$/ FOR FCC RECORD ONLY /$ $// MO&O, Cable Act of 1992, DA 95-101//$ $/ 300.623 Regulation of Rates /$ $/ 1.106 Petitions for Reconsideration /$ $/ 76.906 Presumption of no effective competition /$ $/ 76.910 Franchising authority certification /$ $/ 76.911 Petition for reconsideration of certification /$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of: ) DA 95-101 ) INSIGHT COMMUNICATIONS COMPANY ) OF NEW YORK, INC. ) ) Petition for Reconsideration ) ) of the Certification of ) Hamilton County, Indiana, ) to Regulate Basic Cable Service Rates ) (IN0205) ) MEMORANDUM OPINION AND ORDER Adopted: January 20, 1995 Released: January 23, 1995 By the Chief, Cable Services Bureau: I. INTRODUCTION 1. On December 13, 1993, Insight Communications Company, ("Insight") filed a timely petition for reconsideration challenging the certification of Hamilton County, Indiana, ("the County") 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. In addition, Insight filed clarifying information regarding its subscribership in response to a Bureau request. The County 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 within 30 days of 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 system serving the unincorporated areas of Hamilton County, its franchise area, is subject to effective competition because the system serves fewer than 30 percent of the households within its franchise area. Insight's pleadings indicate that it serves a total of 4,090 of the 15,002 "homes" in the franchise area, or 27.3 percent of the total number of "homes". As supporting documentation, Insight submits a copy of a household trend report prepared by the Claritas/National Planning Data Corporation from which a 1992 estimate of 15,002 "housing units" in the unincorporated areas of Hamilton County is extrapolated. In addition, Insight provides a computer printout as of January 7, 1995, which indicates that it serves a total of 4,090 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. We note initially 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 1992 estimated households (i.e., occupied housing unit) data for Hamilton, County as well as for each incorporated town within Hamilton County. This data indicates that there are 14,382 households (that is, occupied housing units) in the unincorporated areas of Hamilton County according to 1992 estimates. A comparison of the number of subscribers (4,090) in relation to household figure 14,382 yields a penetration level of 28.4 percent. Thus, we find that Insight's cable system serving the unincorporated areas of Hamilton County, Indiana is subject to effective competition. Accordingly, its petition is granted. 6. Finally, we note that the household trend report submitted by Insight also includes household data from the 1990 Census which indicates that, as of 1990, there were 13,311 households within the unincorporated areas of Hamilton County. A comparison of the number of subscribers (4,090) in relation to the number of households (13,311) yields a penetration level of 30.7 percent. Thus, it appears that if we were to rely on the 1990 Census, Insight's cable system would not be subject to effective competition. However, in this case we will accept Insight's use of 1992 estimated household numbers which is more recent than that contained in the 1990 Census. We have no evidence before us to suggest that this number is an inaccurate measure of the number of "households" in Insight's franchise area. III. ORDERING CLAUSES 7. Accordingly, IT IS ORDERED that the petition for reconsideration filed by Insight Communications Company challenging the certification of Hamilton County, Indiana, to regulate its basic cable service rates IS GRANTED. 8. IT IS FURTHER ORDERED that the certification granted to Hamilton County, Indiana, to regulate Insight Communications Company's basic cable rates IS RESCINDED. 9. 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