Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Telecommunications Services ) CS Docket No. 95-184 Inside Wiring ) ) Customer Premises Equipment ) ) ) In the Matter of ) ) Implementation of the Cable ) Television Consumer Protection ) MM Docket No. 92-260 and Competition Act of 1992: ) ) Cable Home Wiring ) REPORT AND ORDER AND SECOND FURTHER NOTICE OF PROPOSED RULEMAKING Adopted: October 9, 1997 Released: October 17, 1997 By the Commission: Comment Date: December 23, 1997 Reply Comment Date: January 22, 1998 Table of Contents Paragraph No. I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . .1 II. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 A. Telephone Inside Wiring Rules. . . . . . . . . . . . . . . . . . .4 B. Cable Inside Wiring Rules. . . . . . . . . . . . . . . . . . . . 10 III. Report and Order . . . . . . . . . . . . . . . . . . . . . . . . 18 A. Disposition of Home Run Wiring . . . . . . . . . . . . . . . . . 18 1. Background . . . . . . . . . . . . . . . . . . . . . . . . 18 a. Commission Proposal. . . . . . . . . . . . . . . . . . . . 18 b. Comments . . . . . . . . . . . . . . . . . . . . . . . . . 23 2. Discussion . . . . . . . . . . . . . . . . . . . . . . . . 35 a. The MDU Competitive Environment. . . . . . . . . . . . . . 35 b. Procedures for Disposition of Home Run Wiring. . . . . . . 39 (1) Building-by-Building Procedures. . . . . . . . . . . . . . 41 (2) Unit-by-Unit Procedures. . . . . . . . . . . . . . . . . . 49 (3) Ownership of Home Run Wiring . . . . . . . . . . . . . . . 58 (4) Impact on Incumbent Video Service Providers. . . . . . . . 68 (5) Application of Procedural Framework. . . . . . . . . . . . 69 c. Statutory Authority. . . . . . . . . . . . . . . . . . . . 81 d. Constitutional Arguments . . . . . . . . . . . . . . . . .102 B. Sharing of Molding . . . . . . . . . . . . . . . . . . . . . . .104 C. Disposition of Cable Home Wiring . . . . . . . . . . . . . . . .113 1. Disposition of Home Wiring When Service Is Terminated for an Entire MDU. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115 2. Disposition of Home Wiring When Service Is Terminated by an Individual Subscriber . . . . . . . . . . . . . . . . . . . . . . . .119 3. Effect of Subscriber Vacating the Premises on the Application of Cable Home Wiring Rules. . . . . . .125 D. MDU Demarcation Point. . . . . . . . . . . . . . . . . . . . . .129 E. Loop-Through Cable Wiring Configurations . . . . . . . . . . . .152 F. Video Service Provider Access to Private Property. . . . . . . .167 1. Federal Mandatory Access Requirements. . . . . . . . . . .167 2. State Cable Mandatory Access Requirements. . . . . . . . .181 3. Exclusive Service Contracts. . . . . . . . . . . . . . . .191 G. Customer Access to Cable Home Wiring Before Termination of Service204 H. Signal Leakage . . . . . . . . . . . . . . . . . . . . . . . . .231 I. Signal Quality . . . . . . . . . . . . . . . . . . . . . . . . .243 J. Means of Connection. . . . . . . . . . . . . . . . . . . . . . .246 K. Dual Regulation. . . . . . . . . . . . . . . . . . . . . . . . .249 L. Regulation of Simple and Complex and of Residential and Non-Residential Wiring . . . . . . . . . . . . . . . . . . . . .252 M. Customer Premises Equipment. . . . . . . . . . . . . . . . . . .256 IV. Second Further Notice of Proposed Rulemaking . . . . . . . . . .258 A. Exclusive Service Contracts. . . . . . . . . . . . . . . . . . .258 B. Application of Cable Inside Wiring Rules to All MVPDs. . . . . .267 C. Signal Leakage Reporting Requirements. . . . . . . . . . . . . .269 D. Simultaneous Use of Home Run Wiring. . . . . . . . . . . . . . .270 V. Regulatory Flexibility Act Analysis. . . . . . . . . . . . . . .272 A. Final Regulatory Flexibility Act Analysis. . . . . . . . . . . .272 B. Initial Regulatory Flexibility Act Analysis. . . . . . . . . . .301 VI. Paperwork Reduction Act of 1995 Analysis . . . . . . . . . . . .321 VII. Procedural Provisions. . . . . . . . . . . . . . . . . . . . . .323 VIII. Ordering Clauses . . . . . . . . . . . . . . . . . . . . . . . .325 Appendix A: Revised Rules Appendix B: Parties that Filed Comments and Reply Comments I. INTRODUCTION 1. This Report and Order and Second Further Notice of Proposed Rulemaking ("Order" and "Second Further Notice") addresses the issues raised in the Notice of Proposed Rulemaking in CS Docket No. 95-184 ("Inside Wiring Notice"), the Order on Reconsideration and Further Notice of Proposed Rulemaking in MM Docket No. 92-260 ("Cable Home Wiring Further Notice") and the Further Notice of Proposed Rulemaking in CS Docket No. 95-184 and MM Docket No. 92-260 ("Inside Wiring Further Notice") regarding potential changes in our telephone and cable inside wiring rules in light of the evolving telecommunications marketplace. We adopt the amended rules as provided in Appendix A. 2. In this Order, we reach the following conclusions: (a) Disposition of Home Run Wiring We adopt our proposal in the Inside Wiring Further Notice for the disposition of the cable "home run" wiring (i.e., the wiring from the point at which it becomes dedicated to an individual unit in a multiple dwelling unit building ("MDU") to the cable "demarcation point" at or about 12 inches outside that unit) upon a termination of service. We adopt specific procedural mechanisms requiring the sale, removal or abandonment of the home run wiring where the MDU owner (1) terminates service for the entire building and wishes to use the home run wiring for an alternative video service provider, or (2) wants to permit more than one multichannel video programming distributor ("MVPD") to compete for the right to use the home run wiring on a unit-by-unit basis. We will apply our rules regarding the disposition of cable home run wiring to all MVPDs. (b) Sharing of Molding We generally will allow MVPDs to install one or more home run wires within the molding of an MDU where the MDU owner finds that there is sufficient space within existing molding to permit the installation of the additional wiring without interfering with the ability of an existing MVPD to provide service, and the MDU owner gives its affirmative consent. Where the MDU owner finds that there is insufficient space and gives its affirmative consent to the installation of larger molding and additional wiring, we will permit the MDU owner to replace the existing molding at the alternative provider's expense. Alternative providers will be required to pay any and all installation costs and damages associated with the addition of wiring and/or any larger molding that is necessary. (c) Disposition of Cable Home Wiring We conclude that the MDU owner may purchase the wiring within an MDU's individual dwelling units when the MDU owner terminates a video service provider's service for the entire building. We also conclude that the MDU owner may purchase the home wiring if the terminating resident declines to do so. In both cases, the owner may permit an alternative provider to purchase the home wiring. In addition, we conclude that, if a cable operator intends to remove the cable home wiring, it must do so within the seven days provided by our rules if an individual subscriber declines to purchase the wiring and vacates the premises, so long as the operator has reasonable access to the premises during those seven days. (d) MDU Demarcation Point We conclude that it is premature to establish a common telephone and cable demarcation point. Maintaining different sets of rules will not cause confusion because it appears that telephone and cable services will continue to be delivered over separate inside wiring networks for the near future. If and when telephone and cable services begin to be delivered on a wide-scale basis over the same inside wiring, we will revisit this issue. We therefore maintain the current telephone and cable demarcation points. (e) Loop-through cable inside wiring We conclude that cable operators should be required to allow MDU owners to purchase loop-through home wiring where such an owner elects to switch to a new service provider. We will also permit the MDU owner to invoke our procedures for the disposition of home run wiring with regard to the loop-through wiring outside the individual unit up to the riser or feeder cable. (f) Video service provider access to private property We will not establish a federal mandatory access law, nor will we preempt state mandatory access laws. We will not prohibit service providers from entering into exclusive contracts with property owners. As noted below, we will seek comment, however, on whether we should adopt certain restrictions on exclusive contracts in order to further promote competition in the MDU marketplace. (g) Subscriber access to cable home wiring prior to termination of service We will require cable operators to permit consumers to provide or to install their own cable home wiring inside their dwelling unit, or redirect, reroute or connect additional wiring to the cable operator's home wiring, so long as the cable operator's wiring is not substantially altered or harmed and no electronic or physical harm is caused to the cable system. We will not, however, presume that cable subscribers already own their home wiring. (h) Signal leakage We will apply our cable signal leakage rules to non-cable MVPDs that pose a similar threat of interference with frequencies used for over-the-air communications. We will provide a five-year transition period for certain non-cable MVPDs to comply with some of the signal leakage rules. (i) Signal quality We will not apply our cable rules regarding signal quality to other MVPDs. (j) Means of connection We will not mandate a specific type of connector that broadband service providers must use. (k) Dual regulation We conclude that we need not modify the current dual nature of regulation of cable wiring by federal and local authorities, or of telephone wiring by federal and state authorities. (l) Simple/complex and residential/non-residential We conclude that, at this time, we will not modify the definitions within the common carrier and cable rules regarding simple versus complex and residential versus non- residential wiring. (m) Customer premises equipment We conclude that the issues raised in the Inside Wiring Notice regarding customer premises equipment ("CPE") have been superseded by the Telecommunications Act of 1996 (the "1996 Act"), and that the issues will be addressed in our proceeding arising under new Section 629 of the Communications Act. 3. We believe that the record would benefit from additional comment on the following issues described in the Second Further Notice: (1) exclusive service contracts between service providers and MDU owners; (2) applying certain of our cable inside wiring rules to all MVPDs; (3) signal leakage reporting requirements; and (4) simultaneous use of cable home run wiring by multiple MVPDs. II. BACKGROUND A. Telephone Inside Wiring Rules 4. Part 68 of the Commission's rules governs the terms and conditions under which customer premises equipment ("CPE") and wiring may be connected to the telephone network. Part 68 is designed to ensure that terminal equipment and wiring can be connected to the network without causing harm to the network. We have previously stated that Part 68 restrictions should be no greater than necessary to ensure network protection. Furthermore, carriers generally have the burden of showing that any particular Part 68 restriction is necessary. 5. In 1984, the Commission adopted Section 68.213 of the Commission's rules, which allowed customers to connect one and two-line business and residential telephone wiring to the network. The Commission established a demarcation point to mark the end of the carrier network and the beginning of customer-controlled wiring. Under Section 68.213, the demarcation point would "be located on the subscriber's side of the telephone company's protector, or the equivalent thereof in cases where a protector is not employed, as provided under the local telephone company's reasonable and nondiscriminatory standard operating practices." 6. The Commission also issued orders detariffing the installation and maintenance of telephone inside wiring. The Commission first detariffed the installation of complex wiring. In 1986, the Commission extended detariffing to the installation of simple inside wiring and the maintenance of all inside wiring. The Commission allowed carriers to retain ownership of telephone inside wiring, but prohibited carriers from: (1) using their ownership to restrict the removal, replacement, rearrangement or maintenance of telephone inside wiring; (2) requiring customers to purchase telephone inside wiring; and (3) imposing a charge for the use of such wiring. By these detariffing orders, the Commission sought to "foster competition in the inside wiring installation and maintenance markets, to promote new entry into those markets, . . . and to foster the development of an unregulated, competitive telecommunications marketplace." 7. In 1990, the Commission issued a Report and Order and Further Notice of Proposed Rulemaking in CC Docket No. 88-57 ("Common Carrier Wiring Order"), which, among other things, amended the definition of the demarcation point for both simple and complex wiring to ensure that the demarcation point would be near the point where the wiring entered the customer's premises. The revised definition required that the demarcation point generally be no further than twelve inches inside the customer's premises. For single unit installations, the demarcation point must be within twelve inches of the protector, or if there is no protector, within twelve inches of the point at which the wiring enters the customer's premises. For existing multiunit installations, the demarcation point is determined in accordance with the carrier's reasonable and nondiscriminatory standard operating practices. For new wiring installations in multiunit premises, including additions, modifications and rearrangements of existing wiring, the carrier may establish a reasonable and nondiscriminatory practice of placing the demarcation point at the minimum point of entry. When the carrier does not have such a practice, the multiunit premises owner determines the location of the demarcation point or points. If there are multiple demarcation points for either existing or new multiunit installations, the demarcation point for any particular customer may not be further inside the customer's premises than twelve inches from the point at which the wiring enters the customer's premises. 8. In June 1997, the Commission issued the Common Carrier Wiring Reconsideration Order. Among other things, the Commission clarified that the carrier standard operating practices which determine the demarcation point for multiunit installations under Section 68.3(b)(1) are those practices in effect on August 13, 1990, and that Section 68(b)(1) does not authorize changing the demarcation point for an existing building to the minimum point of entry. Reiterating that carriers may not require the customer or building owner to purchase or pay for the use of carrier-installed wiring that is now on the customer's side of the demarcation point, the Commission concluded that the carrier may not remove such wiring. 9. The Common Carrier Wiring Reconsideration Order also amended the telephone demarcation point definition to do the following: (1) clarify that the demarcation point may be located within twelve inches of the point at which the wiring enters the customer's premises "or as near thereto as practicable;" (2) indicate that only major additions or rearrangements of existing wiring are to be treated as new installations under the rule; (3) allow multiunit building owners to restrict customer access to only that wiring located in the customers' individual unit; and (4) require local telephone companies to provide building owners with all available information regarding carrier-installed wiring on the customer's side of the demarcation point (in order to facilitate owners' service and maintenance of such wiring). The Common Carrier Wiring Reconsideration Order also requested comment on certain issues pertaining to the application of the telephone demarcation point rule to complex wiring, the location of the telephone demarcation point away from a building, and telephone wire quality standards for simple inside wiring. B. Cable Inside Wiring Rules 10. Section 16(d) of the Cable Television Consumer Protection and Competition Act of 1992 (the "1992 Cable Act"), codified at Section 624(i) of the Communications Act, requires the Commission to "prescribe rules concerning the disposition, after a subscriber terminates service, of any cable installed by the cable operator within the premises of such subscriber." In February 1993, the Commission issued a Report and Order implementing Section 624(i) (the "Cable Wiring Order"). The Cable Wiring Order provided that when a subscriber voluntarily terminates cable service, the operator is required, if it proposes to remove the wiring, to inform the subscriber: (1) that he or she may purchase the wire; and (2) what the cost per-foot charge is. If the subscriber declined to purchase the home wiring, the operator was required to remove it within 30 days or make no subsequent attempt to remove it or to restrict its use. These rules were designed to advance Section 624(i)'s goals of avoiding the disruption of having the wiring removed and permitting subscribers to use the wiring with an alternative video service provider. 11. We further provided that the subscriber may purchase the cable home wiring inside his or her premises up to the demarcation point. From the customer's point of view, the demarcation point is significant because it defines the wiring that he or she may own or control. For purposes of competition, the demarcation point is significant because it defines the point where an alternative service provider may attach its wiring to the customer's wiring in order to provide service. 12. For single family homes, the cable demarcation point generally is at (or about) 12 inches outside of where the cable wire enters the subscriber's premises. For MDUs with non-"loop-through" wiring, the cable demarcation point is at (or about) 12 inches outside of where the cable wire enters the subscriber's individual dwelling unit. Generally, in a non-loop-through configuration, each subscriber in an MDU has a dedicated line (often called a "home run") running to his or her premises from a common "feeder line" or "riser cable" that serves as the source of video programming signals for the entire MDU building. The riser cable typically runs vertically in a multi-story building (e.g., up a stairwell) and connects to the dedicated home run wiring at a "tap" or "multi-tap," which extracts portions of the signal strength from the riser and distributes individual signals to subscribers. Depending on the size of the building, the taps are usually located in a security box (often called a "lockbox") or utility closet located on each floor, or at a single point in the basement. Each time the riser cable encounters a tap its signal strength decreases. In addition, the strength of a signal diminishes as the signal passes through the coaxial cable. As a result, cable wiring often requires periodic amplification within an MDU to maintain picture quality. Amplifiers are installed at periodic intervals along the riser based upon the number of taps and the length of coaxial cable within the MDU. Non-cable video service providers typically employ a similar inside wiring scheme, except that many of them (e.g., multichannel multipoint distribution services ("MMDS"), satellite master antenna services ("SMATV") and direct broadcast satellite ("DBS") providers) use wireless technologies to deliver their signal to an antenna on the roof of an MDU, and then run their riser cable down to taps and dedicated home run wires from the roof. 13. In the Cable Wiring Order, we said that it was not "necessary or appropriate under the statute" to apply our cable home wiring rules prior to the time the customer terminates cable service. We noted that the plain language of Section 624(i) refers only to the disposition of cable home wiring after termination of service, and that cable home wiring is different from telephone wiring in that, for example, cable operators have the responsibility to prevent signal leakage, a responsibility telephone companies do not have. We also cited the House Report on the 1992 Cable Act which stated that Section 16(d) itself "does not address matters concerning the cable facilities inside the subscriber's home prior to termination of service." Also in the Cable Wiring Order, the Commission stated: [a]lthough we generally believe that broader cable home wiring rules could foster competition and could potentially be considered in the context of other proceedings, because of the time constraints under which we must promulgate rules as required by the Cable Act of 1992, we decline to address such rule proposals in this proceeding. 14. In January 1996, the Commission issued the Cable Home Wiring Further Notice. Among other things, the Commission clarified that, during the initial telephone call in which a subscriber voluntarily terminates cable service, if the operator owns and intends to remove the home wiring, it must inform the subscriber: (1) that the cable operator owns the home wiring; (2) that it intends to remove the home wiring; (3) that the subscriber has a right to purchase the home wiring; and (4) what the per-foot replacement cost and total charge for the wiring would be, including the replacement cost for any passive splitters attached to the wiring on the subscriber's side of the demarcation point. Where an operator fails to adhere to these procedures, it is deemed to have relinquished immediately any and all ownership interests in the home wiring, and thus, is not entitled to compensation for the wiring and may make no subsequent attempt to remove it or restrict its use. If the cable operator informs the subscriber of his or her rights and the subscriber agrees to purchase the wiring, constructive ownership over the home wiring transfers immediately to the subscriber, who may authorize a competing service provider to connect with and use the home wiring. If, on the other hand, the subscriber declines to purchase the home wiring, the operator has seven business days to remove the wiring or make no subsequent attempt to remove it or restrict its use. 15. The Cable Home Wiring Further Notice also requested comment on certain issues pertaining to home wiring. These issues included: (1) whether cable operators should be required to allow a building owner to purchase loop-through home wiring where all subscribers on a loop want to switch to a new video service provider; (2) whether our home wiring rules should apply when an MDU owner terminates service for the entire building; (3) the disposition of cable home wiring when a subscriber terminates cable service, elects not to purchase the wiring and vacates the premises within the time period the operator has to remove the home wiring; and (4) whether, when a subscriber voluntarily terminating service does not own the premises, the premises owner should have the right to purchase the home wiring if the subscriber declines to purchase it. 16. Also in January 1996, the Commission issued the Inside Wiring Notice, where we sought comment on whether and how we should revise our current telephone and cable inside wiring rules to reflect these new realities and promote competition, by ensuring that the Commission's inside wiring rules continue to facilitate the development of new and diverse services for the American public. In particular, we sought comment on whether it is technically and competitively desirable to create a uniform set of inside wiring rules that would apply to telephone companies and cable operators alike, or, in the alternative, that would apply according to the technical characteristics of the service -- e.g., narrowband or broadband -- or the type of wiring used -- e.g., fiber optics, coaxial cable or twisted-pair wiring. Specific issues on which we sought comment include: (1) the location of the demarcation point; (2) the legal and practical impediments faced by telecommunications service providers in gaining access to subscribers; (3) subscriber ownership of, or access to, inside wiring; (4) technical connection parameters; (5) issues arising from the dual regulation of inside wiring by federal and local authorities; (6) the regulation of telephone simple and complex inside wiring, and of residential and non-residential wiring; and (7) the regulation of customer premises equipment used to receive cable and telephone service. 17. In addition, as described below, the Commission issued the Inside Wiring Further Notice in August 1997 to request comment on proposed 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. III. REPORT AND ORDER A. Disposition of Home Run Wiring 1. Background a. Commission Proposal 18. In the Inside Wiring Further Notice, we sought comment on a proposal to establish procedures for building-by-building disposition of the home run wiring (where the MDU owner decides to convert the entire building to a new video service provider) and for unit-by-unit disposition of the home run wiring (where an MDU owner is willing to permit two or more video service providers to compete for subscribers on a unit-by-unit basis) where the MDU owner wants the alternative provider to be able to use the existing home run wiring. The Commission's proposal was a modified version of a procedural mechanism proposed by ICTA, which ICTA argued would accomplish many of the same objectives as moving the cable demarcation point. 19. We generally proposed that, under our building-by-building procedures, where the incumbent service provider owns the home run wiring in an MDU and does not (or would not at the conclusion of the notice period) have a legally enforceable right to remain on the premises, and the MDU owner wants to be able to use the existing home run wiring for service from another provider, the MDU owner may give the incumbent service provider a minimum of 90 days' notice that the provider's access to the entire building will be terminated. The incumbent provider would then have 30 days to notify the MDU owner in writing of its election to do one of the following for all the home run wiring inside the MDU: (1) to remove the wiring and restore the MDU to its prior condition by the end of the 90-day notice period; (2) to abandon and not disable the wiring at the end of the 90-day notice period; or (3) to sell the wiring to the MDU owner. 20. We also generally proposed that, under the unit-by-unit procedures, where the incumbent video service provider owns the home run wiring in an MDU and does not (or would not at the conclusion of the notice period) have a legally enforceable right to maintain its home run wiring on the premises, the MDU owner may permit multiple service providers to compete head-to-head in the building for the right to use the individual home run wires dedicated to each unit. Where an MDU owner wishes to permit such head-to-head competition, the MDU owner would have to provide at least 60 days' notice to the incumbent provider of the owner's intention to invoke the following procedure. The incumbent service provider would then have 30 days to provide the MDU owner with a written election as to whether, for all of the incumbent's home run wires dedicated to individual subscribers who may later choose the alternative provider's service, it would: (1) remove the wiring and restore the MDU to its prior condition; (2) abandon the wiring without disabling it; or (3) sell the wiring to the MDU owner. 21. After completion of this initial process, a provider's election would be carried out if and when the provider is notified either orally or in writing that a subscriber wishes to terminate service and that an alternative service provider intends to use the existing home run wire to provide service to that particular subscriber. We proposed that, at that point, a provider that has elected to remove its home run wiring would have seven days to do so and to restore the building to its prior condition. We proposed that if the current service provider elected to abandon or sell the wiring, the abandonment or sale would become effective seven days from the date it receives a request for service termination or upon actual service termination, whichever occurs first. 22. We expressed a preference that, where the incumbent provider elects to sell the wiring in either the building-by-building or the unit-by-unit context, the price be determined through private negotiations. We also sought comment, however, on whether the Commission should establish broad guidelines, a default price or a general rule or formula if market forces are insufficient to ensure a reasonable price. We proposed that, if the parties could not agree on a price during the 30-day negotiation period, the incumbent provider would be required to elect one of the other two options (i.e., abandonment or removal). We sought comment on whether we should impose penalties on incumbent providers that elect to remove their home run wiring and then fail to do so. b. Comments 23. Several parties offer general support for the Commission's disposition of home run wiring proposals. For example, GTE asserts that the Commission's proposals would resolve current uncertainties over wiring ownership and would foster competition. Ameritech and SBC state that the Commission's proposals would promote competition and customer choice. OpTel believes that the proposed disposition procedures would reduce entry barriers and increase competition. Certain cable interests concede that the proposed procedures for the unit-by-unit disposition of home run wiring would promote competition and consumer choice. 24. Cable interests generally argue that the Commission lacks statutory authority to adopt the proposed procedures. They also claim that the procedures will not further Congressional objectives or the Commission's stated goals of promoting consumer choice and competition in the multichannel video programming delivery marketplace. NCTA, for example, claims that Congress did not intend for the Commission's rules to deal with MDU wiring outside the individual subscriber's premises, and that the rules do nothing to achieve their intended purpose of bringing order and certainty to the disposition of home run wiring. 25. GTE appears to support the Commission's proposed time frames for the procedures, claiming in its comments that they would afford incumbents an adequate opportunity to evaluate their options, without causing unnecessary delay. Comcast, et al., contend that the time periods under the procedures must be flexible because the incumbent may need more time to remove the wiring or the new MVPD may not be ready to provide service. Other commenters urge the Commission to shorten the time periods. For example, ICTA proposes shortening the time frame for unit-by-unit dispositions of home run wiring. ICTA recommends giving MDU owners 15 days to provide notice to the incumbent that it intends to allow a second provider access. The incumbent would then have to provide its written election notice by the end of that same 15-day period. An abandonment election would become effective immediately and a removal election would have to be implemented within seven days after the second provider gives notice to the incumbent that the replacement wire is installed and functional. ICTA proposes that, under a sale election, the parties would have 30 days to negotiate a price and, after an agreement is reached, the parties would have seven days to effectuate the sale on a per unit basis if there has been no lump sum purchase. If within the 30-day period, negotiations are terminated or if the 30-day period closes, the incumbent would have seven days to elect removal or abandonment. To speed negotiations, ICTA suggests that the incumbent provider be required to include its asking price at the time of its written election for a sale. 26. Community Associations Institute, on the other hand, suggests that a longer notice period might be appropriate for deciding the sale of wiring and negotiating a price. Community Associations Institute suggests that community association boards be allowed to make an initial election regarding the desire to purchase wiring on day 30, or as soon thereafter as the association board is able to meet, and that the negotiation period be extended to 60 days after the date of the board's decision with transfer of ownership on the earlier of (1) 30 days following the end of the negotiation period, or (2) the date of actual service termination. Community Associations Institute also believes that, under the unit-by-unit procedure for the disposition of home run wiring, MDU owners should be allowed to decide whether they or the alternative provider will purchase the wiring when the subscriber declines to do so on day 60, after they have received the per foot replacement cost from the incumbent, rather than on day one. 27. With regard to imposing penalties for an incumbent's failure to fulfill a removal election, SBC argues that the incumbent's desire to maintain good will in the community obviates the need to adopt such penalties. Several commenters, however, recommend imposing steep fines on cable operators that, in an effort to discourage MDU owners from switching providers, falsely elect the removal option when they have no intention of removing the wire. Nat'l Assn. of Realtors recommends that the Commission give MDU owners the right to have incumbent service providers remove all wiring belonging to the incumbent provider that cannot be used by the owner or the incoming provider. 28. In their reply comments, cable operators generally oppose any rule that would make an election to remove irrevocable or that would impose any penalty on an incumbent's failure to remove its wiring after electing to do so. Time Warner and NCTA argue that to make a removal election irrevocable would interfere with the parties' ability to reach a negotiated settlement after such an election. In addition, NCTA argues that the Commission's existing complaint procedures can address the issue of penalties on a case-by-case basis. 29. Several parties support the adoption of a general rule requiring the parties to cooperate in good faith to ensure a seamless transition in order to protect new entrants against anticompetitive tactics not otherwise covered by the Commission's rules. RCN proposes that an incumbent not be allowed to remove or disable any equipment until the earlier of the date upon which the alternative provider is ready to initiate service or 30 days after the incumbent elects to abandon or remove the wiring. ICTA urges the Commission to clarify that "any service termination by the incumbent provider prior to the end of the established date certain cannot abrogate any contractual right of the MDU owner and that such termination cannot occur in advance of the alternative service provider's initiation of service" (unless both the incumbent and alternative provider agree in writing on a different date certain). ICTA argues that allowing the incumbent to terminate service before the end of the notice period would cause a disruption in service and thus discourage MDU owners from switching providers. Building Owners, et al., suggest that, in order to assure proper performance during removal of the wiring and restoration of the building, the Commission require that the incumbent post a security bond worth twice the value the operator sets for the wiring. 30. DIRECTV believes that in order for the proposed rules to be effective: (1) the incumbent must remove the wiring in its entirety without disabling the ability of other providers to connect new home run wiring; (2) incumbents must be required to coordinate removal of the home run wiring with the MDU owner so that the new provider can lay new wiring before the old wiring is removed; (3) restoration should not occur until the new home run wiring is installed; and (4) the MDU owner must be allowed to restore the building itself and charge the incumbent all reasonable restoration costs, if the incumbent completes removal before the new MVPD is ready to replace the wiring. 31. In reply, NCTA argues that state courts should decide whether and in what circumstances incumbents have a duty to restore a building after termination, and whether and to what extent damages are appropriate. Time Warner proposes that, instead of a restoration requirement, the Commission simply require the removing MVPD to "repair any damages to the MDU building directly caused by negligent removal of such wiring," similar to the standard in Section 621(a)(2)(C) of the Communications Act. Cable operators argue that the proposal to require a performance bond is merely an effort to restrict the incumbent's ability to remove the wiring, in the hope of receiving a windfall, and that there is no evidence that failure to repair damage is a problem. 32. Media Access/CFA argues that because the removal option would allow incumbents to add cost and delay to the commencement of an alternative service, removal or abandonment should not become options unless the subscriber, MDU owner, and alternative provider have declined to purchase the wiring. GTE argues that since access to molding and conduits is essential to effectuate access to cable wiring, the Commission must clarify that incumbents are required to transfer or relinquish all rights in molding or conduit when they sell, remove, or abandon their wiring. 33. DIRECTV believes that, if the Commission fails to move the demarcation point, it should at least apply the rules adopted for home wiring to home run wiring so that cable operators will be required to offer to sell home wiring to the subscriber at the replacement cost of the wire. DIRECTV would define the replacement cost for wiring tendered at the conclusion of the contract term as the salvage value, while it would define the replacement cost for wiring tendered at any other time as the wholesale replacement cost. DIRECTV states that the rules should also provide the option for an incumbent to sell the wiring at a nominal price or abandon it, and that removal should only occur after an offer for sale has been declined. 34. Media Access/CFA claims that, by impeding viewers' access to a multiplicity of news and information sources, the proposed framework would contravene the First Amendment, Section 624 of the Communications Act, and Section 207 of the 1996 Act. Media Access/CFA argues that this proceeding and the Commission's Section 207 proceeding are interdependent and must be considered together because a viewer's ability to install an over-the-air reception device under Section 207 is meaningless without access to inside wiring. Similarly, NAB argues that the Commission's proposals overlook the fact that Section 207 grants individual viewers the right to access over-the-air broadcast signals including, if necessary, via a rooftop antenna. 2. Discussion a. The MDU Competitive Environment 35. We continue to believe, as discussed at length in the Inside Wiring Further Notice, that more is needed to foster the ability of subscribers who live in MDUs to choose among competing service providers. As we found in the Inside Wiring Further Notice, we believe that one of the primary competitive problems in MDUs is the difficulty for some service providers to obtain access to the property for the purpose of running additional home run wires to subscribers' units. The record indicates that MDU property owners often object to the installation of multiple home run wires in the hallways of their properties, for reasons including aesthetics, space limitations, the avoidance of disruption and inconvenience, and the potential for property damage. 36. We also continue to believe that property owners' resistance to the installation of multiple sets of home run wiring in their buildings may deny MDU residents the ability to choose among competing service providers, thereby contravening the purposes of the Communications Act, and particularly Section 624(i), which was intended to promote consumer choice and competition by permitting subscribers to avoid the disruption of having their home wiring removed upon voluntary termination and to subsequently utilize that wiring for an alternative service. We continue to believe that the impact is substantial. As of 1990, there were almost 31.5 million multiple dwelling units in the United States, comprising approximately 28% of the total housing units nationwide. Moreover, the trend between 1980 and 1990 indicates that the number of MDUs is growing at a much faster rate than the number of single family dwellings. Data also shows that MDUs make up between 32% and 84% of the housing market in cities with the greatest numbers of households receiving cable service. 37. Although some cable operators argue that the current cable demarcation point rule should be maintained in order to encourage property owners to permit the installation of multiple sets of wires, the record does not demonstrate that the current cable home wiring rules, having been in place for four years, provide adequate incentives for MDU owners to permit the installation of multiple home run wires. In its most recent comments, Time Warner asserts that over 104 MDU buildings in Manhattan have opted to allow two-wire competition in the first eight months of 1997, bringing the total to 247 such MDUs. While we do not dispute Time Warner's count, we note that Time Warner has not provided any estimate of the total number of MDUs in Manhattan, nor has Time Warner challenged our stated belief in the Inside Wiring Further Notice that the presence of multiple wires in MDUs is substantially due to the existence of state mandatory access statutes (such as New York's) and not to a desire for multi- wire competition on the part of property owners. Even assuming that this belief is incorrect and MDU owners perceive a competitive benefit to two-wire competition, there is nothing in the procedures we adopt today that will prevent or impair an MDU owner's ability to insist that all MVPDs install their own home run wiring. 38. As set forth in the Inside Wiring Further Notice, we believe that disagreement over ownership and control of the home run wire substantially tempers competition. The record indicates that, where the property owner or subscriber seeks another video service provider, instead of responding to competition through varied and improved service offerings, the incumbent provider often invokes its alleged ownership interest in the home run wiring. Incumbents invoke written agreements providing for continued service, perpetual contracts entered into by the incumbent and previous owner, easements emanating from the incumbent's installation of the wiring, assertions that the wiring has not become a fixture and remains the personal property of the incumbent, or that the incumbent's investment in the wiring has not been recouped, and oral understandings regarding the ownership and continued provision of services. Written agreements are frequently unclear, often having been entered into in an era of an accepted monopoly, and state and local law as to their meaning is vague. Invoking any of these reasons, incumbents often refuse to sell the home run wiring to the new provider or to cooperate in any transition. The property owner or subscriber is frequently left with an unclear understanding of why another provider cannot commence service. The litigation alternative, an option rarely conducive to generating competition, while typically not pursued by the property owner or subscriber, can be employed aggressively by the incumbent. The result, regardless of the cable operators' motives, is to chill the competitive environment. b. Procedures for the Disposition of Home Run Wiring 39. In this Order, we establish procedures for building-by-building disposition of the home run wiring (where the MDU owner decides to convert the entire building to a new video service provider) and for unit-by-unit disposition of the home run wiring (where an MDU owner is willing to permit two or more video service providers to compete for subscribers on a unit-by-unit basis) where the MDU owner wants the alternative provider to be able to use the existing home run wiring. We believe that our procedural mechanisms will not create or destroy any property rights, but will promote competition and consumer choice by bringing order and certainty to the disposition of the MDU home run wiring upon termination of service. 40. As we noted in the Inside Wiring Further Notice, alternative video service providers currently have no timely and reliable way of ascertaining whether they will be able to use the existing home run wiring upon a change in service. As explained above, MDU owners are similarly unsure of their legal rights. Because of this uncertainty, an MDU owner seeking to change providers may be confronted with choosing among: (1) allowing the alternative provider to install duplicative home run wiring before it knows whether the incumbent will abandon the existing home run wiring when it leaves; (2) waiting to see what the incumbent does with the home run wiring when it leaves the building, risking a potential disruption in service to its residents; (3) staying with the incumbent provider; or (4) allowing the alternative provider to use the home run wiring and risking litigation. This dilemma can impede competition by discouraging MDU owners from considering a change in service. The procedures we are adopting are intended to provide all parties sufficient notice and certainty of whether and how the existing home run wiring will be made available to the alternative video service provider so that a change in service can occur efficiently. We clarify that riser cable is not covered by the following procedures. We conclude that establishing rules governing the disposition of the MDU home run wiring will represent a substantial step toward increased competition in the MDU video programming service marketplace. (1) Building-by-Building Procedures 41. We adopt the following rule: where the incumbent service provider owns the home run wiring in an MDU and does not (or will not at the conclusion of the notice period) have a legally enforceable right to remain on the premises, and the MDU owner wants to be able to use the existing home run wiring for service from another provider, the MDU owner may give the incumbent service provider a minimum of 90 days' written notice that the provider's access to the entire building will be terminated. The incumbent provider will then have 30 days to notify the MDU owner in writing of its election to do one of the following for all the home run wiring inside the MDU: (1) to remove the wiring and restore the MDU consistent with state law within 30 days of the end of the 90-day notice period or within 30 days of actual service termination, whichever occurs first; (2) to abandon and not disable the wiring at the end of the 90-day notice period; or (3) to sell the wiring to the MDU owner. If the MDU owner refuses to purchase the home run wiring, the MDU owner may permit the alternative video service provider to purchase it. If the incumbent provider elects to remove or abandon the wiring, and it intends to terminate service before the end of the 90-day notice period, the incumbent provider will be required to notify the MDU owner at the time of this election of the date on which it intends to terminate service. 42. Certain cable operators argue that the proposed procedures should not apply when an MDU owner terminates service for an entire building. These commenters assert that these circumstances do not engender a competitive choice for each resident. We disagree that the building-by-building procedural mechanism does not benefit consumer choice because it merely substitutes one MVPD for another. This argument assumes that any MVPD that serves the entire building has the ability to act like an entrenched monopolist, without regard to the quality and quantity of the video service provided. We do not believe this assumption is valid. Generally, MVPDs encounter an environment in which the MDU owner must compete with similarly-situated MDU owners to attract and retain tenants. Commenters have not demonstrated that the type of video services offered is irrelevant to such competition among MDUs. MVPDs competing for the right to serve the building generally will have to offer the mix of video service quality, quantity and price that will best help the MDU owner compete in the marketplace. 43. Where the incumbent provider elects to sell the home run wiring, we will allow the parties to negotiate the price of the wiring. We agree with commenters that argue market forces will provide adequate incentives for the parties to reach a reasonable price, particularly in these circumstances where the incumbent has no legally enforceable right to remain on the premises. The parties will have 30 days from the date of the incumbent's election to negotiate a price for the home run wiring. The parties may also negotiate to purchase additional wiring (e.g., riser cables) at their option. If the parties are unable to agree on a price, the incumbent will then be required to elect: (1) to abandon without disabling the wiring; (2) to remove the wiring and restore the MDU consistent with state law; or (3) to submit the price determination to binding arbitration by an independent expert. If the incumbent fails to comply with any of the deadlines established herein, it will be deemed to have elected to abandon its home run wiring at the end of the 90-day notice period. If the incumbent service provider elects to abandon its wiring at this point, the abandonment will become effective at the end of the 90-day notice period or upon service termination, whichever occurs first. Similarly, if the incumbent elects at this point to remove its wiring and restore the building consistent with state law, it will have to do so within 30 days of the end of the 90-day notice period or within 30 days of actual service termination, whichever occurs first. 44. At this time we decline to establish a penalty for an incumbent provider that fails to remove wiring after electing to do so, or, for that matter, for any other party that violates our cable inside wiring rules. As a result, we do not need to establish any particular penalty amounts. We think that our procedures and present and future opportunities provided by the market will afford all parties the necessary incentives to create an effective and efficient transition. We expect all parties participating in the procedures for the disposition of home run wiring to cooperate and act in full compliance with our rules and the policies underlying them. Similarly, at this time we will not require the incumbent to post a performance bond prior to removal. There is not sufficient evidence to conclude that a significant problem will exist, or that MDU owners are unable to protect their interests pursuant to contract or state law. 45. If the incumbent chooses to abandon or remove its wiring, it must notify the MDU owner at the time of this election if and when it intends to terminate service before the end of the 90-day notice period. In addition to this and other notice requirements, we will adopt a general rule requiring the parties to cooperate to avoid service disruption to subscribers to the extent possible. One of our overriding goals in this proceeding is to ensure as seamless a transition as possible. Our rules are premised on the good faith cooperation of all parties to protect against such disruption. We expect service providers to cooperate and to make all necessary efforts to minimize any service disruption when a transition is undertaken. 46. If the parties are unable to agree on a price and the incumbent elects to submit to binding arbitration, the parties will have seven days to agree on an independent expert or to each designate an expert who will pick a third expert within an additional seven days. The independent expert chosen will be required to assess a reasonable price for the home run wiring by the end of the 90-day notice period. We believe that it is not practical for the Commission to set a default price or formula that could apply to the widely varying circumstances throughout the country. We think that this process should help ensure that the parties reach a fair price, while not creating a lengthy and complicated mechanism. If the incumbent elects to submit the matter to binding arbitration and the MDU owner (or, in some cases, the alternative provider) refuses to participate, the incumbent will have no further obligations under our home run wiring disposition procedures. 47. We decline to adopt the proposal of Adelphia, et al., and Time Warner to require the MDU owner, rather than the incumbent provider, to elect: (1) to buy the wiring; (2) to pay to remove it; or (3) to allow the incumbent to leave the wiring in place and restrict others from using it. Similarly, we decline to adopt the proposal of NCTA and others that, if the MDU owner refuses to buy the wiring at an established default price, or if the MDU owner cannot demonstrate that the incumbent has failed to negotiate in good faith, the procedures should terminate and the incumbent provider should not be obligated to abandon or remove the home run wiring. We believe that the binding arbitration option described above addresses these commenters' underlying concern that incumbents should be assured of receiving a reasonable price for the wiring. As we have noted, we think competition has been deterred by prolonged assertions of ownership interest in the wiring by incumbents, not by MDU owners' reluctance to purchase the wiring. Our procedures are meant to bring the process of switching video service providers to an expeditious resolution. 48. We will not adopt the suggestion of several cable operators that the proposed building-by- building procedures not apply where the MDU owner receives any excess compensation for allowing the alternative provider into the premises, or where the MDU owner bundles video service with rent. We do not believe that there is sufficient record evidence to establish that such practices are per se anti- competitive and, if they are, that market forces will not address them. (2) Unit-by-Unit Procedures 49. We adopt the following procedures for unit-by-unit disposition of home run wiring. Where the incumbent video service provider owns the home run wiring in an MDU and does not (or will not at the conclusion of the notice period) have a legally enforceable right to maintain its home run wiring on the premises, the MDU owner may permit multiple service providers to compete head-to-head in the building for the right to use the individual home run wires dedicated to each unit. Where an MDU owner wishes to permit such head-to-head competition, the MDU owner must provide at least 60 days' written notice to the incumbent provider of the owner's intention to invoke the following procedure. The incumbent service provider will then have 30 days to provide the MDU owner with a written election as to whether, for all of the incumbent's home run wires dedicated to individual subscribers who may later choose the alternative provider's service, it will: (1) remove the wiring and restore the MDU consistent with state law; (2) abandon the wiring without disabling it; or (3) sell the wiring to the MDU owner. In other words, the incumbent service provider will be required to make a single election for how it will handle the disposition of individual home run wires whenever a subscriber wishes to switch video service providers; that election will then be implemented each time an individual subscriber switches service providers. If the MDU owner permits the alternative service provider to purchase the home run wiring, the alternative service provider will be required to make a similar election within this same 30-day period for any home run wiring that the alternative provider subsequently owns (i.e., after the alternative provider has purchased the wiring from the current incumbent provider) and that is solely dedicated to a subscriber who switches back from the alternative provider to the incumbent. 50. In the Inside Wiring Further Notice, we tentatively concluded that it would streamline and expedite the process of changing service providers if alternative service providers and MDU owners were permitted to act as subscribers' agents in providing notice of a subscriber's desire to change services. We continue to believe that this is the case. However, consistent with our intention not to "create or destroy any property rights" by these procedures, we will not create any new right of MDU owners and alternative providers to act on behalf of subscribers in terminating service. Nor will we restrict the rights of such MDU owners and alternative providers under state law. We therefore decline at this time to adopt specific procedures to guard against unauthorized changes in service, i.e., "slamming." Given that an unauthorized change of MVPDs would likely be apparent to consumers (e.g., differing channel line-ups), we do not believe that slamming poses the same dangers in the video context as in the telephony context. We will take additional steps to curb slamming if, once our new rules have become effective, slamming becomes a problem. 51. As with the proposed building-by-building procedures, we will permit the parties to negotiate for the sale of the home run wiring. If one or both of the video service providers elects to negotiate for the sale of the home run wiring it may own, the parties will have 30 days from the date of such election to reach an agreement. During this 30-day negotiation period, the incumbent, the MDU owner and/or the new provider may also work out arrangements for an up-front lump sum payment in lieu of a unit-by-unit payment. An up-front lump sum payment would permit either service provider to use the home run wiring to provide service to a subscriber without the administrative burden of paying separately for each home run wire every time a subscriber changes providers. 52. If the parties cannot agree on a price, the provider that has elected to sell the wiring will be required to elect: (1) to abandon without disabling the wiring; (2) to remove the wiring and restore the MDU consistent with state law; or (3) to submit the price determination to binding arbitration by an independent expert. If the incumbent fails to comply with any of the deadlines established herein, the home run wiring will be considered abandoned and the incumbent may not prevent the alternative provider from using the home run wiring immediately to provide service. 53. If the incumbent elects to submit to binding arbitration, the parties will have seven days to agree on an independent expert or each designate an expert who will pick a third expert within an additional seven days. The independent expert chosen would be required to assess the price for the wiring within 14 days. We realize that the expert's price determination may not be issued for up to 28 days after the 60-day notice period has expired. If subscribers wish to switch service providers during this period, the procedures set forth below should be followed, subject to the price established by the arbitrator. As stated above with regard to the building-by-building procedures, we believe that it is not practical for the Commission to set a default price or formula that would apply to the widely varying circumstances throughout the country. If the MDU owner (or, in some cases, the alternative provider) refuses to participate, the incumbent's obligations under the Commission's home run wiring procedures will cease. 54. After completion of this initial process, a provider's election will be carried out if and when the provider is notified either orally or in writing that a subscriber wishes to terminate service and that an alternative service provider intends to use the existing home run wire to provide service to that particular subscriber. At that point, a provider that has elected to remove its home run wiring will have seven days to do so and to restore the building consistent with state law. If the subscriber has requested service termination more than seven days in the future, the seven-day removal period will begin on the date of actual service termination (and, in any event, shall end no later than seven days after the requested date of termination). We conclude that seven days is adequate for removal because we believe that, unlike in the building-by-building context, the provider will only be required to remove a single home run wire. 55. If the current service provider has elected to abandon or sell the wiring, the abandonment or sale will become effective upon actual service termination or upon the requested date of termination, whichever occurs first. If the incumbent provider intends to terminate service prior to the end of the seven-day period, the incumbent will be required to inform the subscriber or the subscriber's agent (whichever is notifying the incumbent that the subscriber wishes to terminate service) at the time of the request for service termination of the date on which service will be terminated. In addition, the incumbent provider must disconnect the home run wiring from its lockbox and leave it accessible for the new provider within 24 hours of actual service termination. 56. We base the above procedures on the assumption that the alternative service provider will have an incentive to ensure that the incumbent is notified that the alternative service provider intends to use the existing home run wire to provide service. If, however, the subscriber's service is simply terminated without any indication that a competing service provider wishes to use the home run wiring, the incumbent service provider will not be required to carry out its election to sell, remove or abandon the home run wiring. This might occur, for instance, where an MDU tenant is moving out of the building. In such cases, we do not believe that it would be appropriate to require the incumbent to sell, remove or abandon the home run wiring when it might have every reasonable expectation that the next tenant will request its service. However, the incumbent provider will be required to carry out its election with regard to the home run wiring if and when it receives notice from a subsequent tenant (either directly or through an alternative provider) that the tenant wishes to use the home run wiring to receive a competing service. 57. Where the incumbent receives a request for service termination but does not receive notice that an alternative provider wishes to use the home run wiring, the incumbent will still be required to follow the procedures set forth in our cable home wiring rules -- e.g., to offer to sell to the subscriber any cable home wiring that the incumbent provider otherwise intends to remove. The required notice in the unit-by-unit context may be effected in two stages (i.e., the subscriber may call to terminate service and the alternative provider may separately notify the incumbent that it wishes to use the home run wiring). In order for the home run wiring and the home wiring to be disposed of in a coordinated manner, we believe that our cable home wiring rules must apply upon any termination of service. In addition, we believe that subscribers should have the right to purchase their home wiring to protect themselves from unnecessary disruption associated with removal of home wiring, regardless of whether they intend to subscribe to an alternative service. (3) Ownership of Home Run Wiring 58. In both the building-by-building and unit-by-unit approaches, the MDU owner will have the initial option to negotiate for ownership and control of the home run wiring because the property owner is responsible for the common areas of a building, including safety and security concerns, compliance with building and electrical codes, maintaining the aesthetics of the building and balancing the concerns of all of the residents. Moreover, vesting ownership of the home run wiring in the MDU owner, as opposed to the alternative service provider, will reduce future transaction costs since the above procedures will not need to be repeated if service is subsequently switched again. Nevertheless, we recognize that some MDU owners may not want to own the home run wiring in their buildings; in such cases, the MDU owner may permit the alternative service provider to purchase the wiring. 59. We do not believe that individual subscribers will be disadvantaged by having the MDU owner own the home run wiring. If a subscriber has the ability to choose between multiple service providers in the unit-by-unit context, the MDU owner has already concluded that it is willing to permit multiple service providers on the premises in order to compete for subscribers. Since the MDU owner will have voluntarily opened its building to multiple competitors, we do not believe that it will deny a resident the ability to use the home run wiring for the resident's provider of choice. Furthermore, we believe that, if the alternative service provider purchases the home run wiring, that provider will not be able to act as a bottleneck and the individual subscriber will continue to be protected because, as described herein, the alternative service provider will also be subject to these same procedures if and when the alternative provider's service is terminated. 60. As we have noted, several cable interests contend that the Commission's belief that MDU owners will act in the best interest of the residents in their buildings is misplaced. According to these commenters, MDU owners more often act based on their own immediate financial interest. They contend that MDU owners are the true bottlenecks to competition in that they have a direct financial interest in granting exclusive access to alternative MVPDs, either because of a direct financial investment in a non-cable MVPD seeking to serve the building or because of large "kickbacks." Time Warner claims that the Commission cannot point to any reliable evidence that the real estate market is responsive to the video service interests of MDU residents. TCI, however, supports the Commission's proposal to give MDU owners, rather than the competing MVPDs, the initial option to negotiate for ownership and control of the home run wiring. Not only is the MDU owner responsible for the safety and security concerns in the common areas, TCI asserts, but MDU owner control could reduce future transaction costs and administrative hassles, particularly in the unit-by-unit context where service may be switched back and forth between providers. The result will reduce disruption to the subscriber. 61. We agree with those commenters that argue that MDU owners seek to maximize their profits, but disagree that this incentive always leads them to be willing and able to ignore their tenants' desires. Even some cable operators recognize that many MDU owners (e.g., condominium associations and cooperative boards) are representative of their residents' interests. We continue to believe that, in rental MDUs, market forces will compel MDU owners in competitive real estate markets to take their tenants' desires into account. It is not, as some commenters suggest, that we assume that viewers will move from one MDU to another based on the video services provided. Rather, it is that a significant percentage of MDU renters move each year, and MDU owners must compete with rival owners to keep current residents and attract additional residents. In this context, an MDU owner that agrees to an exclusive contract in exchange for a monetary payment but does not somehow flow that payment through to its residents (e.g., a new swimming pool, a security system, or discounting the rent below the competitive level) is vulnerable to competition from similarly situated MDUs offering a more attractive mix of price and amenities to prospective tenants. If the MDU owner tries to simply keep the payment, new tenants will not be as attracted to the building and existing tenants will have an additional reason to relocate to another MDU (e.g., an otherwise similar residence where, to attract tenants, the owner has utilized its exclusive access payment to reduce rent or improve amenities). We believe that consumer welfare will be maximized by letting the market determine the appropriate mix of price and amenities in the MDU marketplace. 62. In the Inside Wiring Further Notice, we also sought comment on whether we should adopt a rule requiring video service providers to transfer to the MDU owner upon installation ownership of the home wiring and home run wiring installed in MDUs under contracts entered into on or after the effective date of any rules we may adopt. We stated that such a rule might increase competition and consumer choice in future installations by permitting MDU owners to control access to the home run wiring from the start. 63. Cable commenters that addressed the issue of requiring video providers to transfer ownership of the wiring to the MDU owner upon installation generally contend that, not only does the Commission not have authority to establish such a restriction, but as a policy matter, MDU owners and video providers are capable of protecting their own interests in contracts and the Commission should not interfere. Adelphia, et al., and Time Warner, however, suggest that, instead of adopting the proposed procedures, the Commission should require video providers and MDU owners to include in their service contracts a clear provision which specifically provides for the disposition of home run wiring. 64. Several other commenters also argue that the Commission should not adopt a rule requiring video service providers to transfer ownership of all newly installed cable wiring upon installation. GTE and Heartland Wireless claim that such a rule would be outside the Commission's statutory authority and would be inconsistent with the procompetitive, deregulatory nature of the 1996 Act. Media Access/CFA maintains its position that tenants should be given the first opportunity to purchase the wire. 65. Ameritech argues that ownership of inside wire in future installations should be transferred to the MDU owner. Ameritech proposes that the MVPD should be able to dedicate ownership of the inside wiring to the MDU owner free of charge in exchange for the MDU owner's agreement not to grant exclusive rights to any other MVPD, unless the second MVPD pays the first MVPD 100% of the first MVPD's original cost to install its cable inside wire. RCN believes the Commission should require video providers to transfer to the MDU owner, upon installation, ownership of inside wiring, but only to the extent that the MDU owner desires ownership. RCN proposes the same transfer for molding and conduits. 66. We will not require video service providers to transfer ownership of cable inside wiring to MDU owners upon installation. At this time, we believe this issue is best left to marketplace negotiations between the service provider and the MDU owner. Some MDU owners may choose to bargain for ownership of the inside wiring, while others may prefer to let the service provider maintain ownership. We are not convinced that MDU owners have insufficient bargaining power in this situation to protect their interests. Even under the home run disposition procedures adopted above, we recognize that some MDU owners may not wish to exercise ownership over the inside wiring. We believe that MDU owners should have the same option at the time of installation. 67. We do believe, however, that all parties involved would benefit from additional certainty regarding ownership of the home run wiring upon termination of a service contract. For any contracts between MVPDs and MDU owners entered into after the effective date of our rules, we will require the MVPD to include a provision describing the disposition of the home run wiring upon the contract's termination. We believe that such a rule will provide certainty to the parties and permit them to address the disposition of home run wiring in light of their circumstances. Where the parties' contract clearly and expressly addresses the disposition of the home run wiring, our procedures will not apply. We also reiterate that the parties may rely upon any existing contractual rights upon termination, in addition to the procedures we are adopting. (4) Impact on Incumbent Video Service Providers 68. We conclude that cable operators' argument that the loss of their home run wiring eliminates their ability to provide other telecommunications services is misplaced. Cable operators' ability to compete in the telephony market should be largely unaffected. The procedures adopted herein apply where the incumbent has no legally enforceable right to remain on the premises and the MDU owner and/or the individual subscriber has selected another provider's package -- notwithstanding the incumbent's other telecommunications services. We think that affording the incumbent the ability to remain in the building on the premise that it has a service to offer in addition to video undermines this proceeding's effort to enhance competition. Cable operators continue to have the opportunity to market video or any other service. The procedures we implement seek to afford the MDU owner or resident with an ability to make a choice. In addition, MDU owners will remain free to implement the type of multiple- wire model advocated by the cable industry by requiring all service providers to install their own home run wires. (5) Application of Procedural Framework 69. As noted above, the procedural mechanisms we are adopting will apply only where the incumbent provider no longer has an enforceable legal right to maintain its home run wiring on the premises against the will of the MDU owner. These procedures will not apply where the incumbent provider has a contractual, statutory or common law right to maintain its home run wiring on the property. We also reiterate that we are not preempting any rights the incumbent provider may have under state law. In the building-by-building context, the procedures will not apply where the incumbent provider has a legally enforceable right to maintain its home run wiring on the premises, even against the MDU owner's wishes, and to prevent any third party from using the wiring. In the unit-by-unit context, the procedures will not apply where the incumbent provider has a legally enforceable right to keep a particular home run wire dedicated to a particular unit (not including the wiring on the subscriber's side of the demarcation point) on the premises, even against the property owner's wishes. 70. In the Inside Wiring Further Notice, we sought comment on whether we should create any presumptions or other mechanisms regarding the rights of the parties if the incumbent's right to maintain its home run wiring on the premises is disputed. Many of the cable interests focus their comments on when an incumbent provider does not have a "legally enforceable right to remain on the premises." Operators ask the Commission to clarify that the procedures will not apply when the incumbent provider and the MDU owner have entered into a contract which specifically deals with the disposition of the home run wiring following termination of service. They assert that this is important if the Commission is to be true to its assertion that the proposed rules are not intended to create or destroy any property rights. Adelphia, et al., and TCI ask the Commission to make clear that the proposed rules do not give MDU owners a new right to terminate service outside the contract or state law. 71. Several commenters also ask the Commission to state specifically that the procedures would not apply in any jurisdiction with a mandatory access law. The cable commenters are troubled by the Commission's notation in footnote 100 of the Inside Wiring Further Notice that where a mandatory access statute is triggered by a tenant requesting service, the incumbent provider may not have the right to maintain its facilities on the premises if no tenant is currently requesting service. The commenters contend that most mandatory access statutes do not hinge on a tenant's request for service, and that in those few that do, franchised cable operators have the right to maintain their cable wiring throughout the MDU indefinitely. 72. Cable interests generally claim that the proposed procedures should not apply until the incumbent provider's rights are "fully exhausted." NCTA suggests that, if the incumbent provider notifies the MDU owner of its intent to initiate a state court proceeding to enforce its rights within 30 days of the MDU owner's notice that it intends to use the Commission's procedures, the procedures should be stayed until the judicial proceeding is terminated. Cable operators also state that the Commission must determine how the incumbent's rights will be established. Cable commenters believe, however, that the Commission should not establish any presumptions as to whether the incumbent has the right to remain on the premises. For the most part, these parties contend that establishing any presumption in this area would be contrary to the Commission's decision not to create or destroy any property rights nor to preempt state law. NCTA claims that the Commission would be "wholly outside its area of expertise" if it were to attempt to determine an appropriate presumption, which would have to be based on complex contractual, statutory and common law issues. Cablevision Systems asserts that the benefits of its substantial investments in upgrading its network to offer new services will be denied subscribers if a presumption adopted by the Commission prevents Cablevision Systems from exercising its right to remain in an MDU under state law or contractual agreement. 73. Ameritech objects to the Commission's proposal to exempt incumbents with a legally enforceable right to remain on the premises and argues that, at a minimum, such an exemption should not apply to future agreements. Ameritech reasons that incumbents could otherwise easily evade the Commission's new rules by entering into long-term contracts. DIRECTV argues that the Commission has the authority to provide that MDU owners may notify incumbent operators at any time that their exclusive use of the inside wiring will be terminated in 90 days in spite of the existence of contracts that may support such exclusive use. Community Associations Institute urges the Commission to establish the presumption that the incumbent operator does not have the right to maintain wiring on the property without securing a ruling from a court of law; and argues that any action to establish such a right should not stay the proposed disposition procedures. Similarly, Media Access/CFA argues that by refusing to preempt mandatory access statutes and contractual rights of access, the Commission would be creating an exception that would swallow the rule. WCA contends that ultimately the Commission should preempt all state mandatory access statutes, but in the interim, it should clarify that, in the case of a dispute regarding the incumbent's right to remain on the premises, the disposition procedures will take effect until a court rules otherwise. OpTel argues that incumbents should be required, when service termination is requested, to make "an affirmative good faith showing" of its legally enforceable right to remain on the property. RCN argues that an incumbent claiming the legal right to control wiring, molding, or conduits or to exclude an alternative service provider should obtain a court order affirming its rights within 30 days of receiving notice from the MDU owner, and forfeitures should be imposed for non-compliance. ICTA asks the Commission to create a presumption that the incumbent provider does not have a legally enforceable right to remain on the premises so that the Commission's rules would have full force and effect until the incumbent proved its claim through whatever judicial proceeding was appropriate. 74. RCN and WCA also urge the Commission to make it clear that state mandatory access statutes do not authorize MVPDs to block moldings or conduits with unused wire. They state that incumbents have no right to maintain unused home run wiring that is blocking competitive access merely because a state does not make mandatory access contingent upon a subscriber's request for service. 75. Both CEMA and Philips, et al., note that the Commission's proposal will not apply in many situations because of state mandatory access statutes. Building Owners, et al., believe that the proposed rules may serve to confuse matters by raising the issue of possible preemption of state law and contract rights. CEMA suggests that the Commission preempt these statutes if it decides to adopt the proposal because Sections 1 and 601 of the Communications Act should take precedence over state law. Philips, et al., also argue that exclusive contracts will limit the usefulness of the proposed rules. 76. In reply comments, cable operators object to RCN's proposal that the incumbent obtain a final court ruling or an injunction within 30 days in order to toll the wiring disposition procedures. First, absent a statutory right, they argue that a cable operator cannot force a court to issue a final ruling within 30 days. Second, they argue that the failure to obtain a temporary restraining order or an injunction is no basis on which to conclude that the incumbent will not ultimately prevail on the merits. Third, they argue that if the proposed procedures proceed before it is clear that the incumbent does not have a right to maintain its wires on the premises, the Commission's intent to provide "order and certainty" and not to disturb existing property rights would be undermined. Fourth, they argue that an incumbent's damages for being wrongly forced to remove or abandon its wiring will be virtually impossible to calculate and difficult to prove. 77. After consideration of the comments, we adopt a presumption that the building-by-building and unit-by-unit procedural mechanisms will apply unless and until the incumbent obtains a court ruling or an injunction enjoining its displacement during the 45-day period following the initial notice. The incumbent will still be required to make its election to sell, remove or abandon the wiring by the end of the initial 30-day period in the absence of such a ruling or injunction. In light of this rule, we decline to adopt the suggestions of various commenters that we shorten the initial election period. We also decline to adopt the cable operators' proposal to stay our procedures until all judicial procedures are terminated, including all appeals. We have not received evidence sufficient to persuade us that state courts will not respond expeditiously. Significantly, the record indicates state courts' ability to protect incumbents' rights. The record continues to support our judgment that an incumbent's failure to obtain a state court injunction justifies a presumption that the incumbent no longer has an enforceable legal right to remain on the premises. Contrary to some commenters' assertions, we do not believe that this presumption interferes with the incumbent's state law rights. A court applying state law will continue to be the ultimate arbiter of whether the incumbent has a legally enforceable right to remain on the premises, and possesses the ability to take any necessary and appropriate steps to make the parties whole under state law. Our presumption simply means that if the incumbent cannot obtain an injunction to maintain its home run wiring on the premises, it is appropriate to permit the MDU owner to invoke our procedures pending any further litigation. 78. We will adopt one exception to our presumption that our procedures will apply in the absence of a state court ruling or injunction obtained within 45 days of the initial notice. We will not require an incumbent provider to obtain such a ruling or injunction where a state's highest court has found that, under its state mandatory access statute, the incumbent always has an enforceable right to maintain its home run wiring on the premises. We believe that to require the incumbent to initiate court proceedings in this situation is wasteful and unnecessary. In such cases, we believe that the burden should shift to the new provider to obtain a judicial determination to the contrary. 79. We decline, however, to adopt some commenters' request that we provide that our procedures do not apply in states that have enacted mandatory access statutes. Several commenters take issue with our statement that where the incumbent provider's mandatory right of access is dependent upon a subscriber's request for service, the provider may no longer have a legally enforceable right to maintain that subscriber's home run wiring on the premises against the MDU owner's wishes once the subscriber no longer requests service. We clarify that we did not intend to and do not now express any opinion on the merits of this issue. The enforceability of a state mandatory access statute is an issue for the state courts to decide under their particular statutes. We are unwilling to conclude that state mandatory access statutes always grant incumbents the right to maintain their home run wiring in an MDU over the MDU owner's objection. Contrary to the arguments of some cable operators, this is not an issue of the right to install wiring. Rather, the issue is whether the incumbent has a legally enforceable right to maintain its home run wiring on the premises over the objection of the MDU owner. Accordingly, our procedures will apply in mandatory access states to the extent state law does not permit the incumbent to maintain its home run wiring (in the case of a building-by-building disposition) or a particular home run wire to a particular subscriber (in the case of a unit-by-unit disposition) against the will of the MDU owner. 80. The above procedural mechanisms will apply regardless of the identity of the incumbent video service provider involved. While initially this incumbent would commonly be a cable operator, it could also be a SMATV provider, an MMDS provider, a DBS provider or others. We believe that this will ensure competitive parity among MVPDs and ensure that MDU owners are able to benefit from these procedures regardless of the MVPD that initially wired their buildings. c. Statutory Authority (1) Background 81. Several commenters agree with the Commission's position that it has statutory authority under Section 623 to adopt its proposed framework. GTE reasons that the proposed disposition procedures fall within the Commission's obligation under Section 623 to ensure reasonable rates for programming, installation, and equipment, which the Commission has defined to include inside wiring. 82. Building Owners, et al., argue that while Section 623(b) might grant the Commission authority to regulate the rates at which operators may sell cable home wiring, it does not authorize the Commission to give building owners the right to acquire wiring or to require cable operators to sell it. Cable interests generally contend that the Commission does not have the statutory authority to adopt the proposed procedures because the procedures: (1) are inconsistent with Section 624(i) and its legislative history which clearly state that the statute only applies to wiring within the unit; (2) are not necessary to the Commission's functions under Sections 624(i), 623 or 601; and (3) would not serve the stated purposes of promoting consumer choice and competition. NCTA asserts that Section 4(i) does not provide the Commission with any independent authority, and the Commission cannot do whatever it wants to promote competition in the video service marketplace. (2) Discussion 83. We conclude that the Commission has authority under Sections 4(i) and 303(r) of the Communications Act, in conjunction with the pervasive regulatory authority committed to the Commission under Title VI, and particularly Section 623, to establish procedures for the disposition of MDU home run wiring upon termination of service. Section 4(i) permits the Commission to "perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this Act, as may be necessary in the execution of its functions." The Commission may properly take action under Section 4(i) even if such action is not expressly authorized by the Communications Act, as long as the action is not expressly prohibited by the Act and is necessary to the effective performance of the Commission's functions. We invoke Section 4(i) here because, contrary to the arguments posed by some commenters, the Communications Act does not prohibit the Commission from adopting procedures regarding the disposition of home run wiring and because adopting such procedures is necessary to implement several provisions of the Communications Act by effectuating and broadening the range of competitive opportunities in the multichannel video distribution marketplace. 84. Courts have upheld various Commission regulations that were not within explicit grants of authority under the "wide-ranging source of authority" of Section 4(i). In these cases, the courts found that the Commission's regulations were not inconsistent with the Communications Act because they did not contravene any provision of the Act and were "appropriate and reasonable" exercises of authority. 85. Recently, in Mobile Communications Corp. v. FCC ("Mtel"), the United States Court of Appeals for the District of Columbia Circuit acknowledged the Commission's authority under Section 4(i) to regulate even where the Communications Act does not explicitly authorize such action. In that case, the D.C. Circuit held that the Commission had authority under Section 4(i) to require Mtel, which held a pioneer's preference, to pay for a narrowband personal communications service ("PCS") license, despite the fact that the Communications Act did not specifically authorize the Commission to charge a price for a license granted to a pioneer's preference holder. The court denied Mtel's argument that the Commission's action was inconsistent with the Communications Act and therefore not within the Commission's Section 4(i) power. Mtel argued that Congress' explicit grant of authority to the Commission to collect certain fees and to conduct auctions for specified types of licenses denied the Commission authority to impose other fees. The court found Mtel's reliance on the expressio unius maxim -- that the expression of one is the exclusion of other -- misplaced. According to the court, "[t]he maxim has little force in the administrative setting,' where we defer to an agency's interpretation of a statute unless Congress has " directly spoken to the precise question at issue.'" The court also denied Mtel's argument that, in the absence of an affirmative statutory mandate to support the payment requirement, the Commission's action was not "necessary in the execution of [the Commission's] functions," as required by Section 4(i). 86. Similarly, in New England Telephone & Telegraph Co. v. FCC, the court affirmed a Commission order requiring telephone companies to refund charges they had collected in excess of the authorized rate of return, even though the Communications Act's only provision explicitly mentioning refunds "does not apply to the circumstances of this case," because refunds were necessary to remedy the violation of the Commission's rate of return order. In North American Telecommunications Association v. FCC, the court affirmed a Commission order pursuant to Section 4(i) requiring the Bell holding companies to file capitalization plans for subsidiary companies organized to sell telephone equipment, even though the Communications Act conferred no authority on the Commission over holding companies and the legislative history of the Communications Act suggested that Congress had considered granting such authority but ultimately denied it, because such a requirement "was necessary and proper to the effectuation of" the Commission's functions. The court stated that "Section 4(i) empowers the Commission to deal with the unforeseen -- even if that means straying a little way beyond the apparent boundaries of the Act -- to the extent necessary to regulate effectively those matters already within the boundaries." 87. Applying these principles here, we conclude that the Commission is authorized under Section 4(i) and 303(r), in conjunction with Section 623, to establish procedures regarding the disposition of MDU home run wiring upon termination of service. Establishing rules regarding the disposition of the home run wiring upon termination is "necessary" to the execution of the Commission's functions. Courts have made clear that they will defer to the Commission's judgment as to what actions are "necessary in the execution of its functions" under Section 4(i). In New England Telephone & Telegraph Company, the court emphasized that "the Commission enjoys significant discretion to choose among a range of reasonable remedies . . . ." Furthermore, the Commission "does not have to show that it selected the only conceivably appropriate remedy in order to invoke its 4(i) powers." Rather, " [t]he question eventually reduces to one of judgment, informed by the policy of the statute that Congress has seen fit to enact.'" The court held that although the Commission might have adopted other corrective measures, "the measure it adopted in this case was appropriate and reasonable," and therefore authorized by Section 4(i). 88. We believe that establishing procedures regarding the disposition of MDU home run wiring will assist the Commission in discharging its statutory obligations under Section 623 and its overall responsibility to pursue Congress' preference for competition stated in the 1992 Cable Act. Section 623(b) of the Communications Act requires the Commission to prescribe rules to ensure that rates for basic cable service are "reasonable" and provides that such regulations "shall include standards to establish, on the basis of actual cost, the price or rate for . . . installation and lease of equipment used by subscribers . . . ." Some commenters point out, concerning equipment, that Section 623(b) deals with rates for the "installation and lease" of equipment and argue that our authority under Section 623 to regulate equipment rates does not relate to the disposition of wiring upon termination of service. We agree that our authority more properly rests on the requirement in Section 623(b)(1) that the Commission ensure, by regulation, that the rates for the basic service tier are reasonable. Section 623 seeks to foster services to the subscriber at reasonable prices. We believe that establishing the above procedures regarding the disposition of MDU home run wiring is a necessary, "appropriate and reasonable" method to fulfill Section 623's mandate of reasonable cable rates. We believe that these procedures will provide certainty for property owners, alternative video service providers and subscribers regarding the disposition of the home run wiring when the existing service is terminated, thereby alleviating current circumstances that deter the property owner from considering alternative service providers and fostering competition among service providers. We believe that such competitive choice will exert a restraining influence on rates as service providers compete for the opportunity to serve the entire building or individual subscribers. 89. In the 1992 Cable Act, Congress specifically embraced a "[p]reference for competition" over regulation in setting rates for cable services. Fostering competition among service providers through the adoption of rules regarding the disposition of MDU home run wiring is a fundamental means to ensure that cable service rates remain "reasonable." The legislative history of Section 623(b) states that Congress agreed that "[r]ather than requiring the Commission to adopt a formula to set a maximum rate for basic cable service, the conferees agree to allow the Commission to adopt formulas or other mechanisms and procedures to carry out this purpose. The purpose of these changes [in the legislation] is to give the Commission the authority to choose the best method of ensuring reasonable rates for the basic service tier and to encourage the Commission to simplify the regulatory process." We therefore find that it is within our scope of authority under the 1992 Cable Act and Section 4(i) to establish procedural mechanisms that encourage reasonable rates through a competitive environment rather than a regulatory one. 90. Further, our decision to establish procedures regarding the disposition of home run wiring in MDUs is consistent with the Communications Act's fundamental purpose of "regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all people of the United States . . . a rapid, efficient, Nation-wide, and world-wide wire and radio communications service . . . ." Similarly, Section 601 of the Communications Act states that one of the purposes of Title VI of the Act -- relating to cable communications -- is to promote competition in cable communications. Due to the lack of competitive alternatives in multichannel video programming services, Congress has authorized the Commission to ensure that basic cable services are available at reasonable rates, to ensure that cable programming service rates are not unreasonable, and to establish standards whereby cable operators fulfill customer service requirements. That is what we do here. 91. We also believe that our rules will help fulfill Congress' mandate in the 1996 Act to "provide for a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans." We believe that our procedural mechanisms will enhance competition, fostering the deployment of innovative technologies and expanded services. Based on the record before us, we find that failing to establish such procedures would continue existing barriers to competitive choice for individuals residing in MDUs. Individuals residing in MDUs often are currently limited to receiving service from only one provider. Although we recognize that subscriber choice would be enhanced by the use of multiple wires, we do not believe that requiring MDU owners to permit multiple wires is a viable option at this point in time. We believe that the inability of the MDU owner to use the existing home run wiring deters consideration of alternative providers, and that providing certainty with regard to the disposition of the MDU home run wiring provides a reasonable means of increasing choice and promoting competition. In sum, we believe that adoption of the above procedures for disposition of home run wiring is necessary to the effectuation of the Commission's obligations under Section 623(b). 92. Turning to the other component of Section 4(i), we also conclude that the procedural mechanisms we are adopting are "not inconsistent" with any provision of the Communications Act. The crux of the commenters' argument that adoption of these procedures is beyond the Commission's authority is that they conflict with Section 624(i) of the Act. To the contrary, Section 624(i) does not prohibit the Commission from adopting rules concerning wiring outside the subscriber's premises. By its plain language, Section 624(i) mandates that the Commission take certain action, but does not preclude any other exercise of our authority. It states: "Within 120 days after the date of enactment of this subsection, the Commission shall prescribe rules concerning the disposition, after a subscriber to a cable system terminates service, of any cable installed by the cable operator within the premises of such subscriber." This provision only mandates that the Commission adopt rules regarding the disposition of wiring installed within subscribers' premises, it does not limit the Commission's existing authority with respect to wiring outside those premises. Indeed, in Mtel, the court rejected the argument that Congress's specific grant of authority to charge for certain licenses suggested that without that explicit grant of authority the Commission did not otherwise have the authority. Even more so here, given that Section 624(i) requires the Commission to adopt rules in certain circumstances rather than authorizes it to do so, it cannot be read as a limit on the Commission's authority found elsewhere in the Communications Act. Furthermore, as the Mtel court found, the expressio unius maxim -- that the expression of one is the exclusion of other -- " has little force in the administrative setting,' where [a court] defer[s] to an agency's interpretation of a statute unless Congress has " directly spoken to the precise question at issue.'" Indeed, the Mtel court stated: "[W]e think the nature of Congress's auction authorization more supports than undermines the Commission's decision here." 93. Thus, this is not a circumstance where the general canon of statutory construction, the "specific governs the general," applies. The courts have found this canon applicable only where there "is an inescapable conflict' between the specific provision and the general provision." Section 624(i) does not prohibit the Commission from adopting rules affecting home run wiring. We conclude that there is no "inescapable conflict" between Section 624(i) and the procedures discussed above. 94. To the contrary, we believe that the rules we are adopting will further promote Section 624(i)'s underlying purpose of promoting consumer choice and competition by permitting subscribers to use their existing home wiring to receive an alternative video programming service. Section 624(i) directs the Commission to prescribe rules regarding the disposition of wiring within a subscriber's premises in order to promote consumer choice and competition by permitting subscribers to avoid the disruption of having their home wiring removed upon voluntary termination and subsequently to utilize that wiring for an alternative service. We believe that, under our current rules, we cannot fully meet those objectives in the MDU context because, as described above, MDU owners often will not permit multiple home run wires to be installed in their buildings. In order to promote consumer choice and competition, therefore, we are prescribing additional rules regarding the disposition of the existing home run wiring upon termination of service. 95. Furthermore, the statement in the legislative history regarding limiting the "right to acquire home wiring to the cable installed within the interior premises of a subscriber's dwelling unit," which some parties read out of context to suggest a limitation on our authority, was made in conjunction with Congress' expression of concern about the potential for theft of service and signal leakage. The procedures we are adopting, however, do not grant alternative providers, subscribers, or MDU owners access to the incumbent provider's riser cable or lockbox and therefore do not pose the safety concerns about which Congress was concerned. We do not believe that the procedural mechanisms we are adopting will increase the frequency of service theft; a provider's control over its network security is unaffected by our rules. In addition, our rules do not affect the service provider's signal leakage responsibilities. It will remain the duty of the provider to protect against signal leakage while it is providing service, regardless of who owns the home run wiring in the building. 96. In addition, cable operator reliance on the "Joint Use" provision of the 1996 Act (codified at Section 652(d)(2) of the Communications Act) as evidence of Congress' intent that cable operators retain ownership and control of the home run wiring is misplaced. Section 652(d)(2) provides generally that a local exchange carrier ("LEC") may obtain permission from the cable operator to use that part of the transmission facilities extending from the last multi-user terminal to the premises of the end user, and that such use must be reasonably limited in scope and duration. Cable operators assert that this provision invests them with ownership and control of all cable wiring outside the subscriber demarcation point, including the home run wiring, even after a subscriber terminates service, as Congress otherwise would not have established rules allowing cable operators to set the terms and conditions for a LEC's use of the facilities. 97. We disagree. Notably, Section 652(d)(2) is entitled "Joint Use," indicating Congress' intent for the provision to govern only the joint use of the facilities by a cable operator and a LEC. It is an exception to the general prohibition in Section 652(c) on joint ventures or partnerships between cable operators and LECs that serve the same market area. We believe that Section 652(d)(2) does not constrain our authority to establish procedures governing the disposition of the home run wiring because the provision only addresses use of the wiring while the cable operator continues to own or use the facilities. Here, the procedural mechanisms would not apply until the cable operator has no legally enforceable right to remain on the premises and the MDU owner and/or subscriber terminates the operator's service. 98. Additionally, we believe that had Congress intended the "Joint Use" provision to govern cable wiring, it would have placed the provision in Section 624, which sets forth the existing wiring provisions, rather than in Section 652, which concerns telephone company-cable television cross-ownership restrictions. We also agree with alternative video service providers that Congress would have enumerated additional types of potential users of cable operators' wiring, other than telephone companies, if it had intended this provision to cover uses of the wiring other than the limited situation of wiring being shared between a LEC and a cable operator. 99. In sum, we conclude that the procedures we are adopting are "not inconsistent" with the Act. As the court found in Mtel, "we see no conflict between the language and structure of the Communications Act" and our adoption of procedural rules regarding disposition of home run wiring. 100. In addition, we believe that we have authority under Sections 4(i) and 303(r) to apply our cable inside wiring rules to all MVPDs, and not just to cable operators. Section 303(r) of the Communications Act authorizes the Commission, as required by public convenience, interest, or necessity, to promulgate rules and restrictions, not inconsistent with law, as may be necessary to carry out the provisions of the Act. We believe that applying these rules to all Commission licensees that are MVPDs would be in the public interest. The same competitive concerns described above exist regardless of whether a cable operator or some other video service provider initially installed a subscriber's or an MDU's inside wiring. In addition, we believe that applying our cable home wiring rules to MVPDs that are Commission licensees would not be inconsistent with Section 624(i) and would further its purposes, since subscribers could use their existing inside wiring to receive an alternative service. Further, for similar reasons to those discussed above in adopting procedures for disposition of the home run wiring in MDUs for cable operators, such procedures are not inconsistent with Section 624(i) if applied to MVPDs that are radio licensees. 101. In addition, we conclude that we have the authority under Sections 4(i), 201 to 205, and 303(r) to extend our cable inside wiring rules to common carriers engaged in the transmission of video programming. Section 201(b) in particular requires that "practices . . . for and in connection with [common carrier services] be reasonable." For the same reasons that we are applying these rules to cable operators, we believe they are appropriately applied to common carrier practices consistent with Section 201(b). We conclude that Section 4(i) also invests the Commission with authority to expand our rules in this manner with regard to MVPDs that are neither radio licensees nor common carriers. Again, we conclude that the same competitive concerns are present regardless of the type of service provider that initially installs the broadband inside wiring. In addition, we conclude that such an extension of our rules is necessary in the execution of our functions and is not inconsistent with the Communications Act, as described above. To promote parity among broadband competitors and to fulfill the directives of the 1992 Cable Act and the 1996 Act, we will apply our cable inside wiring rules to all MVPDs. d. Constitutional Arguments (1) Background 102. Time Warner argues that the proposed procedures constitute an impermissible taking under the Fifth Amendment. Comcast, et al., believe that takings concerns would be alleviated if a just compensation formula is implemented. However, Building Owners, et al., argue that the Commission should allow the price for wiring to be set by the marketplace because the Commission might infringe on Fifth Amendment property rights if it sets a price that presents the parties with an unrealistic choice of how to deal with the property. GTE asserts that the proposed disposition procedures would not amount to an unconstitutional taking because property will not be deemed abandoned unless the incumbent fails to act and because this proceeding has afforded incumbents adequate process. (2) Discussion 103. We conclude that the procedural mechanisms we have adopted do not constitute an impermissible "taking" under the Fifth Amendment. First, there is no forced taking of the incumbent's physical property, since the incumbent has a reasonable opportunity to remove, abandon, or sell the wiring. The Fifth Amendment cannot be construed to allow a service provider with no contractual or other legal right to remain on a person's property to leave its wiring on the property indefinitely and prohibit the property owner from using it. There can be no taking of the incumbent's access rights because the procedures expressly apply only where the incumbent does not have a contractual, statutory or other legal right to maintain its wiring on the premises. If the incumbent fails to act within the reasonable periods set forth and its wiring is deemed abandoned, it is the operator's failure to act, not the Commission's rule, that would extinguish the cable operator's rights. B. Sharing of Molding 104. In the Inside Wiring Further Notice, we noted that RCN argued that some MDU owners do not object to a second set of home run wires but to the installation of a second set of hallway molding or conduits, and that in some cases there is room in the molding or conduit for it to install its home run wiring without interfering with the incumbent's wiring. We sought comment on a proposal to permit the alternative service provider to install its wiring within the incumbent provider's existing molding or conduit, even over the incumbent's objection, where there is room in the molding or conduit and the MDU owner does not object. We tentatively concluded that such a rule would promote competition and consumer choice and would not constitute a taking of the incumbent provider's private property without just compensation under the Fifth Amendment. 105. A number of commenters support the Commission's proposal. Community Associations Institute further suggests that the Commission allow MDU owners to permit the addition of wiring to existing moldings and conduits except where contracts bar such action. Building Owners, et al., specifically argue that access to molding and conduits should only be permitted with the prior consent of the building owner. Cox supports the proposal so long as the incumbent has not bargained for and received the exclusive right to use the molding or conduit. DIRECTV, however, suggests that such actions be allowed regardless of whether the incumbent has a contract purportedly giving it the right to exclusive use of the molding or conduit. 106. NCTA argues that forced sharing would be an impermissible taking, and that the Commission should leave the issue to contract and property law. On reply, NCTA states that if the Commission adopts its proposal, it should apply only where the incumbent has no statutory, contractual or common law right to exclude or limit such access. 107. Time Warner offers a proposal under which sharing of molding or conduit would be permitted if all affected MVPDs and the MDU owner agree that there is adequate space, subject to appropriate compensation. Where the parties cannot agree that there is adequate space for additional wires, and the MDU owner is willing to allow installation of larger molding or conduit, the party owning the molding or conduit would install larger molding or conduit at the expense of the party seeking occupancy. 108. Several parties also believe that the incumbent should be compensated for an alternative provider's access to its molding or conduits. RCN proposes that if parties cannot reach a negotiated price for access, the cost for each wire would be determined by calculating the incumbent's documented installation costs for the molding or conduit minus depreciation. According to RCN, the new provider's share of the costs would be the depreciated per wire cost times the number of wires it installs in the molding or conduit. Similarly, Media Access/CFA argues that the price should be prorated to reflect the percentage of empty space actually used and should be based on depreciation value, rather than replacement value. 109. We will adopt a rule that permits an alternative MVPD to install its wiring within an incumbent's existing molding, even over the incumbent provider's objection, where the MDU owner agrees that there is adequate space in the molding and the MDU owner gives its affirmative consent. We believe that such a rule will promote head-to-head competition among MVPDs by overcoming the resistance of MDU owners to the installation of redundant molding. At this time we will not require the sharing of space within conduits. The record does not contain sufficient evidence regarding the practicability of such a requirement. 110. We have authority to adopt these rules on the sharing of molding under Sections 4(i) and 303 of the Communications Act, for similar reasons described in the disposition of home run wiring section, above. 111. We agree with RCN that such a rule would not constitute a "taking" of private property because, absent a contractual right of exclusive occupation, the incumbent would not have a property interest in the air space between the molding and the hallway wall or ceiling. We do not believe -- and commenters have not adduced any case law to the contrary -- that merely attaching hallway molding to a third party's real property ordinarily gives the attaching party any property interest in the vacant air space covered by the molding. However, we will not apply this rule where the incumbent has an exclusive contractual right to occupy the molding. Since we do not believe that the incumbent ordinarily will have a property interest in the vacant air space inside the hallway molding, we will not require the alternative MVPD to compensate the incumbent for the placement of its wires. The alternative provider will, however, be required to pay any and all installation costs, including the costs of restoring the property to its prior condition and the costs of any damage to the incumbent's wiring or other property. 112. We also will adopt a variant of Time Warner's proposal for those situations in which the molding may not have sufficient space for the alternative MVPD's wiring. Under the rule we will adopt, where the MDU owner does not agree that there is adequate space in the molding for the additional wiring, and the MDU owner is willing to permit the installation of larger molding that could contain both the incumbent's and the alternative MVPD's wiring, the the MDU owner (with or without the assistance of the incumbent and/or the alternative provider) shall be permitted to remove the existing molding (and return the molding to the incumbent, if appropriate) and replace it with the larger molding at the alternative MVPD's expense. Again, the alternative MVPD would be required to pay any and all installation costs, including the costs of restoring the property to its prior condition and the costs of any damage to the incumbent's wiring or other property. This rule will not apply if the incumbent has contracted for the right to maintain its molding on the MDU owner's property without alteration by the MDU owner. Absent such a contractual provision, we believe that the incumbent has no right to prevent the MDU owner from altering the molding in its hallways and other areas of its property. C. Disposition of Cable Home Wiring 113. As we stated in the Inside Wiring Further Notice, we believe that fostering competitive choice in MDUs requires the coordinated disposition of two segments of cable wiring: (1) the home run wiring from the point where the wiring becomes devoted to an individual unit to the cable demarcation point; and (2) the cable home wiring from the demarcation point to the subscriber's television set or other customer premises equipment. Without clear and predictable rules for the disposition of each of these segments, an alternative provider's ability to convince an MDU owner or individual subscriber to switch services could be significantly compromised. The procedural framework discussed above addresses the disposition of MDU home run wiring. Here, we set forth specific rules on how to address certain issues regarding the disposition of MDU cable home wiring that were not addressed in our prior home wiring order. We believe that these rules will promote competition and consumer choice by providing a comprehensive and workable framework for the disposition of MDU cable wiring. 114. As in the context of home run wiring, our MDU home wiring rules will apply regardless of the identity of the incumbent video service provider involved. While initially this incumbent will commonly be a cable operator, it could also be a SMATV provider, an MMDS provider, a DBS provider or others. We conclude that the same authority described above regarding the disposition of cable home run wiring allows us to apply our MDU home wiring rules to other video service providers. 1. Disposition of Home Wiring When Service Is Terminated for an Entire MDU 115. In the Cable Home Wiring Further Notice, we requested comment on, among other issues, whether, in order to promote the goals of Section 624(i) and our rules thereunder, the subscriber (on a non-loop-through wiring configuration) or the building owner (with a loop-through wiring configuration) should be given the opportunity to purchase the cable home wiring when the MDU owner terminates cable service for the entire building. For the most part, alternative service providers support having the cable home wiring procedures apply where the building owner terminates service on behalf of the entire building. Some commenters believe that when the building owner terminates service the individual subscriber should be given the opportunity to purchase the home wiring; others believe only the building owner should have that right. GTE asserts that cable "subscriber" should be defined as the one that contracts or arranges for service. Bell Atlantic contends that the building owner may be acting as the subscriber's authorized agent if the subscriber agrees in its lease agreement that the landlord may terminate service. Building Owners, et al., oppose applying the Commission's rules under Section 624(i) when service for the entire building is terminated, because much of the building wiring is not cable home wiring and because a landlord is allegedly not a "subscriber" under the Commission's rules. 116. In the Inside Wiring Further Notice, we tentatively concluded that, if the MDU owner has the legal right, either by law or by contract, to terminate the subscriber's cable service, the owner terminating service for the entire building is effectively voluntarily terminating service on the subscriber's behalf, and our home wiring rules would be triggered. We affirm this conclusion. We conclude that providing the cable operator a single point of contact (i.e., the MDU owner) will further the statutory purposes of minimizing disruption and facilitating the transfer of service to a competing video service provider. Because we believe that it would be impractical and inefficient for the incumbent provider to deal with each individual subscriber regarding the disposition of his or her cable home wiring when the entire MDU is switching providers, we will deem the MDU owner to be acting as the terminating "subscriber" for purposes of the disposition of the cable home wiring within the individual dwelling unit where the cable home wiring is not already owned by a resident. We clarify, however, that, contrary to Time Warner's contention, we are not changing our definition of subscriber to include MDU owners. We believe that, when as a matter of law or contract, the MDU owner has the right to terminate service, the MDU owner is effectively terminating service on behalf of the subscriber. 117. For those MDU owners proceeding under our home run wiring disposition procedures, we will adopt the following framework in order to ensure the orderly disposition of the home wiring. When an incumbent provider is notified under our home run wiring disposition procedures that the incumbent provider's access to the entire building will be terminated and that the MDU owner seeks to use the home run wiring for another service, the incumbent provider must, within 30 days: (1) offer to sell to the MDU owner any home wiring within the individual dwelling units which the incumbent provider owns and intends to remove; and (2) provide the MDU owner with the total per-foot replacement cost of such home wiring. 118. As with the home run wiring, if an MDU owner declines to purchase the cable home wiring not already owned by a resident, the MDU owner may permit the alternative service provider to purchase the wiring upon service termination under our rules. We will require that the MDU owner decide whether it or the alternative provider will purchase the cable home wiring and so notify the incumbent provider no later than 30 days before the termination of access to the building will become effective. If the MDU owner and the alternative service provider decline to purchase the home wiring, the incumbent provider will not be permitted to remove the home wiring until the date of actual service termination, i.e., likely 90 days after the building owner notified the incumbent that its access to the entire building will be terminated. We will modify our current home wiring rules to allow the incumbent provider 30 days after service termination, rather than the current seven days, to remove all of the cable home wiring for the entire building if the MDU owner has terminated service for the entire building and has declined to purchase the home wiring. We believe this is appropriate given the amount of home wiring that may need to be removed from an entire building. Under these circumstances, if the incumbent provider fails to remove the home wiring within 30 days of actual service termination, it cannot make any subsequent attempt to remove the wiring or restrict its use. 2. Disposition of Home Wiring When Service Is Terminated by an Individual Subscriber 119. In the Cable Home Wiring Further Notice, we sought comment on whether, when a subscriber who voluntarily terminates cable service does not own the premises and elects not to purchase the wiring, the premises owner should have the right to purchase the cable home wiring. Alternative service providers contend that the premises owner should have this right to purchase when the individual subscriber declines to purchase the wiring, if not at all times. ICTA claims that this arrangement would promote competition and, consistent with Section 624(i), would avoid damage, cost and inconvenience to the owner's property. Building Owners, et al., claim that only owner residents (as opposed to tenants) should have the right to purchase cable home wiring in the first place. In addition, Building Owners, et al., contend that it is essential for the building owner to have full control over its property, including the wiring, subject only to state property law, a lease or other contract. Time Warner claims that Congress did not confer benefits or opportunities on landlords. NCTA asserts that the wiring should be available to subsequent residents unless the operator removes the wiring. 120. In the Inside Wiring Further Notice, we proposed two modifications to our cable home wiring rules. First, we proposed to permit the MDU owner or the alternative service provider to purchase the cable home wiring within each unit if the subscriber declines, provided that the MDU owner provides adequate notice to the incumbent provider that it or the alternative provider wants to purchase the home wiring under those circumstances. Second, we proposed to change the time in which an incumbent provider must remove the home wiring or make no further effort to use it or restrict its use from seven business days to seven calendar days after the individual subscriber terminates service. 121.In response to the Inside Wiring Further Notice, Comcast, et al., and ICTA agree that an MDU owner should have the opportunity to purchase the home wiring should one or more of its tenants decline to do so, but Time Warner and Building Owners, et al., argue that MDU owners should not be allowed to purchase home wiring. Comcast, et al., state