DEALING WITH COMPETITION AND CONSUMER COMPLAINTS: ACCESS TO MDUs, OVERBUILDS AND LATE FEES

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DEALING WITH COMPETITIONAND CONSUMER
COMPLAINTSACCESS TO MDUs, OVERBUILDSAND LATE
FEES

• Practicing Law Institute
• Cable Television Law 2000 Update
• Chicago
• October 19-20, 2000
• Nicholas P. Miller
• Miller Van Eaton, P.L.L.C.

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FOUR TOPICS

• 1. Competitive networks and building access.
• 2. Satellite dishes and the OTARD Rules.
• 3. Cable and Telephone inside wiring.
• 4. Cable Overbuild Networks (in QA)

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FORCED BUILDING ACCESS

• WT Docket No. 99-217
• FCC issued rulemaking notice in June, 1999.
• Comments filed August 27.
• Reply comments filed September 27.
• Decision and Further Notice issued October 12,
  2000

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FCC Considered Six Ways to Get Into Building

• Mandatory, nondiscriminatory access.--
• Extension of pole attachment rules (Sec. 224).
• Make Incumbent wiring available to competitors.
• Extend OTARD rules to common and restricted
  areas, and to non-video services.
• Ban new exclusive contracts in office bldgs.
• Move demarcation point to minimum point of entry.
  

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RAA Offer of Self-Regulation (9/6/00)

• Non-exclusivity on Office leases
• Market Study
• Complaint Clearing-house
• Speed of Processing
• 30 days for any tenant request
• predictable process for provider requests
• inform tenant of existing alternatives
• industry model contracts
• tenant rights in leases
• provider rights in model access contracts

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FCC Report and Order, October 12

• Ban exclusive contracts.
• Facilitate moving the MPE at building owner
  request.
• Apply Sec 224 to conduits and rights-of-way
• located in buildings
• owned or controlled by the utility.
• Extend OTARD to telecom antennas
• on property w/in exclusive use or control of user
• user holds ownership or leasehold interest

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FCC Further NPRM.

• FCC Authority to ban ILEC service from owners
  that unreasonably prevent competitive access?
• Refresh the record on the status of the market
• Extend ban on exclusive contracts to residential
  buildings?
• Prohibit carriers from enforcing existing
  exclusives?
• Proscribe preferential carrier contracts?
• What is right-of-way?
• Apply cable inside wiring rules to
  telecommunications?

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SATELLITE DISH(OTARD) RULES

• 47 C.F.R. 1.4000(a) preempts leases, building
  regulations and association rules if
• lease or rule impairs maintenance, installation
  or use of antenna.
• property is within users exclusive use or
  control and
• user has direct or indirect ownership interest in
  the property.
• Exceptions for safety, historic preservation.

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OTARD APPEAL

• FCC authority to modify the terms of leases?
  
• Does 207 grant new authority to the FCC?
• A substantial constitutional question, in
  violation of Bell Atlantic ?
• A per se, physical taking in violation of
  Loretto ?
• A regulatory taking?

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Condo Association

• Cant require prior approval.
• Cant charge permit fee.
• Require placement inside building only if an
  acceptable signal.
• Can require screening -- if no additional cost.
• Probably can require within outer limits of
  premises - Saran wrap rule.
• Can keep out of common areas (other than decks,
  patios and balconies).

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Rental Properties

• Tenants may
• Install antenna inside premises.
• Install antenna on exclusive use patio, deck, or
  balcony railings.
• Install antennas on masts, no more than 12 feet
  above roof line.
• May Not
• Install on exterior walls.
• Drill holes through walls to run cables.
• Install in common areas.
• Tenant not liable for ordinary wear and tear.

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Property Managers May

• Enforce safety restrictions - clearly-defined
  and legitimate.
• Fire codes.
• Electrical codes.
• Installation requirements describing how antenna
  must be secured.
• require reasonable security deposit (100 or
  less), indemnification and insurance.
• Can regulate placement if no interference with
  reception or additional cost.
• Can charge more for apartment facing south.

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CABLE INSIDE WIRING

• Building-by-building
• Operator must not have legally enforceable right
  to remain on the premises, e.g., contract,
  access law.
• Owner may acquire all wiring in building.
• Must give 90 days notice.
• All contracts must now address disposition of
  home run wiring.

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Cable Operator may elect

• remove
• abandon
• Sell --.price determined by negotiation. If no
  agreement in 30 days, can arbitrate

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Unit-by-Unit

• Assumes multiple providers can serve building by
  switching control of home run wiring.
• Unit Owner/Tenant must give 60 days notice.
• Provider has same 3 options remove, abandon, or
  sell -- but election applies to all individual
  changes by subscribers.

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TELEPHONE INSIDE WIRING

• New development
• FCC now requires at least CAT 3 wiring in new
  construction.
• Tenants can sue owner/developers.
• WHO CONTROLS WHAT
• Tenant - in unit, 12 inches inside premises.
• Owner - between unit and demarc point.
• Carrier - on other side of demarc point.

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DETERMINING CONTROL OVER EXISTING WIRING

• Is there a contract?
• If built before 8/13/90, have there been major
  modifications?
• Has the carrier set the demarc at the MPOE?
• Is the owner willing to move the demarc to the
  MPOE and assume maintenance cost?
• Telco must give owner info on location of
  wiring, and service records.
• If dont respond within 30 days, send letter to
  FCC.

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ECI Quickly

• FCC not a cable operator
• separate, unaffiliated to PROW facilities
• not a cable system
• not using PROW

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Austin (5th Cir) a cable system but no cable
operator

• SWB and SWBV together operate a cable system
• SWB facilities in PROW not owned by SWBV
• Not significant overlap in corporate interests

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ECI (7th Cir)

• Chevron deference to FCC view
• Reasonable to conclusion
• ECI not using PROW
• Ameritech had franchise for PROW use
• Neither company a cable operator

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Conclusion

• The Exception replaces the Rule?
• Cable Act limits local regulation,
• Cable Act does not limit local property rights
• States and locals to own PROW
• use is a state property law issue
• No FCC authority to take this property
• Local Governments still can franchise video
  users of PROW