August 23, 2000

The Honorable William E. Kennard
Chairman
Federal Communications Commission
445 12th Street, S.W.
Washington, D.C. 20554

Dear Chairman Kennard:

I am writing with respect to the Commission’s Notice of Proposed Rulemaking and Notice of Inquiry in WT Docket No. 99-217, and Third Further Notice of Proposed Rulemaking in CC Docket No. 96-98 (the "NPRM").

It is my understanding that the Commission has encouraged private parties to address the building access issue voluntarily. I applaud your decision to pursue a private resolution of this matter, particularly since the Commission lacks any express statutory authority to take up this matter itself. I hope you will give the private effort ample time to bear fruit, thereby eliminating any need for the Commission to act in the absence of specific Congressional direction to do so.

If the Commission decides to move forward, I am concerned about the absence of any proposed rule changes in the existing NPRM. An NPRM should contain sufficient clarity about proposed changes to the Commission’s rules to give industry a firm basis from which to comment. In light of the uncertainty surrounding the NPRM, I am writing to ask that you respond to the following questions before the Commission proceeds, if it intends to do so:

1.  Did the Commission propose adopting specific rules in its Notice of Proposed Rulemaking? Does the Administrative Procedure Act require the agency to spell out with some precision the rule changes being contemplated rather than issue a general policy inquiry?

2.  How many buildings will be subject to the Commission’s jurisdiction if the proposed rules are adopted? Please compare this number with the number of cable systems that were made subject to the Commission's jurisdiction as a result of the enactment of the "Cable Consumer Protection and Competition Act" in 1992.

3.  Given the number of buildings that would be affected by the proposed rules, does the FCC have adequate personnel and resources to arbitrate disputes and enforce agreements under the proposed rules? How much, if anything, has the FCC budgeted for this effort?

4.  How does the FCC intend to implement and enforce these rules? Would such rules impose a new regulatory scheme on the industry? If so, how complicated would this regulatory scheme be? Would it invite new forms of litigation?

5.  Would the FCC police the actions of both telecommunications providers and building owners? If not, why not?

6.  Should the FCC first examine the facts and relevant legal circumstances before it rules (explicitly or implicitly) that building owners are responsible for any differences in the terms of access between incumbents and competitors? In your response please advise me of the resources that the Commission would require to implement such an examination.

7.  Would the FCC become the judge of whether there is enough space in any particular building? If so, how does the FCC contemplate obtaining the expertise regarding real estate matters, including the construction and maintenance of buildings? How would it judge how to use that space effectively while keeping tenants free from fire and other safety hazards? Please advise me of any additional resources that you anticipate needing to fulfill these responsibilities.

8.  Please describe who would verify the terms of the agreement between a tenant and the telecommunications service provider requesting access and how would this information be obtained? Who would make sure such an agreement was bona fide? For example, would it be possible for a provider to enter into a sham agreement with a tenant who had no intention of using the provider’s services simply as a way for the provider to get immediate long-term access to the building and more easily market its services to other tenants in the building? How would the Commission police such agreements? Would the Commission require additional resources to do any or all of the above?

9.  Please review the record that the Commission has compiled and advise me how many comments have been filed by tenants who were unable to secure access to the service provider(s) of their choice.

Thank you for your attention to this request. I look forward to hearing from you prior to the Commission taking any further action on this matter.

Sincerely,

JOHN D. DINGELL
RANKING MEMBER

cc: Commissioner Susan Ness
Commissioner Harold Furchtgott-Roth
Commissioner Michael Powell
Commissioner Gloria Tristani