$/ FOR FCC RECORD ONLY /$ $// MO&O, Cable Act of 1992, DA 95-175//$ $/ 300.623 Regulation of Rates /$ $/ 1.106 Petitions for Reconsideration /$ $/ 76.906 Presumption of no effective competition /$ $/ 76.910 Franchising authority certification /$ $/ 76.911 Petition for reconsideration of certification /$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of: ) DA 95-175 ) AMERICAN CABLE TELEVISION, INC.) (d/b/a DIMENSION CABLE SERVICES) ) ) Petition for Revocation ) ) of Certification of ) Mohave County, Arizona, ) Board of Supervisors to Regulate ) Basic Cable Service Rates ) FCC Community ID Nos. (AZ0051 & ) AZ0164) MEMORANDUM OPINION AND ORDER Adopted: February 7, 1995 Released: February 8, 1995 By the Chief, Cable Services Bureau: I. INTRODUCTION 1. On February 4, 1994, American Cable Television, Inc., d/b/a Dimension Cable Services ("Dimension") filed a petition challenging the certification of Mohave County, Arizona Board of Supervisors ("Mohave County") to regulate rates for the basic cable service and associated equipment. In addition, Dimension submitted a supplement to its petition containing supporting documentation pursuant to a recent Commission Order. Dimension later filed a response to the Bureau's requests for clarifying information. Mohave County did not file an opposition to Dimension's petition. 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 such effective competition as defined by the Communications Act of 1934. 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 such effective competition unless they have 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. Rate regulation is automatically stayed pending review of a timely filed petition for reconsideration alleging effective competition as defined by the Communications Act of 1934. II. DISCUSSION Petitioner's Contentions 3. Dimension alleges that it meets two of the three alternative tests for demonstrating the presence of effective competition in the franchise area. First, Dimension argues that it meets the competing provider test for effective competition. Alternatively, Dimension argues that its cable system serving certain unincorporated areas of Mohave County, its franchise area, serves fewer than 30 percent of the households in the franchise area. 4. With respect to the low penetration test, Dimension argues that it serves 898 of the 5,075 households (that is, occupied housing units), or 18 percent of the total number of households in its franchise area. Dimension states that there are 7,049 "homes" in its Mohave County franchise area. Dimension states that its number of "homes" is based on a hand-count of housing units within its franchise area. To estimate the number of households (that is, occupied housing units), Dimension applied a 72 percent occupancy rate obtained from an official with the Western Arizona Council of Governments. This calculation yielded an estimate of 5,075 households (or occupied housing units) within Dimension's franchise area. As supporting documentation, Dimension submits a copy of a computer printout with sufficient subscriber information to support its claim that it serves 898 subscribers in the franchise area. In addition, Dimension submits a copy of its franchise agreement and a map depicting its franchise area. Disposition of Dimension's Effective Competition Claims 5. 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 the evidence presented, we find that Dimension has met this burden. Dimension has appropriately relied on data reflecting the number of households as required by our rules. Relying on this data, Dimension has submitted sufficient evidence demonstrating that its cable system serves fewer than 30 percent of the households in its franchise area. Thus, we find that Dimension's system serving certain unincorporated areas of Mohave County is subject to effective competition under the low penetration test. 6. We are unable to determine whether Dimension is subject to effective competition under the competing provider test. Dimension argues that it faces competition from Americable International which is also authorized to provide service in portions of Mohave County. In support of its assertions, Dimension relies on households passed and households served data contained in Americable's supplement to petition for reconsideration of Mohave County's certification. However, in that case we found the number of households passed by Americable to be unreliable. Therefore, we are unable to consider those figures with respect to Dimension's petition. III. ORDERING CLAUSES 7. Accordingly, IT IS ORDERED that the petition for reconsideration filed by American Cable Television Inc., d/b/a/ Dimension Cable Services challenging the certification of Mohave County, Arizona to regulate basic cable rates IS GRANTED. 8. IT IS FURTHER ORDERED that the certification of Mohave County to regulate Dimension's basic cable service rates IS RESCINDED. 9. 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