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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:4557697;Right Par 3Right Par 34` hp x (#X` P hp x (#X` P hp x (#` hp x (#Right Par 4Right Par 45` hp x (#X` hp x (#0X` hp x (#0` hp x (#Right Par 5Right Par 56` hp x (#X` hp x (#X` hp x (#` hp x (#Right Par 6Right Par 67` hp x (#X` hp x (#0X` hp x (#0` hp x (#2F8C>9a@:(B;$DRight Par 7Right Par 78` hp x (#X` hp x (#X` hp x (#` hp x (#Right Par 8Right Par 89` hp x (#X` hp x (#0X` hp x (#0` hp x (#Document 1Document 1:` hp x (#X` hp x (#X` hp x (#` hp x (#Technical 5Technical 5;` hp x (#X` hp x (# X` hp x (#` hp x (#2L<$F=l!I>lI?$ITechnical 6Technical 6<` hp x (#X` hp x (# X` hp x (#` hp x (#Technical 2Technical 2= Technical 3Technical 3> Technical 4Technical 4?` hp x (#X` hp x (# X` hp x (#` hp x (#2!S@lOLA$LB$NCQTechnical 1Technical 1@ Technical 7Technical 7A` hp x (#X` hp x (# X` hp x (#` hp x (#Technical 8Technical 8B` hp x (#X` hp x (# X` hp x (#` hp x (#toc 1toc 1C` hp x (#!(#B!(#B` hp x (#2[DSSEqUFWGYtoc 2toc 2D` hp x (#` !(#B` !(#B` hp x (#toc 3toc 3E` hp x (#` !(# ` !(# ` hp x (#toc 4toc 4F` hp x (# !(#  !(# ` hp x (#toc 5toc 5G` hp x (#h!(# h!(# ` hp x (#2bH[Iv^J^K`toc 6toc 6H` hp x (#!(#!(#` hp x (#toc 7toc 7I toc 8toc 8J` hp x (#!(#!(#` hp x (#toc 9toc 9K` hp x (#!(#B!(#B` hp x (#2iLbMeN;gOvYiindex 1index 1L` hp x (#` !(# ` !(# ` hp x (#index 2index 2M` hp x (#` !(#B` !(#B` hp x (#toatoaN` hp x (#!(# !(# ` hp x (#captioncaptionO 2oPljQrmjKjZ*m_Equation Caption_Equation CaptionP endnote referenceendnote referenceQ "i~'^#)0<y& X-ԍXxCPE Report and Order, 48 FR at 50541.(#d Since we had deregulated the installation of new CPE systems in Computer II,?k{y& X-ԍXxAmendment of Section 64.702 of the Commission's Rules and Regulations, Final  X -Decision, 77 F.C.C.2d 384 ("Computer II"), modified on reconsideration, 84 F.C.C.2d  X -50 (1980), further modified on reconsideration, 88 F.C.C.2d 512 (1981), aff'd sub  X{ -nom. Computer and Communications Industry Ass'n v. FCC, 693 F.2d 198 (D.C. Cir.  Xf -1982) cert. denied sub nom. Louisiana Public Service Commission v. U.S., 461 U.S.  XQ -938 (1983), aff'd on second further reconsideration, FCC 84-190 (released May 4, 1984).(# it was inconsistent to have complex wiring installed under tariff. Therefore, to foster competition in complex wiring installation, we deregulated the installation of complex wiring  XK-in the same way and on the same basis as we had deregulated CPE in Computer II.d@K y& X-ԍXxCPE Report and Order, 48 FR at 50541.(#d We subsequently deregulated the installation of simple inside wiring and maintenance of all inside  X -wiring, effective January 1, 1987.0A a y& X1-ԍXxSecond Report and Order in CC Docket No. 79105 (In the Matter of Detariffing the Installation and Maintenance of Inside Wiring), 51 FR 8498 (Mar. 12, 1986)  X-("Telephone Inside Wiring Second Report and Order").(#0 Through these actions, we intended to make the cost-causative customer bear the costs of connecting CPE, including inside wiring, to the telephone network and, thus, to produce immediate cost savings that would be passed on to  X -ratepayers.BB y& Xs-ԍXxId.(#B x(41. To complete the deregulation of inside wire, the Commission prohibited telephone companies from imposing restrictions on inside wire that would prevent customers from removing, replacing, rearranging or maintaining inside wire using sources of their own choosing. In addition, we precluded the telephone companies from requiring customers to purchase or to pay a charge for using inside wire that had been previously installed or  X9-maintained under tariff.C9y& X$-ԍXxReconsideration Telephone Inside Wiring Second Report and Order, 1 FCC Rcd 1190,  Xp%-1195 (1986). (# The Commission contemplated that, from the deregulation of"99C0*(("  X-inside wire, in combination with the deregulation of CPE undertaken in Computer II,_Dy& Xy-ԍXxComputer II, 77 F.C.C.2d at 388.(#_ would come unregulated and highly competitive markets for all telephone-related services performed on the customer side of the demarcation point separating the customer premises from the  X-telephone network.E{y& X-ԍXxFurther Notice of Inquiry in CC Docket No. 79105 (In the Matter of Detariffing the Installation and Maintenance of Inside Wiring), 86 F.C.C.2d 885, 88687 (1981).(#  X< x` ` 3. Request for Comment  x)42. We tentatively conclude that there is no reason to change our rules giving consumers the right to access their narrowband wiring inside the demarcation point, whether that wiring is used to provide voice, video or data services. We seek comment on this tentative conclusion. We also seek comment on whether the Commission should establish rules that give consumers the right, on their side of the demarcation point, to provide and to install their own broadband inside wiring and to access broadband wiring (for purposes of, for example, installing additional outlets, performing maintenance or reconfiguring existing wiring) on their premises which has been installed and is owned by the broadband service provider. In particular, we seek comment on whether consumers should have such a right if: (a) the broadband wire carries both cable and common carrier services ("joint use"); or (b) the broadband wire carries cable services only.  XN-x*43. Access to broadband inside wiring prior to termination of service would allow consumers to select who will install and maintain their broadband wire (e.g., someone other than the cable operator, such as a commercial contractor, or the consumer himself or herself). The resulting competition in the wiring marketplace might also reduce the amount of  X-maintenance fees and service charges a subscriber pays to the broadband service provider.Fy& X-ԍXxSee Senate Report at 23 (urging the Commission to adopt policies that will protect consumers against the imposition of unnecessary charges, including those for home wiring maintenance).(# In addition, petitioners assert that pretermination access on the consumer's side of the demarcation point would increase competition, promote market entry, produce cost savings,  X-and create a competitive environment for the development of telecommunications services.\Gy& X!-ԍXxMAP Petition for Rulemaking at 78.(#\ According to petitioners, if the consumer has access to and control over the inside wiring prior to terminating service, he or she may be less likely to perceive that it is difficult to change to an alternative broadband service provider. Moreover, in our view, pretermination access to broadband wiring may more closely parallel the access telephone customers have to their narrowband inside wiring. We would expect that these rules would provide broadband service consumers with many of the same advantages that deregulation has provided"%M G0*((" narrowband customers. This parity might further assist competitors in providing both broadband and narrowband services over the same wire, thus increasing competition among multiple service providers. x+44. In this context, we ask whether and how broadening the cable rules to establish the subscribers' right to provide and to install their own cable inside wiring and to access cable operatorowned inside wiring would (a) promote consumer choice; (b) foster competition among multichannel video programming service providers, thus lowering prices and encouraging technological innovation; and (c) facilitate the provision of more than one type of telecommunications service (e.g., telephone and video) by different types of companies. We also request comment generally on how to protect against signal leakage and to maintain the signal quality delivered over the coaxial cable if subscribers are given pretermination access to broadband cable inside wiring. x,45. We seek comment on whether the Commission has authority under the Communications Act to promulgate cable inside wiring rules requiring pretermination access, both when the wiring is used jointly by cable and common carrier services and when the wiring is used solely for cable services. In particular, we ask whether, in the joint use context, the inside wiring used to transmit interstate telecommunications services is so inseparable from the wiring used to transmit the cable services that consumers should have the right to access the wiring under the Commission's current telephone rules. We note that, while the telephone rules may provide a useful model for broadband wiring, cable operators  X-may not be regulated as common carriers "by reason of providing any cable service."Hy& X-ԍXx47 U.S.C. 541(c); House Report at 118. To the extent that a cable system is not providing cable service, this provision does not preclude its regulation as a common carrier.(# We believe, however, that simply applying rules to cable that are the same as, or similar to, the telephone inside wiring rules is not tantamount to treating cable operators as common carriers. We nevertheless request comment on this interpretation of the Communications Act. We also ask commenters to address the issue of whether permitting pretermination access would constitute an impermissible "taking" of property without just compensation, in violation of cable operators' Fifth Amendment rights. x-46. We also ask whether the best way to ensure that subscribers are permitted to own and to access cable inside wiring, whether by buying it or installing it prior to termination of service, might be to deregulate cable inside wiring rates, much the same as telephone inside wiring has been deregulated. We ask whether the introduction of competition in the markets for cable inside wiring would force cable operators to permit pretermination access where there is subscriber demand. We seek comment on whether we have the statutory authority to deregulate cable home wiring rates. We direct the parties to Section 16(d) of the 1992 Cable Act and Section 623(b) of the Communications Act, as amended, and note that Congress specifically expressed a "[p]reference for competition" over regulation in setting rates for""KH0*((!"  X-cable services.KIy& Xy-ԍx 47 U.S.C.  543(a)(2).K In addition, we seek comment on whether and on what basis the Commission should establish a transition period, during which equipment rates would remain regulated, while the market for cable home wiring becomes competitive. We also ask for comment on whether, if the Commission is statutorily required to regulate cable inside wiring rates, we should provide incentives to cable operators to permit pretermination access, for example, by providing that, if an operator allows subscribers to access the home wiring prior to termination of service, or sells the wiring to the subscriber (upon installation or any time thereafter), the operator may then charge the subscriber whatever rate it wishes to reconfigure or perform maintenance on the wiring. x.47. The general intent of our rules in this area will be to maximize the convenience of subscribers seeking to take advantage of competition in the marketplace for the provision of video programming. As described above, our rules grant a subscriber the right to purchase the inside wiring after voluntarily terminating cable service. If the subscriber declines to purchase the wiring, the operator may elect to the remove the wiring. We believe that in some cases this process may needlessly complicate a subscriber's effort to select a new service provider. The policy requiring this process, however, obviously would not apply if the subscriber already owned the wiring, and a customer in this position simply may permit the competing provider to use the existing wire immediately after the subscriber terminates the incumbent provider's service. In order to establish this transfer of service, we thus seek comment on establishing a requirement that subscribers be permitted to purchase their inside wiring upon installation of cable service, on a goingforward basis. We note that our current rules, as Title VI requires, already permit cable operators to recover the costs of inside wiring  X-installation.\Jyy& X-ԍXxSee 47 U.S.C.  543(b)(3).(#\ We solicit comment on whether we should require cable operators to sell the wiring upon installation of cable service. We seek comment on the best way to achieve this. For example, should we require cable operators to include the cost of the wiring as well as the cost of labor to install the wiring in the cost of installation of cable service? We seek comment on whether it is necessary for the Commission to detail how these costs are to be  X|-recovered, e.g., in a onetime initial payment, or on a monthly basis for some maximum number of months, and whether the Commission should do so. Under the latter approach, we would intend for full ownership of the wiring to be vested in the subscriber once the subscriber pays some portion, or all, of the costs associated with the wiring. We seek comment on the point at which full ownership of the wiring should be vested in the subscriber. We believe that cable operators would need time to implement this approach; therefore, we seek comment on requiring cable operators to adopt this approach as of some  X-date certain in the future, e.g., six, 12 or 18 months following adoption of the requirement. x/48. Alternatively, we seek comment on whether the Commission can and should create a presumption that the subscriber owns his or her cable inside wiring. As we noted in"",J0*((!"  X-the Cable Wiring Order, the subscriber often already owns the home wiring, such as where  X-the subscriber was charged for the wiring upon installation,CKy& Xd-ԍx8 FCC Rcd at 1437.C or, at least in the case of single family dwellings, where the applicable state or local law treats the wire as a "fixture," or the previous occupant already owned the home wiring, either by purchasing the wiring upon voluntary termination of service or because the operator failed to remove it within the time allowable under our rules. We seek comment on whether this presumption could be rebutted by the cable operator or be an irrebuttable presumption. If rebuttable, we seek comment on what kind of showing cable operators would have to make to overcome a presumption that the subscriber owns his or her home wiring, what type of records operators would be required to keep, any constitutional or statutory impediments to such a presumption, and when such a process would occur. We also seek comment on our concern that, at least for existing wiring, operators may possess inadequate records to demonstrate ownership. If irrebuttable, we seek comment on how such a relinquishment of ownership rights could be structured consistent with constitutional and statutory requirements, and what deadlines should be imposed in order to permit cable operators to obtain full compensation for their inside wiring costs.  X<x ` ` 4. Compensation for Wiring   Xe-x` `  a.Background x` ` x049. The Commission's rules compensate cable operators for their costs of installing the subscriber's cable home wiring. With respect to telephone wiring, as previously noted, the Commission deregulated the installation of simple inside wiring and the maintenance of all  X-inside wiring, effective January 1, 1987.~Lyy& X-ԍXxSee supra Section II.D. (discussing customer access to wiring).(#~ We then precluded carriers from imposing  X-restrictions upon the removal, replacement, rearrangement or maintenance of inside wiring.UM,y& X-ԍXxSee 1 FCC Rcd at 1195.(#U x150. Currently, cable operators must elect a uniform installation charge that is based upon either the product of the hourly service charge and the person hours of the visit, or the  X-product of the hourly service charge and the average hours spent per installation visit.GNy& X!-ԍx47 C.F.R.  76.923.G Further, the rules prescribe a perfoot replacement cost (the product of the approximate length of the cable on the customer's side of the demarcation point and the value of the wire itself)  X<-upon termination of service. We stated in the Cable Wiring Order that the perfoot charge should be based on the replacement cost of coaxial cable in the community, and gave as an  X-example for which the cost was approximately six cents per foot.]Oy& XQ'-ԍxCable Wiring Order, 8 FCC Rcd at n.39.]"C O0*(("Ԍ X-ԙx` `  b.Request for Comment x251. We seek comment on whether our current rules for compensation of broadband cable should change if, for example, we move the demarcation point for cable systems to the minimum point of entry in multiple dwelling unit buildings or some other point, including some point farther than 12 inches from the subscriber's premises. We also seek comment on providing compensation to telephone companies for the cost of an additional segment of what is now a customer's narrowband telephone loop, if it is determined that the demarcation point for the telephone network will be placed 12 inches outside the customer's premises, or at some point inside of the minimum point of entry.  X -x E.` ` Dual Regulation  X <x` ` 1. Background  x352. As described above, the Commission has established rules to govern the technical  X-performance of cable systems,\Py& X -ԍXx47 C.F.R.  76.601 76. 630.(#\ the disposition of wiring upon termination of service,OQyy& X-ԍXx47 C.F.R.  76.802.(#O and subscriber rates for the installation, maintenance and sale of equipment necessary to receive  Xe-cable service generally, including inside wiring.\Re*y& X@-ԍXx47 C.F.R.  76.922 76. 924.(#\ The local franchising authority generally is the first line of enforcement of all such rules, while the Commission will, either informally or by rule, resolve disputes that may arise between a cable operator and the local franchising authority. For example, local franchising authorities are directed under our rules to enforce the federal technical standards. A franchise authority, however, may petition the Commission for a waiver to establish cable service technical standards in the franchise area that exceed the  X-federal standards.VSy& Xg-ԍXx47 C.F.R.  76.605 Note 6.(#V Similarly, under our cable service rate regulations, the Commission has established general regulations setting forth cable service rate computations that local franchising authorities and cable operators must use only if the local franchising authority is certified to regulate cable service. With respect to wiring, an operator will propose equipment rates, on which subscribers' cable service rates are based in part, to local franchising authorities. An operator may appeal, however, to the Commission for resolution of any dispute resulting from the local franchising authority's rejection of the proposed equipment  X:-rates.\T:y& Xw%-ԍXx47 C.F.R.  76.944, 76. 945.(#\  X -x453. Because most local telephone exchange facilities are used jointly to provide" = T0*((" interstate and intrastate telephone services, they are regulated by both federal and state regulatory authorities. The extent of dual regulation depends generally on whether the Commission has preempted state authority to regulate exclusively a particular aspect of telephone service rates. For example, we have preempted states from regulating the prices and terms and conditions under which complex wiring services are offered to the public, thus  X-allowing subscribers to obtain complex wiring services in a fully competitive market.U X-ԍXxThird Report and Order in CC Docket No. 79105 (Detariffing the Installation of  X-InsideWiring), 7 FCC Rcd 1334, 1341 (1992) ("Preemption Order").(# On the other hand, we have not generally preempted the states from setting rates, terms and conditions for simple inside wiring services. x554. With respect to simple wiring services, however, we have maintained certain federal standards with which state regulations must comply. For example, if a state chooses to regulate the rates under which telephone companies provide simple inside wiring, the state regulations must require the telephone companies to unbundle the inside wiring charges from  X -the charges for basic transmission services.cV f X-ԍXxPreemption Order, 7 FCC Rcd at 1335.(#c Moreover, a state may not establish rules that will impede the competitive provision of telephone inside wiring. In addition, any state regulations governing the terms or conditions under which inside wire services are provided  X-must be consistent with the technical standards set forth in Part 68 of our rules.mW XZ-ԍXxId. at 1341. (citing 47 C.F.R. Part 68).(#m x655. In addition, the Commission has instituted a system to monitor state regulatory programs for inside wire to assess their impact on our goal of achieving full competition in the market for inside wire services. We require a telephone company with annual operating revenues of $100 million or more to file with the Commission a copy of any state or local statute, rule, order,or other document that regulates, or proposes to regulate, the price or prices the telephone companies charge for inside wire services. If a state chooses to regulate simple inside wire, we believe that these documents will enable us to determine the costing methodology used by it to set prices for simple inside wire and to consider whether those  X-prices are consistent with our goals for inside wire services.KX X' -ԍXxId. at 1337.(#K  X|<x` ` 2. Request for Comment x756. We first solicit comment on whether it may be necessary to harmonize these respective disparate systems of regulation as the similarity increases between the technology employed to deliver telephony and video programming. For example, as stated previously, it is possible that in the future both telephony and video programming will be delivered over a single wire; thus, an issue may arise over which dual system regulation should govern, i.e,"X0*((i" Commissionlocal franchising authority (cable service) or Commissionstate public utility commission (telephone service). We seek comment on whether the Commission has legal authority to change or harmonize these dual systems of regulation to accommodate the situation where broadband or multiple services are provided over a single wire or multiple wires, and how this could be accomplished. Similarly, if we were to adopt a common demarcation point for both cable and telephone networks, confusion also might arise over which relationship between local and federal authorities should govern. Therefore, we also seek comment generally on any conflicts that may arise from unifying these disparate systems of dual regulation between cable and telephone service for inside wiring, in light of the definition of the network or system demarcation points as well as the other standard technical requirements for the two services. x857. State and local governments are indispensable to the regulation of cable television and telephone service. For example, as stated above for cable services equipment, the Commission's broad federal policies and rules in most instances are implemented by local regulators. Increased convergence between the technologies used to deliver cable television and telephone services, and the traditional identities of the companies providing such services, likely will blur the lines between regulatory oversight. For example, we may see the Commission, a state public utility commission, and a local cable franchising authority all involved in overseeing the broadband services provided by a single company. Thus, we also ask commenters to discuss the role of nonfederal regulation in setting the prices, terms and conditions for telecommunications services inside wiring. Currently, many local regulators regulate cable wiring. We seek comment on whether the nonfederal regulation of telephone wiring should be altered if the delivery systems for telephony and video programming become more similar. With respect to federal involvement, difficulties also may arise in determining the proper level of our involvement in the oversight of wiring as telephone and video programming technologies advance. In this context, we seek comment on whether we should expand or decrease our monitoring of charges for inside wiring used to provide video service, or increase or decrease our oversight of telephone inside wiring.  XN-x F.` ` Service Provider Access to Private Property  X <x` ` 1. Background  x958. We also wish to examine the right of various service providers to obtain access to private property, such as multiple dwelling unit buildings, private housing developments, and office buildings. If, in the interest of competitive parity, we ultimately were to adopt a uniform demarcation point for the networks of all companies providing similar services, that goal may not be achieved if all providers do not have equal access to the customer's wiring at the demarcation point.  XR%- x:59. Telephone companies traditionally have gained access to private property through private easements and contracts with the property owners. As common carriers, they also have the use of public rightofways and can exercise the power of eminent domain. Thus,"$'X0*((%" when they seek to provide telephone service, there has been little objection to their right to access private property.  X- x;60. Cable operators' right to gain access to private property has been less clear. Currently, approximately thirteen states have passed some form of cable mandatory access statute, including Connecticut, Delaware, Florida, Illinois, Kansas, Maine, Minnesota, Nevada, New Jersey, New York, Pennsylvania, Rhode Island and Wisconsin. In addition, some cable operators have sought to obtain a right of access to private property under the  XH-Communications Act,Y H X -ԍXxThese actions have been based on Section 621(a)(2) of the Communications Act, 47 U.S.C.  541(a)(2), which provides that "[a]ny franchise shall be construed to authorize the construction of a cable system . . . through easements which have been  X| -dedicated for compatible uses . . . " See, e.g., Cable Holdings of Georgia, Inc. v.  Xg -McNeil Real Estate Fund VI, Ltd., 953 F.2d 600 (11th Cir.), cert. denied, 113 S. Ct. 182 (1992) (holding that Section 541(a)(2) does not afford access to private easements as opposed to an easement formally relinquished for general utility use held by a  X$-utility company or third party provider of video programming services); Media  X-General Cable of Fairfax, Inc. v. Sequoyah Condominium Council of CoOwners,  991  X-F.2d 1169 (4th Cir. 1993) (same); Cable Investments, Inc. v. Woolley, 867 F.2d 151 (3d Cir. 1989) (holding that Section 541(a)(2) did not authorize cable operator to  X-obtain access to multiple dwelling unit building over property owner's objection); but  X-see, Mumaugh v. Diamond Lake Area Cable Television Co., 456 N.W. 2d 425, 183 Mich. App. 597 (1990) (finding that Section 541(a)(2) encompassed access to exterior private easements).(#ƌ the First Amendment,ZHE X>-ԍXxSee, e.g., Cox Cable of San Diego v. Bookspan, 195 Cal. App. 3d 22 (1987) (rejecting argument that First Amendment required property owner to grant access).(# and various common law theories,[H X-ԍXxSee, e.g.,Woolley, 867 F.2d at 161 (summarily rejecting "tenant easement" theory);  X-MultiChannel TV Cable v. Madison City, Inc., No. 2549, 1989 WESTLAW 11500, (Ohio Ct. App., Jan. 23, 1989) (finding that cable operator was not entitled to an injunction to prevent its ejection from a mobile home park, and that operator was a mere licensee whose access rights were terminable at will by the property owner).(# seemingly with little success.  X <x` ` 2. Request for Comment x<61. Parity of access rights to private property may be a necessary predicate for any attempt to achieve parity in the rules governing cable and telephone network inside wiring, because without access to the premises, the inside wiring rules and proposals discussed in this  X-NPRM will not even be implicated. An inequality in access can unfairly benefit one provider over another. For instance, if one service provider has an unrestricted right of access to"|:[0*((" private property even over the objection of the property owner that service provider would be able to compete for individual subscribers in every multiple dwelling unit building, private housing development and office building, while the provider without such a right could only compete in those buildings in which it had managed to obtain the property owner's consent. In addition, we have received conflicting information about the ability of alternative service providers to obtain the permission of multiple dwelling unit building owners: (a) to enter the building at all; (b) to run a common feeder line up a stairwell, for example, to a security closet or lockbox; and (c) to run individual wiring down hallways from  XH-the lockbox to individual units.U\ H X -ԍXxSee, e.g., Liberty Petition for Reconsideration in MM Docket No. 92260 at 4 (stating that building owners are "understandably unwilling" to allow Liberty to damage custom designed hallway mirrors or wall coverings in order to access wiring located in conduits or molding, and that building owners "are not keen on" Liberty installing a second wire on top of expensive hallway mirrors or wall coverings even in those cases  XP-where existing wiring is accessible near the door of a subscriber's unit); compare with  X;-Time Warner Ex Parte Notice MM Docket No. 92260 (filed Dec. 5, 1994) at 8 ("Because landlords typically receive handsome compensation from unfranchised MVPDs based on a percentage of their revenues from the building, most landlords have a strong incentive to allow Liberty or another MVPD to install cable in hallway moldings, or on the outside of the building. Installation of a second wire in common areas of the buildings is a onetime disturbance to owners of MDUs. . . .").(#U We seek comment on the legal and practical impediments faced by telecommunications service providers in gaining access to subscribers. For instance,  X -as discussed above,r]  XM-ԍXxSee supra, Section II.A. We do not intend to imply that we are predisposed to adopt any conclusions regarding the legal or policy justifications for moving the demarcation point, but simply cite this example as one possibility for overcoming a particular  X -access problem. (#r moving the cable demarcation point farther away from the subscriber, such as back to the lockbox, could alleviate much of the access problem if building owners primarily objected to running additional wiring down the hallways; on the other hand, moving the demarcation point may have little impact if building owners have been denying alternative providers access to the property altogether. x=62. We seek comment on the above discussion and several other specific issues related to provider access. First, we seek comment on the current status of the law regarding access to private property by cable operators and telephone companies. For instance, what type(s) of access do state statutes granting mandatory access for cable operators provide?  X4-Who qualifies for such mandatory access (e.g., only franchised cable operators)? Have cable operators been successful in obtaining access to private property under any other statutory or common law theories? Similarly, what type(s) of access to private property do the states grant to telephone companies? Is such access related to the type of service provided or to the identity of the company? Do the statutes permit telephone companies to obtain access to"]0*((T" private residences, such as multiple dwelling units, or simply to run their lines across private property? In other words, can an individual resident in a multiple dwelling unit obtain telephone service over the property owner's objection? x>63. We also seek comment on whether and how the rules governing access to customers' premises should be harmonized in a world in which the cable operator, the telephone company and possibly others may be offering telephony, video and other services over a single wire. Can and should cable operators that offer telephony be permitted to use the telephone companies' easements to obtain access to private property? Can and should cable operators or telephone companies, if they have an easement to provide telephony, also be permitted to provide video or other services using the same easement? Should it make a difference whether the services are provided over one wire or two? We seek comment on whether allowing a company that possesses an easement for one service to rely on that easement in providing another service would constitute an impermissible "taking" without just compensation, in contravention of the property owner's Fifth Amendment rights. x?64. Finally, we request comment on whether the Commission can and should attempt to create access parity among service providers, and what our rules should say regarding the terms of such access. We also seek comment on any statutory or constitutional impediments to this goal. In particular, we ask commenters to address the concern that any right of access to private property may constitute an impermissible "taking" in violation of the property owner's Fifth Amendment rights. We realize that a number of these potential service providers are not common carriers and their right to access is not well established in state or federal law. We seek comment on the potential constraints this lack of common carrier status will have on the rules we prescribe.  X- xG.` ` Customer Premises Equipment (#`  X|<x` ` 1. Background  x@65. Telephonerelated customer premises equipment (CPE) constitutes all telephone equipment located on the customer's side of the demarcation point, including private branch  X!-exchanges (PBXs), key systems, modems, and telephone handsets. In the Computer II Final  X -Decision,c^  X -ԍXxComputer II, 77 F.C.C.2d 384 (1980).(#c we concluded that Title II regulation of CPE was no longer warranted. We found that deregulation "fosters a regulatory scheme which separates the provision of regulated common carrier services from competitive activities that are independent of, but related to, the  X -underlying utility service."]_ y X$-ԍXxComputer II, 77 FCC 2d at 447.(#] We first found that our procompetitive policies for CPE had created a market in which vigorous competition among equipment vendors was providing new"!,_0*(( "  X-and innovative types of CPE to subscribers, as well as improved maintenance and reliability.J` Xy-ԍXxId. at 439.(#J Earlier decisions removed tariff provisions that restricted customers' rights to attach noncarrier provided CPE to the telephone network. Those earliers efforts culminated in a registration program that allows consumers to connect their own equipment to the network if the equipment conforms to certain technical standards and is properly registered with the Commission under Part 68 of our rules. These decisions confirmed the existence of broad  Xv-consumer right under Sections 201(b) and 202(a) of the Act.a v{ X -ԍXxSee, e.g., Carterfone, 13 FCC 2d 420, recon den. 14 FCC 2d 571 (1968); Telerent  X -Leasing Corp. et. al., 45 FCC 2d 204 (1974), aff'd sub nom. North Carolina Utilities  Xx -Commission v. FCC, 537 F. 2d 787 (4th Cir.), cert. den., 429 U.S. 1027 (1976);  Xc -Mebane Home Telephone Co., 53 FCC 2d 473 (1975), aff'd Mebane Home Telephone  XN -Co. v. FCC, 535 F.2d 1324 (D.C. Cir. 1976); First Report and Order in Docket No.  X9-19528, 56 FCC 2d 593 (1975); on reconsideration, 57 FCC 2d 1216 (1976), 59 FCC  X$-2d 716 (1976) and 59 FCC 2d 83 (1976). Second Report and Order in Docket No.  X-19528, 58 FCC 2d 736 (1976); on reconsideration, aff'd sub. nom. North Carolina  X-Utilities Commission v. FCC, 552 F.2d 1036 (4th Cir.), cert. den. 434 U.S. 874  X-(1977); Phase II Final Decision and Order in Docket No. 19129, 64 FCC 2d 1 (1977);  X-Implications of the Telephone Industry's Primary Instrument Concept, 68 FCC 2d  X-1157 (1978); Second Report in Docket No. 2003, FCC 80-5, released January 29,  X-1980; First Report and Order in CC Docket No. 79-143, FCC 80-88, released March 19, 1980.(#Ʋ  XH-xA66. In Computer II, we were also concerned that carriers' practices of bundling CPE charges with charges for basic services could undermine our efforts to ensure that regulated  X -service rates accurately reflected the costs of providing the associated service.]b  X-ԍXxComputer II, 77 FCC 2d at 445.(#] Given the variety of CPE products and suppliers, we were confident that our unbundling and detariffing of CPE would not adversely affect consumers.  X -xB67. Cablerelated CPE,cv  X? -ԍXxWe note that while practically all telephonerelated equipment is specifically designed to be connected to telephone networks, most of the current cablerelated CPE mentioned, such as TVs and VCRs, were designed and can function without connection to cable systems. Thus, the connection of customerowned CPE to cable system equipment may result in the loss of certain CPE features, such as pictureinpicture and viewing one channel while recording another.(# regulated under Part 15 of the Commission's rules for emission and interference, generally includes equipment located on the customer's side of the demarcation point, such as television receivers ("TVs"), video cassette recorders ("VCRs")," c0*(("  X-remote control units, and settop converter descramblers ("settop boxes"). d Xy-ԍXxCable operators often protect their extended basic and premium services with proprietary scrambling techniques. In these cases, the subscriber must obtain a settop box from the cable operator in order to descramble the signals. (#  In addition, we anticipate that future CPE used by cable and telephone subscribers may include computers, component decoders and tuning devices, and facilities used for interactive services. While settop boxes are generally provided by the cable operator, TVs and VCRs are generally provided by the subscriber. Our current cable regulations do not specifically address the rights of cable subscribers to connect CPE to cable operators' facilities. Therefore, unlike equipment used to receive common carrier telephone service, there is some ambiguity as to whether cable operators may prohibit or limit subscribers' ability to connect CPE to operators' facilities for services other than cable service.  X - xC68. The 1992 Cable Act directed the Commission to establish standards that relied upon actual cost to set the rates charged to lease equipment used by subscribers to receive  X -basic cable service.Ue K X-ԍXx 47 U.S.C.  543(b)(3). (#U Only some cablerelated CPE are subject to this statutory provision, including settop boxes, remote control units, connections for additional outlets, and inside wiring. We note that the 1992 Cable Act also directed the Commission to ensure compatibility between consumer equipment and cable systems, consistent with the need to prevent theft of cable service, so that cable subscribers will be able to enjoy the full benefits of both the programming available on cable systems and the functions available on their  Xb-television receivers and VCRs.xfb X-ԍXx47 U.S.C.  544(b)(1). See infra note 96.(#x xD69. What is more, and as stated previously, we anticipate that the technologies used to deliver and receive cable and telephone service may become more similar. For example, future video programming and telephony may not only be delivered over a single broadband wire, but future subscribers may receive both services using a single piece of equipment, such as a computer modem or a "videophone." It is also possible that the subscriber may only need one piece of customer premises equipment to interact with both services, such as an enhanced settop box or standalone interface unit. In addition, multiuse devices may be developed that allow subscribers to receive video, data and voice services, akin to the present functions of a telephone modem used to reach computer networks. In such cases, the disparate regulatory schemes for cablerelated CPE and telephonerelated equipment could cause confusion for service providers as well as subscribers and regulators. For example, service providers may be uncertain whether rates for such equipment are subject to regulation. Similarly, subscribers may be uncertain of their rights to connect CPE to the network(s) over which they receive service.  X<x` ` 2.  Request for Comment " f0*(("Ԍ X-ԙxE70. Interconnection. Since the Commission deregulated telephone CPE, the Commission's goals of promoting marketplace entry by communications equipment vendors, increasing competition among these vendors, and producing cost savings for both consumers and common carriers have largely been fulfilled. We believe that exploring and possibly establishing the rights of consumers to provide and connect unregulated CPE to cable operator facilities can similarly benefit cable subscribers, provided that service providers' interests in protecting against theft of service, ability to provide new innovative services, and network and system integrity can be adequately addressed. We also believe that creating a record on these and other related issues will enable the Commission to establish simple and procompetitive rules setting forth the rights and responsibilities of both service providers and subscribers with respect to CPE.  X -x F71. We therefore seek comment on the costs and benefits of harmonizing or revising our rules to accommodate better the possible convergence of technologies used to receive and to interact with networkdelivered video programming and telephony. We seek comment on whether to allow customers to use and connect their cablerelated CPE, such as settop boxes, to cable facilities while allowing cable operators to protect their legitimate security interests and to provide new and innovative services without inhibiting the use of existing customer CPE. We recognize that new and innovative services often require proprietary equipment which may not be compatible with existing CPE. We seek comment on the technical and economic impediments to requiring new services to be compatible with existing CPE. We also solicit comment on whether we should establish a common regulatory scheme to govern  X-both cable and telephone network CPE . xG72. We also understand that the technology of future CPE may take a variety of forms (e.g., component decoders, computer modems). We note that technologies to deliver voice and video service on an integrated basis continue to evolve. We seek comment on whether we should tailor our rules to accommodate different types of CPE technologies and functions. For example, perhaps there should be a different set of rules for cablerelated equipment that is designed to both transmit and receive, than for equipment that is designed only to receive. We tentatively conclude that consumers should be able to connect cablerelated equipment, as well as purchase this equipment, and seek comment on how the Commission may best achieve this goal. We note that in the 1992 Cable Act, Congress recognized that there are a number of compatibility problems between cable service and consumer electronics equipment. Congress was particularly concerned about the inability of cable subscribers to use the special features and functions of their TV sets and VCRs when receiving cable signals which are most often precluded by the use of a cable supplied settop box. These features include picture-in-picture, timed recordings and the ability to view one channel while recording another. Presently, the Commission is awaiting finalization of a standard for a Decoder Interface connector. This standard is being developed by the CableConsumer Electronics Compatibility Advisory Group in conjunction with the Joint Engineering Committee of the Electronics Industry Association and NCTA. We believe that special rules must govern subscribers' access to and connection of CPE with access control functions that are consistent with these efforts. In this context, we seek comment on how"%'!f0*((%" best to protect against theft of cable service or other damage to cable operators' facilities if we were to change our rules to accommodate the possible convergence of technology used to  X-deliver and receive cable and telephone service.gL XK-ԍXxWe also note that the Commission has taken steps to ensure enhanced compatibility  X4-between consumer electronics equipment and cable operators' facilities. See In the Matter of Implementation of Section 17 of the Cable Television Consumer Protection and Competition Act of 1992: Compatibility Between Cable Systems and Consumer  X-Electronics Equipment, ET Docket 937, 9 FCC Rcd 1981 (1994). The regulations adopted in the equipment compatibility proceeding will allow consumers to utilize customer premises equipment offered by a variety of suppliers, including the cable operator, in a competitive market.(#  X-xH73. We are not proposing to change our Computer II framework for equipment connected to narrowband facilities, or for equipment used in conjunction with Title II services but not Title VI services. We tentatively conclude that CPE used in conjunction with Title VI  Xa-services provided over narrowband facilities should also be governed by Computer II, and seek comment on this tentative conclusion, including any security concerns that are raised by such a conclusion. xI74. We note that Part 68 of the Commission's rules establishes standards for telephonerelated CPE and an equipment registration program that are designed to ensure the reliability of telephone networks. Network reliability and safety must be maintained as entities other than traditional telephone companies begin to offer both voice and video services that use or interconnect with the public switched network. We thus seek comment on whether the Commission should enlarge the current registration program to cover cablerelated CPE that use or interconnect with the public switched network, if such interconnection is to occur. We further seek comment on whether an equipment registration program similar to the existing Part 68 program should be established for manufacturers of equipment used with future services, both broadband and narrowband, to ensure the integrity and reliability of these networks. Finally, we seek comment on how such a program should be structured to define the rights of both the service providers and the network subscribers, while ensuring the development and maintenance of a competitive CPE market. Such policies might include adoption of standards, for example, such as the Commission has adopted for telephone equipment in Part 68 of its rules.  X-xJ75. Equipment Rates. We believe that improving cable subscribers' rights to acquire and provide their own cablerelated CPE would benefit subscribers. Such rules would give subscribers the choice of purchasing, installing or maintaining CPE themselves, or having a vendor other than the cable operator do so. This should promote marketplace entry by communications equipment vendors and facilitate competition among these vendors, as we have seen in the telephone context. A competitive marketplace should lead to the development of innovative types of CPE, improved performance of existing and new CPE,""g0*((" and improved maintenance of CPE. xK76. As previously stated with respect to equipment rates, the 1992 Cable Act directed the Commission to establish a ratesetting methodology for equipment used to receive basic cable service, including settop boxes, remote control units, wiring, and additional cable outlets. In response, the Commission's regulations link maximum permitted rates for regulated equipment to operators' actual costs of providing the equipment. We note, however, that Congress exhibited a clear preference for competition over regulation in the  XH-setting of rates for cable service and equipment.RhH X -ԍXx47 U.S.C.  543(a)(2).(#R We believe that deregulating rates for currently regulated CPE would be in the public interest if the marketplace for CPE becomes competitive, and seek comment on this tentative conclusion. We wish to make clear that we are not proposing to reregulate currently deregulated telephone CPE rates. We also seek comment on whether the Commission has authority to deregulate cable CPE rates under the Communications Act, and specifically whether the Commission possesses such authority under Sections 623(b), 632(b), 4(i), and 1. We further seek comment on whether specifically deregulating rates for currently regulated CPE would be inconsistent with the 1992 Cable Act, given that market forces in the resulting marketplace should determine rates. Finally, we seek comment on whether it would be necessary to establish a transition period prior to the deregulation of currently regulated CPE rates, until a competitive marketplace for CPE exists. x  X- III.XxINITIAL REGULATORY FLEXIBILITY ACT ANALYSIS (# xL77. Pursuant to Section 603 of the Regulatory Flexibility Act, the Commission has prepared the following initial regulatory flexibility analysis ("IRFA") of the expected impact of these proposed policies and rules on small entities. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines as  X-comments on the rest of the NPRM, but they must have a separate and distinct heading  X~-designating them as responses to the IRFA. The Secretary shall cause a copy of the NPRM, including the IRFA, to be sent to the Chief Counsel for Advocacy of the Small Business Administration in accordance with Section 603(a) of the Regulatory Flexibility Act, Pub. L.  X;-No. 96354, 94 Stat. 1164, 5 U.S.C.  601 et seq. (1981).  X-xM78. The Commission issues this NPRM to consider changes in our telephone and cable inside wiring rules and policies in light of today's evolving and converging telecommunications marketplace.  X!-xN79. Objectives. To explore the development of new cable and telephony service rules in the following areas in light of converging technology: demarcation point, means of connection, simple and complex residential and nonresidential wiring, installation, maintenance, access and ownership of inside wiring, compensation, dual regulation and"r$#yh0*((F#" service provider access.  X-xO80. Legal Basis. Action as proposed for this rulemaking is contained in Section 1, 4(i), 201205, 214215, 220, 623, and 632 of the Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i), 201205, 214215, 220, 543 and 552.  Xx-xP81. Description, Potential Impact and Number of Small Entities Affected. The proposals, if adopted, will not have a significant effect on a substantial number of small entities.  X -xQ82. Reporting, Recordkeeping and Other Compliance Requirements. None.  X -xR83. Federal Rules which Overlap, Duplicate or Conflict with these Rules. None.  X -xS84. Any Significant Alternatives Minimizing Impact on Small Entities and Consistent  X -with Stated Objectives. None.  X- IV.xPROCEDURAL PROVISIONS  XW-xT85. Ex parte Rules NonRestricted Proceeding. This is a nonrestricted notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided that they are disclosed as provided in Commission's rules.  X-See generally 47 C.F.R.  1.1202, 1.1203, and 1.1206(a). xU86. To file formally in this proceeding, you must file an original plus four copies of all comments, reply comments, and supporting comments. If you want each Commissioner to receive a personal copy of your comments and reply comments, you must file an original plus nine copies. Comments are due on March 18, 1996, and reply comments are due on April 17, 1996. You should send comments and reply comments to Office of the Secretary, Federal Communications Commission, 1919 M Street, N.W. Washington, D.C. 20554. Comments and reply comments will be available for public inspection during regular business hours in the FCC Reference Center, Room 239, Federal Communications Commission, 1919 M Street N.W., Washington D.C. 20554.  X- V.xORDERING CLAUSES xV87. IT IS ORDERED that, pursuant to Sections 1, 4(i), 201205, 214215, 220, 623, and 632 of the Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i), 201205, 214215, 220, 543 and 552, NOTICE IS HEREBY GIVEN of proposed amendments to Part  Xx$-76, in accordance with the proposals, discussions, and statement of issues in this Notice of  Xc%-Proposed Rulemaking, and that COMMENT IS SOUGHT regarding such proposals, discussion, and statement of issues. "7'$h0*((%"Ԍ X-xW88. IT IS FURTHER ORDERED that the Secretary shall send a copy of this NPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration in accordance with paragraph 603(a) of the Regulatory Flexibility Act, Pub. L. No. 96354, 94  X-Stat. 1164, 5 U.S.C.  601 et seq. (1981). xX89. IT IS FURTHER ORDERED that the Petition for Rulemaking filed by the Media  Xz-Access Project, et al., to the extent it concerns making cable home wiring rules the same as  Xe-those governing telephone inside wiring, is HEREBY GRANTED. x` ` hhFEDERAL COMMUNICATIONS COMMISSION x` `  hh x` `  hhWilliam F. Caton x` `  hhActing Secretary