992).
36. Summary of Issues Raised by the Public in response to the
Initial Regulatory Flexibility Analysis. There were no comments
submitted in response to the Initial Regulatory Flexibility Analysis.
37. Significant Alternatives Considered and Rejected. Petitioners
representing cable interests and competitive video providers did not
submit comments regarding the administrative burden of the home wiring
rules.
IV. Procedural Provisions
38. Initial Paperwork Reduction Act of 1995 Analysis. This First
Order on Reconsideration contains either a proposed or modified
information collection. As part of our continuing effort to reduce
paperwork burdens, we invite the general public and the Office of
Management and Budget (``OMB'') to take this opportunity to comment on
the information collections contained in this Order as required by the
Paperwork Reduction Act of 1995, Pub. L. No. 104-13. Public and agency
comments are due at the same time as other comments on the FNPRM; OMB
comments are due 60 days from the date of publication of this Order in
the Federal Register. Comments should address: (a) whether the proposed
collection of information is necessary for the proper performance of
the functions of the Commission,
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including whether the information shall have practical utility; (b) the
accuracy of the Commission's burden estimates; (c) ways to enhance the
quality, utility, and clarity of the information collected; and (d)
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.
39. Ex parte Rules--Non-Restricted Proceeding. This is a non-
restricted notice and comment rulemaking proceeding. Ex parte
presentations are permitted, except during the Sunshine Agenda period,
provided that they are disclosed as provided in Commission's rules. See
generally 47 C.F.R. Secs. 1.1202, 1.1203, and 1.1206(a).
40. Written comments by the public on the proposed and/or modified
information collections are due March 18, 1996. Written comments must
be submitted by the Office of Management and Budget (OMB) on the
proposed and/or modified information collections on or before 60 days
after date of publication in the Federal Register. In addition to
filing comments with the Secretary, a copy of any comments on the
information collections contained herein should be submitted to Dorothy
Conway, Federal Communications Commission, Room 234, 1919 M Street,
N.W., Washington, DC 20554, or via the Internet to dconway@fcc.gov and
to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725--17th Street, N.W.,
Washington, DC 20503 or via the Internet to fain_t@al.eop.gov.
V. Ordering Clauses
41. Accordingly, it is ordered that the Petitions for
Reconsideration in MM Docket No. 92-260 are granted in part and denied
in part, as provided above herein.
42. It is further ordered that Part 76 of the Commission's rules is
hereby amended as shown below, effective upon approval by the Office of
Management and Budget. The portions of the First Order on
Reconsideration imposing information collections will not go into
effect until approved by the Office of Management and Budget.
43. It is further ordered that the Secretary shall send a copy of
this First Order on Reconsideration to the Chief Counsel for Advocacy
of the Small Business Administration in accordance with paragraph
603(a) of the Regulatory Flexibility Act, Pub. L. No. 96-354, 94 Stat.
1164, 5 U.S.C. 601 et seq. (1981).
List of Subjects in 47 CFR Part 76
Cable television.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Revised Rules
Part 76 of Title 47 of the Code of Federal Regulation is amended as
follows:
PART 76--CABLE TELEVISION SERVICE
1. The authority citation for Part 76 continues to read as follows:
Authority: Secs. 2, 3, 4, 301, 303, 307, 308, 309, 48 Stat., as
amended 1064, 1065, 1066, 1081, 1082, 1084, 1085, 1101; 47 U.S.C.
Sec. 152, 153, 154, 301, 303, 307, 308, 309; Secs. 612, 614-615,
623, 632 as amended, 106 Stat. 1460, 47 U.S.C. 532; Sec. 632, as
amended, 106 Stat. 1460; 47 U.S.C. 532, 533, 543, 552.
2. Section 76.5 is amended by revising paragraph (ll) to read as
follows:
Sec. 76.5 Definitions.
* * * * *
(ll) Cable home wiring. The internal wiring contained within the
premises of a subscriber which begins at the demarcation point. Cable
home wiring includes passive splitters on the subscriber's side of the
demarcation point, but does not include any active elements such as
amplifiers, converter or decoder boxes, or remote control units.
* * * * *
3. Section 76.802 is revised to read as follows:
Sec. 76.802 Disposition of cable home wiring.
(a) Upon voluntary termination of cable service by a subscriber, 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. The cost is to be
determined based on the replacement cost per foot of the cable home
wiring multiplied by the length in feet of the cable home wiring, and
the replacement cost of any passive splitters located on the
subscriber's side of the demarcation point. If the subscriber declines
to acquire the cable home wiring, the cable system operator must then
remove it within seven (7) business days, under normal operating
conditions, or make no subsequent attempt to remove it or to restrict
its use.
(b) During the initial telephone call in which a subscriber
contacts a cable operator to voluntarily terminate cable service, the
cable operator--if it owns and intends to remove the home wiring--must
inform the subscriber:
(1) That the cable operator owns the home wiring;
(2) That the cable operator intends to remove the home wiring;
(3) That the subscriber has the right to purchase the home wiring;
and
(4) What the per-foot replacement cost and total charge for the
wiring would be (the total charge may be based on either the actual
length of cable wiring and the actual number of passive splitters on
the customer's side of the demarcation point, or a reasonable
approximation thereof; in either event, the information necessary for
calculating the total charge must be available for use during the
initial phone call).
(c) If the subscriber voluntarily terminates cable service in
person, the procedures set forth in paragraph (b) of this section
apply.
(d) If the subscriber requests termination of cable service in
writing, it is the operator's responsibility--if it wishes to remove
the wiring--to make reasonable efforts to contact the subscriber prior
to the date of service termination and follow the procedures set forth
in paragraph (b) of this section.
(e) If the cable operator fails to adhere to the procedures
described in paragraph (b) of this section, it will be deemed to have
relinquished immediately any and all ownership interests in the home
wiring; thus, the operator will not be entitled to compensation for the
wiring and shall make no subsequent attempt to remove it or restrict
its use.
(f) If the cable operator adheres to the procedures described in
paragraph (b) of this section, and, at that point, the subscriber
agrees to purchase the wiring, constructive ownership over the home
wiring will transfer to the subscriber immediately, and the subscriber
will be permitted to authorize a competing service provider to connect
with and use the home wiring.
(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) business day period described in paragraph (b) of this
section will not begin running until the subscriber declines to
purchase the wiring; in addition, the subscriber may not use the wiring
to connect to an alternative service provider until the subscriber
notifies the operator whether or not the subscriber wishes to purchase
the wiring.
(h) If an alternative video programming service provider connects
its wiring to the home wiring before the incumbent cable operator has
terminated service and has capped off its line to prevent signal
leakage, the
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alternative video programming service provider shall be responsible for
ensuring that the incumbent's wiring is properly capped off in
accordance with the Commission's signal leakage requirements. See
Subpart K (technical standards) of the Commission's Cable Television
Service rules (47 CFR 76.605(a)(13) and 76.610 through 76.617).
(i) Where the subscriber terminates cable service but will not be
using the home wiring to receive another alternative video programming
service, the cable operator shall properly cap off its own line in
accordance with the Commission's signal leakage requirements. See
Subpart K (technical standards) of the Commission's Cable Television
Service rules (47 CFR 76.605(a)(13) and 76.610 through 76.617).
(j) Cable operators are prohibited from using any ownership
interests they may have in property located on the subscriber's side of
the demarcation point, such as molding or conduit, to prevent, impede,
or in any way interfere with, a subscriber's right to use his or her
home wiring to receive an alternative service. In addition, incumbent
cable operators must take reasonable steps within their control to
ensure that an alternative service provider has access to the home
wiring at the demarcation point. Cable operators and alternative
multichannel video programming delivery service providers are required
to minimize the potential for signal leakage in accordance with the
guidelines set forth in 47 CFR 76.605(a)(13) and 76.610 through 76.617,
theft of service and unnecessary disruption of the consumer's premises.
(k) Definitions--Normal operating conditions--The term ``normal
operating conditions'' shall have the same meaning as at 47 CFR
76.309(c)(4)(ii).
[FR Doc. 96-3128 Filed 2-15-96; 8:45 am]
BILLING CODE 6712-01-P
