Telephone Company-Cable Television Cross-Ownership Rules

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 63

[CC Docket No. 87-266; FCC 95-20]

Telephone Company-Cable Television Cross-Ownership Rules

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commission adopted a Fourth Further Notice of Proposed

Rulemaking in Common Carrier Docket 87-266, with the intent of

soliciting information and comment on the extent to which Title II of

the Communications Act, Title VI, or both, apply to a telephone

company's provision of video programming directly to subscribers within

its telephone service area. The Commission also requested comment on

what changes, if any, need to be made to the video dialtone regulatory

framework if a telephone company decides to become a video programmer

on its own video dialtone platform in its telephone service area, and

in particular, whether telephone company provision of video programming

raises new concerns about anticompetitive behavior or cross-subsidy

that the Commission's existing regulatory framework may not

sufficiently address.

DATES: Comments must be submitted on or before March 6, 1995. Reply

comments are due on March 27, 1995.

ADDRESSES: Comments and Reply Comments may be mailed to the Office of

the Secretary, Federal Communications Commission, 1919 M Street NW.,

Washington, DC 20554. A copy of each filing should also be filed with

Peggy Reitzel of the Common Carrier Bureau, and James Yancey of the

Cable Services Bureau.

FOR FURTHER INFORMATION CONTACT:

Jane Jackson (202) 418-1593, Common Carrier Bureau, Policy and Program

Planning Division, and Larry Walke (202) 416-0847, Cable Services

Bureau.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Fourth Further

Notice of Proposed Rulemaking in Common Carrier Docket 87-266:

Telephone Company-Cable Television Cross-Ownership Rules, Sections

63.54-63.58, adopted January 12, 1995, and released January 20. 1995.

The complete text of this Fourth Further Notice of Proposed Rulemaking

is available for inspection and copying, Monday through Friday, 9:00

a.m.-4:30 p.m., in the FCC Reference Room (Room 239), 1919 M Street,

NW., Washington, DC 20554. The complete text of the Fourth Further

Notice of Proposed Rulemaking may also be purchased from the

Commission's copy contractor, International Transcription Services,

2100 M Street, NW., Suite 140, Washington, DC 20037, (202) 857-3800.

Synopsis of Fourth Further Notice of Proposed Rulemaking

A. Governing Statutory Provisions.

1. Local exchange carrier (LEC) provision of video programming

raises questions about whether Title II of the Communications Act,

Title VI of the Communications Act, or both, would govern particular

LEC video offerings, and how these provisions might apply to a LEC's

provision of video [[Page 8997]] programming directly to subscribers

within its telephone service area and over facilities used to provide

both voice and video services. We now seek comment on these issues and

on the analysis we offer below.

1. Application of Title II to LEC Video Programming Offerings

2. We first tentatively conclude that telephone companies should be

permitted to provide video programming over Title II video dialtone

platforms. We recently reaffirmed our conclusion that the construction

of video dialtone systems would serve the public interest goals of

facilitating competition in the provision of video programming

services, encouraging efficient investment in our national information

infrastructure, and fostering the availability to the American public

of new and diverse sources of video programming. Two U.S. Courts of

Appeals have now held unconstitutional the specific statutory basis for

prohibiting a telephone company from providing, directly or indirectly,

programming over its own video dialtone platform. In light of the

public interest benefits of a video dialtone platform, which provides

multiple video programmers with common carrier-based access to end

users, we tentatively conclude, in the absence of Section 533(b), that

we should not ban telephone companies from providing their own video

programming over their video dialtone platforms. We note that we allow

telephone companies to use their networks to provide their own enhanced

services today, subject to safeguards. Thus, in the absence of a

demonstration of a significant governmental interest to the contrary,

we propose to allow telephone companies to provide video programming

over their own video dialtone platforms, subject to appropriate

safeguards. We seek comment on this proposal, and on whether any such

significant governmental interest to support a ban exists and, if it

does, whether a ban would be a narrowly tailored restriction on the

telephone companies' First Amendment rights.

3. A second Title II issue is whether we can, and should, require

telephone companies to provide video programming only over video

dialtone platforms. Even before the recent court decisions invalidating

the telco-cable cross-ownership ban, there were three circumstances in

which LECs could provide video programming directly to subscribers. In

these circumstances, however, LECs have not been authorized to use

their local exchange facilities to provide cable service, but, rather,

to construct or purchase interests in separate cable facilities.

Indeed, as noted by the court in NCTA v. FCC (1994), it was not until

after the 1984 Cable Act that technological advances have made it

practical to deliver video signals over the same common carrier

networks that are used to provide telephone service. Previously, as the

court noted, ``[a] telephone company that wanted to provide cable

service would have had to construct a coaxial cable distribution system

parallel to its telephone system.''

4. We seek comment on whether we have authority under Section 214

to require LECs that seek to provide video programming directly to

subscribers in their telephone service areas to do so on a video

dialtone common carrier platform and not on a non-common carrier cable

television facility. We seek comment on what circumstance would warrant

such a requirement, and specifically on whether we should require use

of a video dialtone platform whenever a LEC provides video services

over facilities that are also used in the provision of telephone

services. We seek comment on our authority generally to require LECs

seeking Section 214 authority to acquire or construct video facilities

to comply with our video dialtone framework.

2. Application of Title VI to LEC Provision of Video Programming

5. We now seek comment on the circumstances, if any, in which a LEC

that, by court decision, is not subject to the 1984 Cable Act telco-

cable cross-ownership ban may offer a cable service subject to Title VI

in lieu of a Title II video dialtone offering. We also seek comment on

the extent to which Title VI should apply to video programming provided

by LECs on a Title II video dialtone system. We have previously held

that LEC provision of a common carrier video dialtone platform is not

subject to Title VI of the Act. In particular, we found that such LECs

are not offering ``cable service,'' and are not operating a ``cable

system'' within the meaning of Title VI. We reasoned that LECs did not

actively participate in the selection and distribution of video

programming because they were precluded from providing video

programming directly to subscribers in their telephone service areas.

We also concluded that video dialtone facilities are not cable systems

because they are common carrier facilities subject to title II of the

Act which, under Commission rules, could not be used for LEC provision

of video programming directly to subscribers in the LEC's telephone

service area. We now seek comment on whether, if a LEC, or its

affiliate, does provide video programming over its video dialtone

system and actively engages in the selection and distribution of such

programming, that LEC, or its affiliate, is subject to Title VI. We

seek comment on the Commission's legal authority to determine whether

some, but not all, provisions of Title VI relating to cable operators

would apply to a LEC that provides video programming over its video

dialtone platform. We also seek comment on whether the application of

some or all provisions of Title VI would result in a regulatory

framework that is duplicative of, or inconsistent with, federal or

state regulation of communications common carriage. For example, the

goals of the leased access provision of Title VI could be met through

obligations Title II imposes on a LEC as the provider of the video

dialtone platform whether or not the LEC as a video service provider

provides its own leased access channels. We seek comment on the

potential impact of our determinations in this proceeding on existing

grants by state and local authorities of public rights-of-way. We also

invite parties to discuss both the legal and practical implications of

requiring, or not requiring, telephone companies providing video

programming over their own video dialtone systems to comply with each

of the various provisions of Title VI. In the event that Title VI cable

rate regulation rules apply, we seek comment on how such rules would

apply to a LEC providing video programming directly to subscribers over

its own video dialtone platform.

6. In addition, we seek comment on whether, if Title VI does not

apply to telephone companies' provision of video programming on video

dialtone facilities, the Commission should adopt, under Title II,

provisions that are analogous to certain aspects of Title VI. For

example, we seek comment on whether we should adopt rules governing

program access by competing distributors, carriage agreements between

video service providers and unaffiliated programmers, and vertical

ownership restrictions.

7. Finally, we note that the court's opinion in NCTA v. FCC (1994)

is consistent with the Commission's reasoning in the First Report and

Order, 56 FR 65464-01 (December 17, 1991), that a LEC providing video

dialtone service does not require a local franchise because the LEC

does not provide the video programming. We seek comment on whether this

view would require a LEC offering video dialtone service to secure a

local [[Page 8998]] franchise if that LEC also engages in the provision

of video programming carried on its platform.

B. Regulatory Safeguards Governing a Local Exchange Carrier's Provision

of Video Programming on its Video Dialtone Platform

1. Introduction and Scope

8. In this section we consider what changes, if any, need to be

made to our video dialtone regulatory framework if a telephone company,

pursuant to an applicable court decision, decides to become a video

programmer on its own video dialtone platform in its telephone service

area. In addressing the issues identified below, parties should address

whether we should apply different safeguards for technical and market

trials than for commercial offerings of video dialtone.

2. Ownership Affiliation Standards

9. Under our current rules, LECs are prohibited from providing

video programming directly to subscribers, and from having a cognizable

(i.e., 5 percent or more) financial interest in, or exercising direct

or indirect control over, any entity that is deemed to provide video

programming in its telephone service area. We propose to retain these

ownership affiliation standards to identify those video dialtone

programmers that we will consider to be affiliated with LECs providing

the underlying common carriage. Under this proposal, if the Commission

determines that LEC ownership of video programming requires additional

safeguards, those safeguards would apply if the LEC owned five percent

or more of a video programmer. We seek comment on this proposal.

3. Safeguards Against Anticompetitive Conduct

a. Sufficient Capacity To Serve Multiple Service Providers

10. Under the video dialtone regulatory framework, a LEC is

required to provide sufficient capacity to serve multiple service

providers on a nondiscriminatory basis. In the Video Dialtone

Reconsideration Order, 59 FR 63909-01 (December 12, 1994), we rejected

use of an ``anchor programmer,'' that is, allocation of all or

substantially all of the analog capacity of the video dialtone platform

to a single programmer. We seek comment on whether there are other

across-the-board rules that we should adopt to ensure that video

dialtone retains its essential Title II character when a LEC becomes a

video programmer on its platform.

11. We seek comment, for instance, on whether we should limit the

percentage of its own video dialtone platform capacity that a LEC, or

its affiliate, may use. Such a limit could help ensure other

programmers access, but may create a risk that some capacity might go

unused. We seek comment on what an appropriate limit would be; whether

any percentage limit should vary with the platform's capacity; and

whether different rules should apply to analog and digital channels.

Video dialtone capacity constraints appear likely to be most severe in

the short-term, with respect to analog channels, and may be of less

concern on future all-digital systems. Commenters should address

whether LEC use of video dialtone capacity raises short-term or long-

term concerns, and how the probable duration of the problem should

affect our regulatory approach. Alternatively, we seek comment on

whether LECs that deny capacity to independent programmers should be

subject to procedural requirements more detailed than those imposed

inthe Video Dialtone Reconsideration Order.

12. In the Third Further Notice of Proposed Rulemaking, 59 FR

63971-01 (December 12, 1994), the Commission sought comment and

information regarding channel sharing mechanisms that LECs have

proposed as means of making analog capacity available to more customer-

programmers than might otherwise be accommodated. Parties addressing

limits on LEC use of the video dialtone platforms should comment in

this proceeding on the relationship between such channel sharing

mechanisms and any proposal to limit LEC use of analog channels. The

Third Further Notice of Proposed Rulemaking also sought comment on two

other signal carriage issues: (1) Whether the Commission should mandate

preferential video dialtone access or rates for commercial

broadcasters, public, educational and governmental (``PEG'') channnels,

or other not-for-profit programmers; and (2) whether the Commission

should permit LECs to offer preferential treatment to certain

programmers on a voluntary (``will carry'') basis. Parties should

comment in this proceeding on the relationships among mandatory

preferential treatment, ``will carry,'' and any proposed limits on a

LEC's use of its video dialtone capacity to provide programming

directly to subscribers.

13. Another example of potentially anticompetitive conduct that has

been cited in the context of cable television service under Title VI

involves channel positioning. Programmers assert that cable operators

can and do deliberately assign unaffiliated program services to

undesirable channel locations. Under Title II, such discriminatory

conduct is prohibited. We seek comment on whether LECs that are also

video program providers have an increased incentive to use their

control over the video dialtone platform to engage in such activities

and what, if any, specific safeguards we should implement to prevent

such conduct. In particular, we seek comment on whether the channel

positioning rules that apply to cable operators in the context of the

``must-carry'' requirement of Title VI should also apply to video

dialtone platform operators providing programming directly to

subscribers in their local exchange service areas.

b. Non-Ownership Relationships and Activities Between Telephone

Companies and Video Programmers

14. In the Video Dialtone Reconsideration Order, the Commission

affirmed, with certain modifications, its decision to permit LECs to

enter into non-ownership relationships with video programmers that

exceed a carrier-user relationship. We propose at a minimum, to retain

these restrictions as safeguards against LEC anticompetitive conduct

and to promote further LEC deployment of broadband services. We believe

that the restrictions on non-ownership affiliations between LECs and

cable operators are important to the Commission's goal of promoting

competition in the video services marketplace, and are not overbroad

infrigements on LEC First Amendment rights. Parties should comment on

the proposal to retain these safeguards and should describe any

specific additional measures they believe necessary to safeguard

against anticompetitive conduct by LECs that offer programming on their

own video dialtone system.

c. Acquisition of Cable Facilities

15. In the Video Dialtone Reconsideration Order, the Commission

substantially affirmed its decision to prohibit telephone companies

from acquiring cable facilities in their telephone service areas for

the provision of video dialtone. We continue to believe that this ban

will benefit the public interest by promoting greater competition in

the delivery of video services, increasing the diversity of video

programming available to consumers, and advancing the deployment of the

national communications infrastructure. We tentatively conclude that

the ban on LEC acquisition of cable facilities for the provision of

video dialtone does not impermissibly restrict LEC speech

[[Page 8999]] under C&P Tel. Co. v. U.S. and U S West v. U.S., and seek

comment on this conclusion.

16. In the Third Further Notice of Proposed Rulemaking, the

Commission recognized that some markets may be incapable of supporting

two video delivery systems. The Commission was concerned that, in such

markets, the prohibition could preclude establishment of video dialtone

service, thereby denying consumers the benefits of competition and

diversity of programming sources that our video dialtone regulatory

framework is designed to promote. As a result, the Commission requested

parties to suggest criteria that would permit us to identify those

markets in which two wire-based multi-channel video delivery systems

would not be viable. We seek comment on how, if at all, the decisions

in C&P Tel. Co. v. U.S. and U S West v. U.S. should affect our

consideration of criteria for allowing exceptions to our two-wire

policy. We also seek comment on whether we should ban telephone company

acquisition of cable facilities, with or without exceptions, if (a)

Title VI applies to telephone companies providing programming on their

own video dialtone platforms; or (b) telephone companies are permitted

to become traditional cable operators in their own service areas

instead of constructing video dialtone platforms.

d. Joint Marketing and Customer Proprietary Network Information

17. In the Video Dialtone Reconsideration Order, the Commission

also affirmed its decision to permit LECs to engage in joint marketing

of basic and enhanced video services, and of basic video and non-video

services. We found that significant public interest benefits can accrue

from the efficiencies and innovations that may be obtained by

permitting LECs to engage in joint marketing of basic and enhanced

video services, and of basic video and non-video services. We also

found that the record on reconsideration did not support a finding that

joint marketing of common carrier video and telephony services would

have an anticompetitive impact on the provision of video programming to

end users. We now seek comment on whether LEC provision of video

programming directly to end users requires that we revisit our analysis

of joint marketing issues.

18. In the Bell Atlantic Market Trial Order, released on January

20, 1995, the Commission authorized Bell Atlantic to conduct a six-

month video dialtone market trial that will include provision of video

programming directly to subscribers by a Bell Atlantic affiliate as

well as by independent video programmers.

Pending resolution of the instant rulemaking proceeding, we

conditioned Bell Atlantic's authorization on its compliance with

existing safeguards for the provision of nonregulated services,

including enhanced services, and with several additional, interim

safeguards against discrimination. We seek comment on whether any or

all of these interim safeguards should be adopted as permanent

requirements for LECs that provide video programming over their own

video dialtone platforms.

19. Under the Commission's customer proprietary network information

(CPNI) requirements, the Commission limits the Bell Operating

Companies' (BOCs') and GTE Service Corporation's (GTE's) use of CPNI;

requires them to make CPNI available to competitive enhanced service

providers (ESPs) designated by a customer; and requires that they make

available to ESPs non-proprietary aggregated CPNI on the same terms and

conditions on which they make such CPNI available to their own enhanced

service personnel. In the Video Dialtone Reconsideration Order, the

Commission determined that there was insufficient evidence to conclude

that our existing CPNI rules do not properly balance our CPNI goals

relating to privacy, efficiency, and competitive equity in the context

of video dialtone. The Commission also required the BOCs and GTE to

provide additional information regarding the kinds of CPNI to which

they will have access as a result of providing video dialtone service

and indicated its intent to seek further comment on such information.

We now seek additional comment and information on whether LEC provision

of video programming impacts the balancing of our goals for CPNI.

20. In addition to concerns over possible anticompetitive use of

CPNI, parties should discuss whether LEC provision of video programming

raises new concerns regarding consumer privacy. Parties that perceive a

greater threat to consumer privacy should describe with specificity

their concerns, and suggest specific safeguards for protecting consumer

privacy, and explain how these suggestions benefit the public interest.

21. We also seek comments on safeguards to ensure nondiscriminatory

access to network technical information. In the Bell Atlantic Market

Trial Order, the Commission required Bell Atlantic to provide all video

programmers with nondiscriminatory access to technical information

concerning the basic video dialtone platform and related equipment. The

Commission also noted that, in the circumstances of the market trial,

Bell Atlantic would also be subject to the more specific Computer III

network disclosure rules. We seek comment on whether the Bell Atlantic

condition should be adopted as a permanent safeguard. We also seek

parties to address whether the Computer III network disclosure rules

should be modified in any way for application in the video dialtone

context.

4. Safeguards Against Cross-Subsidization of Video Programming

Activities

22. In the Video Dialtone Reconsideration Order, the Commission

determined that price cap regulation and accounting safeguards would be

effective to prevent cross-subsidization of video dialtone-related

nonregulated activities. We tentatively conclude that these safeguards

against cross-subsidization apply to LEC provision of video programming

just as they would to any other activity not regulated as Title II

common carrier service, and that the existing rules are adequate to

forestall cross-subsidy of the video programming activity. We seek

comment on these tentative conclusions.

23. Assuming we do not require structural separation, LECs will

have the flexibility to conduct video programming activities both

within the telephone operating company and through affiliates. For

those video programming activities conducted in the operating company,

the LEC will be required to record costs and revenues in accordance

with Part 32 of the Commission's Rules, the Uniform System of Accounts

(USOA), and to separate the costs of video programming activity from

the costs of regulated telephone service in accordance with the part 64

joint cost rules. We tentatively conclude that these rules are adequate

to prevent cross-subsidization of video programming activities. We also

tentatively conclude that we will apply to video programming activities

the rule adopted in the Video Dialtone Reconsideration Order requiring

LECs to amend their cost allocation manuals to reflect video dialtone-

related nonregulated activities within 30 days of receiving video

dialtone facilities authorization. We seek comment on these tentative

conclusions.

24. H a LEC chooses for business reasons to provide video

programming through an affiliate, the accounting treatment of operating

company transactions with that affiliate will be governed by the

affiliate transactions rules. We seek comment on whether amendments to

those rules are needed [[Page 9000]] to safeguard against abuses in

transactions between LECs and affiliated video program providers.

Specifically, we seek comment on whether we should amend Section 32.27

to clarify that any video program provider that is considered, because

of a LEC's five percent ownership interest, to be a LEC affiliate for

purposes of applying video dialtone safeguards will also be considered

an ``affiliate'' for purposes of the affiliate transactions rule.

5. Structural Separation

25. In the Computer III proceeding, the Commission replaced its

requirement that BOCs offer enhanced services through separate

subsidiaries with a set of nonstructural safeguards. Those

nonstructural safeguards were intended to protect against

discrimination and cross-subsidization while avoiding the

inefficiencies associated with structural separation. We seek comment

on whether our approach to these questions should differ when BOCs

provide video programming. Specifically, we seek comment as to whether

there are aspects of the video programming business that warrant our

treating BOC provision of video programming differently from the way we

treat BOC provision of customer premises equipment (CPE) and enhanced

services generally. We also seek comment on whether any structural

separation requirement should apply to LECs other than the BOCs.

Commenting parties should specifically identify what aspects warrant

different treatment, and what form of separation would be appropriate.

Parties should also offer information concerning the relative costs and

benefits of structural separation.

6. Pole Attachments

26. Section 63.57 of our rules requires LECs seeking to provide

channel service to show in their Section 214 applications that the

cable system for which they would be providing channel service had pole

attachment rights or conduit space available ``at reasonable charges

and without undue restrictions on the uses that may be made of the

channel by the operator.'' In the Third Further Notice of Proposed

Rulemaking, the Commission sought comment on whether a similar rule

should apply to LECs providing video dialtone service. We now seek

additional comment on that proposal in light of C&P Tel. Co. v. U.S.

and U S West v. U.S. Parties should address whether incentives to abuse

control over pole and conduit space are increased if a LEC decides to

offer video programming within its telephone service area. In addition,

as requested in the Third Further Notice of Proposed Rulemaking,

advocates of such a rule should propose specific language, and should

explain how the rule would prevent anticompetitive conduct.

7. Legal and Constitutional Issues

a. Waiver of the Cross-Ownership Ban

27. Section 533(b)(4) of the Communications Act provides that, upon

a ``showing of good cause,'' the Commission may waive the 1984 Cable

Act's cross-ownership ban. Under Section 533(b)(4), a waiver ``shall be

granted by the Commission upon a finding that the issuance of such

waiver is justified by the particular circumstances demonstrated by the

petitioner, taking into account the policy of this subsection.'' In GTE

California v. FCC, the United States Court of Appeals for the Ninth

Circuit raises the question whether the Commission may establish

conditions under which it will waive the telco-cable cross-ownership

ban in order to obviate potential constitutional difficulties. We

tentatively conclude that such a reading of Section 533(b)(4) is

consistent with the terms of the statute. ``Good cause'' is commonly

interpreted to include changed circumstances, and the circumstances

that led us to institute the cross-ownership rule in 1970 have changed

dramatically. The cable industry is no longer a fledgling industry.

Instead, as the Supreme Court recently recognized, ``Congress found

that over 60 percent of the households with television sets subscribe

to cable * * * and for those households cable has replaced over-the-air

broadcast television as the primary provider of video programming.''

28. We also tentatively conclude that the safeguards we will

establish will constitute ``particular circumstances * * *, taking into

account the policy'' of Section 533(b), under which waivers are

warranted. We do not intend to waive the telco-cable cross-ownership

rule altogether, so that telephone companies may purchase cable

companies that do not face competition and offer their own programming

via a monopoly cable system. Rather, and in fulfillment of the policy

underlying Section 533(b), we intend to promote competition in the

multi-channel video programming market by establishing particular

conditions under which telephone companies may establish video dialtone

systems that will compete with existing cable operators, thus providing

consumers with a choice of multi-channel video systems.

29. The United States Court of Appeals for the District of Columbia

Circuit recognized, in NCTA v. FCC (1990), that ``the policy of this

subsection is to promote competition.'' However, in that decision the

D.C. Circuit also appeared to give a narrow reading to the scope of the

waiver provision. Specifically, the court of appeals remanded a

decision in which the Commission had granted a waiver because the court

concluded that the Commission had not shown that the participation of

an affiliate of a telephone company in constructing transmission

facilities was ``essential to the success'' of an experimental video

programming project. But at that time no court had declared Section

533(b) unconstitutional, and the D.C. Circuit did not consider whether

a broader reading of Section 533(b)(4) was appropriate to render the

provision constitutional. The Supreme Court has recently reiterated

that ``a statute is to be construed where fairly possible so as to

avoid substantial constitutional questions.'' A reading of the waiver

provision that authorizes telephone companies that comply with the

safeguards we will establish to provide video programming should render

Section 533(b) constitutional, because in those circumstances any

burden on speech by telephone companies will be minimal. Hence, under

U.S. v. X-Citement Video, a broad interpretation of Section 533(b)(4)

seems warranted. We seek comment on these tentative conclusions.

b. Constitutionality of Proposed Safeguards

30. As the Court of Appeals for the Fourth Circuit stated in C&P

Tel. Co. v. U.S., in order for a content-neutral government regulation

of speech, such as the cross-ownership ban, to be constitutional, that

regulation must be ``narrowly tailored to serve a significant

governmental interest, and * * * leave open ample alternative channels

for communication of the information.'' With respect to all proposals

set forth above for safeguards on LEC provision of video programming,

we seek comment on whether such safeguards, whether individually, or in

any combination, would be consistent with the First Amendment, the

Fourth Circuit's decision in C&P Tel. Co. v. U.S., and the Ninth

Circuit's decision in U.S. West v. U.S.

Ex Parte Presentations

31. This Fourth Further Notice of Proposed Rulemaking is a non-

restricted notice-and-comment rulemaking proceeding. Ex parte

presentations are [[Page 9001]] permitted, except during the Sunshine

Agenda period, provided that they are disclosed as provided in the

Commission's rules. See generally 47 CFR 1.1202, 1.1203, 1.1206.

Comment Filing Dates

32. Pursuant to applicable procedures set forth in Sections 1.415

and 1.419 of the Commission's rules, 47 C.F.R. 1.415, 1.419, interested

parties may file comments on or before March 6, 1995, and reply

comments on or before March 27, 1995. To file formally in this

proceeding, you must file an original and four copies of all comments,

reply comments, and supporting comments. If you want each Commissioner

to receive a personal copy of your comments, you must file an original

and nine copies. Comments and reply comments should be sent to Office

of the Secretary, Federal Communications Commission, Washington, DC

20554, with a copy to Peggy Reitzel of the Common Carrier Bureau, Room

544, and James Yancey of the Cable Services Bureau, Room 408C. Parties

should also file one copy of any documents filed in this docket with

the Commission's copy contractor, International Transcription Services,

Inc., 2100 M Street, NW., Suite 140, Washington, DC 20037. Comments and

reply comments will be available for public inspection during regular

business hours in the FCC Reference Center (Room 239), 1919 M Street

NW., Washington, DC.

Initial Regulatory Flexibility Analysis Statement

33. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C.

601-612, the Fourth Further Notice of Proposed Rulemaking, seeking

comment and information regarding whether additional or modified

safeguards and rule changes may be necessary or appropriate in the

context of the Commission's video dialtone regulatory framework, when a

telephone company provides video programming directly to subscribers in

its telephone service area may directly impact entities that are small

business entities, as defined in Section 601(3) of the Regulatory

Flexibility Act.

34. The Secretary shall send a copy of this Fourth Further Notice

of Proposed Rulemaking, including the Initial Regulatory Flexibility

Analysis, to the Chief Counsel for Advocacy of the Small Business

Administration in accordance with Section 603(a) of the Regulatory

Flexibility Act, Pub. L. 96-354, 94 Stat. 1164, 5 U.S.C. 601, et seq.

Ordering Clauses

35. It is ordered that, pursuant to Sections 1, 4, 201-205, 215,

and 218 of the Communications Act of 1934, as amended, 47 U.S.C. 151,

154, 201-205, 215, and 218, a Fourth Further Notice of Proposed

Rulemaking is hereby adopted.

36. It is further ordered that, the Secretary shall send a copy of

the Fourth Further Notice of Proposed Rulemaking, including the

regulatory flexibility certification, to the Chief Counsel for Advocacy

of the Small Business Administration, in accordance with paragraph

603(a) of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (1981).

List of Subjects in 47 CFR Part 63

Cable television, Communications common carriers, Reporting and

recordkeeping requirements, Telephone, Video dialtone.

Federal Communications Commission

William F. Caton,

Secretary.

[FR Doc. 95-3831 Filed 2-15-95; 8:45 am]

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