utilities should not be able to escape that obligation by forcing the users which the law is meant to protect to waive all their protective rights. We agree. In the Interconnection Order, the Commission considered a situation analogous to your hypothetical. Discussing the Section 251 requirement that incumbent LECs provide interconnection to new entrants, the Commission observed that new entrants have little to offer the incumbent. Rather, these new competito.s "seek to reduce the incumbent's subscribership and weaken the incumbent's dominant position in the market. . . . Thus, an incumbent LEC is likely to have scant. if any, economic incentive to reach agreement. "7 In that context, the Commission determined that a request by an incumbent that a new entrant contractually waive its legal rights or remedies could constitute a violation of the duty to negotiate in good faith imposed by Sections 251(c)(1) and 252:8 We reject the general contention that a request by a party that another party limit its legal remedies as part of a negotiated agreement will in all cases constitute a violation of the duty to negotiate in good faith. A party may voluntarily agree to limit its legal rights or remedies in order to obtain a valuable concession from another party. In some circumstances, however, a party may violate this statutory provision by demanding that another waive its legal rights.. [W]e find that it is a per se failure to negotiate in good faith for a party to refuse to include in an agreement a provision that permits the agreement to be amended in the future to take into account changes in Commission or state rules. Refusing to permit a party to include such a provision would be tantamount to forcing a party to waive its legal rights in the future." For the purposes of this letter. we think that the utility stands in a position vis-a-vis the competitive telecommunications provider seeking role attachment agreements that is virtually indistinguishable from that of the incumbent LEC with respect to a new entrant seeking interconnection agreements under Sections 251 and 252 of the Act. We think it is contrary to the statute for a party to be pressured, as a condition of an agreement, to waive all its legal rights and remedies provided under the law. Efforts to compel such waivers constitute Interconnection Order at para. 141. 8 Section 251(c)(1) requires incumbent LECS to negotiate interconnection agreements in good faith in accordance with Section 252. Section 252 sets our procedures for the negotiation, arbitration, and approval of interconnection agreements. 47 U.S.C. § §_251(c)(1) and 252. Interconnection Order at para. 152 (emphasis added). impermissible attempts to subvert the Congressional intent underlying Section 224.10 Upon review of your hypothetical, and our past statements regarding good faith negotiations, we conclude that demanding a clause like the one you described would be unreasonable per se, and a provision adopted as a result of such an unreasonable demand would be unenforceable as a matter of law." We trust that this letter helps to clarify the rights provided and the responsibilities imposed by Section 224. 10 See, eg. Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 222 (1986) ("If [a] regulatory statute is otherwise within the powers of Congress, . . . Its application may not be defeated by private contractual provisions."). Invalidating the offending clause would not necessarily invalidate the other provisions of the agreement. See 47 C.F.R. § 1.1410 (1995). By the Chief, Financial Analysis and Compliance Division, Cable Services Bureau: 1. In this Order we dismiss a complaint filed by the City of Burleson, Texas, against the rate that the above-referenced cable operator ("Operator") was charging for its cable programming service tier ("CPST"). The Communications Act requires the Federal Communications Commission ("Commission") to regulate the CPST rates of cable systems not subject to effective competition.1 2. On December 23, 1994, the Commission released a Memorandum Opinion and Order2 which found that the Operator was subject to effective competition in the above referenced community.3 Therefore, we are dismissing the complaint on the grounds that effective competition is present. 3. Accordingly, IT IS ORDERED, pursuant to Section 0.321 of the Commission's Rules, 47 C.F.R. Section 0.321 that the complaint against the cpst rate charged by the Operator in the above referenced community is DISMISSED. FEDERAL COMMUNICATIONS COMMISSION 1 Elizabeth W. Beaty Chief, Financial Analysis and Compliance Division Communications Act, Section 623 (a)(2), as amended, 47 U.S.C Section 543(a)(2) (1993). 3 In their petition the Operator asserts that their cable system is subject to effective competition because it serves fewer than 30 per cent of the households in Burleson, Texas. By the Chief, Financial Analysis and Compliance Division, Cable Services Bureau: 1. In this Order we dismiss a complaint against the rate that Continental Cablevision of Northern Cook County, Inc., ("Operator") was charging for its cable programming service tier ("CPST") in the community set forth above on the grounds that the complaint concerns a rate that is outside the jurisdiction of the Federal Commission's Commission ("Commission").1 Under the Communications Act, the Commission regulates the CPST rate of cable systems not subject to effective competition upon the filing of a valid complaint. Our review reveals that the complaint filed against Operator, while asserting that it challenges the rate for the CPST, challenges only the rate for equipment and franchise fees. Complaints regarding the rates for equipment and franchise fees is subject to the jurisdiction of the local franchise authority, therefore, the complaint does not trigger the Commission's jurisdiction. 2. Accordingly, IT IS ORDERED, pursuant to Section 623(a)(2)(A) and (B) of the Communications Act of 1934, as amended, 47 U.S.C. Section 543(a)(2)(A) and (B), that the complaint filed against the Operator in the community referenced in the caption is DISMISSED and the motion to dismiss filed by the Operator is GRANTED. 1 On September 13, 1995, the Commission received in response to the complaint a motion to dismiss filed by the Operator. In that motion the Operator asserts that the complaint concerns rates that are outside the jurisdiction of the Commission. 2 Communications Act, Section 623(c), as amended, 47 U.S.C. Section 543(c) 1996. |