FCC Opens New Rulemaking On Cable Inside Wiring
Last week the FCC released a Further Notice of Proposed Rulemaking (“FNPRM”) in response to an unpublished decision of the United States Court of Appeals for the District of Columbia Circuit in NCTA v. FCC regarding a narrow interpretative provision in the FCC’s cable television inside wiring rules. The FCC’s cable inside wiring rules govern the disposition of a cable operator’s home run wiring in multiple dwelling units (“MDUs”) when the MDU either terminates the existing cable operator’s right to serve the building or permits a new provider to compete head-to-head with the existing operator. The FCC had amended its inside wiring rules last year to expand the definition of wiring that is determined to be “physically inaccessible” to include wiring located behind sheet rock. The Court remanded that determination to the FCC for further consideration, finding that the FCC had failed to offer a reasoned basis for its conclusion.
Under the FCC’s inside wiring rules, the term “physically inaccessible” describes a location that:
(i) “[w]ould require significant modification of, or significant damage to, preexisting structural elements and
(ii) [w]ould add significantly to the physical difficulty and/or cost of accessing the subscriber’s home wiring.”
In the challenged order, the FCC had held that wiring embedded in sheet rock would be considered physically inaccessible, just like wiring in brick, metal conduit or cinder blocks, and unlike wiring in molding.
In classifying wiring behind sheetrock as inaccessible under the rules, the FCC effectively moved the demarcation point—the point at which the new provider may obtain access to the existing operator’s wiring—to a spot near the existing operator’s junction box. The demarcation point, by definition, is usually at or about 12 inches outside the subscriber’s dwelling. Where such location is not physically accessible, the demarcation point becomes the “closest practicable point thereto that does not require access to the individual subscriber’s dwelling unit.” Because the FCC did not adequately support its determination that wiring behind sheetrock is inaccessible, the court remanded for further fact finding.
The FNPRM asks for additional comment on whether accessing inside wiring behind sheet rock (1) will involve significant modification of or damage to preexisting structural elements and (2) will add significantly to the difficulty and cost of wiring an MDU. The FCC also asks commenters to address whether sheetrock should be considered a preexisting structural element that is an integral and permanent part of an MDU. Comments are due Nov. 15, 2004. Reply comments are due Dec. 6, 2004. NCTA plans to file comments and would like operators to file supporting comments with evidence concerning cost-effective methods of cutting in to sheet rock and repairing appearance of pre-existing structure. If you would like to participate in joint comments or discuss the issue, please contact us.