Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities

17 April 2002
Source: http://www.access.gpo.gov/su_docs/aces/fr-cont.html

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[Federal Register: April 17, 2002 (Volume 67, Number 74)]
[Proposed Rules]
[Page 18848-18854]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17ap02-27]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[CS Docket No. 02-52; FCC 02-77]

Appropriate Regulatory Treatment for Broadband Access to the
Internet Over Cable Facilities

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document addresses the consequences of the Commission's
classification of cable modem service as an information service as
defined in section 3(20) of the Communications Act, 47 U.S.C. 153(20).
Cable modem service is a service that uses cable system facilities to
provide residential subscribers with high-speed Internet access, as
well as many applications or functions that can be used with high-speed
Internet access.
The Notice of Proposed Rulemaking asks questions about whether, and
if so, how, cable modem service should be regulated by the Commission.
This document also seeks comment on how the classification decision may
affect State and local regulation of cable modem service. This document
provides persons with the opportunity to submit comments and
information with which the Commission can address these issues.

DATES: Comments are due on or before June 17, 2002 and reply comments
are due on or before July 16, 2002.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554.

FOR FURTHER INFORMATION, CONTACT: Steve Garner, Media Bureau at (202)
418-1063 or via Internet at sgarner@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rulemaking, CS Docket No. 02-52, adopted March 14,
2002, and released March 15, 2002. The full text of this decision is
available for inspection and copying during normal business hours in
the FCC Reference Information Center, Portals II, 445 12th Street, SW.,
Room CY-A257, Washington, DC 20554, and may be purchased from the
Commission's copy contractor, Qualex International, Portals II, 445
12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202)
863-2893, facsimile (202) 863-2898, or via e-mail qualexint@aol.com or
may be viewed via Internet at http://hraunfoss.fcc.gov/edocs_public/
attachmatch/FCC-02-77A1.pdf.

Synopsis of the Notice of Proposed Rulemaking

1. This Notice of Proposed Rulemaking (``NPRM'') was initiated
based on the record developed in the Notice of Inquiry (``NOI'')
proceeding initiated in GN Docket No. 00-185 in September 2000. The NOI
pleading cycle, in which interested parties (``commenters'') could file
pleadings, ended in January 2001.
2. This NPRM concerns cable modem service, which is a high-speed
(or ``broadband'') Internet access service provided to residential
subscribers over cable system facilities. The Commission found in a
Declaratory Ruling accompanying the NPRM that cable modem service is an
information service as that terms is defined in Section 3(20) of the
Communications Act of 1934, as amended (``the 1934 Act''), 47 U.S.C.
153(20). The NPRM addresses a number of possible consequences of the
Commission's classification of cable modem service as an information
service. The following paragraphs

[[Page 18849]]

describe the issues on which the Commission asks for comment in the
NPRM.

Background

3. The NPRM first seeks comment on the Commission's jurisdiction
and authority to regulate cable modem service. The NRPM also seeks
comment on whether the Commission may, and, if so, should, impose any
form of so-called ``multiple ISP (Internet Service Provider) access''
requirements on operators of cable systems (``cable operators''). The
NPRM describes multiple ISP access as a requirement that cable
operators provide unaffiliated ISPs with the right access to cable
modem service customers directly. Previously, the NOI sought comment on
a variety of models by which a cable operator could be required to
provide multiple ISP access. The NPRM requests commenters to specify,
in asking the questions summarized below, whether commenters are
addressing any form of multiple ISP access in particular, on all forms
described in the Notice of Inquiry, and whether any access requirement
should specifically limit ISP access to uses related to the offering of
cable modem service, or should explicitly permit other uses by ISPs.

Commission Authority

4. Given its classification of cable modem service as an interstate
information service, the Commission asks for comment on whether the
Commission should exercise its ancillary authority under Title I of the
1934 Act with regard to the provision of cable modem service. In
another recent NPRM, concerning broadband Internet access service
provided by traditional wireline telecommunications common carriers
(the ``Wireline Broadband NPRM''), the Commission tentatively concluded
that wireline broadband Internet access service is an interstate
information service. In the present NPRM, the Commission asks how its
findings and decisions in one proceeding should impact the other. It
also requests comment on whether there are legal or policy reasons why
it should reach different conclusions with respect to wireline
broadband Internet access service and cable modem service. Should any
decision to exercise Title I jurisdiction over either service be
influenced by the cable operators' current status as the leading
providers of residential broadband services?
5. The NPRM seeks comment on any explicit statutory provisions,
including expressions of congressional goals, which would be furthered
by the Commission's exercise of ancillary jurisdiction over cable modem
service. The Commission mentions as possibilities sections 1, 230(b),
and 601(4) of the 1934 Act and section 706 of the 1996
Telecommunications Act. The NPRM requests comment on the use of these
or other statutory provisions as the basis for the Commission's
exercise of Title I jurisdiction. It also requests comment on whether
reliance on ancillary jurisdiction in support of these or other
provisions would be analogous to the Commission's reliance on ancillary
jurisdiction in adoption of its Computer Inquiry rules. In addition,
given the relationship of cable modem service (including the underlying
transmission component) to services provided by wireline common
carriers, the NPRM seeks comment on whether there are any additional
bases for asserting ancillary jurisdiction.
6. The NPRM seeks comment on whether a federally mandated system of
multiple ISP access would violate the First Amendment rights of cable
operators. The NPRM seeks comment in particular on the level of First
Amendment scrutiny that would apply to a federal multiple ISP access
requirement, especially in light of recent case law or Commission
precedent concerning the First Amendment. Have marketplace conditions
in the residential high-speed Internet access business changed since
the close of the pleading cycle in this proceeding in ways that alter
the First Amendment analysis? Have trials and limited commercial
offerings of different kinds of multiple ISP access shown that certain
types of access place a minimal burden on the cable operators while
achieving the maximum choice for subscribers?
7. The NPRM also seeks comment whether multiple ISP access would
constitute a ``per se'' or ``regulatory'' taking of the cable
operator's property without just compensation under the Takings Clause
of the Fifth Amendment to the U.S. Constitution. It seeks comment on
what, if a form of multiple ISP access did entail a taking, would be
``just compensation'' for it. Would ensuring just compensation
necessarily involve regulators in setting the price that a cable
operator charges unaffiliated ISPs (or vice versa)? Or could just
compensation be ensured by some market-based process of negotiations?
Do recent technological developments, technical trials, and limited
commercial offerings of multiple ISP access indicate that some forms of
multiple ISP access minimize occupation of the cable operator's
property and economic harm to it? The NPRM requests comment on these
issues. The NPRM also seeks comment on whether there are additional
Constitutional concerns related to multiple ISP access requirements.

Marketplace Developments

8. The NPRM asks that commenters update the record on what has
changed in the cable modem service marketplace since the pleading cycle
on the Notice of Inquiry closed, particularly with respect to evolving
business relationships among cable operators and their service
offerings. Do recent events demonstrate that the market will provide
consumers a choice of ISPs without government intervention, or that the
absence of widespread business arrangements raises a level of concern
sufficient to warrant Commission action? The NPRM asks that commenters
who believe that Commission intervention is necessary describe in
detail what sort of regulations the Commission should impose. It also
asks for comment regarding whether any decision the Commission makes
about multiple access requirements for cable systems in this proceeding
should apply to Open Video Systems.
9. The NPRM asks whether, in current and likely future market
conditions, any form of multiple ISP access is needed to promote the
Commission's goals of, for example, promoting the deployment of
advanced telecommunications capability; spurring investment in
facilities to provide high-speed Internet access service and innovation
among service providers, ISPs, and creators of content; and/or
facilitating intramodal or intermodal competition. Or would multiple
ISP access, if mandated by regulation, have the opposite effects? The
NPRM seeks comment on whether the Commission's decision-making should
be guided by principles that embrace intramodal competition. If so, the
NPRM seeks comment on whether the market can or will satisfy these
principles or whether some form of multiple ISP access regime for cable
systems is needed to do so. To what extent should any decision
regarding multiple ISP access requirements be influenced by the
desirability of `regulatory parity,' namely the presence or absence of
multiple ISP access regimes for other technologies (such as wireline,
terrestrial wireless, and satellite) that offer residential high-speed
Internet access service? To what extent should that decision be
impacted by cable operators' current status as the leading providers of
residential broadband services?
10. Consumer Demand. The NPRM asks whether there is a demand for

[[Page 18850]]

access to several ISPs and, if there is, whether that demand is being
met today. Specifically, does ``click through'' access to any ISP and
content on the World Wide Web produce the same, or almost the same,
value that a regulatory system of multiple ISP access would produce? Is
any cable operator or ISP denying, or likely to deny, click through
access? Is the threat that subscriber access to Internet content or
services could be blocked or impaired, as compared to content or
services provided by the cable operator or its affiliated ISP,
sufficient to justify regulatory intervention at this time?
11. Cost/Benefit Analysis. The NPRM requests comment on the costs
that a multiple ISP access mandate would impose on cable operators and
on the benefits that a mandate would bring to consumers. Would some
forms of multiple ISP access be less costly to cable operators and more
beneficial to consumers than others? Is the cost/benefit calculation
for multiple ISP access different for small cable operators than it is
for others? Would the requirements imposed on telecommunications
carriers by the Commission's Second Computer Inquiry or Third Computer
Inquiry provide a useful model for a multiple ISP access regime? Would
the new forms of multiple ISP access that are being deployed or are
under consideration by cable operators, such as the model being
implemented by AOL Time Warner pursuant to the Federal Trade
Commission's AOL Time Warner Merger Order, provide useful models? Other
possible means of effecting a multiple ISP access regime include
adopting a general rule of reasonableness for cable operators in their
dealings with ISPs seeking access to their cable systems and/or
requiring cable operators to make high-speed transmission available to
other ISPs at ``market-based prices.'' The Commission could then rely
on its complaint processes to resolve individual disputes about these
standards. The NPRM asks whether such a system of general principles
and case-by-case adjudication would achieve the Commission's goals in a
timely and cost-effective manner.
12. The NPRM asks what lessons, if any, trials and current
commercial offerings of multiple ISP access reveal about the costs and
benefits of multiple ISP access and how such costs and benefits can be
balanced. Has recent experience with the addition of source-based
routers showed that technology to be an efficient form of multiple ISP
access?
13. The NPRM asks for comment on be the costs of regulatory
enforcement of a multiple ISP access mandate. Would a multiple ISP
access mandate lead to significant opportunities for regulatory
arbitrage--businesses making decisions based on regulatory
classifications rather than on customers' preferences and innovative
and sustainable business plans? Would a multiple ISP access mandate
impose long-term costs on the market? In light of the new and fast-
changing nature of the residential high-speed Internet access business,
would a multiple ISP access requirement, imposed at this time, hinder
the development of a market that is still evolving? In particular,
might a requirement preclude the discovery of network design, content,
applications, and business models that would otherwise enjoy widespread
adoption and enhance long-term consumer welfare? Is there a way to
implement multiple ISP access now that would avoid any such harmful
interference in the future and that would achieve the Commission's
goals? If the Commission adopts a multiple ISP access mandate for cable
systems generally, should it exempt small cable systems from such a
mandate because of the particular conditions that they face?
14. The NPRM notes that the Commission is particularly interested
in comments that provide updated information and discuss relevant
regulatory and judicial decisions issued since the comment period
closed for the Notice of Inquiry in GN Docket 00-185. The Commission is
likely to find particularly relevant and persuasive empirically
supported studies that use well-established methods for quantifying
benefits and harms, as well as comments based on well-established
economic theory.
15. Changing Market Conditions. Assuming that the Commission
ultimately concludes not to impose multiple ISP access at this time,
the NPRM asks what, if any, future events should lead it to do so. Are
there market conditions that are not currently pervasive but, should
they become pervasive, would suggest the need for a multiple ISP access
mandate in the future? Would these conditions include the acquisition
of market power by cable operators in providing residential high-speed
Internet access, cable operators' refusals to satisfy subscriber demand
for multiple ISP access, or the evolution of a mature market for
residential high-speed Internet access? Would a finding that subscriber
access to Internet content or services may be blocked or impaired, as
compared to other content or services, particularly that provided by
the cable operator or its affiliate, support regulatory intervention?
The NPRM seeks comment on other conditions that would suggest
regulation is needed and on objective, readily measurable criteria by
which the Commission could detect the occurrence of such conditions. It
asks whether ongoing monitoring is appropriate to ensure that any
relevant conditions are detected accurately and in a timely manner and,
if so, what that monitoring would consist of.
16. The NPRM also seeks comment on indicia that a cable operator is
offering a common carrier telecommunications service (other than local
telephone service) or a private carrier service, on a stand-alone
basis, to ISPs or subscribers. The NPRM asks how the Commission might
detect that a cable operator is, in fact, making such an offering. If
and when a cable operator makes such an offering, what, if any, access
requirements should the Commission impose on it? For example, if the
Commission found that a cable operator were making such an offering,
would that trigger the requirements of the Second Computer Inquiry and
Third Computer Inquiry with respect to the retail offering of cable
modem service to subscribers, or make their application in the public
interest? To what extent should these decisions impact, or be impacted
by, the conclusions made in the Wireline Broadband NPRM proceeding? The
NPRM asks for comment on the appropriate scope of regulation of any
such offerings of telecommunications service.
17. Forbearance from Telecommunications Service Obligations. The
U.S. District Court for the Southern District of California has
expressed the view that it is bound by the Ninth Circuit's decision in
AT&T v. City of Portland that cable modem service is a
telecommunications service. The Ninth Circuit had left open the
question as to whether the Commission could forbear from particular
Title II obligations under Section 10 of the Communications Act. To the
extent that cable modem service may be subject to telecommunications
service classification, the NPRM seeks comment on whether the
Commission should forbear from applying each provision of Title II or
common carrier regulation. The NPRM invites comment on whether
enforcement of such provisions is not necessary to ensure that the
charges, practices, classification or regulations in connection with
cable modem service are just and reasonable and not unjustly or
unreasonably discriminatory. Is enforcement not necessary for the
protection of consumers? Would forbearance be consistent with the
public interest? The NPRM tentatively

[[Page 18851]]

concludes that such forbearance would be justified. Given that cable
modem service will be treated as an information service in most of the
country, the Commission tentatively concludes that the public interest
would be served by the uniform national policy that would result from
the exercise of forbearance to the extent that cable modem service is
classified as a telecommunications service. The Commission states its
belief that forbearance would be in the public interest because cable
modem service is still in its early stage; supply and demand are still
evolving; and several rival networks providing residential high-speed
Internet access are still evolving. Thus, the Commission tentatively
concludes that enforcement of Title II provisions and common carrier
regulation is not necessary for the protection of consumers or to
ensure that rates are just and reasonable and not unjustly
discriminatory. The Commission states its belief that forbearance from
Title II and common carrier regulation is appropriate under the
circumstances. The NPRM requests comment on this conclusion and the
underlying analysis, and asks that commenters focus on how such
forbearance and/or regulation would further the Commission's goals.

Consequences of Legal Classification as Information Service

18. State and Local Regulation of Cable Modem Service and Rights-
of-Way. The NPRM seeks comment whether the Commission should interpret
its assertion of jurisdiction over cable modem service under the
Communications Act to preclude State and local authorities from
regulating cable modem service and facilities in particular ways. The
NPRM notes that the courts have recognized the Commission's authority
under Title I to preempt non-Federal regulations that negate the
Commission's goals, including regulations affecting enhanced services.
The NPRM seeks comment as to any additional basis for preempting such
regulations, including, for example, section 624(b) of the
Communications Act.
19. In addition to the access requirements, franchise requirements,
and franchise fees discussed below, the NPRM seeks comment on any other
forms of State and local regulation that would limit the Commission's
ability to achieve its national broadband policy, discourage investment
in advanced communications facilities, or create an unpredictable
regulatory environment. Specifically, the NPRM seeks comment as to
whether the Commission should use its preemption authority to preempt
specific State laws or local regulations. It asks commenters to specify
what preemption authority the Commission would rely on in each case.
20. Access Requirements. The NPRM seeks comment on any regulatory
authority that State and local governments may have with respect to
cable modem service as an information service, including any authority
to impose multiple ISP access requirements or to prohibit, limit,
restrict, or condition the provision of cable modem service. Is such
regulation consistent with any exercise of the Commission's
jurisdiction over cable modem service under Title I, including any
affirmative decision the Commission might make to refrain from imposing
specific regulatory requirements?
21. Rights-of-Way and Franchising Issues. The NPRM asks for comment
on how the classification of cable modem service as an interstate
information service impacts State and local regulation of rights-of-way
and franchising. The NPRM tentatively concludes that once a cable
operator has obtained a franchise for a cable system, the Commission's
information service classification should not affect the right of cable
operators to access rights-of-way as necessary to provide cable modem
service or to use their previously franchised systems to provide cable
modem service. The NPRM seeks comment on this tentative conclusion. It
also seeks comment on whether providing additional services over
upgraded cable facilities imposes additional burdens on the public
rights-of-way such that the existing franchise process is inadequate.
If so, the NPRM asks whether Title VI nevertheless precludes local
franchising authorities from imposing additional requirements on cable
modem service. The NPRM tentatively concludes that Title VI does not
provide a basis for a local franchising authority to impose an
additional franchise on a cable operator that provides cable modem
service.
22. The NPRM also seeks comment generally on the scope of local
franchising authority over facilities-based providers of information
services. Do State statutes and Constitutional provisions authorizing
local franchising in terms of utility services generally, or cable and
telecommunications networks and services specifically, authorize
localities to franchise providers of information service under existing
law? If so, is there any basis for treating facilities-based providers
of information services differently based on the facilities used? The
NPRM expresses concern that State or local regulation beyond that
necessary to manage rights-of-way could impede competition and impose
unnecessary delays and costs on the development of new broadband
services. It notes questions about potential State and local actions
that could restrict entry, impose access or other requirements on cable
modem service, or assess fees or taxes on cable Internet service. It
seeks comment on these issues.
23. In the NPRM, the Commission tentatively concludes that Title VI
of the 1934 Act does not provide an independent basis of authority for
assessing franchise fees on cable modem service. The NPRM seeks comment
on this issue.
24. Franchise Fees Previously Paid Pursuant to Section 622. The
NPRM also notes that some cable operators, believing they were
legitimately carrying out their obligations and rights under Title VI
of the 1934 Act and local franchise agreements, collected franchise
fees based on cable modem service revenues, identified these fees on
subscriber bills, and remitted these franchise fees to local
franchising authorities pursuant to the terms of their franchising
agreements. After the Ninth Circuit's decision in AT&T v. Portland,
some cable operators suspended collecting and remitting franchise fees
for revenues from cable modem service in Ninth Circuit States out of
concern about their exposure to significant litigation risk if they
were to continue collecting a franchise fee on cable modem service.
Subscribers in other states are understood to have raised the issue of
whether franchise fees were lawfully collected from them and whether
the fees collected should be refunded. The NPRM seeks comment on
whether disputes regarding franchise fees based on cable modem service
implicate a national policy concerning communications that calls upon
Commission expertise, given that the fees in question were collected
pursuant to the Communications Act and that the Commission's
classification decision will alter, on a national scale, the regulatory
treatment of cable modem service. The NPRM seeks comment on whether it
is appropriate for the Commission to exercise its jurisdiction under
section 622 of the Communications Act to resolve the issue of
previously collected franchise fees based on cable modem service
revenues or whether these issues are more appropriately resolved by the
courts.
25. Consumer Protection and Customer Service. The NPRM also seeks
comment on how the Commission's information service classification may

[[Page 18852]]

affect other aspects of State or local regulation, such as consumer
protection and customer service standards regarding cable modem
service. The NPRM asks whether the authority conferred on franchising
authorities by section 632(a) of the Communications Act to establish
and enforce customer service requirements applies to cable modem
service provided by a cable operator. Do the provisions in section
632(d), stating that nothing in Title VI ``shall be construed to
prohibit any State or any franchising authority from enacting or
enforcing any consumer protection law, to the extent not specifically
preempted by [Title VI],'' or ``to prevent the establishment or
enforcement'' of customer service laws or regulations that exceed
Commission standards or address matters not addressed by Commission
standards under section 632, apply to cable modem service?
26. Protection of Subscriber Privacy. Section 631 of the
Communications Act addresses privacy for subscribers to ``any cable
service or other service'' provided by a cable operator. The NPRM
states that the Commission interprets cable modem service to be an
``other service.'' The NPRM seeks comment on this interpretation. And,
although section 631's terms are enforced by the courts, and not by the
Commission, the NPRM seeks comment as to how the privacy requirements
of section 631 affect providers of cable modem service.

Initial Regulatory Flexibility Analysis

27. As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.
601 et seq. as amended (``RFA''), the Commission has prepared an
Initial Regulatory Flexibility Analysis (``IRFA'') of the possible
significant economic impact on a substantial number of small entities
by the policies and rules considered in the NPRM. Written public
comments are requested on this IRFA. Comments must be identified as
responses to this IRFA and must be filed by the deadlines for comments
on the NPRM provided in paragraph 41 of this NPRM. The Commission will
send a copy of the NPRM, including this IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration (``SBA'').
28. Need for, and Objectives of, the Proposed Rules. With our
declaratory ruling herein, we have sought to provide regulatory
certainty for the emerging cable modem service industry by resolving a
nationwide controversy concerning the proper regulatory classification
of cable modem service under federal law. In doing so, we recognize
that there are a number of related issues that may need resolution in
the form of federal rules. By this Notice of Proposed Rulemaking, we
seek comment on certain issues related to the practical implementation
of our classification of cable modem service as an information service.
29. Legal Basis. The authority for the action proposed in this
rulemaking is contained in sections 1, 2(a), 3, 4(i), 4(j), 303, and
601 of the Communications Act of 1934, as amended, 47 U.S.C. 151,
152(a), 153, 154(i), 154(j), 303, and 521, and Section 706 of the
Telecommunications Act of 1996, 47 U.S.C. 157 nt.
30. Description and Estimate of the Number of Small Entities to
Which the Proposed Rules Will Apply. The RFA, 5 U.S.C. 603(b)(3),
directs agencies to provide a description of, and where feasible, an
estimate of the number of small entities that may be affected by the
proposed rules, if adopted. The RFA, 5 U.S.C. 601(6), generally defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act, 5 U.S.C. 601(3) (incorporating by reference the definition of
``small business concern'' in the Small Business Act, 15 U.S.C. 632).
Under 15 U.S.C. 632, a ``small business concern'' is one which: (1) Is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the
SBA.
31. The SBA has developed a small business size standard, 13 CFR
121.201, North American Industry Classification System (``NAICS'') code
513220, for cable and other program distribution,'' which includes all
such companies generating $11 million or less in revenue annually. This
category includes, among others, cable operators, closed circuit
television services, direct broadcast satellite services, multipoint
distribution services, open video systems (``OVS''), satellite master
antenna television (``SMATV'') systems, and subscription television
services. According to the Census Bureau data from 1992, there were
1,788 total cable and other pay television services and 1,423 had less
than $11 million in revenue. The Commission addresses cable operators
and OVS operators below to provide a more precise estimate of the
affected small entities. The Commission does not believe that the other
pay television services would be affected by the proposals in the NPRM.
32. Cable Systems. The Commission has developed its own small
business size standard for a small cable operator for the purposes of
rate regulation. Under the Commission's rules, 47 CFR 76.901(e), a
``small cable company'' is one serving fewer than 400,000 subscribers
nationwide. Based on Commission's most recent information, it estimates
that there were 1,439 cable operators that qualified as small cable
companies at the end of 1995. Since then, some of those companies may
have grown to serve over 400,000 subscribers, and others may have been
involved in transactions that caused them to be combined with other
cable operators. Consequently, the Commission estimates that there are
fewer than 1,439 small cable companies that may be affected by the
NPRM.
33. The Communications Act of 1934, 47 U.S.C. 543(m)(2) as amended,
also contains a size standard for a ``small cable operator,'' which is
``a cable operator that, directly or through an affiliate, serves in
the aggregate fewer than one percent of all subscribers in the United
States and is not affiliated with any entity or entities whose gross
annual revenues in the aggregate exceed $250,000,000.'' The Commission
has determined that there are 67,700,000 subscribers in the United
States. Therefore, an operator serving fewer than 677,000 subscribers
shall be deemed a small operator, if its annual revenues, when combined
with the total annual revenues of all of its affiliates, do not exceed
$250 million in the aggregate. See 47 CFR 76.1403(b). Based on
available data, the Commission estimates that the number of cable
operators serving 677,000 subscribers or less totals approximately
1,450. The Commission does not request or collect information on
whether cable operators are affiliated with entities whose gross annual
revenues exceed $250,000,000, and therefore is unable to estimate
accurately the number of cable system operators that would qualify as
small cable operators under the definition in the Communications Act.
34. Open Video Systems (``OVS''). Because OVS operators provide
subscription services, as specified in 47 U.S.C. 573, OVS falls within
the SBA-recognized definition of ``Cable and Other Program
Distribution,'' 13 CFR 121.201, NAICS Codes 51321 and 51322. This
standard provides that a small entity is one with $11 million or less
in annual receipts. The Commission has certified approximately 25 OVS
operators to serve 75 areas, and some of those are currently providing
service.

[[Page 18853]]

Affiliates of Residential Communications Network, Inc. (``RCN'')
received approval to operate OVS systems in New York City, Boston,
Washington, D.C. and other areas. RCN has sufficient revenues to assure
the Commission that they do not qualify as small business entities.
Little financial information is available for the other entities
authorized to provide OVS that are not yet operational. Given that
other entities have been authorized to provide OVS service but have not
yet begun to generate revenues, the Commission concludes that at least
some of the OVS operators qualify as small entities.
35. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements. The NPRM seeks comment on the regulatory
implications of the Commission's finding that cable modem service is an
information service under the Communications Act, 47 U.S.C. 153(20) as
amended. Specifically, the NPRM seeks comment on whether the Commission
should require cable operators that provide cable modem service to
allow unaffiliated ISPs to have direct access to the cable operator's
subscribers via the cable system facilities.
36. The NPRM also seeks comment on the scope of state and local
government authority over cable modem service in light of the
Commission's finding that it is an information service. This
determination may not have a direct effect on small entities, but
indirectly it may impact small entities, such as small cable operators,
if local governments are permitted to require cable operators to grant
unaffiliated ISPs access to the cable system or if local governments
are permitted to enforce other regulations that affect a cable
operator's provision of cable modem service.
37. Steps Taken to Minimize Significant Impact on Small Entities
and Significant Alternatives Considered. The IRFA requires an agency to
describe any significant alternatives that it has considered in
proposing regulatory approaches, which may include, among others, the
following four alternatives: (1) The establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use
of performance, rather than design, standards; and (4) an exemption
from coverage of the rule, or any part thereof, for small entities.
38. The NPRM seeks comment on several regulatory alternatives to
implement the Commission's classification of cable modem service as an
information service under the Communications Act. For example,
alternatives considered in the NPRM include whether unaffiliated ISPs
should be provided with access to cable systems and, if so, which of
the various access models should be adopted. In addition, the
Commission will also consider whether any access requirements
ultimately adopted should be different for large cable operators from
those imposed on small cable operators. Finally, the NPRM considers
whether the Commission should refrain entirely from imposing any ISP
access requirements on cable operators. The Commission expects that
whichever alternatives are chosen the Commission will seek to minimize
any adverse effects on small entities.
39. Federal Rules Which Duplicate, Overlap, or Conflict with the
Commission's Proposals. None.

Procedural Matters

Ex Parte

40. This proceeding will be treated as a ``permit-but-disclose''
proceeding subject to the ``permit-but-disclose'' requirements under
Sec. 1.1206(b) of the Commission's rules, 47 CFR 1.1206(b), as revised.
Ex parte presentations are permissible if disclosed in accordance with
Commission rules, except during the Sunshine Agenda period when
presentations, ex parte or otherwise, are generally prohibited. Persons
making oral ex parte presentations are reminded that a memorandum
summarizing a presentation must contain a summary of the substance of
the presentation and not merely a listing of the subjects discussed.
More than a one or two sentence description of the views and arguments
presented is generally required. See 47 CFR 1.1206(b)(2), as revised.
Additional rules pertaining to oral and written presentations are set
forth in Sec. 1.1206(b) of the Commission's rules, 47 CFR 1.1206(b), as
revised. Parties submitting written ex parte presentations or summaries
of oral ex parte presentations are urged to use the Electronic Comment
Filing System (``ECFS'') in accordance with the Commission rules
discussed below. Parties filing paper ex parte submissions must file an
original and one copy of each submission with the Commission's Acting
Secretary, William F. Caton, at the appropriate address below (see
Filing of Comments and Reply Comments) for filings sent by either U.S.
mail, overnight delivery, or hand or messenger delivery. Parties must
also serve the following with either one copy of each ex parte filing
via e-mail or two paper copies: (1) Qualex International, Portals II,
445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone
(202) 863-2893, facsimile (202) 863-2898, or e-mail at
qualexint@aol.com; and (2) Sarah Whitesell, Media Bureau, 445 12th
Street, SW., 3-C488, Washington, DC, 20554, swhitese@fcc.gov; and (3)
Steve Garner, Media Bureau, 445 12th Street, SW., 4-C468, Washington,
DC 20554, sgarner@fcc.gov.

Filing of Comments and Reply Comments

41. Pursuant to applicable procedures set forth in Secs. 1.415 and
1.419 of the Commission's rules, interested parties may file comments
on or before June 17, 2002, and reply comments on or before July 15,
2002. Comments may be filed using the Commission's Electronic Comment
Filing System (``ECFS'') or by filing paper copies. See Electronic
Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
Given recent changes in the Commission's mail delivery system, parties
are strongly urged to use the ECFS to file their pleadings. Comments
filed through the ECFS can be sent as an electronic file via the
Internet to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fcc.gov/e-file/ecfs.html>. Generally, only one
copy of an electronic submission must be filed. In completing the
transmittal screen, electronic filers should include their full name,
Postal Service mailing address, and the applicable docket or rulemaking
number. Parties may also submit an electronic comment by Internet e-
mail. To get filing instructions for e-mail comments, commenters should
send an e-mail to ecfs@fcc.gov, and should include the following words
in the body of the message, ``get form your e-mail address>.'' A sample
form and directions will be sent in reply.
42. Parties who choose to file by paper must file an original and
four copies of each filing in CS Docket No. 02-52. If parties want each
Commissioner to receive a personal copy of their comments, an original
plus nine copies must be filed. Filings can be sent by hand or
messenger delivery, by commercial overnight courier, or by first-class
or overnight U.S. Postal Service mail (although we continue to
experience delays in receiving U.S. Postal Service mail). The
Commission's contractor, Vistronix, Inc., will receive hand-delivered
or messenger-delivered paper filings for the Commission's Secretary at
236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The
filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries
must

[[Page 18854]]

be held together with rubber bands or fasteners. Any envelopes must be
disposed of before entering the building. Commercial overnight mail
(other than U.S. Postal Service Express Mail and Priority Mail) must be
sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal
Service first-class mail, Express Mail, and Priority Mail should be
addressed to 445 12th Street, SW., Washington, DC 20554. All filings
must be addressed to the Commission's Secretary, Office of the
Secretary, Federal Communications Commission. Parties must also serve
the following with either one copy of each filing via e-mail or two
paper copies: (1) Qualex International, Portals II, 445 12th Street,
SW., Room CY-B402, Washington, DC 20554, telephone (202) 863-2893,
facsimile (202) 863-2898, or e-mail at qualexint@aol.com; and (2) Sarah
Whitesell, Media Bureau, 445 12th Street, SW., 3-C488, Washington, DC
20554, swhitese@fcc.gov. In addition, five copies of each filing must
be filed with Steve Garner, Media Bureau, 445 12th Street, SW., 4-C468,
Washington, DC 20554, sgarner@fcc.gov.

Availability of Documents

43. Comments, reply comments, and ex parte submissions will be
available for public inspection during regular business hours in the
FCC Reference Center, Federal Communications Commission, 445 12th
Street, SW., CY-A257, Washington, DC 20554. Persons with disabilities
who need assistance in the FCC Reference Center may contact Bill Cline
at (202) 418-0267, (202) 418-7365 TTY, or bcline@fcc.gov. These
documents also will be available electronically at the Commission's
Disabilities Issues Task Force Web site: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fcc.gov/dtf, and from the
Commission's Electronic Comment Filing System. Documents are available
electronically in ASCII text, Word 97, and Adobe Acrobat. Copies of
filings in this proceeding may be obtained from Qualex International,
Portals II, 445 12th Street, SW., Room, CY-B402, Washington, DC 20554,
telephone (202) 863-2893, facsimile (202) 863-2898, or via e-mail at
qualexint@aol.com.
44. This document is available in alternative formats (computer
diskette, large print, audio cassette, and Braille). Persons who need
documents in such formats may contact Brian Millin at (202) 418-7426,
TTY (202) 418-7365, or send an e-mail to access@fcc.gov.

Contact Information

45. The Media Bureau contact for this proceeding is Steve Garner at
(202) 418-1063, sgarner@fcc.gov.

Ordering Clause

46. This Notice of Proposed Rulemaking is issued pursuant to
authority contained in sections 1, 2, 3, 4, 303, 403, and 601 of the
Communications Act of 1934, as amended, and section 706 of the
Telecommunications Act of 1996.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 02-9102 Filed 4-16-02; 8:45 am]
BILLING CODE 6712-01-P

[Federal Register: April 17, 2002 (Volume 67, Number 74)]
[Notices]
[Page 18907]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17ap02-74]

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

FEDERAL COMMUNICATIONS COMMISSION

[GN Docket No. 00-185; FCC 02-77]

Inquiry Concerning High-Speed Access to the Internet Over Cable
and Other Facilities; Internet Over Cable Declaratory Ruling

AGENCY: Federal Communications Commission.

ACTION: Notice.

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

SUMMARY: On March 15, 2002, the Commission released a Declaratory
Ruling in Inquiry Concerning High-Speed Access to the Internet Over
Cable and Other Facilities and Internet Over Cable Declaratory Ruling,
GN Docket No. 00-185. The Commission ruled that cable modem service, as
it is currently offered, is an interstate information service, not a
cable service, and that there is no separate offering of
telecommunications service. Consistent with Secs. 1.103 and 1.4(b)(2)
of the Commission's rules, 47 CFR 1.103, 1.4(b)(2), the effective date
for the Declaratory Ruling is the date of release of the ruling, March
15, 2002.
Copies of the Declaratory Ruling may be obtained on the Internet
through http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fcc.gov/Bureaus/Cable/News_Releases/2002/nrcb0201.html, or through Steve Garner, Media Bureau, who can be
reached at (202) 418-1063 or via Internet at sgarner@fcc.gov.

FOR FURTHER INFORMATION CONTACT: Steve Garner, Media Bureau, at (202)
418-1063 or via Internet at sgarner@fcc.gov.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 02-9103 Filed 4-16-02; 8:45 am]
BILLING CODE 6712-01-P