§  76.804   Disposition of home run wiring.

   (a) Building-by-building disposition of home run wiring. (1) Where an
   MVPD owns the home run wiring in an MDU and does not (or will not at
   the conclusion of the notice period) have a legally enforceable right
   to remain on the premises against the wishes of the MDU owner, the MDU
   owner may give the MVPD a minimum of 90 days' written notice that its
   access to the entire building will be terminated to invoke the
   procedures in this section. The MVPD will then have 30 days to notify
   the MDU owner in writing of its election for all the home run wiring
   inside the MDU building: to remove the wiring and restore the MDU
   building consistent with state law within 30 days of the end of the
   90-day notice period or within 30 days of actual service termination,
   whichever occurs first; to abandon and not disable the wiring at the
   end of the 90-day notice period; or to sell the wiring to the MDU
   building owner. If the incumbent provider elects to remove or abandon
   the wiring, and it intends to terminate service before the end of the
   90-day notice period, the incumbent provider shall notify the MDU owner
   at the time of this election of the date on which it intends to
   terminate service. If the incumbent provider elects to remove its
   wiring and restore the building consistent with state law, it must do
   so within 30 days of the end of the 90-day notice period or within 30
   days of actual service termination, which ever occurs first. For
   purposes of abandonment, passive devices, including splitters, shall be
   considered part of the home run wiring. The incumbent provider that has
   elected to abandon its home run wiring may remove its amplifiers or
   other active devices used in the wiring if an equivalent replacement
   can easily be reattached. In addition, an incumbent provider removing
   any active elements shall comply with the notice requirements and other
   rules regarding the removal of home run wiring. If the MDU owner
   declines to purchase the home run wiring, the MDU owner may permit an
   alternative provider that has been authorized to provide service to the
   MDU to negotiate to purchase the wiring.

   (2) If the incumbent provider elects to sell the home run wiring under
   paragraph (a)(1) of this section, the incumbent and the MDU owner or
   alternative provider shall have 30 days from the date of election to
   negotiate a price. If the parties are unable to agree on a price within
   that 30-day time period, the incumbent must elect: to abandon without
   disabling the wiring; to remove the wiring and restore the MDU
   consistent with state law; or to submit the price determination to
   binding arbitration by an independent expert. If the incumbent provider
   chooses to abandon or remove its wiring, it must notify the MDU owner
   at the time of this election if and when it intends to terminate
   service before the end of the 90-day notice period. If the incumbent
   service provider elects to abandon its wiring at this point, the
   abandonment shall become effective at the end of the 90-day notice
   period or upon service termination, whichever occurs first. If the
   incumbent elects at this point to remove its wiring and restore the
   building consistent with state law, it must do so within 30 days of the
   end of the 90-day notice period or within 30 days of actual service
   termination, which ever occurs first.

   (3) If the incumbent elects to submit to binding arbitration, the
   parties shall have seven days to agree on an independent expert or to
   each designate an expert who will pick a third expert within an
   additional seven days. The independent expert chosen will be required
   to assess a reasonable price for the home run wiring by the end of the
   90-day notice period. If the incumbent elects to submit the matter to
   binding arbitration and the MDU owner (or the alternative provider)
   refuses to participate, the incumbent shall have no further obligations
   under the Commission's home run wiring disposition procedures. If the
   incumbent fails to comply with any of the deadlines established herein,
   it shall be deemed to have elected to abandon its home run wiring at
   the end of the 90-day notice period.

   (4) The MDU owner shall be permitted to exercise the rights of
   individual subscribers under this subsection for purposes of the
   disposition of the cable home wiring under § 76.802. When an MDU owner
   notifies an incumbent provider under this section that the incumbent
   provider's access to the entire building will be terminated and that
   the MDU owner seeks to use the home run wiring for another service, the
   incumbent provider shall, in accordance with our current home wiring
   rules: offer to sell to the MDU owner any home wiring within the
   individual dwelling units that the incumbent provider owns and intends
   to remove; and provide the MDU owner with the total per-foot
   replacement cost of such home wiring. This information must be provided
   to the MDU owner within 30 days of the initial notice that the
   incumbent's access to the building will be terminated. If the MDU owner
   declines to purchase the cable home wiring, the MDU owner may allow the
   alternative provider to purchase the home wiring upon service
   termination under the terms and conditions of § 76.802. If the MDU owner
   or the alternative provider elects to purchase the home wiring under
   these rules, it must so notify the incumbent MVPD provider not later
   than 30 days before the incumbent's termination of access to the
   building will become effective. If the MDU owner and the alternative
   provider fail to elect to purchase the home wiring, the incumbent
   provider must then remove the cable home wiring, under normal operating
   conditions, within 30 days of actual service termination, or make no
   subsequent attempt to remove it or to restrict its use.

   (5) The parties shall cooperate to avoid disruption in service to
   subscribers to the extent possible.

   (b) Unit-by-unit disposition of home run wiring: (1) Where an MVPD owns
   the home run wiring in an MDU and does not (or will not at the
   conclusion of the notice period) have a legally enforceable right to
   maintain any particular home run wire dedicated to a particular unit on
   the premises against the MDU owner's wishes, the MDU owner may permit
   multiple MVPDs to compete for the right to use the individual home run
   wires dedicated to each unit in the MDU. The MDU owner must provide at
   least 60 days' written notice to the incumbent MVPD of the MDU owner's
   intention to invoke this procedure. The incumbent MVPD will then have
   30 days to provide a single written election to the MDU owner as to
   whether, for each and every one of its home run wires dedicated to a
   subscriber who chooses an alternative provider's service, the incumbent
   MVPD will: remove the wiring and restore the MDU building consistent
   with state law; abandon the wiring without disabling it; or sell the
   wiring to the MDU owner. If the MDU owner refuses to purchase the home
   run wiring, the MDU owner may permit the alternative provider to
   purchase it. If the alternative provider is permitted to purchase the
   wiring, it will be required to make a similar election within this
   30-day period for each home run wire solely dedicated to a subscriber
   who switches back from the alternative provider to the incumbent MVPD.

   (2) If the incumbent provider elects to sell the home run wiring under
   paragraph (b)(1), the incumbent and the MDU owner or alternative
   provider shall have 30 days from the date of election to negotiate a
   price. During this 30-day negotiation period, the parties may arrange
   for an up-front lump sum payment in lieu of a unit-by-unit payment. If
   the parties are unable to agree on a price during this 30-day time
   period, the incumbent must elect: to abandon without disabling the
   wiring; to remove the wiring and restore the MDU consistent with state
   law; or to submit the price determination to binding arbitration by an
   independent expert. If the incumbent elects to submit to binding
   arbitration, the parties shall have seven days to agree on an
   independent expert or to each designate an expert who will pick a third
   expert within an additional seven days. The independent expert chosen
   will be required to assess a reasonable price for the home run wiring
   within 14 days. If subscribers wish to switch service providers after
   the expiration of the 60-day notice period but before the expert issues
   its price determination, the procedures set forth in paragraph (b)(3)
   of this section shall be followed, subject to the price established by
   the arbitrator. If the incumbent elects to submit the matter to binding
   arbitration and the MDU owner (or the alternative provider) refuses to
   participate, the incumbent shall have no further obligations under the
   Commission's home run wiring disposition procedures.

   (3) When an MVPD that is currently providing service to a subscriber is
   notified either orally or in writing that that subscriber wishes to
   terminate service and that another service provider intends to use the
   existing home run wire to provide service to that particular
   subscriber, a provider that has elected to remove its home run wiring
   pursuant to paragraph (b)(1) or (b)(2) of this section will have seven
   days to remove its home run wiring and restore the building consistent
   with state law. If the subscriber has requested service termination
   more than seven days in the future, the seven-day removal period shall
   begin on the date of actual service termination (and, in any event,
   shall end no later than seven days after the requested date of
   termination). If the provider has elected to abandon or sell the wiring
   pursuant to paragraph (b)(1) or (b)(2) of this section, the abandonment
   or sale will become effective upon actual service termination or upon
   the requested date of termination, whichever occurs first. For purposes
   of abandonment, passive devices, including splitters, shall be
   considered part of the home run wiring. The incumbent provider may
   remove its amplifiers or other active devices used in the wiring if an
   equivalent replacement can easily be reattached. In addition, an
   incumbent provider removing any active elements shall comply with the
   notice requirements and other rules regarding the removal of home run
   wiring. If the incumbent provider intends to terminate service prior to
   the end of the seven-day period, the incumbent shall inform the party
   requesting service termination, at the time of such request, of the
   date on which service will be terminated. The incumbent provider shall
   make the home run wiring accessible to the alternative provider within
   the 24-hour period prior to actual service termination.

   (4) If the incumbent provider fails to comply with any of the deadlines
   established herein, the home run wiring shall be considered abandoned,
   and the incumbent may not prevent the alternative provider from using
   the home run wiring immediately to provide service. The alternative
   provider or the MDU owner may act as the subscriber's agent in
   providing notice of a subscriber's desire to change services,
   consistent with state law. If a subscriber's service is terminated
   without notification that another service provider intends to use the
   existing home run wiring to provide service to that particular
   subscriber, the incumbent provider will not be required to carry out
   its election to sell, remove or abandon the home run wiring; the
   incumbent provider will be required to carry out its election, however,
   if and when it receives notice that a subscriber wishes to use the home
   run wiring to receive an alternative service. Section 76.802 of the
   Commission's rules regarding the disposition of cable home wiring will
   apply where a subscriber's service is terminated without notifying the
   incumbent provider that the subscriber wishes to use the home run
   wiring to receive an alternative service.

   (5) The parties shall cooperate to avoid disruption in service to
   subscribers to the extent possible.

   (6) Section 76.802 of the Commission's rules regarding the disposition
   of cable home wiring will continue to apply to the wiring on the
   subscriber's side of the cable demarcation point.

   (c) The procedures set forth in paragraphs (a) and (b) of this section
   shall apply unless and until the incumbent provider obtains a court
   ruling or an injunction within forty-five (45) days following the
   initial notice enjoining its displacement.

   (d) After the effective date of this rule, MVPDs shall include a
   provision in all service contracts entered into with MDU owners setting
   forth the disposition of any home run wiring in the MDU upon the
   termination of the contract.

   (e) Incumbents are prohibited from using any ownership interest they
   may have in property located on or near the home run wiring, such as
   molding or conduit, to prevent, impede, or in any way interfere with,
   the ability of an alternative MVPD to use the home run wiring pursuant
   to this section.

   (f) Section 76.804 shall apply to all MVPDs.

   [ 62 FR 61032 , Nov. 14, 1997, as amended at  68 FR 13855 , Mar. 21, 2003]