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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:$$#%<%Heading 2Underlined Heading Flush Left14 Heading 1Centered Headingcal Style 4G Y * Ã  Bullet ListIndented Bullet List*M0 Y XX` ` (#` CourierCG TimesCourier BoldCG Times BoldCG Times Italic2Ef &X1f D7ZB",tB^ f ^;C]ddCCCdCCCCddddddddddCCY~~vCN~sk~CCCddCYdYdYCdd88d8ddddJN8ddddYYdYd4dddddCddddddddd8YYYYYY~Y~Y~Y~YC8C8C8C8ddddddddddYdddddsdXdXXXddx|X~d~d|XdddddddC8ddddCdoddd|8|H~d<|8dtddddHHdlLlLlLkd|H|8~ddddddddXXXd~ddkd~ddxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCYQQddddddFddddFCChhd44ddzzdddvooChdF"dhd9dCCzCddoddCdYds]zUvdYYCCCCz~ozoY~NYdYC8YooYdYzsdzdd~YYzozzz~CdzYzzzzCCdddddddzCsdYC\   pxtll\tll@\@\`L<?xxx,2x6X@`7X@8wC;,Xw PE37XP?xxx,)x `7XD7zC;,c!Xz_ pi7X><q*"xxxxWWxxxWWkkxxx><q*"xxxxWWxxxWWkkxxx%-ԍx#Xw PE37=9XP#47 C.F.R.  76.911(c).w  Xb- II.xDISCUSSION   X4- Petitioner's Contentions "40*0*0*)"Ԍ Y-ԙx3.` ` Americable bases its challenge on the competing provider test for effective  Y-competition set forth in the 1992 Cable Act and our rules.  j Yb-ԍx#Xw PE37=9XP#The 1992 Cable Act (Communications Act of 1934,  623(a)(2), 47 U.S.C.  543(a)(2)) and the Commission's rules (47 C.F.R.  76.905(a)) provide that only the rates of cable systems that are not subject to effective competition may be regulated. One of the bases on which a cable system is deemed subject to effective competition is if the franchise area is: 1) served by at least two unaffiliated multichannel video programming distributors each of which offers comparable programming to at least 50 percent of the households in the franchise area; and 2) the number of households subscribing to multichannel video programming other than the largest multichannel video programming distributor exceeds 15 percent of the households in the franchise area. Communications Act of 1934  623(1)(1)(B), 47 U.S.C. 543(1)(1)(B); 47 C.F.R. 76.905(b)(2)(i) and (ii). This test requires Americable to show that its system serving certain unincorporated areas of Mohave County, its franchise area, is subject to effective competition because its franchise area is: 1) served by itself and American Cable Television d/b/a Dimension Cable Services ("Dimension"), an unaffiliated multichannel video programming distributor ("MVPD") each of which offers comparable programming to at least 50 percent of the households in the franchise area; and 2) the number of households subscribing to the programming services offered by MVPDs other than the largest MVPD exceeds 15 percent of the households in the franchise area. As an alternative, Americable states that it meets the low penetration effective competition test  Y -because it serves fewer than 30 per cent of the "households" in its franchise area.  j Yu-ԍ Another one of the bases upon which a cable system is deemed subject to effective competition is if fewer than 30 percent of the households in the system's franchise area subscribe to the system's cable service. Communications Act of 1934  623(l)(1)(A), 47  Y0-U.S.C.  543(l)(1)(A); 47 C.F.R.  76.905(b)(1).pp  Y -x4.` ` Americable states that there are a total of 5,478 "households" (that is,  Y -occupied housing units) in its Fort Mohave franchise area. v j Y-ԍ Americable has a franchise to serve certain unincorporated areas of Mohave County. Americable refers to this area as its Fort Mohave franchise area. Americable asserts that its Fort Mohave franchise area is roughly split into two portions: the northern portion consisting of Fort Mohave Mesa; and, the southern portion consisting of Mohave Valley and Willow Valley. Americable has provided evidence which indicates that it has separate franchise agreements to serve other areas of the County.  Americable calculates its household data by dividing its franchise area into northern and southern portions. In order to calculate the number of households in the southern portion, Americable relies upon 1990 Census data reflecting "occupied housing units" for the southern portion of its Fort Mohave"T 0*((-"  Y-franchise area (i.e. Mohave Valley and Willow Valley). zj Yy-#Xw PE37=9XP#э As the Commission has stated recently, "we presume that Congress did not intend "households" to have a different meaning than in the 1990 Census that would include vacant  YK-units." Third Order on Reconsideration, MM Docket Nos. 92266 and 92262, 9 FCC Rcd  Y6-4316, 4324 (1994) ("Third Recon. Order"). The count of "households" in the 1990 Census  Y!-reflects only occupied housing units. See Bureau of the Census, U.S. Dept. of Commerce,  Y -1990 Census of Population, CP11B, Appendix B at B8.#Xw PE37=9XP# According to that data there are 2,549 occupied housing units in Mohave Valley and 190 occupied housing units in Willow Valley for a total of 2,739 occupied housing units in the southern portion of the franchise area. In order to determine the number of households in the northern portion of the franchise area, Americable attempts to estimate the number of households by assuming that it offers to serve an equal distribution of households in both the northern and southern portions of its franchise area. Thus, Americable assumes that the northern portion of the franchise  Y_-area has the same number of households as are located in the southern portion. _ j Y-ԍ As support for this estimate, Americable provides a declaration under penalty of perjury from William J. McCarthy, General Manager, dated December 23, 1994. Based on these assumptions, Americable estimates that its franchise area consists of 5,478 occupied housing units (i.e. 2,739 for the southern portion and 2,739 for the northern portion). Census data is not available for the northern portion of the franchise area.  Y -x5.` ` #Xw PE37=9XP#Americable states that it offers to serve approximately 84.5 per cent, or 4,629 of the estimated total number of households in its franchise area. In addition, Americable claims that it actually serves 23.7 per cent, or 1,298 of the estimated total number of households in the franchise area. As supporting documentation Americable provides a computer printout which illustrates the number of "homes" passed and the number of  Yy-subscribers served by Americable Mohave County system.y j Y-ԍ The data submitted by Americable illustrates how many homes are passed and served by Americable in each area of the County (i.e. the number are provided based on each area served and not by how many homes are served in the entire County).  Americable also provides maps of the franchise area, and a copy of the franchise agreement for the Fort Mohave area. In addition, Americable submits a copy of its channel lineup which indicates that Americable offers a total of 59 channels, including more than 30 nonbroadcast channels.  Y-x6.` ` With respect to Dimension, Americable's asserted competitor in its Fort Mohave franchise area, Amerciable states that Dimension passes 71.1 per cent, or 3,894 of  Y-the estimated total number of households in Americable's franchise area.C' j Y$-ԍ Americable states that it is unclear as to whether its Fort Mohave franchise area is coterminous with that of Dimension. Americable asserts that the map, provided to the Commission by the County, "appears to suggest that Dimension's franchise area includes at least the same areas as Amerciable Fort Mohave, Arizona franchise area." However, we note"k'0*(('"  Y-that the Mohave County Board of Supervisors submits evidence to the contrary. See Letter to Daren A. Benzi, from David J. Grisez, County Manager (December 20, 1994) (neither of the franchise areas are exactly the same, and in the Mohave Valley area the Americable  YM-franchise area falls entirely within the boundaries of Dimension's franchised area). C In addition,"60*((" Americable states that Dimension serves 23.3 per cent, or 1,276 of the estimated total number of households in Americable's franchise area. As supporting documentation, Americable refers to information contained in a petition for reconsideration filed by  Y-Dimension concerning the County's certification.6j Y -ԍ Americable claims that it requested competitive information on Dimension's reach and number of subscribers from Dimension on October, 29, 1993. Americable claims that Dimension never responded to this request. Therefore, for purposes of this proceeding, Americable relies on the numbers set forth by Dimension in Dimension's petition, and its own records to determine Dimension's data for purposes of the effective competition test.  Americable also provides a copy of Dimension's channel lineup which indicates that Dimension offers a total of 45 channels, including more than 30 nonbroadcast channels.  Y_-x7.` ` In the absence of a demonstration to the contrary, cable systems are presumed  YH-not to be subject to effective competition.H j Y-#Xw PE37=9XP#эx#Xw PE37=9XP#47 C.F.R.  76.906. 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  Y -franchise area. < j Y-#Xw PE37=9XP##Xw PE37=9XP#э #Xw PE37=9XP#47 C.F.R.  76.911(b)(1). Based on the evidence, we find that Americable has not met its burden.  X - Disposition of Dimension's Direct Effective Competition Challenge   Y -x8.` ` With respect to determining whether Americable is subject to effective competition under the competing provider test, we find that Americable does not provide the appropriate household data necessary to determine that it meets the test. Americable calculates its household data by dividing its franchise area into northern and southern portions. Americable provides census data which shows that there are 2,739 households in the southern portion of Americable's franchise area. However, in the northern portion of the franchise area, Americable bases its household data on the assumption that it serves an equal distribution of households in both the northern and southern portions of its franchise area. Thus, Americable assumes that the northern portion of the franchise area also has 2,739 households. Considering the fact that census data is not available for the northern portion of Americable's franchise area, we would accept a reliable estimate for that area, whether from other reliable, objective sources, or from a reasonably accurate methodology employed by the operator. However, we can not accept the household data based on the evidence provided by Americable. We find no basis to conclude that an equal distribution of"| 0*((m" households in the northern and southern portion of a franchise area is a reasonably accurate method for calculating the total number of households in the franchise area. Accordingly, we are not able to find that Americable is subject to effective competition under the competing provider test.  Y-x9.` ` With respect to the low penetration test, Americable argues that it serves 1,298 of the 5,478 households, or 23.7 per cent of the total number of households in its franchise area. However, as we find that Americable has not submitted reliable evidence regarding the number of households in its franchise area, we can not find that Americable serves fewer  Y1-than 30 per cent of the households in its Fort Mohave franchise area.I1j Y -ԍ Americable cites to Twin County Trans Video, Inc., DA 941517 (released December 19, 1994) wherein the Commission recognized that the U.S. Census does not always have available the total number of households for all communities and that many cable operators do not collect such information. The Commission also stated that it would examine the totality of the evidence submitted by the cable operator to see if conclusions can be drawn  Y9-from it about the percentage of households passed by both operators. However, in Twin  Y$-County Trans Video, Inc., although the operator relied on the number of housing units (occupied and vacant) passed to support its claim, it did submit information from a reliable, objective source, (i.e. census data), by which the Commission could calculate the number of households in the franchise area. Here Americable does not base its estimated household number on any reliable objective source and does not provide any reliable objective source by which we could determine the number of households. In addition, we note that although we found the household data provided by Americable asserted competitor, Dimension, to be  Y-acceptable, See American Cable Television, Inc. (d/b/a/ Dimension Cable Services), DA 95175 (released February 8, 1995), we are not able to rely on that data in considering Americable petition because the franchise areas for the two operators are not coterminous.  YB-See n. 15, supra.I  Y -x10.` ` As Americable has not submitted sufficient evidence demonstrating that its cable system serving certain unincorporated areas of Mohave County is subject to effective competition under either the competing provider test or the low penetration test, its petition is denied.  X -  X- III.x ORDERING CLAUSES  Yb-x 11.` ` Accordingly, IT IS SO ORDERED that the petition for reconsideration filed by Americable International Arizona, Inc. challenging the certification of Mohave County,  Y5-Arizona to regulate basic cable rates IS DENIED.  Y-x12.` ` IT IS FURTHER ORDERED that the automatic stay imposed by Section  Y-76.911(c) of the Commission's Rules, as amended, 47 C.F.R.  76.911(c) IS  X-TERMINATED. "0*(("Ԍ  Y -x13.` ` IT IS FURTHER ORDERED that Americable SHALL FILE the required rate justifications on the appropriate forms with Mohave County, AZ within thirty (30) days  Y-of the release date of this Memorandum Opinion and Order or within thirty (30) days of receipt of notice from the franchising authority that it is regulating Americable's rates, whichever is later.  Y7-x14.` ` 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. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhMeredith J. Jones x` `  hhChief, Cable Services Bureau  F