[Federal Register Volume 64, Number 147 (Monday, August 2, 1999)]
[Proposed Rules]
[Pages 41887-41891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19635]


-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 51, 68, 76

[WT Docket No. 99-217; FCC 99-141]


Promotion of Competitive Networks in Local Telecommunications 
Markets

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: In this Notice of Proposed Rulemaking, the Commission 
initiates a proceeding intended to facilitate the development of 
competitive telecommunications networks that will provide consumers 
with alternatives to services provided by the incumbent wireline local 
exchange carriers (LECs). In particular, the Commission seeks comment 
on the following issues: the provision of reasonable and 
nondiscriminatory access to rights-of-

[[Page 41888]]

way and riser conduit on private premises that are under the ownership 
or control of LECs or other utilities and competitively neutral state 
and local taxation. A companion Notice of Inquiry and a Third Further 
Notice of Proposed Rulemaking are summarized elsewhere in this issue of 
the Federal Register.

DATES: Comments are due August 13, 1999; Reply comments are due 
September 3, 1999.

ADDRESSES: Parties who choose to file comments by paper should send 
comments to the Commission's Secretary, Magalie Roman Salas, Office of 
the Secretary, Federal Communications Commission, 445 Twelfth Street, 
SW; TW-A325; Washington, D.C. 20554. Comments filed through the 
Commission's Electronic Comment Filing System (ECFS) can be sent as an 
electronic file via the Internet to <http://www.fcc.gov/e-file/
ecfs.html. See

SUPPLEMENTARY INFORMATION: For additional information about paper and 
electronic filing.

FOR FURTHER INFORMATION CONTACT: Jeff Steinberg at (202) 418-0896 or 
Joel Taubenblatt at (202) 418-1513 (Wireless Telecommunications 
Bureau).

SUPPLEMENTARY INFORMATION: This is a summary of the Notice of Proposed 
Rulemaking in WT Docket No. 99-217 (the ``Notice''), FCC 99-141, 
adopted June 10, 1999 and released July 7, 1999. The complete text of 
the document is available for inspection and copying during normal 
business hours in the FCC Reference Center, 445 12th Street, S.W., 
Washington, D.C. and also may be purchased from the Commission's copy 
contractor, International Transcription Services, (202) 857-3800, 445 
12th Street, S.W., CY-B400, Washington, D.C. 20554. The document is 
also available via the Internet at <http://www.fcc.gov/Bureaus/
Wireless/Orders/1999/index.html>.

Introduction

    1. This Notice is part of a larger item that seeks comment in order 
to further the Commission's ongoing efforts to promote facilities-based 
competition in the local telephone market. The larger item addresses 
issues that are not squarely before the Commission in pending 
proceedings. In particular, this Notice seeks comment on several 
potential modifications of the Commission's Rules in order to 
facilitate competitive providers' access to multiple tenant 
environments and facilities.

Background

    2. In the Telecommunications Act of 1996, codified at 47 U.S.C. 151 
et seq., Congress included provisions intended to facilitate 
competition with the incumbent LECs through three entry strategies: 
resale of the incumbent LEC's services, leasing of unbundled network 
elements, and use of a new entrant's own facilities. To date, the 
Commission's efforts to facilitate local competition pursuant to these 
provisions of the Act have generally encompassed all three of these 
means of entry. Carriers who provide service by any of the three means 
of competitive entry have the potential to bring many of the benefits 
of competition to local exchange markets, and the Commission recognizes 
it should continue to facilitate competitive entry by all means. 
However, in the long term, the most substantial benefits to consumers 
will be achieved through facilities-based competition. Only facilities-
based competitors can break down the incumbent LECs' bottleneck control 
over local networks and provide services without having to rely on 
their rivals for critical components of their offerings. Moreover, only 
facilities-based competition can fully unleash competing providers' 
abilities and incentives to innovate, both technologically and in 
service development, packaging, and pricing.

Discussion

    3. Accordingly, this Notice seeks comment on several potential 
modifications of the Commission's Rules in order to facilitate access 
by competing facilities-based providers of telecommunications service 
to multiple tenant enviornments. Specifically, the Notice also seeks 
comment, subject to the Commission's future interpretation of the 
``necessary'' and ``impair'' standards of section 251 of the 
Communications Act, 47 U.S.C. 251, on whether the Commission should 
require incumbent LECs to make available to any requesting 
telecommunications carrier unbundled access to riser cable and wiring 
that they control within multiple tenant environments.
    4. The Notice also seeks comment on whether the Commission should 
require building owners who allow access to their premises to any 
telecommunications provider to make comparable access available to all 
such providers on a nondiscriminatory basis, and on the extent of the 
Commission's legal authority to adopt such a requirement. The Notice 
asks questions regarding how any such obligation should be implemented.
    5. In addition, the Notice seeks comment on several other proposed 
Commission actions potentially ensuring that customers located in 
multiple tenant environments have access to their choice of 
telecommunications service providers. Specifically, the Notice requests 
comment on whether the Commission should forbid telecommunications 
service providers, under some or all circumstances, from entering into 
exclusive contracts with building owners, and abrogate any existing 
exclusive contracts between these parties. The Notice also requests 
comment on whether the Commission should modify its rules governing 
determination of the demarcation point between facilities controlled by 
the telephone company and by the landowner on multiple unit premises. 
In addition, the Notice seeks comment on whether the current rules 
governing access to cable home wiring for multichannel video 
programming distributors should be extended to include providers of 
telecommunications services. Furthermore, the Notice requests comment 
on whether the Commission should extend rules similar to those adopted 
under section 207 of the 1996 Act to providers of telecommunications 
and other fixed wireless services. The Notice recognizes that section 
207 by its terms applies only to certain video programming services, 
but states that the Commission may have authority to adopt similar 
rules prohibiting restrictions on the placement of antennas used for 
over-the-air telecommunications and other fixed wireless services 
pursuant to section 4(i) and other provisions of the Communications 
Act, including sections 201(b) and 303(r), granting the Commission 
general authority to effectuate the provisions and purposes of the 
Communications Act. See 47 U.S.C. 4(i), 201(b), and 303(r).

Filing Procedures

    6. Pursuant to 47 CFR 1.415, 1.419, interested parties may file 
comments on or before August 13, 1999, and reply comments on or before 
September 3, 1999. Comments may be filed using the Commission's 
Electronic Comment Filing System (ECFS) or by filing paper copies. See 
Electronic Filing of Documents in Rulemaking Proceedings, 63 Fed. Reg. 
24,121 (1998).
    7. Comments filed through the ECFS can be sent as an electronic 
file via the Internet to <http://www.fcc.gov/e-file/ecfs.html>. 
Generally, only one copy of an electronic submission must be filed. If 
multiple docket or rulemaking

[[Page 41889]]

numbers appear in the caption of this proceeding, however, commenters 
must transmit one electronic copy of the comments to each docket or 
rulemaking number referenced in the caption. In completing the 
transmittal screen, commenters should include their full name, Postal 
Service mailing address, and the applicable docket or rulemaking 
number. Parties may also submit electronic comments by Internet e-mail. 
To get filing instructions for e-mail comments, commenters should send 
an e mail to ecfs@fcc.gov, and should include the following words in 
the body of the message, ``get form .'' A sample 
form and directions will be sent in reply.
    8. Parties who choose to file by paper must file an original and 
four copies of each filing. If more than one docket or rulemaking 
number appear in the caption of this proceeding, commenters must submit 
two additional copies for each additional docket or rulemaking number. 
All filings must be sent to the Commission's Secretary, Magalie Roman 
Salas, Office of the Secretary, Federal Communications Commission, 445 
12th Street, S.W., TW-A325, Washington, D.C. 20554.
    9. Regardless of whether parties choose to file electronically or 
by paper, parties should also file one copy of any documents filed in 
this docket with the Commission's copy contractor, International 
Transcription Services, Inc., 445 12th Street, S.W., CY-B400, 
Washington, D.C. 20554. Comments and reply comments will be available 
for public inspection during regular business hours in the FCC 
Reference Center, 445 12th Street, S.W., Washington, D.C. 20554.
    10. Comments and reply comments must include a short and concise 
summary of the substantive arguments raised in the pleading. Comments 
and reply comments must also comply with 47 CFR 1.49, and all other 
applicable sections of the Commission's rules. The Commission also 
directs all interested parties to include the name of the filing party 
and the date of the filing on each page of their comments and reply 
comments. All parties are encouraged to utilize a table of contents, 
regardless of the length of their submission.

Initial Regulatory Flexibility Analysis

    11. As required by the Regulatory Flexibility Act (RFA), the 
Commission has prepared this Initial Regulatory Flexibility Analysis 
(IRFA) of the possible significant economic impact on small entities of 
the policies and rules proposed in this Notice of Proposed Rulemaking. 
Written public comments are requested on this IRFA. These comments must 
be filed in accordance with the same filing deadlines for comments on 
the rest of this Notice of Proposed Rulemaking, as set forth in the 
Filing Procedures section above, and they must have a separate and 
distinct heading designating them as responses to the IRFA. The 
Commission's Office of Public Affairs, Reference Operations Division, 
will send a copy of this Notice of Proposed Rulemaking, including the 
IRFA, to the Chief Counsel for Advocacy of the Small Business 
Administration, in accordance with the RFA.

I. Need for and Objectives of the Proposed Rules

    12. We are issuing this Notice of Proposed Rulemaking to seek 
comment on proposals to facilitate competition with the incumbent local 
exchange carriers (LECs) by competitors who use their own end-to-end 
facilities. Extensive facilities-based competition will provide 
consumers with a choice of telecommunications providers that will 
compete to offer traditional, voice-grade telephone service, as well as 
high-speed data and other advanced services, at reasonable prices and 
with reasonable terms and conditions--a major goal of the 
Telecommunications Act of 1996. We particularly expect this proceeding 
to further the availability of competition to the many consumers and 
businesses that are located in multiple tenant environments, such as 
apartment and office buildings.
    13. Specifically, this Notice of Proposed Rulemaking seeks comment 
on the following issues: (1) Whether we should require incumbent LECs 
to make available to any requesting telecommunications carrier 
unbundled access to riser cable and wiring that they control within 
multiple tenant environments, subject to the Commission's future 
interpretation of the ``necessary'' and ``impair'' standards of 47 
U.S.C. 251; (2) whether we should require building owners who allow 
access to their premises to any telecommunications provider to make 
comparable access available to all such providers on a 
nondiscriminatory basis; (3) whether we should forbid 
telecommunications service providers, under some or all circumstances, 
from entering into exclusive contracts with building owners, and 
abrogate any existing exclusive contracts between these parties; (4) 
whether we should modify our rules governing determination of the 
demarcation point between facilities controlled by the telephone 
company and by the landowner on multiple unit premises; (5) whether the 
rules governing access to cable home wiring for multichannel video 
program distribution should be extended to benefit providers of 
telecommunications services; and (6) whether we should adopt rules 
similar to those adopted in the video context under section 207 of the 
1996 Act protecting the ability to place antennas to transmit and 
receive telecommunications signals and other signals that are not 
covered under section 207.

II. Legal Basis

    14. The potential actions on which comment is sought in this Notice 
of Proposed Rulemaking would be authorized under sections 1, 2(a), 
4(i), 4(j), 201(b), 251(c)(3), 251(d), 303(r), and 332 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i), 
154(j), 201(b), 251(c)(3), 251(d), 303(r), and 332, and 47 CFR 1.411 
and 1.412.

III. Description and Estimate of the Number of Small Entities to 
Which the Proposed Rules Will Apply

    15. The RFA requires that an initial regulatory flexibility 
analysis be prepared for notice-and-comment rulemaking proceedings, 
unless the agency certifies that ``the rule will not, if promulgated, 
have a significant economic impact on a substantial number of small 
entities.'' The RFA generally defines ``small entity'' as having the 
same meaning as the terms ``small business,'' ``small organization,'' 
and ``small governmental jurisdiction.'' In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act. A small business concern is one which: 
(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). For many of the 
entities described below, the SBA has defined small business categories 
through Standard Industrial Classification (``SIC'') codes.
    16. This Notice of Proposed Rulemaking could result in rule changes 
that, if adopted, would impose requirements on local exchange carriers, 
building owners and managers, multichannel video program distributors, 
neighborhood associations, and small governmental jurisdictions. To 
assist the Commission in analyzing the total number of potentially 
affected small entities, commenters are requested to provide estimates 
of the number of small entities that may be affected by any rule 
changes resulting from this Notice of Proposed Rulemaking.

[[Page 41890]]

a. Local Exchange Carriers

    17. Many of the potential rules on which comment is sought in this 
Notice of Proposed Rulemaking, if adopted, would affect small LECs. 
Neither the Commission nor the SBA has developed a small business 
definition specifically for small LECs. The closest applicable 
definition under the SBA rules is for those telephone communications 
companies that are not radiotelephone (wireless) companies. The SBA has 
defined establishments engaged in providing ``Telephone Communications, 
Except Radiotelephone'' to be small businesses when they have no more 
than 1,500 employees. According to November 1997 Telecommunications 
Industry Revenue data, 1,371 carriers reported that they were engaged 
in the provision of local exchange services. We do not have data 
specifying the number of these carriers that are either dominant in 
their field of operations, are not independently owned and operated, or 
have more than 1,500 employees, and thus are unable at this time to 
estimate with greater precision the number of LECs that would qualify 
as small business concerns under the SBA's definition. Consequently, we 
estimate that fewer than 1,371 providers of local exchange service are 
small entities or small incumbent LECs that may be affected by the 
potential actions discussed in this Notice of Proposed Rulemaking, if 
adopted.
    18. Above, we have included smaller incumbent LECs in our analysis. 
Although some incumbent LECs may have 1,500 or fewer employees, we do 
not believe that such entities should be considered small entities 
within the meaning of the RFA because they are either dominant in their 
field of operations or are not independently owned and operated, and 
therefore by definition not ``small entities'' or ``small business 
concerns'' under the RFA. Accordingly, our use of the terms ``small 
entities'' and ``small businesses'' does not encompass small incumbent 
LECs. Out of an abundance of caution, however, for regulatory 
flexibility analysis purposes, we will separately consider small 
incumbent LECs within this analysis and use the term ``small incumbent 
LECs'' to refer to any incumbent LECs that arguably might be defined by 
the SBA as ``small business concerns.''

b. Building Owners and Managers

    19. Several of our inquiries in this Notice of Proposed Rulemaking 
would affect multiple dwelling unit operators and real estate agents 
and managers, if such inquiries lead to adopted rules. Such inquiries 
include the following issues: whether we should require building owners 
who allow access to their premises to any telecommunications provider 
to make comparable access available to all such providers on a 
nondiscriminatory basis; whether we should forbid telecommunications 
service providers, under some or all circumstances, from entering into 
exclusive contracts with building owners, and abrogate any existing 
exclusive contracts between these parties; and whether we should adopt 
rules similar to those adopted in the video context under section 207 
of the 1996 Act protecting the ability to place antennas to transmit 
and receive telecommunications signals and other signals that were not 
covered under section 207.
(1) Multiple Dwelling Unit Operators (SIC 6512, SIC 6513, SIC 6514)
    20. The SBA has developed definitions of small entities for 
operators of nonresidential buildings, apartment buildings, and 
dwellings other than apartment buildings, which include all such 
companies generating $5 million or less in revenue annually. According 
to the Census Bureau, there were 26,960 operators of nonresidential 
buildings generating less than $5 million in revenue that were in 
operation for at least one year at the end of 1992. Also according to 
the Census Bureau, there were 39,903 operators of apartment dwellings 
generating less than $5 million in revenue that were in operation for 
at least one year at the end of 1992. The Census Bureau provides no 
separate data regarding operators of dwellings other than apartment 
buildings, and we are unable at this time to estimate the number of 
such operators that would qualify as small entities.
(2) Real Estate Agents and Managers (SIC 6531)
    21. The SBA defines real estate agents and managers as 
establishments primarily engaged in renting, buying, selling, managing, 
and appraising real estate for others. According to SBA's definition, a 
small real estate agent or manager is a firm whose revenues do not 
exceed 1.5 million dollars.

c. Multichannel Video Program Distributors (SIC 4841)

    22. Our inquiry in this Notice of Proposed Rulemaking regarding 
whether the rules governing access to cable home wiring for 
multichannel video program distribution should be extended to benefit 
providers of telecommunications services would affect operators of 
cable and other pay television services, if such inquiry leads to the 
adoption of rules. The 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.

d. Neighborhood Associations

    23. Our inquiry in this Notice of Proposed Rulemaking regarding 
whether we should adopt rules similar to those adopted in the video 
context under section 207 of the 1996 Act protecting the ability to 
place antennas to transmit and receive telecommunications signals and 
other signals that are not covered under section 207 would affect 
neighborhood associations, if such inquiry leads to the adoption of 
rules. Section 601(4) of the Regulatory Flexibility Act, 5 U.S.C. 
601(4), defines ``small organization'' as ``any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.'' This definition includes homeowner and 
condominium associations that operate as not-for-profit organizations. 
The Community Associations Institute estimates that there were 150,000 
such associations in 1993.

e. Municipalities

    24. Our inquiry in this Notice of Proposed Rulemaking regarding 
whether we should adopt rules similar to those adopted in the video 
context under section 207 of the 1996 Act protecting the ability to 
place antennas to transmit and receive telecommunications signals and 
other signals that are not covered under section 207 may affect 
municipalities, if such inquiry leads to the adoption of rules. The 
term ``small governmental jurisdiction'' is defined as ``governments of 
* * * districts, with a population of less than 50,000.'' As of 1992, 
there were approximately 85,006 governmental entities in the United 
States. This number includes such entities as states, counties, cities, 
utility districts and school districts. Of the 85,006 governmental 
entities, 38,978 are counties, cities and towns. The remainder is 
composed primarily of

[[Page 41891]]

utility districts, school districts, and states. Of the 38,978 
counties, cities and towns, 37,566, or 96%, have populations of fewer 
than 50,000. The Census Bureau estimates that this ratio is 
approximately accurate for all governmental entities. Thus, of the 
85,006 governmental entities, we estimate that 81,606 (96%) are small 
entities.

IV. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    25. This Notice of Proposed Rulemaking proposes no additional 
reporting, recordkeeping or other compliance measures.

V. Steps Taken to Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    26. This Notice of Proposed Rulemaking seeks comment on how the 
inquiries set forth could impact regulated entities, including small 
entities. For example, with respect to our inquiry into building owner 
obligations, we seek comment on whether we should limit the scope of 
any building owner obligation in order to avoid imposing unreasonable 
regulatory burdens on building owners, and we suggest that a potential 
rule could exempt buildings that house fewer than a certain number of 
tenants or are under a certain size. Commenters are invited to address 
the economic impact of all of our proposals on small entities and offer 
any alternatives.

VI. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    27. None.

List of Subjects

47 CFR Parts 1 and 51

    Communications common carriers, Telecommunications.

47 CFR Part 68

    Communications common carriers, Communications equipment.

47 CFR Part 76

    Cable television.

Federal Communications Commission.
William F. Caton,
Deputy, Secretary.
[FR Doc. 99-19635 Filed 7-30-99; 8:45 am]
BILLING CODE 6712-01-P