[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]
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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.
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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 [email protected], 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