$/ FOR FCC RECORD ONLY /$

$// MO&O, Cable Act of 1992, DA 94-1437//$
$/ 300.623 Regulation of Rates /$
$/ 76.914 Petitions for Revocation /$
$/ 76.906 Presumption of no effective competition /$
$/ 76.910 Franchising authority certification /$

                                    
                                    
                               Before the
                    Federal Communications Commission
                         Washington, D.C.  20554
                                    

In the Matter of:     )          DA 94-1437
     )
TCI CABLEVISION OF GEORGIA, INC. )
     )
Petition for Revocation of Certification          )
     )
of the Certification of the Consolidated          )     
Government of Columbus, Georgia  )
to regulate basic cable rates (GA0012) )


MEMORANDUM OPINION AND ORDER
    
Adopted:  December 9, 1994       Released:  December 12, 1994

By the Chief, Cable Services Bureau:

I.  Introduction

     1.    On January 27, 1994, TCI Cablevision of Georgia, Inc. ("TCI") filed a Petition
for Revocation of Certification challenging the certification of the Consolidated Government
of Columbus, Georgia ("Columbus") to regulate rates for basic cable service and associated
equipment.   Columbus filed an "additional pleading" to which TCI filed a reply.  In
addition, TCI filed a supplemental pleading pursuant to the Commission's Effective
Competition Order.

     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 that 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 they have actual
knowledge to the contrary.  Certification becomes effective 30 days from the date of filing
unless the Commission finds that the franchising authority does not meet the statutory
certification requirements.  Cable operators may file petitions for reconsideration of the
franchising authority's certification within 30 days from the date such certification becomes
effective.  Rate regulation is automatically stayed pending review of a timely-filed petition
for reconsideration alleging the presence of effective competition.  After the 30-day deadline
for filing petitions for reconsideration has elapsed, cable operators may challenge the
franchising authority's certification by filing a petition for revocation.  However, regardless
of its grounds, a petition for revocation does not automatically trigger a stay of the
franchising authority's power to regulate basic rates.

II.  DISCUSSION 

     3.    TCI argues that its cable system is subject to effective competition because it
serves fewer than 30 percent of the households in Columbus, its franchise area.  TCI claims
that it serves 13,556 total subscribers in relation to the 65,858 households (that is, occupied
housing units) in Columbus, or 20.6 percent of the total number of households.  As
supporting documentation, TCI provides 1990 Census data which shows that there are
65,858 households in Columbus.  TCI also submits a computer print-out with sufficient
subscriber information to support its claim that it serves 13,556 subscribers in the franchise
area.

     4.    In its "additional pleading," Columbus alleges that TCI is not subject to
effective competition because of TCI's affirmative decision to limit its service area. 
Columbus submitted no evidence to support this allegation.  In its reply, TCI reiterates its
assertion that the entire City of Columbus is its franchise area and that, as business
opportunities have been identified and capital funds secured, TCI has expanded its service
area in Columbus.  TCI also argued that, if the Commission accepts Columbus' argument
that TCI redefined its franchise area, TCI is still subject to effective competition in its
"redefined franchise area" under the Commission's direct competition test.  Because we
conclude that TCI has not redefined its franchise area and is subject to effective competition
under the Commission's low penetration test, we need not address TCI's direct competition
argument. 

     5.    We are unpersuaded that the appropriate franchise area for purposes of effective
competition is something less than the entire City of Columbus.  Columbus' "additional
pleading" provides insufficient evidence to support its claim that TCI has made an affirmative
decision to limit its service to a specified portion of the City.  Without providing adequate
support for its claims, Columbus merely concludes that TCI has decided not to serve the
entire franchise area because TCI has not expanded to fill its entire franchise area.  However,
"[t]he fact that a franchise area has not as yet been filled out by construction of a system
would not by itself be taken as redefining the service area."  Therefore, we conclude that
Columbus has failed to sustain its burden of proof that TCI has redefined its franchise area.  

 6.   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 the
franchise area.  TCI has met this burden.

 7.   TCI has submitted sufficient evidence which includes "household" data. 
Relying on this data, TCI has submitted sufficient evidence demonstrating that its cable
system serving Columbus, its franchise area, serves 13,556 of the 65,858 households, or 20.6
percent of the households within its franchise area.  Thus, we find TCI's system serving the
Consolidated Government of Columbus is subject to effective competition.  Accordingly, its
Petition for Revocation is granted.

III.  ORDERING CLAUSES

 8.   Accordingly, IT IS ORDERED that the Petition for Revocation filed by TCI
Cablevision of Georgia, Inc. challenging the Certification of the Consolidated Government of
Columbus, Georgia IS GRANTED.

 9.   IT IS FURTHER ORDERED that the certification of the Consolidated
Government of Columbus, Georgia to regulate TCI's basic cable rates IS REVOKED.

 10.  This action is taken pursuant to delegated authority pursuant to Section 0.321
of the Commission's Rules.



      FEDERAL COMMUNICATIONS COMMISSION


      Meredith J. Jones
      Chief, Cable Services Bureau