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Multiple Dwelling Unit (MDU) owners seek to provide quality telecommunications services for residents. To do so owners must select providers and contract with them in ways that maximize the utilization of building resources including grounds, wiring, conduit, etc. to assure quality service and financial return.

Some providers increasingly seek to distribute services as they see fit, diminishing owner control, regardless of existing contracts or owner preference. Variations on this theme have been encountered nationwide and pursued by numerous franchised cable companies, MSOs.

This FREQUENTLY ASKED QUESTIONS section seeks to address some of the most common situations and questions to provide guidance to owners and Private Cable Operators (PCOs) to help protect their rights and the interests of their residents and clients.

(IMCC Members are invited to submit additional questions that will be added to the list and addressed in further additions to this memorandum)

Questions Raised By IMCC Members:

Types of Wiring in MDUs and Regulation of Their Use

I get confused.  What are the types of wiring in MDUs, and what are the laws/regulations governing their use?

Types of wiring in MDUs and regulation of their use

Distribution infrastructure: the cable wiring running through underground conduit (often using utility easements) from the street or in the case of a PCO, the head end facility, to the lock boxes or pedestals attached to or within an MDU building. Cable running between buildings is also part of the distribution infrastructure. Distribution infrastructure is not governed by FCC regulations. Ownership and control is determined by State property law. In general, distribution infrastructure is owned by the service provider that installed it.

Home Run Wiring: runs from the lock box/pedestal/junction box to the cable “demarcation point,” which is defined in 47 C.F.R. § 76.5(mm)(2) as “a point at (or about) twelve inches outside of where the cable wire enters the subscriber’s dwelling unit, or, where the wire is physically inaccessible at such point, the closest practicable point thereto that does not require access to the individual subscriber’s dwelling unit.”

Disposition of Home Run Wiring is regulated by the FCC at 47 C.F.R. § 76.804.

Cable Home Wiring: runs from the demarcation point to the wall outlets inside individual units.

Disposition of Cable Home Wiring is regulated by the FCC at 47 C.F.R. § 76.802.

Thus, Home Run Wiring is the wiring on the provider’s side of the demarcation point, running from the service provider’s lock box to the demarcation point, and the Cable Home Wiring is the wiring on the subscriber’s side of the demarcation point, running from the demarcation point to the wall plates inside an individual subscriber’s unit.

However, the FCC’s “Sheet Rock Order” ruled that when the wiring is concealed behind sheet rock or wall board at the point 12 inches outside of the subscriber’s unit, the wiring is “physically inaccessible,” and the demarcation point is located at the location where the wiring first becomes accessible – generally at the service provider’s lock box. If that is the case, there is no “cable home wiring,” and all the wiring extending from the lock box to and into the subscriber’s unit is considered “cable home wiring” subject to 47 C.F.R. § 76.802. Please refer to the Topic on the Industry Resources page entitled “MDU Inside Wiring,” and the subtopic called “Sheet Rock Order” for further information on this subject.

MSOs Claim They Own Cable Home Wiring

Some MSOs claim they own the home wiring.  Is that correct?

Cable Home Wiring (extending from the demarcation point to the wall outlets inside individual units) is generally owned by the video service provider that installed the wiring. However, under the FCC’s Cable Home Wiring rules (47 C.F.R. § 76.802), if the provider intends to remove the wiring upon termination of service by that provider, it must be removed within 7 days after the termination date. The provider waives any ownership claim to Cable Home Wiring that is not removed within 7 days after the provider’s cable service is terminated by the subscriber. Please refer to the topic “MDU Inside Wiring” on the Industry Resources page, and specifically to the article by Attorney Carl E. Kandutsch called Cable Home Wiring Rules and Cable Competition (Broadband Properties, March/April 2011).

MSO Will Vacate at End of ROE Period, but Refuses to Give Up Control Over Inside Wiring for Future Services

My MSO says it will vacate the building at the end of the ROE period, but it refuses to give up use of the home run wiring because it says they own it and intend to use the wiring for other telecommunications uses in the future.  What’s the deal?

Several MSOs have used this argument in an obvious attempt to block application of the FCC’s pro-competitive Inside Wiring Rules. We do not believe that this argument has merit. FCC Inside Wiring Rules are presumed to apply in all situations, even in states that have a mandatory access statute, unless the MSO gets a court injunction within 45 days after initial notice to terminate service, or the state’s highest court has ruled that the MSO has a legal right to maintain control over inside wiring. See 47 C.F.R. § 76.804(b)(6). The Inside Wiring Rules are intended to enhance competition in MDUs by making inside wiring available to alternative providers on a timely, efficient basis. Obviously, an MSO’s claimed right to maintain exclusive control over dormant wiring infrastructure based on an intended “future usage” is completely contrary to both the letter and the spirit of FCC regulations.

A PCO or MDU owner dealing with a cable operator’s claim that it owns or controls inside wiring after termination of the MSO’s cable service are advised to consult legal counsel.

MSO Claims the State Mandatory Access Statute Gives It an Absolute Right to Maintain Control Over Inside Wiring Despite FCC Regulations

My MDU is in a mandatory access state and the MSO says it has an absolute right to be on the premises, the FCC MDU inside wiring rules do not apply, and there is no way an alternative provider can use the home run wiring.  Is that correct?

FCC Inside Wiring Rules are presumed to apply in all situations unless the MSO gets a court injunction within 45 days after initial notice from the MDU owner to terminate service, or the state’s highest court has ruled that the MSO has a legal right to maintain control over inside wiring. See 47 C.F.R. § 76.804(b)(6). This presumption was added to the regulations specifically to address MSO arguments that the Inside Wiring Rules do not apply in mandatory access states. MSOs that refuse to comply with the Inside Wiring Rules are also in violation of 47 C.F.R. § 76.804(b)(5), which states, “The parties shall cooperate to avoid disruption in service to subscribers to the extent possible.” See Answer to 1(and the IMCC website) regarding application of the Inside Wiring Rules.

Can a PCO Lay Cable Over or Under a Public Right-of-Way (PROW)?

Can my PCO lay cable under or over Public Rights of Way?  Can we go to the Local Franchising Authority (LFA) or somebody to get permission to do that?

See article on “Definition of ‘Cable Operator’” in Industry Resources section.

MSO Wants to Utilize Existing Cable Infrastructure to Provide Other Services, Including Data and Telephony

This is a tough one.  What are the MDU owner’s rights and responsibilities with respect to an MSO that wants to utilize its existing cable infrastructure to provide other services, including data and telephony?

Technology now allows multiple services (video, data, telephony) to be provided by means of a single coaxial or fiber cable infrastructure. Because applicable laws and regulations remain service-specific, cable MSOs and telephone companies are increasingly apt to claim legal rights to provide multiple services over their existing infrastructure based on laws and regulations that specifically address only discrete services. Communications laws, regulations, and applications are evolving, unclear and damn confusing.  Below find relevant information that helps address the question.

The best defense is to specifically limit the scope of the agreement with the provider prior to their commencement of service. An MSO that delivers competitive telephony and or high-speed data services knows that they will be much more successful if they have the blessing and marketing rights with the owner. Use this to your advantage. If they fail to step up to the bargaining table, use your best efforts to market a competing service to make their practice unprofitable.

  • MSOs providing high-speed data services. High-speed data services are usually delivered over the same infrastructure used to provide cable video (by means of a cable modem) or that used to provide telephony services (by means of a digital subscriber line (DSL)). MSOs assert that their rights of ownership over or utilization of all or part of these infrastructure wiring provides a right to provide high-speed data services in MDUs despite the owner’s objection.
  • MSOs providing telephone services. Incumbent telephone companies (the Regional Bell Operating Company (RBOC) or Local Exchange Carrier (LEC)) wire MDUs by laying twisted pair copper wire from the street to the Minimum Point Of Entry (MPOE) and then to and into the individual unit. Under FCC regulations (47 C.F.R. §§ 51.305, 51.319), a Competitive LEC (CLEC) may utilize the incumbent’s wiring from the MPOE to and into the individual unit of a customer who chooses the CLEC. Cable MSOs, which have installed coaxial cable wiring from the street to various lockboxes/pedestals, argue that they are legally entitled to connect existing cable wiring from the lockbox/pedestal to the telephone company’s MPOE, utilizing a Network Interface Device (NID), and then use the existing copper wiring running to individual units in order to provide telephony and high-speed data services to MDU residents. See 1.a.i below.
    • When the MSO claims the right to provide multiple services over existing cable infrastructure, MDU owners should consider the following:
  • 1. Is there a ROE Agreement and/or Service Contract in effect? If there is no agreement in place, the MSO is providing service based on an implied month-to-month contract. In this situation, the MSO’s service may be terminated by means of a 30-day notice, and the MSO will have no right to provide any service to MDU residents, unless that right is conferred by federal law (FCC regulation) or state statute or regulation (mandatory access). Possible sources of MSO rights are as follows:
    • a. FCC Regulations

      i. Telephony and data. Incumbent LECs, usually the Regional Bell Operating Company (RBOC), are required to allow non-discriminatory interconnection with the incumbent’s facilities by any requesting telecommunications carrier (CLEC) for the “transmission and routing of telephone exchange traffic, exchange access traffic, or both.” 47 C.F.R. § 51.305(a)(1). An MSO that provides telecommunications services qualifies as a CLEC for interconnection under this rule, for the limited purpose of providing telephone service. Thus, even in the absence of a contract with the MDU owner, an MSO, functioning as a CLEC, may interconnect with the MDU owner’s wiring infrastructure to provide telephony to MDU residents, despite the owner’s objection.California is probably unique and the above would not be the case.  There, even if there is no contract for the MSO to provide telephony service the MSO/CLEC can gain access and use the MDU MPOE.

       

      There is another CLEC scenario that the MSO’s use to provide telephony on properties without the owner’s blessing. The MSO installs a multi-voice port device (MVP) either inside the unit or at the end of the building. From that point, they connect to the inside wiring of the building or unit. This practice is usually used at properties that do not have a single point of entry (MPOE).

    • (This topic and area of FCC regulation and court decisions continued to evolve rapidly.  Therefore, the above was accurate, but as of this writing in September 2008, numberous new influences have come to bare.)ii Competitive Networks Rule. This FCC rule, adopted in October 2000 (First Report and Order and Further Notice of Proposed Rulemaking, In the Matter of Promotion of Competitive Networks in Local Telecommunications Markets, WT Docket No. 99-217), interprets the “Pole Attachments Act” (47 U.S.C. § 224) to confer upon cable operators and telecommunications providers a right of non-discriminatory access to ducts, conduits and rights-of-way controlled by utilities (including LECs) within MDU (residential) buildings. These areas are “controlled by” the utility when they are actually being used or are specifically identified for use as part of the utility’s transmission or distribution network. We anticipate that MSOs will claim that the FCC’s new interpretation of the Pole Attachment Act gives them a right to maintain control over wiring inside MDU buildings, barring use of the inside wiring rules by alternative providers. We do not believe that this claim is valid: the Competitive Networks rule “does not grant a legally enforceable right to remain on the premises of the MDU owner,” and therefore “does not interfere with the disposition of cable home wiring under our rules.”[1] Thus, an MDU owner may block an MSO’s use of in-building conduits, ducts and rights-of-way based on the Pole Attachments Act.

      A second issue arising under the Competitive Networks rule is the extent to which it may authorize cable operators (or telecommunications providers) to utilize in-building ducts, conduits and rights-of-way for the provision of intermingled services, including telephony and high-speed data, despite the MDU owner’s objection. While National Cable & Telecommunications Assn., Inc. v. Gulf Power Co., 534 U.S. 337 (2002) did not directly address this issue, the decision clearly states that cable operators providing “mingled services,” including video, high-speed data and telephony, are subject to the Pole Attachments Act. It is conceivable that MSOs could assert a right based on Gulf Power and the Competitive Networks Rule to provide bundled services over the objection of the MDU owner. State Mandatory Access Statutes/Regulations. Fifteen states (mostly in the eastern United States, see IMCC web site) and many cities/localities have adopted statutes and regulations giving MSOs the right to provide video services to MDU residents without the MDU owner’s consent. While these statutes vary in their wording, New York’s mandatory access statute is typical: “No landlord shall … interfere with the installation of cable television facilities upon his property or premises.”  Some states (including Texas, California and Massachusetts, as summarized above) provide mandatory access for providers of telephone and/or high-speed data services.

    • As of 2008 no telephone provider may enter into Exclusive Contracts for the delivery of telephone in either commercial/office or MDU environments.  This does not apply to PCOs.
  • 2. If there is an ROE or Service Agreement in effect, does it specifically provide the MSO with the right to provide telephony, data or “other” services over existing infrastructure? If the contract does not explicitly give the MSO the right to provide additional services, the MSO may not provide those services, unless it can claim such a right based on federal or state law as discussed above. Remember that California Public Utility Commission regulations force a different treatment. If the MSO/CLEC has the right to deliver cable service on the property and there is an MPOE established, the MDU will be forced to grant nondiscriminatory access to the MSO/CLEC.[1] In the Matter of Promotion of Competitive Networks in Local Telecommunications Markets, WT Docket No. 99-217 (Released: Oct. 25, 2000), First Report and Order and Further Notice of Proposed Rulemaking, ¶ 90 (referred to herein as “Competitive Networks”). The State of Massachusetts has adopted building access regulations that include MDU owners within the definition of “utility.” See 220 Code of Massachusetts Regulations § 45.02. Therefore, in Massachusetts an MDU owner may not object to an MSO’s use of in-building ducts, conduits and rights-of-way for the provision of services based on the Pole Attachments Act. Massachusetts is currently the only state to have adopted this approach.
FCC Rules on Telephony Demarcation Point

I’ve heard the FCC adopted some rules changing the telephone demarcation point and some stuff about pole attachments/conduits/rights-of-way.  Do I have to care about that?

Under section 251 of the 1996 Telecommunications Act, incumbent LECs are required to provide CLECs with access to existing regulated wiring on a nondiscriminatory basis, but not necessarily for free.  The demarcation point for telephone wiring marks the end of wiring under the control of the LEC and the beginning of wiring under the control of the property owner of subscriber, and determines where the CLEC may access the incumbent RBOC’s or LEC’s inside wiring. The current rule (47 C.F.R. § 68) provides that for installations performed subsequent to August 13, 1990, the incumbent LEC may place the demarcation point at the “minimum point of entry,” (MPOE) i.e., either the closest practicable point where the wiring crosses a property line or the wiring enters a multiunit building or buildings. The Competitive Networks Rule modified the definition of the demarcation point in order to give the MDU owner more control over the location at which a CLEC may access inside wiring for telephony. Specifically, the incumbent LEC must move the demarcation point to the MPOE upon the owner’s request within a defined time period. Furthermore, where the demarcation point is not located at the MPOE, the incumbent LEC must inform the MDU owner as to its location on a timely basis. This is true regardless of whether the wiring was originally installed before or after August 13, 1990.

MDU Owner Rights Under OTARD to Stop Proliferation of Dishes on Buildings

I want to put in a DBS system and get all the dishes off the balconies of individual units. Can I do that under OTARD?  What if I already have an exclusive service contract with the MSO?

According to FCC rules governing “over the air reception devices” (“OTARD”, 47 C.F.R. § 1.4000), an MDU owner may not (with certain exceptions such as for safety, common areas, no drilling into the structure, etc. see IMCC web site) prohibit or restrict an MDU resident from placing a DBS antenna in any “exclusive use” area controlled by that resident, for example on a balcony. However, the so-called “common antenna” exception allows the MDU owner to restrict the installation of individual resident antennas if the MDU owner has installed a central or common antenna making DBS service(s) available to all residents. The Competitive Networks Rule amended the OTARD rule to cover fixed wireless antennas that are capable of distributing multiple services including video, data and voice. A MDU owner who has chosen to provide a common DBS antenna for residents may utilize the FCC’s cable inside wiring rules (47 C.F.R §§ 76.804(a) and 76.804(b), described above) in order to make inside wiring available for use by the DBS provider.

A crucial question remains as to whether an MDU owner who has an exclusive service contract with an MSO may provide DBS service to residents by means of a common antenna. On the one hand, the OTARD rule does not state that such exclusive contracts are void, implying that an MDU owner with an exclusive service contract may not install a common DBS antenna. On the other hand, it could be argued that if the common antenna provision of OTARD were blocked by the existence of an exclusive MSO service contract it would be against the intent of the OTARD regulations and therefore contrary to public policy and therefore null and void.

Incumbent MSO Threatens to Remove Home Run Wiring

I want to allow an alternative video provider into my building, but the incumbent MSO has threatened to remove the home run wiring. Removing that wiring would cause a big disruption and I’m afraid of damage to my building. Is there any way I can bring a PCO into my building and prevent the MSO from removing the home run wiring?

FCC regulations governing the disposition of inside wiring provide that upon written notice that the incumbent MSO’s service is terminated, either for the entire building or for any particular unit(s), the incumbent must choose one of three options with regard to the home run wiring: (1) remove the wiring; (2) sell the wiring to the MDU owner or the alternative provider; or (3) abandon the wiring. The existence of the removal option is a major flaw in the FCC inside wiring rules, because removal of home run wiring is disruptive and potentially damaging to the MDU building. As a result, by threatening to remove the home run wiring, incumbent MSOs are able to deter MDU owners from inviting competitive providers into their buildings. As the Inside Wiring Rules are currently written, there is nothing an MDU owner can do to stop the terminated MSO from removing the home run wiring. Note that the rules governing the disposition of home wiring (i.e., the wiring inside the subscriber’s unit) do not provide incumbents with the removal option. Upon termination of service, the incumbent must sell or abandon the home wiring.  Also see MDU Inside Wiring in Industry Issues or Resources.

Wiring Inaccessible at the Demarcation Point 12 Inches Outside the Individual Unit

I understand that a PCO is allowed to connect its wiring to the home wiring in an individual unit at the demarcation point, which is located 12 inches outside the unit. The PCO tells me it can’t access the wiring at that point because the wiring is behind brick or concrete. What can I do in this situation?  What is the importance of Physically Inaccessible?

The “demarcation point” is important because it is the point at which a subscriber’s “home wiring” (inside-unit wiring) begins. When the subscriber terminates service from the incumbent provider, the alternative provider may connect its own wiring with the subscriber’s home wiring at the demarcation point. The demarcation point is defined as the point located 12 inches outside of the subscriber’s unit, or, if the wiring is “physically inaccessible” at that point, then at the closest point where the wiring is physically accessible. 47 C.F.R. § 76.5(mm). Wiring is “physically inaccessible” if gaining access at that point would require significant modification of or damage to existing structural elements. While wiring that is encased in concrete, metal conduit or cinder block is considered to be physically inaccessible, wiring behind sheetrock or molding is not. IMCC advocating that the FCC alter its definition of “physically inaccessible” to include wiring behind sheetrock or plaster.  Also see Physically Inaccessible under Industry Issues or Resources.  DON’T THINK THIS INFO WAS TRANSFERRED.  MAY STILL NEED

MSO Price Manipulation

I want to allow a PCO to serve my building, but the PCO is reluctant to invest any money on infrastructure because the MSO will simply drop the price of its cable service to undercut any competition.  Are there any legal restrictions on an MSOs ability to manipulate prices to stave off competition?

Before enactment of the Telecommunications Act of 1996, franchised cable operators could not charge different prices for the same service in any given service area.  However, with deregulation in 1996, MSOs are permitted to provide “bulk discount” rates to some subscribers and not to others, so long as those discounted rates are not “predatory” under antitrust law. (“Predatory pricing” occurs when a firm prices goods or services below cost, and is very difficult to prove in a legal proceeding.) The bulk discount rule allows MSOs to lower its rates in any building or area in which there is competition or the threat of competition, while maintaining its normal rates in markets where it does not face competition. The FCC looked at this issue in a recent proceeding (CS Docket No. 96-85, released. April 16, 2002) but did not alter the status quo. Thus, the answer to the question is that there currently are no legal restrictions (apart from the prohibition on predatory pricing) on an MSO’s ability to manipulate rates for the purpose of undercutting competition.

Regulation of Cable Modem Services

I understand that over the past few years there has been a legal battle over unaffiliated ISPs should have “open access” to an MSO’s cable network to provide cable modem services. What was the outcome of all this, and is cable modem service regulated by the FCC?

The fight over “open access” to proprietary cable systems was the subject of several contradictory rulings in federal circuit courts, causing the Supreme Court in 2001 to urge the FCC to decide for itself whether and how cable modem services should be regulated. In March 2002, the FCC issued a Declaratory Ruling (CS Docket No. 00-165) classifying cable modem service as an “information service” subject to FCC jurisdiction. Because the FCC had already classified DSL services as an “information service,” the ruling placed cable broadband technology on the same regulatory footing as the competing technology provided by telephone companies. The FCC has adopted a Notice of Proposed Rulemaking (CS Docket No. 02-52) to consider whether and how cable modem service should be regulated, but to date no action has been taken. In the current “deregulatory” climate, it is unlikely that the FCC will take any significant regulatory action on cable broadband in the near future.

The above is a brief and not complete description of the situation because the FCC is working on this and related matters and has yet to finalize or clarify numerous related issues.  It is an ongoing and complicated set of interrelated regulations.

Exclusive Contracts for Telecommunications Same as for Video?

Are Exclusive Contracts for telecommunications the same as for video?

Telecommunications Exclusive Contracts and Exclusive Contracts for video are not the same and are treated differently for PCOs.  See Telecommunications Exclusive Contracts under Industry Issues or Resources.

What is CALEA?

What is CALEA, the Communications Assistance Law Enforcement Act?

Communications Assistance Law Enforcement Act (CALEA) is defined and PCO responsibility delineated under Industry Issues or Resources.

Physically Inaccessible for Homerun Wiring

Physically Inaccessible for homerun wiring seems important.  Why and how?

Physically Inaccessible is described completely under Industry Issues or Resources.

Physically Inaccessible FCC Final Order

Right of Entry Agreement Prototypes

Over the years IMCC has decided not to prepare prototypes or draft model ROEs.  This is because ROEs have changed and continue to evolve significantly and the provision of a model is not realitistic, may misguide a PCO and could lead to litigation.  It is recommended that readers examine the items under Program of Excellence, POE, as a list of issues that need to be addressed in the preparation of ROEs.  UPDATED INFO WILL NEED TO BE ADDED – RESOURCES