$/  For FCC Record Only/$

$// Order,   Cable Act of 1992, certification, DA 95-1//$
$/  600.623 Regulation of Rates/$
$/  76.905   Standards for Effective Competition/$
$/  76.906   Presumption of No Effective Competition/$
$/  76.910   Franchising Authority Certification/$
$/  76.911   Petition for Reconsideration/$

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

In the Matter of:                    )            DA 95-1 
                                     )
LOWELL CABLE TELEVISION              )
DEPARTMENT                           )
                                     )
Petition for Revocation              )
                                     )
of the Certification of              )
Vergennes Township, MI               )
to Regulate Basic Cable Service Rates)
(MI0744)                             )

                       MEMORANDUM OPINION AND ORDER

Adopted:  January 3, 1995                         Released:  January  4, 1995

By the Chief, Cable Services Bureau:

I.   INTRODUCTION

     1.   On March 8, 1993, Lowell Cable Television Department, d/b/a Lowell Cable
TV ("Lowell") filed a petition for revocation challenging the certification of Vergennes
Township, MI ("the Township") to regulate rates for basic cable service and associated
equipment.  In addition, Lowell filed a supplement to its petition in response to the
Commission's July 29, 1994 Order.  The Township 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 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.  Once the 30-day period
for filing petitions for reconsideration has elapsed, cable operators may challenge a
franchising authority's certification by filing a petition for revocation.  Regardless of its
grounds, however, a petition for revocation does not automatically trigger a stay of the
franchising authority's power to regulate basic rates.

II.  DISCUSSION

     3.   Lowell argues that its cable system is subject to effective competition because
it serves fewer than 30 percent of the households in Vergennes Township, its franchise
area.  Specifically, Lowell states that it serves 150 of the 826 total "households" within the
Township, or 18.2% percent of the total number of "households" within the franchise area.  
As supporting documentation, Lowell submits a copy of the relevant page from the 1990
Census which indicated that there were 826 "housing units" in the franchise area.  In
addition, Lowell submitted a declaration under penalty of perjury from a responsible official
certifying the accuracy of the data presented in the petition.

     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.  Lowell has met this burden.  We note that initially Lowell based its
effective competition claim on "housing unit" data.  Our rules, however, require the use of
data reflecting the number of households (i.e., occupied housing units) in the franchise
area.  The term "housing units," however, reflects both occupied and vacant housing units. 
Nonetheless, we note that the Census data provided by Lowell does include occupied housing
unit data.  According to this data, there are 788 occupied housing units within the Township. 
A comparison of the number of subscribers in relation to the number of households yields a
penetration level of 19.0%  Thus, we find that Lowell's system serving Vergennes Township
is subject to effective competition.  Accordingly, its petition is granted.

III.  ORDERING CLAUSES

     5.   Accordingly, IT IS ORDERED that the petition for revocation filed by the
Lowell Cable Television Department challenging the certification of Vergennes Township,
MI to regulate Lowell's basic cable rates IS GRANTED.

     6.   IT IS FURTHER ORDERED that the certification of Vergennes Township to
regulate basic cable rates IS RESCINDED.

     7.   This action is taken pursuant to delegated authority under Section 0.321 of the
Commission's Rules, 47 C.F.R.  0.321.

                    FEDERAL COMMUNICATIONS COMMISSION



                    Meredith J. Jones
                    Chief, Cable Services Bureau