$/ FOR FCC RECORD ONLY /$ $// MO&O, Cable Act of 1992, DA 95-52//$ $/ 300.623 Regulation of Rates /$ $/ 1.106 Petitions for Reconsideration /$ $/ 76.906 Presumption of no effective competition /$ $/ 76.910 Franchising authority certification /$ $/ 76.911 Petition for reconsideration of certification /$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of: ) DA 95-52 ) HORIZON CABLE I LIMITED PARTNERSHIP ) ) Petition for Reconsideration ) ) of the Certification of ) Concord Township, Michigan, ) to Regulate Basic Cable Service ) Rates (MI0478) ) By the Chief, Cable Services Bureau: MEMORANDUM OPINION AND ORDER Adopted: January 13, 1995 Released: January 17, 1995 I. INTRODUCTION 1. On November 15, 1993, Horizon Cable I Limited Partnership ("Horizon") submitted a timely petition for reconsideration challenging the certification of Concord Township, Michigan ("the Township") to regulate the system's rates for basic cable service and associated equipment. The Township did not file an opposition. 2. Section 623(a)(4) of the Communications Act, 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 the franchising authority has actual knowledge to the contrary. 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 within 30 days of the effective date of such certification. Rate regulation is automatically stayed pending review of a timely-filed petition for reconsideration alleging the presence of effective competition. II. DISCUSSION Horizon's Effective Competition Claim 3. Horizon argues that its cable system is subject to effective competition because it serves fewer than 30 percent of the "homes" in Concord Township, its franchise area. Horizon claims that it serves only 41 of the 874 "homes" in its franchise area, or 5 percent of the total number of "homes". In support of its claim, Horizon refers to a specific citation to the 1990 Census. This citation is contained in a declaration under penalty of perjury from a responsible official certifying to the accuracy of the data 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, exists in the franchise area. Horizon has failed to meet this burden. Horizon refers to the 1990 Census in its petition; but does not provide a copy of the relevant table or page from the data upon which it is relying. However, it appears that Horizon has inappropriately based its effective competition claim on the number of "housing units" (occupied and vacant) data. Our rules, however, require the use of data reflecting the number of "households" (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"). As Horizon has failed to base its effective competition claim on "household" data as required by our rules, we will deny its petition. Other Matters 5. By letter dated March 17, 1994, the Township informed the Commission that it wished to withdraw its certification to regulate rates, claiming that Horizon is subject to effective competition. By letter dated October 21, 1994, the Commission informed the Township that, if it wished to withdraw certification, it must do so in the manner set forth in Section 76.917 of the Commission's rules. Despite several follow-up communications with the Township regarding its intent to withdraw, the Township has taken no action to seek withdrawal of its certification in the manner set out by the Commission's rules. Thus, as of the release date of this Memorandum Opinion and Order, the Township remains certified to regulate Horizon's basic cable rates. However, Horizon will only be required to submit its rate justification forms if the Township notifies Horizon that it is regulating rates. Should the Township takes the proper steps to withdraw its certification, the filing of any rate justification forms by Horizon will be unnecessary. III. ORDERING CLAUSES 6. Accordingly, IT IS ORDERED that the petition for reconsideration filed by Horizon Cable I Limited Partnership, challenging the certification of Concord Township, Michigan, to regulate its basic cable service rates IS DENIED. 7. IT IS FURTHER ORDERED that the automatic stay imposed by Section 76.911(c) of the Commission's Rules, as amended, 47 C.F.R.  76.911(c) IS TERMINATED. 8. IT IS FURTHER ORDERED that Horizon Cable I Limited Partnership SHALL FILE the required rate justifications on the appropriate forms with Concord Township, Michigan, within 30 days from the release date of this Memorandum Opinion and Order or 30 days from the date of receipt of notice from the Concord Township, Michigan, that it is regulating rates, whichever is later. 9. This action is taken pursuant to delegated authority under Section 0.321 of the Commission's Rules, as amended, 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION Meredith J. Jones Chief, Cable Services Bureau