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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:><q*"xxxxWWxxxWWkkxxxxxxxxPxxxxxxxxxCkkkkkkkkkkPCPCPCPCxxxxxxxxxxkxxxxxxjxjjjxxjxxjxxxxxxxPCxxxxPxxxxCVxHCxxxxxVVx[[[xVCxxxxxxxxjjjxxxxxxPxxPPPWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNxxxPkbbxxxxxxTxxxxTPP||x>>xxxxxP|x!T"x}xExPPPxxxxPxkxofxkkPPPPk]kxkPCkkxkxxxkkPxkPPxxxxxxxPxkP8D%nZZB 3nMnMn..s[2Ymf aQ [ 8h",tB^ f ^GPoxxPPPxPPPPxxxxxxxxxxPPx]sPPPxxPxkkTxCPCxk]Pxxxkxxxx>xxxxxPxxxxxxxxCxxxxxkkkkk]C]C]C]Cxxxxxxxxxxxxxjjxxjxxjxxxxx[Cxxx]xxC`x]Cxxjjx[][x`RxxjkjxxxxPxxPPPWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNxxxPxffxxxxxxTxxxxTPPx>>xxxxxPxT"xxExPPPxxxxPxkxsfxxxPPPPk]kkk]Ckkxkxxxkk]xkPPxxxxxxxPxkP8D%nZZB 3nMnMn..s[2m X-  Њ #Xw PE37XP# $/ FOR FCC RECORD ONLY /$ $// MO&O, Cable Act of 1992, DA 95178//$ $/ 300.623 Regulation of Rates /$ $/ 1.106 Petitions for Reconsideration /$ $/ 76.906 Presumption of no effective competition /$ $/ 76.910 Franchising authority certification /$ $/ 76.911 Petition for reconsideration of certification /$ (2Before the X -W FEDERAL COMMUNICATIONS COMMISSION ă  Y - Washington, D.C. 20554 ă  Y -X01Í ÍX01Í ÍIn the Matter of: hh@h)pp DA 95178 x` `  hh@h)  Y -HUNTER'S CREEK COMMUNICATIONS h)  Y-CORP., dba HUNTER'S CREEKhh@@h)pp  Yz-CABLEVISION hh@h)pp x` `  hh@h)  YL-Petition for Revocationhh@h) x` `  hh@h)  Y-of Certification of hh@h)  Y-Orange County, Floridahh@h)pp  Y-to Regulate Basic Cable Service Rates@h)  Y-(FL1012)` ` Th)  X-}  MEMORANDUM OPINION AND ORDER ĐTP  Y}- Adopted:` ` February 7, 1995hh@h Released: February 8, 1995 By the Chief, Cable Services Bureau:  X"- I.xINTRODUCTION  Y-x1. On September 12, 1994, Hunter's Creek Communications Corp., dba Hunter's Creek Cable ("Hunter's Creek") filed a petition for revocation challenging the certification of Orange County, Florida ( the "County") to regulate the system's rates for basic cable  Y!-service and associated equipment.M! Y($-#Xw PE37XP#э Orange County filed its Certification of Franchising Authorities to Regulate Basic Cable Service Rates and Initial Finding of Lack of Effective Competition ("FCC Form 328") on September 28, 1993. Its certification became effective on October 28, 1993.M On October 4, 1994, Hunter's Creek filed a request for stay from local regulation by the County. The County filed a Motion to Dismiss and an opposition to the petition. "j$K0*0*0*%"Ԍ Y-x2. 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  Y-    operators which are not subject to effective competition. YK-#Xw PE37=9XP#э Communications Act of 1934  623 (a)(4), 47 U.S.C.  543(a)(4). 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  Y-authority has actual knowledge to the contrary.yy Y-#Xw PE37=9XP#э 47 C.F.R.  76.906, 76.910(b)(4).y Certification becomes effective 30 days from the date of filing unless the Commission finds that the franchising authority does not  Y_-meet the statutory certification requirements.K_* Y: -#Xw PE37=9XP#э 47 C.F.R.  76.910(e). Certification becomes effective unless the Commission determines that: (1) the franchising authority will not adopt and administer rate regulations that are consistent with the Commission's regulations; (2) the franchising authority lacks the legal authority to adopt, and the personnel to administer, rate regulation; (3) procedural laws and regulations applicable to rate regulation proceedings by the franchising authority do not provide a reasonable opportunity for the consideration of the views of interested parties; or  Y-(4) the cable system in question is subject to effective competition. 47 C.F.R.  76.910(b).#Xj\  P6G;+XP#  Y-#Xw PE37=9XP#See also 47 U.S.C.  543(a)(4).#Xj\  P6G;+XP#ѵ Cable operators may file petitions for revocation of the franchising authority's certification at any time after the date such  Y1-certification becomes effective.1=  Y-#Xw PE37=9XP#э The County appears to suggest that a cable operator may not file a petition for revocation on the basis of effective competition. To the extent that the County is making such an argument, we disagree. There is nothing in the Commission's rules which prohibits a cable operator from making an effective competition claim in a petition for revocation  Y-proceeding. See 47 C.F.R.  76.914.  Regardless of its grounds, however, a petition for revocation does not automatically stay a franchising authority's power to regulate basic cable  Y -rates.J  YH-ԍx47 C.F.R.  76.914(d).J  X - II.xDISCUSSION   Y -Hunter Creek's Effective Competition Claim  Yy-x3.` ` Hunter's Creek argues that its cable system is subject to effective competition because it serves fewer than 30 percent of the households in the unincorporated areas of  YK-Orange County, its franchise area.KE YA&-#Xw PE37=9XP#э The 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 a cable system"*'0*((@'" that is not subject to effective competition may be regulated. One of the bases upon which a cable system will be 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  623(l)(1)(A), 47 U.S.C.  543(l)(1)(A); 47 C.F.R.  76.905(b)(1). Hunter's Creek claims that it serves only 1.29 percent of"K40*((" the 237,876 residential units or "households" in the County. As supporting documentation for its residential unit number, Hunter's Creek provides data from the Orange County Cable Communications Department Cable TV Statistical Report. This document, however, apparently lists a total of 237,876 "dwelling units" passed by all the cable systems operating  Y-in Orange County.F4 Y -ԍxThe County has issued nonexclusive franchises to five cable operators (Hunter's Creek, Telesat Cablevision, Cablevision, Inc., Cablevision of Central Florida and Central Florida Satellite Cable). Each operator is authorized to serve the unincorporated areas of Orange County.F Hunter's Creek also submits a computer printout with subscriber  Y-information which purports to support the number of subscribers to its cable system in the  Yv-franchise area as of September 1, 1994. According to this computer printout, Hunter's Creek served 1,658 subscribers.  Y1-x4.` ` In its objection to Hunter's Creek's petition, the County argues that Hunter's Creek is not subject to effective competition because it has "redefined" its franchise area. The County alleges that Hunter's Creek has made an affirmative decision to limit its service area to specific areas in the County even though its franchise does not restrict service to a  Y -specific area of the County.   Y&-#Xw PE37=9XP#э In its First Order on Reconsideration the Commission clarified its definition of  Y-"franchise area" for purposes of determining effective competition. First Order on  Y-Reconsideration, Second Report and Order, and Third Notice of Proposed Rulemaking, MM  Y-Docket No. 92266, 9 FCC Rcd 1164 (1993). Generally, "[a] franchise area is the area a  Y-system operator is granted authority to serve in its franchise." Id. at 1180. The Commission stated, however, that a more restricted definition of "franchise area" may be more appropriate under limited circumstances, such as when an operator "has itself, through its own conduct, self defined the areas to be served to such an extent that this redefined area  Yv-accurately portrays the operator's franchise area." Id. at 1181. Under this standard, the franchising authority has the burden of showing that the operator has made an "affirmative  YJ -decision . . . to restrict service." Id. According to the County, Hunter's Creek's actual service area consists of 1,820 residential units, of which Hunter's Creek serves 1,441. As support, the County submits colorcoded maps of the County, for August 22, 1991 and April 27, 1993, which show what the County alleges as Hunter's Creek's actual "franchise area" for purposes of the effective competition standard. According to the County, these maps demonstrate that Hunter's Creek has made an affirmative decision to limit its service to a "pocket" of territory within the south central portion of the unincorporated area. It argues that a comparison of the two maps demonstrates that Hunter's Creek's service area has remained stagnant, thereby leading to the conclusion that Hunter's Creek has not been steadily expanding its service"w 0*((" area. Within this redefined franchise area, the County argues that Hunter's Creek actually serves 79.18 percent of residential units, and therefore is not subject to effective competition.  Y-x5.` ` As a preliminary matter, we are not persuaded that the appropriate franchise area for purposes of effective competition is something less than the entire unincorporated areas of Orange County. The County has not submitted sufficient evidence, such as statements from the cable operator or evidence of refusals by Hunter's Creek to expand its cable service. Rather, the County merely argues that Hunter's Creek has not expanded its service throughout its franchise area. As the Commission has stated previously, however, "[t]he fact that franchise area has not yet been filled out by construction of a system would  Y -not by itself be taken as redefining the service area."Q   Y -ԍxFirst Recon. Order, supra.Q T  Y -TPx6. ` ` In the absence of a demonstration to the contrary, cable systems are presumed  Y -not to be subject to effective competition.f { Y-#Xw PE37=9XP#э 47 C.F.R. 76.906.f 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 the  Y-franchise area.i , Ym-#Xw PE37=9XP#э 47 C.F.R. 76.911(b).i Hunter's Creek did not support its effective competition claim with data  Yy-reflecting the number of "households" in the franchise area, as required by our rules. See  Yd-Third Order on Reconsideration, MM Docket Nos. 92266 and 92262, 9 FCC Rcd 4316,  YO-4324 (1994). zO Y-ԍxAs the Commission stated recently, "we presume that Congress did not intend "households" to have a different meaning than in the 1990 Census that would include vacant  Y-units." Third Recon. Order, supra. The count of "households" in the 1990 Census reflects  Y-only occupied housing units. See Bureau of Census, 1990 Census of Population and Housing, Summary Population and Housing Characteristics, Florida, 1990 CPH111, Table 5, at 73. Nonetheless, we note that in Telesat Cablevision, Inc., Petition for Reconsideration of Certification of Orange County, Florida to Regulate Basic Cable Service  Y#-Rates (FCC Community ID No. FL0851), DA 95177, (released February 8, 1995), Telesat Cablevision, another cable operator which also serves the unincorporated areas of  Y-Orange County, states that, based on the 1990 Census, there are 160,356 households (i.e., occupied housing units) in the unincorporated areas of Orange County. In addition, in  W-CableVision Industries Limited Partnership, et. al., Revocation of Certification of the  Y-Certification of Orange County, Florida to Regulate Basic Cable Rates, DA 95179, (released February 8, 1995), CableVision Industries ("CVI"), a third operator which also serves the unincorporated areas of Orange County, asserts that there are 120,999 households in the unincorporated areas of Orange County. Both Telesat and CVI are able to demonstrate how they arrived at their respective numbers and we are unable to conclude that"Z 0*((\" one number is more accurate than the other. However, we note that Hunter's Creek, which has the same franchise area as the other two operators, would meet the low penetration test for effective competition using either the household figures presented in Telesat's petition (160,356) or the household figures presented in CVI's petition (120,999). If the household figure (160,356) in Telesat's petition is applied to the number of subscribers Hunter's Creek serves (1,658), Hunter's Creek penetration level would be 1.03 percent. If the household figure (120,999) presented in CVI's petition is used, Hunter's Creek's penetration level would be 1.37 percent. Thus, we find that Hunter's Creek's system serving the unincorporated areas of Orange County is subject to effective competition. Accordingly, its  Y1-petition is granted.H1 Y -ԍxWe draw no conclusion as to whether Hunter's Creek has provided the Commission with sufficient evidence alleging effective competition based on the competing provider test. Communications Act of 1934  623(l)(1)(B), 47 U.S.C.  543(l)(1)(B); 47 C.F.R.  76.905(b)(2). We recognize that there are five multichannel video programming distributors within Orange County. However, to date, the Bureau has not been asked to determine that competition exists within the franchise area due to their presence. Should any of the operators submit new pleadings alleging effective competition under this second test, it will be considered at that time.  X - III.xORDERING CLAUSES  Y -x7.` ` Accordingly, IT IS ORDERED that the petition for revocation filed by Hunter's Creek Communications Corp., dba Hunter's Creek Cable challenging the  Y -certification of Orange County to regulate Hunter's Creek's basic cable rates IS GRANTED .  Y{-x8.` ` IT IS FURTHER ORDERED that the certification of Orange County to regulate the rates for basic cable service and associate equipment of Hunter's Creek  YN-Communications Corp., dba Hunter's Creek Cable IS RESCINDED.     Y!-x9.` ` This action is taken pursuant to delegated authority pursuant to Section 0.321 of the Commission's rules, 47 C.F.R.  0.321. x  Y- ` ` hh FEDERAL COMMUNICATIONS COMMISSION  Yi-  hh Meredith J. Jones  YR- hh Chief, Cable Services Bureau