$/ FOR FCC RECORD ONLY /$

$// MO&O, Cable Act of 1992, DA 94-1434//$
$/ 300.623 Regulation of Rates /$
$/ 1.106 Petitions for Reconsideration /$
$/ 76.906 Presumption of no effective competition /$
$/ 76.910 Franchising authority certification /$
$/ 76.911 Petition for reconsideration of certification /$

                                Before the
                     FEDERAL COMMUNICATIONS COMMISSION
                          Washington, D.C.  20554

In the Matter of:                   )      DA 94-1434
              )      
INSIGHT COMMUNICATIONS COMPANY      )
OF NEW YORK, INC.    )  
              )
of the Certification of             )
the City of Greenfield, Indiana,    )      
to Regulate Basic Cable Service Rates      )
(IN0716)      )

                       MEMORANDUM OPINION AND ORDER

Adopted:  December 9, 1994           Released:  December 12, 1994 

By the Chief, Cable Services Bureau:
       
I.     INTRODUCTION  

1.     On November 19, 1993, Insight Communications Company, of New York ("Insight")
filed a timely petition for reconsideration challenging the certification of the City of
Greenfield, Indiana, ("Greenfield") to regulate rates for basic cable service and associated
equipment.  On August 18, 1994, Insight filed a supplement to its original petition, pursuant
to a recent Commission Order.  Greenfield did not file an opposition.
 
       2.     Section 623(a)(4) of the Communications Act of 1934, as amended, allows
franchising authorities to become certified to regulate basic cable service rates of cable
operators which are not subject to effective competition.  For purposes of the initial request
for certification, local franchising authorities may rely on a presumption that cable operators
within their jurisdiction are not subject to effective competition unless the franchise authority
has actual knowledge to the contrary.  Such certification becomes effective 30 days from the
date of filing unless the Commission finds that the authority does not meet the statutory
certification requirements.  Cable operators may file petitions for reconsideration of the
franchising authority's certification 30 days from the date such certification becomes
effective.  Regulation of rates is automatically stayed pending review of a timely filed
petition for reconsideration alleging effective competition.

II.    DISCUSSION

       3.     Insight argues that its cable system is subject to effective competition because
it serves fewer than 30 percent of the households in the City of Greenfield, Indiana, its
franchise area.  Insight claims that it serves only 283 of the 4,525 "homes" in the franchise
area, or 6.25 percent of the total number of homes.  As supporting documentation, Insight
submits a copy of a household trend report prepared by the National Planning Data
Corporation which provides a 1992 estimate of 4,525 "housing units" in Greenfield.  In
addition, Insight provides a computer printout as of November 13, 1993, which indicates that
it serves 283 subscribers.

       4.     In the absence of a demonstration to the contrary, cable systems are presumed
not to be subject to effective competition.  The cable operator bears the burden of rebutting
the presumption that effective competition does not exist with evidence that effective
competition, as defined by Section 76.905 of the Commission's Rules, is present within its
franchise area.  Based on all of the evidence before us, we find that Insight has met this
burden.

       5.     Initially, we note that Insight based its arguments on incorrect housing data. 
Insight bases its effective competition claim on "housing unit" (occupied and vacant) data. 
Our rules, however, require the use of data reflecting the number of "households" (i.e.,
occupied housing units) in the franchise area.  See Third Order on Reconsideration, MM
Docket Nos. 92-266 and 92-262, 9 FCC Rcd 4316, 4324 (1994) ("Third Recon. Order"). 
Nonetheless, Insight's supplemental pleading does contain 1990 Census and 1992 estimated
households (i.e., occupied housing unit) data for the City of Greenfield, Indiana.  This data
indicates that there are 4,249 households (that is, occupied housing units) according to the
1990 Census and that there are 4,356 households (that is, occupied housing units) according
to 1992 estimates.  A comparison of the number of subscribers (283) in relation to either
household figure (4,249) or (4,356) yields a penetration level of 6.66 percent or 6.50
percent, respectively.  Thus, we find that Insight's cable system serving the City of
Greenfield, Indiana is subject to effective competition.  Accordingly, its petition is granted.              
 
III.   ORDERING CLAUSES

       5.     Accordingly, IT IS ORDERED that the petition for reconsideration filed by
Insight Communications Company challenging the certification of the City of Greenfield,
Indiana, to regulate its basic cable service IS GRANTED.

       6.     IT IS FURTHER ORDERED that the certification granted to the City of
Greenfield, Indiana, to regulate Insight Communications Company's basic cable rates IS
RESCINDED.
       7.     This action is taken pursuant to delegated authority, Section 0.321 of the
Commission's Rules, 47 CFR  0.321. 
       
              FEDERAL COMMUNICATIONS COMMISSION




              Meredith J. Jones
                                         Chief, Cable Services Bureau