Telecommunications Services Inside Wiring Customer Premises Equipment, Implementation of the Cable Television Consumer Protection and Competition Act of 1992: Cable Home Wiring, 50074-50077 [E7-17206]

Download as PDF 50074 Federal Register / Vol. 72, No. 168 / Thursday, August 30, 2007 / Rules and Regulations (d) Automatic Roaming. Upon a reasonable request, it shall be the duty of each host carrier subject to paragraph (a)(2) of this section to provide automatic roaming to any technologically compatible home carrier, outside of the requesting home carrier’s home market, on reasonable and nondiscriminatory terms and conditions. § 20.12 rfrederick on PROD1PC67 with RULES roaming subscriber accomplishes this in the course of attempting to originate a call by giving a valid credit card number to the carrier providing the roaming service. * * * * * I 3. Section 20.12 is amended by revising paragraphs (a) and (c) and adding paragraph (d) as follows: [FR Doc. E7–17122 Filed 8–29–07; 8:45 am] Resale and roaming. (a)(1) Scope of Manual Roaming and Resale. Paragraph (c) of this section is applicable to providers of Broadband Personal Communications Services (part 24, subpart E of this chapter), Cellular Radio Telephone Service (part 22, subpart H of this chapter), and specialized Mobile Radio Services in the 800 MHz and 900 MHz bands (included in part 90, subpart S of this chapter) if such providers offer real-time, two-way switched voice or data service that is interconnected with the public switched network and utilizes an in-network switching facility that enables the provider to re-use frequencies and accomplish seamless hand-offs of subscriber calls. The scope of paragraph (b) of this section, concerning the resale rule, is further limited so as to exclude from the requirements of that paragraph those Broadband Personal Communications Services C, D, E, and F block licensees that do not own and control and are not owned and controlled by firms also holding cellular A or B block licenses. (2) Scope of Automatic Roaming. Paragraph (d) of this section is applicable to CMRS carriers if such carriers offer real-time, two-way switched voice or data service that is interconnected with the public switched network and utilizes an in-network switching facility that enables the carrier to re-use frequencies and accomplish seamless hand-offs of subscriber calls. Paragraph (d) of this section is also applicable to the provision of push-to-talk and textmessaging service by CMRS carriers. * * * * * (c) Manual Roaming. Each carrier subject to paragraph (a)(1) of this section must provide mobile radio service upon request to all subscribers in good standing to the services of any carrier subject to paragraph (a)(1) of this section, including roamers, while such subscribers are located within any portion of the licensee’s licensed service area where facilities have been constructed and service to subscribers has commenced, if such subscribers are using mobile equipment that is technically compatible with the licensee’s base stations. VerDate Aug<31>2005 13:09 Aug 29, 2007 Jkt 211001 BILLING CODE 6712–01–P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 07–3425; MB Docket No. 06–97; RM– 11254] Radio Broadcasting Services; Dundee and Odessa, NY Federal Communications Commission. ACTION: Final rule; dismissal. AGENCY: SUMMARY: The staff dismisses a counterproposal filed by Bible Broadcasting Network, Inc. to allot Channel 238A to Savona, New York, as a first local aural service. The Media Bureau also modifies its Consolidated Data Base System to reflect Channel 238A at Odessa, New York, as the reserved assignment for Station WFLR– FM in lieu of Channel 238A at Dundee, New York in response to a proposal filed by Finger Lakes Radio Group, Inc., and modifies Station WFLR–FM’s license and construction permit accordingly. The reference coordinates for Channel 238A at Odessa, NY, are 42–20–38 NL and 76–53–03 WL. With this action, the proceeding is terminated. See SUPPLEMENTARY INFORMATION. Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Andrew J. Rhodes, Media Bureau, (202) 418–2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission’s Report and Order, MB Docket No. 06–97, adopted July 25, 2007, and released July 27, 2007. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY–A257), 445 12th Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission’s copy contractor, Best Copy and Printing, Inc., Portals II, 445 ADDRESSES: PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 12th Street, SW., Room CY–B402, Washington, DC 20554, telephone 1– 800–378–3160 or http:// www.BCPIWEB.com. Finger Lakes Radio Group, Inc.’s proposal was formerly a rule change to Section 73.202(b), the FM Table of Allotments. See 71 FR 30856 (May 31, 2006). As a result of changes to the Commission’s processing rules, modifications of FM channels for existing stations are no longer listed in Section 73.202(b) and are instead reflected in the Media Bureau’s Consolidated Data Base System (CDBS). See Revision of Procedures Governing Amendments to FM Table of Allotments and Changes of Community of License in the Radio Broadcast Services, Report and Order, 21 FCC Rcd 14212 (December 20, 2006). Nevertheless, a summary of the Report and Order in the instant proceeding is being published in the Federal Register because the counterproposal involved a proposed amendment to Section 73.202(b). Although the Report and Order set forth an effective date of September 10, 2007, Station WFLR–FM’s license and construction permit will be modified effective 30 days after publication of this summary in the Federal Register in compliance with Sections 1.427 and 1.429 of the Commission’s rules. This document is not subject to the Congressional Review Act. (The Commission is, therefore, not required to submit a copy of this Report and Order to GAO, pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A) because the counterproposal was dismissed.) List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E7–17021 Filed 8–29–07; 8:45 am] BILLING CODE 6712–01–P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 76 [CS Docket No. 95–184; MM Docket No. 92– 260; FCC 07–111] Telecommunications Services Inside Wiring Customer Premises Equipment, Implementation of the Cable Television Consumer Protection and Competition Act of 1992: Cable Home Wiring Federal Communications Commission. AGENCY: E:\FR\FM\30AUR1.SGM 30AUR1 Federal Register / Vol. 72, No. 168 / Thursday, August 30, 2007 / Rules and Regulations ACTION: Final rule. SUMMARY: In this document, the Commission eliminates barriers to competitive entry in multiple dwelling units (MDUs) and in multiunit premises, when a new entrant seeks to compete against an incumbent provider. The Commission concluded that cutting and repairing sheet rock adds significantly to the physical difficulty and cost of wiring an MDU. In this document, the Commission again concludes that cable wiring located behind sheet rock qualifies as physically inaccessible under the Commission’s rules for purposes of determining the demarcation point between home wiring and home run wiring. This ruling will facilitate competition in video distribution markets by clarifying the circumstances under which the existing cable home run wiring in MDUs can be made available to alternative video service providers. DATES: Effective August 30, 2007. FOR FURTHER INFORMATION CONTACT: For additional information on this proceeding, contact Karen Kosar, Karen.Kosar@fcc.gov of the Media Bureau, Policy Division, (202) 418– 2120. This is a summary of that portion of the Commission’s Report and Order and Declaratory Ruling, FCC 07–111, adopted on May 31, 2007, and released on June 8, 2007, which addresses the Commission’s adoption in 2003 of the note to 47 CFR 76.5(mm) (4) and the subsequent remand by the U.S. Court of Appeals. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY–A257, Washington, DC 20554. These documents will also be available via ECFS (http://www.fcc.gov/ cgb/ecfs/). (Documents will be available electronically in ASCII, Word 97, and/ or Adobe Acrobat.) The complete text may be purchased from the Commission’s copy contractor, 445 12th Street, SW., Room CY–B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call the Commission’s Consumer and Governmental Affairs Bureau at (202) 418–0530 (voice), (202) 418–0432 (TTY). rfrederick on PROD1PC67 with RULES SUPPLEMENTARY INFORMATION: I. Summary of the Final Rule 1. In this Order, the Commission eliminates barriers to competitive entry VerDate Aug<31>2005 13:09 Aug 29, 2007 Jkt 211001 in multiple dwelling units (MDUs) and in multiunit premises, when a new entrant seeks to compete against an incumbent provider. An MDU is a building or buildings with two or more residences, such as an apartment building, condominium building, or cooperative. See 47 CFR 76.800. This Order responds to a decision issued by the United States Court of Appeals for the District of Columbia Circuit regarding amendment of the Commission’s cable television inside wiring rules. In the 2003 order reviewed by the court, the Commission had modified its rules to provide that ‘‘home run wiring’’ located behind sheet rock is considered physically inaccessible for purposes of determining the demarcation point between home wiring and home run wiring. Cable home run wiring in a MDU is the wiring that runs from the demarcation point to the point at which the multichannel video programming distributor’s (MVPD) wiring becomes devoted to an individual subscriber or individual loop. See 47 CFR 76.800(d). In contrast, ‘‘cable home wiring’’ is the internal wiring contained within the premises of a subscriber, which begins at the demarcation point and runs to the subscriber’s television set or other customer premises equipment. See 47 CFR 76.5(ll). The Commission concluded in 2003 that cutting and repairing sheet rock adds significantly to the physical difficulty and cost of wiring an MDU. In this Order, the Commission concludes that cable wiring located behind sheet rock qualifies as physically inaccessible under the Commission’s rules for purposes of determining the demarcation point between home wiring and home run wiring. The record shows that accessing such wiring causes significant damage or modification to a preexisting structural element and generally adds significantly to the physical difficulty and/or cost of accessing the subscriber’s home wiring. This ruling will facilitate competition in video distribution markets by clarifying the circumstances under which the existing cable home run wiring in MDUs can be made available to alternative video service providers. 2. The Order takes important steps to ensure that the pro-competitive, deregulatory goals of the 1996 Act are realized. The Commission actions here remove both economic and operational barriers to infrastructure investment in the communications market. New entrants to the video services market should not be foreclosed from competing for consumers in MDUs PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 50075 based on regulatory technicalities or costly and inefficient industry practices. By removing these obstacles, the Commission furthers the opportunities for consumers living in MDUs to enjoy the social and economic benefits of communication services competition. 3. In 1993, the Commission first promulgated rules for cable home wiring and for the disposition of that wiring after termination of service. In 1996, the Commission addressed certain cable home wiring issues and sought comment regarding how the Commission should revise these rules to reflect new developments, and how to promote competition by ensuring that the Commission’s rules would facilitate the use of new and diverse services. In 1997, the Commission sought further comment on and addressed issues regarding procedures for the disposition of home run wiring in MDUs when an MDU owner decides to terminate service for the entire building and when an MDU owner is willing to permit two or more video service providers to compete for subscribers in the MDU on a unit-by-unit basis. In 2003, the Commission resolved the issues presented on reconsideration in that proceeding. See 18 FCC Rcd at 1342 (2003). 4. Central to any discussion on cable home wiring or cable home run wiring is the matter of the MDU demarcation point, which is the point at which a consumer’s home wiring becomes the network’s home run wiring. The Commission had previously stated that the cable wiring demarcation point serves such multiple purposes as defining (1) the location at which the subscriber may control the internal home wiring if he or she owns it; (2) the point at which an alternative multichannel video programming distributor (MVPD) would attach its wiring to the subscriber’s wiring in order to provide service; and (3) the point from which the customer has the right to purchase cable home wiring upon termination of service. For purposes of this proceeding, a critical component of our discussion involves the location of the demarcation point because it is where a competing provider may access existing cable home wiring in an MDU building. The demarcation point for MDUs is set at (or about) twelve inches outside of where the cable wire enters the subscriber’s individual dwelling unit. The demarcation point for single unit installations is the same. See 47 CFR 76.5(mm)(1). The presumptive demarcation point was adopted in the Cable Wiring Order, 8 FCC Rcd 1435 (1993). In the event that the cable E:\FR\FM\30AUR1.SGM 30AUR1 rfrederick on PROD1PC67 with RULES 50076 Federal Register / Vol. 72, No. 168 / Thursday, August 30, 2007 / Rules and Regulations demarcation point is ‘‘physically inaccessible’’ to an alternative MVPD, the demarcation point moves away from the individual dwelling unit to a point at which it first becomes physically accessible. The Commission has concluded that, for the cable demarcation point to be ‘‘physically inaccessible,’’ access to the wiring must (1) require significant modification or damage to preexisting structural elements, and (2) add significantly to the physical difficulty and/or cost of accessing the subscriber’s home wiring. 5. The Appeals Court decision remanded that portion of the 2003 order that amended the Note to § 76.5(mm)(4) of the Commission’s rules to indicate that wiring embedded in sheet rock would be considered physically inaccessible. Previously, the Commission provided examples of wiring that would be considered ‘‘physically inaccessible,’’ including wiring embedded in brick, metal conduit, and cinder blocks with limited or no access openings. Wiring simply enclosed within hallway molding would not be considered inaccessible. The Court found that the Commission offered no reasoned basis for expanding the Note to include sheet rock and remanded the case to the Commission for further consideration. In response, the Commission sought comment on its conclusions in the 2003 order with regard to § 76.5(mm)(4) of the rules and the amendment of the applicable Note. 6. The Court asserted that the Commission did not adequately support its conclusion that wiring behind sheet rock is ‘‘physically inaccessible’’ for purposes of the inside wiring rules. The Court found that the Commission had not explained why or how accessing wiring behind sheet rock requires ‘‘significant modification of, or significant damage to’’ the sheet rock. The Court also found that the Commission failed to explain the relative nature of the ‘‘damage’’ or ‘‘modification’’ related to accessing wiring behind sheet rock, and therefore that the Commission’s conclusion regarding physical inaccessibility lacked adequate evidentiary support. 7. The Court also criticized the Commission’s assessment of whether accessing cable wire behind sheet rock would ‘‘add significantly to the physical difficulty and/or cost’’ of accessing the subscriber’s home wiring. The Court stated that while the Commission acknowledged that cutting through sheet rock is easier than boring through brick, metal, or cinder block, it did not support the conclusion that the lesser physical difficulty and cost are ‘‘significant.’’ VerDate Aug<31>2005 13:09 Aug 29, 2007 Jkt 211001 8. In response, the Commission sought additional comment with respect to whether cable wiring behind sheet rock should be considered physically inaccessible. The Commission set forth its premise that what preexisting structural elements should be included for purposes of determining the demarcation point and what is considered to be an accessible or inaccessible location should be based on practicality. In the 2003 order, the Commission incorporated its response to a Request for Letter Ruling from RCN– BeCoCom, L.L.C. asking the Commission to address the issue of whether cable wiring behind sheet rock is ‘‘physically inaccessible,’’ such that the demarcation point should be located not at the twelve inch mark, but rather at the operator’s junction box. Based on the RCN Request for Letter Ruling and responses to that request, the Commission incorporated sheet rock as one of the examples of materials to be considered as a ‘‘preexisting structural element’’ in its definition of physical inaccessibility. 9. In this Order, the Commission finds that sheet rock is a preexisting structural element and that accessing inside wiring behind sheet rock would cause significant modification and damage to that structural element. Sheet rock is a preexisting structural element and not merely a surface finish or decorative finish like molding. Sheet rock is not added after a building is completed. Sheet rock is a fundamental component of the construction of the building. Thus, sheet rock is more like ‘‘brick or cinder block’’ because it is commonly used to form ceilings and walls in MDUs and other structures. We believe that ceilings and walls are an integral and permanent part of the building structure of MDUs, and therefore, sheet rock used to form ceilings and walls qualifies as a preexisting structural element for purposes of the Commission’s rules. 10. The Commission concludes that the record supports the conclusion that accessing inside wiring behind sheet rock causes significant modification and damage to structural elements, i.e., walls and ceilings, albeit modification and damage that may be repairable. MDU resident owners and their managers are not only concerned with the condition of individually-owned units or apartments, but also with the condition of the common elements in these structures. For example, the record reveals that MDU resident owners and their managers will sometimes require an entire wall or ceiling to be repainted or rewallpapered even where the hole cut in PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 the sheet rock is significantly smaller than the wall or ceiling in order to restore the area to its original appearance. Requiring such extensive repair is a strong indication that there has been significant modification or damage to the pre-existing structural area. Unlike with single family residences, MDU residents share common walls and ceilings and have an interest in the condition and treatment of those common elements. With regard to the issues of fire safety and possible degradation of a building’s resistance to moisture, we take a conservative approach and give credence to the commenters who argue that cutting into sheet rock may pose a safety risk or affect a building’s resistance to moisture and thus may lead to significant modification or damage to such structural elements. Consequently, the Commission concludes that penetration of sheet rock for purposes of accessing inside wiring constitutes significant modification and damage to structural elements under the Commission’s rules. 11. The Commission also finds that accessing the demarcation point behind sheet rock adds significantly to the physical difficulty and/or cost of accessing the subscriber’s home wiring. The Commission notes that a finding of ‘‘physical difficulty’’ is not required because our rule requires that we find that cutting through the sheet rock would add significantly to the physical difficulty and/or costs of accessing the subscriber’s home wiring. Nevertheless, the Commission concludes that the record supports a finding of significant physical difficulty in accessing the subscriber’s home wiring. Accessing such wiring requires some level of physical harm to the property—i.e., access holes cut in the sheet rock—and that the property be restored to its original integrity and appearance. As the Commission has recognized throughout this decision, the repair is not always limited to the hole(s) cut; it can include repainting and/or rewallpapering necessary to restore the premises. Those tasks can add significantly to the physical difficulty involved in accessing the wiring, certainly as compared to accessing wiring behind hallway molding (the example in the Commission’s rules of wiring that is not physically inaccessible), See note to 47 CFR 76.5(mm)(4). In any event, the Commission needs only find that cutting through sheet rock significantly increases the physical difficulty or cost of accessing the wiring and, as described below, the Commission finds E:\FR\FM\30AUR1.SGM 30AUR1 rfrederick on PROD1PC67 with RULES Federal Register / Vol. 72, No. 168 / Thursday, August 30, 2007 / Rules and Regulations that the additional costs are typically significant. 12. The Commission concludes that the cost of accessing wiring behind sheet rock is significant. In analyzing the costs involved in accessing wiring behind sheet rock, the Commission recognizes that the record reveals a wide divergence among the estimates offered by commenters—ranging from $25 to $1,000—as the appropriate sum needed to accomplish the job. Although the Commission finds that it cannot pick a precise monetary figure that fairly reflects the costs associated with accessing cable inside wiring, we believe it is reasonable that costs estimates could include factors such as how difficult it may be to satisfy the MDU owner and manager with repair work and whether a single unit or many units are worked on in one time period. Although the Commission does not have specific quotes for restoration work, it seems likely that repainting and/or rewallpapering entire ceilings and walls can, at a minimum, run into the hundreds of dollars, particularly for more high-end MDUs that use more expensive surface finishes. These figures appear significant, especially when compared to the estimates we received for accessing wiring behind hallway molding. 13. The Commission is persuaded that removing and replacing molding is generally less intrusive and less expensive than cutting into sheet rock, locating the wiring, and then repairing the wall or ceiling to the satisfaction of MDU owners and managers. While there may be cases in which the cost of accessing wiring behind sheet rock may be comparable to removable molding the record demonstrates that the cost for sheet rock generally will be higher, and often significantly so. 14. The Commission finds that that cable wiring located behind sheet rock qualifies as physically inaccessible under Commission rules for purposes of determining the demarcation point between home wiring and home run wiring. Specifically, the Commission concludes that (1) accessing such wiring causes significant damage or modification to a preexisting structural element, and (2) accessing wiring behind sheet rock generally adds significantly to the physical difficulty and/or cost of accessing the subscriber’s home wiring. The Commission’s cable inside wiring rules are intended to facilitate competition in video distribution markets. This ruling will foster opportunities for competing MVPDs to provide service in MDUs by clarifying the circumstances under which the existing cable home run VerDate Aug<31>2005 13:09 Aug 29, 2007 Jkt 211001 wiring in MDUs can be made available to alternative video service providers. Procedural Matters 15. Final Regulatory Flexibility Act. As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the Further Notice in this proceeding. The Commission sought written public comment on the possible significant economic impact on small entities regarding the proposals addressed in the Further Notice, including comments on the IFRA. Pursuant to the RFA, a Final Flexibility Analysis is contained in Appendix C. 16. Paperwork Reduction Act Analysis. This Order does not contain new or modified information collection requirements subject to the paperwork Reduction Act of 1995 (PRA), Public Law 104–13. In addition, therefore, it does not contain any new or modified ‘‘information collection burdens for small business concerns with fewer than 25 employees,’’ pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107–198, see 44 U.S.C. 3506(c)(4). 17. Congressional Review Act. The Commission will send a copy of this Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). II. Ordering Clauses 18. Accordingly, it is ordered that, pursuant to authority found in sections 1, 4(i), 601, 623, 624, and 632 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 521, 543, 544 and 552, the Commission’s amendment of the Note to Section 76.5(mm)(4) of the Commission’s rules to include sheet rock as an example of one of the materials that would likely be considered physically inaccessible for purposes of the Commission’s cable television inside wiring rules is affirmed. 19. It is further ordered, that in light of the United States Court of Appeals for the District of Columbia’s Circuit’s decision in NCTA v. FCC, No. 03–1140, 2004 WL 335201, which remanded but did not vacate the decision adopted in Telecommunications Services Inside Wiring, Customer Premises Equipment; Implementation of the Cable Television Consumer Protection and Competition Act of 1992: Cable Home Wiring, 18 FCC Rcd 1342 (2003) (‘‘Home Wiring Decision’’), the note to 47 CFR 76.5(mm)(4) adopted in the Home Wiring Decision shall remain in effect. PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 50077 20. It is further ordered that the Commission’s Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel of the Small Business Administration. Federal Communications Commission. William F. Caton, Deputy Secretary. [FR Doc. E7–17206 Filed 8–29–07; 8:45 am] BILLING CODE 6712–01–P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 544 [Docket No.: NHTSA–2006–27240] RIN 2127–AJ98 Insurer Reporting Requirements; List of Insurers Required to File Reports National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Final rule. AGENCY: SUMMARY: This final rule amends regulations on insurer reporting requirements. The appendices list those passenger motor vehicle insurers that are required to file reports on their motor vehicle theft loss experiences. An insurer included in any of these appendices must file three copies of its report for the 2004 calendar year before October 25, 2007. If the passenger motor vehicle insurers remain listed, they must submit reports by each subsequent October 25. DATES: This final rule becomes effective on October 1, 2007, given the date of submission. Insurers listed in the appendices are required to submit reports before October 25, 2007. If you wish to submit a petition for reconsideration of this rule, your petition must be received by October 15, 2007. ADDRESSES: Petitions for reconsideration should refer to the docket number and be submitted to: Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., West Building, Room W41–307, Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Rosalind Proctor, Office of International Vehicle, Fuel Economy and Consumer Standards, NHTSA, 1200 New Jersey Avenue, SE., West Building, Room W43–302, Washington, DC 20590, by E:\FR\FM\30AUR1.SGM 30AUR1

Agencies

[Federal Register Volume 72, Number 168 (Thursday, August 30, 2007)]
[Rules and Regulations]
[Pages 50074-50077]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-17206]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[CS Docket No. 95-184; MM Docket No. 92-260; FCC 07-111]


Telecommunications Services Inside Wiring Customer Premises 
Equipment, Implementation of the Cable Television Consumer Protection 
and Competition Act of 1992: Cable Home Wiring

AGENCY: Federal Communications Commission.

[[Page 50075]]


ACTION: Final rule.

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

SUMMARY: In this document, the Commission eliminates barriers to 
competitive entry in multiple dwelling units (MDUs) and in multiunit 
premises, when a new entrant seeks to compete against an incumbent 
provider. The Commission concluded that cutting and repairing sheet 
rock adds significantly to the physical difficulty and cost of wiring 
an MDU. In this document, the Commission again concludes that cable 
wiring located behind sheet rock qualifies as physically inaccessible 
under the Commission's rules for purposes of determining the 
demarcation point between home wiring and home run wiring. This ruling 
will facilitate competition in video distribution markets by clarifying 
the circumstances under which the existing cable home run wiring in 
MDUs can be made available to alternative video service providers.

DATES: Effective August 30, 2007.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Karen Kosar, Karen.Kosar@fcc.gov of the Media 
Bureau, Policy Division, (202) 418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of that portion of the 
Commission's Report and Order and Declaratory Ruling, FCC 07-111, 
adopted on May 31, 2007, and released on June 8, 2007, which addresses 
the Commission's adoption in 2003 of the note to 47 CFR 76.5(mm) (4) 
and the subsequent remand by the U.S. Court of Appeals. The full text 
of this document is available for public inspection and copying during 
regular business hours in the FCC Reference Center, Federal 
Communications Commission, 445 12th Street, SW., CY-A257, Washington, 
DC 20554. These documents will also be available via ECFS (http://
www.fcc.gov/cgb/ecfs/). (Documents will be available electronically in 
ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be 
purchased from the Commission's copy contractor, 445 12th Street, SW., 
Room CY-B402, Washington, DC 20554. To request this document in 
accessible formats (computer diskettes, large print, audio recording, 
and Braille), send an e-mail to fcc504@fcc.gov or call the Commission's 
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), 
(202) 418-0432 (TTY).

I. Summary of the Final Rule

    1. In this Order, the Commission eliminates barriers to competitive 
entry in multiple dwelling units (MDUs) and in multiunit premises, when 
a new entrant seeks to compete against an incumbent provider. An MDU is 
a building or buildings with two or more residences, such as an 
apartment building, condominium building, or cooperative. See 47 CFR 
76.800. This Order responds to a decision issued by the United States 
Court of Appeals for the District of Columbia Circuit regarding 
amendment of the Commission's cable television inside wiring rules. In 
the 2003 order reviewed by the court, the Commission had modified its 
rules to provide that ``home run wiring'' located behind sheet rock is 
considered physically inaccessible for purposes of determining the 
demarcation point between home wiring and home run wiring. Cable home 
run wiring in a MDU is the wiring that runs from the demarcation point 
to the point at which the multichannel video programming distributor's 
(MVPD) wiring becomes devoted to an individual subscriber or individual 
loop. See 47 CFR 76.800(d). In contrast, ``cable home wiring'' is the 
internal wiring contained within the premises of a subscriber, which 
begins at the demarcation point and runs to the subscriber's television 
set or other customer premises equipment. See 47 CFR 76.5(ll). The 
Commission concluded in 2003 that cutting and repairing sheet rock adds 
significantly to the physical difficulty and cost of wiring an MDU. In 
this Order, the Commission concludes that cable wiring located behind 
sheet rock qualifies as physically inaccessible under the Commission's 
rules for purposes of determining the demarcation point between home 
wiring and home run wiring. The record shows that accessing such wiring 
causes significant damage or modification to a preexisting structural 
element and generally adds significantly to the physical difficulty 
and/or cost of accessing the subscriber's home wiring. This ruling will 
facilitate competition in video distribution markets by clarifying the 
circumstances under which the existing cable home run wiring in MDUs 
can be made available to alternative video service providers.
    2. The Order takes important steps to ensure that the pro-
competitive, deregulatory goals of the 1996 Act are realized. The 
Commission actions here remove both economic and operational barriers 
to infrastructure investment in the communications market. New entrants 
to the video services market should not be foreclosed from competing 
for consumers in MDUs based on regulatory technicalities or costly and 
inefficient industry practices. By removing these obstacles, the 
Commission furthers the opportunities for consumers living in MDUs to 
enjoy the social and economic benefits of communication services 
competition.
    3. In 1993, the Commission first promulgated rules for cable home 
wiring and for the disposition of that wiring after termination of 
service. In 1996, the Commission addressed certain cable home wiring 
issues and sought comment regarding how the Commission should revise 
these rules to reflect new developments, and how to promote competition 
by ensuring that the Commission's rules would facilitate the use of new 
and diverse services. In 1997, the Commission sought further comment on 
and addressed issues regarding procedures for the disposition of home 
run wiring in MDUs when an MDU owner decides to terminate service for 
the entire building and when an MDU owner is willing to permit two or 
more video service providers to compete for subscribers in the MDU on a 
unit-by-unit basis. In 2003, the Commission resolved the issues 
presented on reconsideration in that proceeding. See 18 FCC Rcd at 1342 
(2003).
    4. Central to any discussion on cable home wiring or cable home run 
wiring is the matter of the MDU demarcation point, which is the point 
at which a consumer's home wiring becomes the network's home run 
wiring. The Commission had previously stated that the cable wiring 
demarcation point serves such multiple purposes as defining (1) the 
location at which the subscriber may control the internal home wiring 
if he or she owns it; (2) the point at which an alternative 
multichannel video programming distributor (MVPD) would attach its 
wiring to the subscriber's wiring in order to provide service; and (3) 
the point from which the customer has the right to purchase cable home 
wiring upon termination of service. For purposes of this proceeding, a 
critical component of our discussion involves the location of the 
demarcation point because it is where a competing provider may access 
existing cable home wiring in an MDU building. The demarcation point 
for MDUs is set at (or about) twelve inches outside of where the cable 
wire enters the subscriber's individual dwelling unit. The demarcation 
point for single unit installations is the same. See 47 CFR 
76.5(mm)(1). The presumptive demarcation point was adopted in the Cable 
Wiring Order, 8 FCC Rcd 1435 (1993). In the event that the cable

[[Page 50076]]

demarcation point is ``physically inaccessible'' to an alternative 
MVPD, the demarcation point moves away from the individual dwelling 
unit to a point at which it first becomes physically accessible. The 
Commission has concluded that, for the cable demarcation point to be 
``physically inaccessible,'' access to the wiring must (1) require 
significant modification or damage to preexisting structural elements, 
and (2) add significantly to the physical difficulty and/or cost of 
accessing the subscriber's home wiring.
    5. The Appeals Court decision remanded that portion of the 2003 
order that amended the Note to Sec.  76.5(mm)(4) of the Commission's 
rules to indicate that wiring embedded in sheet rock would be 
considered physically inaccessible. Previously, the Commission provided 
examples of wiring that would be considered ``physically 
inaccessible,'' including wiring embedded in brick, metal conduit, and 
cinder blocks with limited or no access openings. Wiring simply 
enclosed within hallway molding would not be considered inaccessible. 
The Court found that the Commission offered no reasoned basis for 
expanding the Note to include sheet rock and remanded the case to the 
Commission for further consideration. In response, the Commission 
sought comment on its conclusions in the 2003 order with regard to 
Sec.  76.5(mm)(4) of the rules and the amendment of the applicable 
Note.
    6. The Court asserted that the Commission did not adequately 
support its conclusion that wiring behind sheet rock is ``physically 
inaccessible'' for purposes of the inside wiring rules. The Court found 
that the Commission had not explained why or how accessing wiring 
behind sheet rock requires ``significant modification of, or 
significant damage to'' the sheet rock. The Court also found that the 
Commission failed to explain the relative nature of the ``damage'' or 
``modification'' related to accessing wiring behind sheet rock, and 
therefore that the Commission's conclusion regarding physical 
inaccessibility lacked adequate evidentiary support.
    7. The Court also criticized the Commission's assessment of whether 
accessing cable wire behind sheet rock would ``add significantly to the 
physical difficulty and/or cost'' of accessing the subscriber's home 
wiring. The Court stated that while the Commission acknowledged that 
cutting through sheet rock is easier than boring through brick, metal, 
or cinder block, it did not support the conclusion that the lesser 
physical difficulty and cost are ``significant.''
    8. In response, the Commission sought additional comment with 
respect to whether cable wiring behind sheet rock should be considered 
physically inaccessible. The Commission set forth its premise that what 
preexisting structural elements should be included for purposes of 
determining the demarcation point and what is considered to be an 
accessible or inaccessible location should be based on practicality. In 
the 2003 order, the Commission incorporated its response to a Request 
for Letter Ruling from RCN-BeCoCom, L.L.C. asking the Commission to 
address the issue of whether cable wiring behind sheet rock is 
``physically inaccessible,'' such that the demarcation point should be 
located not at the twelve inch mark, but rather at the operator's 
junction box. Based on the RCN Request for Letter Ruling and responses 
to that request, the Commission incorporated sheet rock as one of the 
examples of materials to be considered as a ``preexisting structural 
element'' in its definition of physical inaccessibility.
    9. In this Order, the Commission finds that sheet rock is a 
preexisting structural element and that accessing inside wiring behind 
sheet rock would cause significant modification and damage to that 
structural element. Sheet rock is a preexisting structural element and 
not merely a surface finish or decorative finish like molding. Sheet 
rock is not added after a building is completed. Sheet rock is a 
fundamental component of the construction of the building. Thus, sheet 
rock is more like ``brick or cinder block'' because it is commonly used 
to form ceilings and walls in MDUs and other structures. We believe 
that ceilings and walls are an integral and permanent part of the 
building structure of MDUs, and therefore, sheet rock used to form 
ceilings and walls qualifies as a preexisting structural element for 
purposes of the Commission's rules.
    10. The Commission concludes that the record supports the 
conclusion that accessing inside wiring behind sheet rock causes 
significant modification and damage to structural elements, i.e., walls 
and ceilings, albeit modification and damage that may be repairable. 
MDU resident owners and their managers are not only concerned with the 
condition of individually-owned units or apartments, but also with the 
condition of the common elements in these structures. For example, the 
record reveals that MDU resident owners and their managers will 
sometimes require an entire wall or ceiling to be repainted or re-
wallpapered even where the hole cut in the sheet rock is significantly 
smaller than the wall or ceiling in order to restore the area to its 
original appearance. Requiring such extensive repair is a strong 
indication that there has been significant modification or damage to 
the pre-existing structural area. Unlike with single family residences, 
MDU residents share common walls and ceilings and have an interest in 
the condition and treatment of those common elements. With regard to 
the issues of fire safety and possible degradation of a building's 
resistance to moisture, we take a conservative approach and give 
credence to the commenters who argue that cutting into sheet rock may 
pose a safety risk or affect a building's resistance to moisture and 
thus may lead to significant modification or damage to such structural 
elements. Consequently, the Commission concludes that penetration of 
sheet rock for purposes of accessing inside wiring constitutes 
significant modification and damage to structural elements under the 
Commission's rules.
    11. The Commission also finds that accessing the demarcation point 
behind sheet rock adds significantly to the physical difficulty and/or 
cost of accessing the subscriber's home wiring. The Commission notes 
that a finding of ``physical difficulty'' is not required because our 
rule requires that we find that cutting through the sheet rock would 
add significantly to the physical difficulty and/or costs of accessing 
the subscriber's home wiring. Nevertheless, the Commission concludes 
that the record supports a finding of significant physical difficulty 
in accessing the subscriber's home wiring. Accessing such wiring 
requires some level of physical harm to the property--i.e., access 
holes cut in the sheet rock--and that the property be restored to its 
original integrity and appearance. As the Commission has recognized 
throughout this decision, the repair is not always limited to the 
hole(s) cut; it can include repainting and/or re-wallpapering necessary 
to restore the premises. Those tasks can add significantly to the 
physical difficulty involved in accessing the wiring, certainly as 
compared to accessing wiring behind hallway molding (the example in the 
Commission's rules of wiring that is not physically inaccessible), See 
note to 47 CFR 76.5(mm)(4). In any event, the Commission needs only 
find that cutting through sheet rock significantly increases the 
physical difficulty or cost of accessing the wiring and, as described 
below, the Commission finds

[[Page 50077]]

that the additional costs are typically significant.
    12. The Commission concludes that the cost of accessing wiring 
behind sheet rock is significant. In analyzing the costs involved in 
accessing wiring behind sheet rock, the Commission recognizes that the 
record reveals a wide divergence among the estimates offered by 
commenters--ranging from $25 to $1,000--as the appropriate sum needed 
to accomplish the job. Although the Commission finds that it cannot 
pick a precise monetary figure that fairly reflects the costs 
associated with accessing cable inside wiring, we believe it is 
reasonable that costs estimates could include factors such as how 
difficult it may be to satisfy the MDU owner and manager with repair 
work and whether a single unit or many units are worked on in one time 
period. Although the Commission does not have specific quotes for 
restoration work, it seems likely that repainting and/or re-
wallpapering entire ceilings and walls can, at a minimum, run into the 
hundreds of dollars, particularly for more high-end MDUs that use more 
expensive surface finishes. These figures appear significant, 
especially when compared to the estimates we received for accessing 
wiring behind hallway molding.
    13. The Commission is persuaded that removing and replacing molding 
is generally less intrusive and less expensive than cutting into sheet 
rock, locating the wiring, and then repairing the wall or ceiling to 
the satisfaction of MDU owners and managers. While there may be cases 
in which the cost of accessing wiring behind sheet rock may be 
comparable to removable molding the record demonstrates that the cost 
for sheet rock generally will be higher, and often significantly so.
    14. The Commission finds that that cable wiring located behind 
sheet rock qualifies as physically inaccessible under Commission rules 
for purposes of determining the demarcation point between home wiring 
and home run wiring. Specifically, the Commission concludes that (1) 
accessing such wiring causes significant damage or modification to a 
preexisting structural element, and (2) accessing wiring behind sheet 
rock generally adds significantly to the physical difficulty and/or 
cost of accessing the subscriber's home wiring. The Commission's cable 
inside wiring rules are intended to facilitate competition in video 
distribution markets. This ruling will foster opportunities for 
competing MVPDs to provide service in MDUs by clarifying the 
circumstances under which the existing cable home run wiring in MDUs 
can be made available to alternative video service providers.

Procedural Matters

    15. Final Regulatory Flexibility Act. As required by the Regulatory 
Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis 
(IRFA) was incorporated into the Further Notice in this proceeding. The 
Commission sought written public comment on the possible significant 
economic impact on small entities regarding the proposals addressed in 
the Further Notice, including comments on the IFRA. Pursuant to the 
RFA, a Final Flexibility Analysis is contained in Appendix C.
    16. Paperwork Reduction Act Analysis. This Order does not contain 
new or modified information collection requirements subject to the 
paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, 
therefore, it does not contain any new or modified ``information 
collection burdens for small business concerns with fewer than 25 
employees,'' pursuant to the Small Business Paperwork Relief Act of 
2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
    17. Congressional Review Act. The Commission will send a copy of 
this Order in a report to be sent to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act, see 5 
U.S.C. 801(a)(1)(A).

II. Ordering Clauses

    18. Accordingly, it is ordered that, pursuant to authority found in 
sections 1, 4(i), 601, 623, 624, and 632 of the Communications Act of 
1934, as amended, 47 U.S.C. 151, 154(i), 521, 543, 544 and 552, the 
Commission's amendment of the Note to Section 76.5(mm)(4) of the 
Commission's rules to include sheet rock as an example of one of the 
materials that would likely be considered physically inaccessible for 
purposes of the Commission's cable television inside wiring rules is 
affirmed.
    19. It is further ordered, that in light of the United States Court 
of Appeals for the District of Columbia's Circuit's decision in NCTA v. 
FCC, No. 03-1140, 2004 WL 335201, which remanded but did not vacate the 
decision adopted in Telecommunications Services Inside Wiring, Customer 
Premises Equipment; Implementation of the Cable Television Consumer 
Protection and Competition Act of 1992: Cable Home Wiring, 18 FCC Rcd 
1342 (2003) (``Home Wiring Decision''), the note to 47 CFR 76.5(mm)(4) 
adopted in the Home Wiring Decision shall remain in effect.
    20. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Report and Order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel of the Small Business 
Administration.

Federal Communications Commission.
William F. Caton,
Deputy Secretary.
[FR Doc. E7-17206 Filed 8-29-07; 8:45 am]
BILLING CODE 6712-01-P