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A. a.(1)(a) i) a)TPleadingHeader for Numbered Pleading Paper78    X  y*dddyy*ddd`y H1 H2 H3 H4 H5 H6 H7 H8 H9 H10 H11 H12 H13 H14 H15 H16 H17 H18 H19 H20 H21 H22 H23 H24 H25 H26 H27 H28   ӃHeading 2Underlined Heading Flush Left9: 2NpJyIKZKQHeading 1Centered Headingcal Style; <** Ã  Bullet ListIndented Bullet List=>` ưX d8wC;,Xw PE37XPDe7zC;, c!Xz_ pi7Xf6uC;,cXu&_ x7XXV"G($,hG PE37hPX F($,`hF&_ x7hXuX@PLAS4.PRS 4x  CG TimesCG Times BoldCG Times Ital:;<=CG TimesCG Times BoldCG 2f NNY",tB^ f ^;C`ddCCCdCCCCddddddddddCCdxxxsCYoxxdoxxooCCCddCddYdY8dd88Y8ddddLL8dYYYLYdYd4dddddCddddddddd8xdxdxdxdxdYxYxYxYxYC8C8C8C8dddddddddoYxddddoYdxdxdxdxdXXddxxXxdxdxXdddddddD8ddddCdddddp8pHodp8p8dxddddxLxLxddLdLdLddpHp8odddddddodpLpLpLdoddddododxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCd]]ddddddFddddFCCddd88ddzzdddkddCddF"ddd9dCCzCdzdoddCdYds]zUvdYYCCCCzzzozoYzNoYdYC8YooYdYzzdzddoYoYzzozzzzzCdoozYzzzzCCddddzdddooozCsdYC\   pxtll\tll@\@\`L X- $/ FOR FCC RECORD ONLY /$ $// MO&O, Cable Act of 1992, DA 95204//$ $/ 300.623 Regulation of Rates /$ $/ 1.106 Petitions for Reconsideration /$ $/ 76.906 Presumption of no effective competition /$ $/ 76.910 Franchising authority certification /$ $/ 76.911 Petition for reconsideration of certification /$  YH-  X -J(Ԋ Before the X -lUW FEDERAL COMMUNICATIONS COMMISSION ă  Y - Washington, D.C. 20554 ă  Y -In the Matter of: hh,V)pp  DA 95204 ` `  hh,V)  Yz-HORIZON CABLE I LIMITED V)  Yc-PARTNERSHIP hh,V)pp ` `  hh,V)  Y5-Petition for Reconsiderationhh,V) ` `  hh,V)  Y-of the Cable Services Bureau OrderV)  Y-Denying Petition for ReconsiderationV)  Y-of Victor Township, Michigan's Certification)  Y-to Regulate Basic Cable Service RatesV)  Y-(MI1061)` `  hh,V) l  X}-  ORDER ON RECONSIDERATION ĐlU  X8- Adopted: February 9, 1995hh,VReleased: February 10, 1995 X By the Chief, Cable Services Bureau:  X- I.INTRODUCTION  Y!-1.` ` On December 15, 1994, Horizon Cable I Limited Partnership ("Horizon")  Y"-filed a timely petition requesting reconsideration of a Memorandum Opinion and Orderq"" Y%-ԍHorizon Cable I Limited Partnership, 10 FCC Rcd 73 (1994).q  Y#-("Order") adopted by the Cable Services Bureau ("the Bureau") pursuant to delegated  Ym$-authority. The Order denied Horizon's petition for reconsideration challenging the certification of Victor Township ("the Township") to regulate rates for basic cable service"X%{0*0*0*&"  Y-and associated equipment.* Yy-ԍThe Township filed its Certification of Franchising Authority to Regulate Basic Cable Service Rates and Initial Finding of Lack of Effective Competition ("FCC Form 328") on September 29, 1993. The certification became effective on October 29, 1993.* In its petition, Horizon requests that the Bureau grant its petition for reconsideration, find that Horizon is subject to effective competition and rescind the Township's certification. The Township did not file an opposition to Horizon's  Y-December 15, 1994 petition.K Y-ԍSection 1.106 of the Commission's rules provides that oppositions to petitions for reconsideration must be filed within 10 days of the date that the petition for reconsideration was filed.  X- II.BACKGROUND  Yv-2.` ` Section 405 of the Communications Act of 1934, as amended, allows parties to  Y_-petition for reconsideration of an order, issued by the Commission or its delegated authority.i_ Y-ԍCommunications Act of 1934  405, 47 U.S.C.  405.i  YH-Such a petition must be filed within 30 days from the date of public notice of that action.H  Yx-ԍCommunications Act of 1934  405, 47 U.S.C.  405; 47 C.F.R.  1.106(f). To warrant consideration, a petition for reconsideration must state the specific form(s) of relief sought by the petitioner and allege with particularity the respects in which the contested  Y -action should be changed.L 0  Y-ԍ47 C.F.R.  1.106(d)(1).L The petition should also cite findings of fact or conclusions that the petitioner believes to be in error, and indicate how the petitioner believes they should be  Y -changed.L  Yg-ԍ47 C.F.R.  1.106(d)(2).L  Y -3. ` ` 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  Yy-operators that are not subject to effective competition.y Y-ԍ#Xj\  P6G;+XP##Xw PE37=9XP#Communications Act of 1934  623(a)(4), 47 U.S.C.  543(a)(4).#Xj\  P6G;+XP# 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 they have actual  Y4-knowledge to the contrary. 4C Y($-ԍ#Xj\  P6G;+XP##Xw PE37=9XP#47 C.F.R.  76.906, 76.910(b)(4).#Xj\  P6G;+XP# Certification becomes effective 30 days from the date of filing unless the Commission finds that the franchising authority does not meet the statutory  Y-certification requirements. z Y'-ԍ#Xw PE37=9XP#47 C.F.R.  76.910(e). Certification becomes effective unless the Commission determines that: (1) the franchising authority will not adopt or administer rate regulations"( 0*0*0*(" that are consistent with the Commission's regulations; (2) the franchising authority lacks the legal authority to adopt, or the personnel to administer, rate regulations; (3) procedural laws and regulations applicable to rate regulation proceedings by the franchising authority do not provide a reasonable opportunity for consideration of the views of interested parties; or (4)  Y4-the cable system in question is subject to effective competition. 47 C.F.R.  76.910(b). See  Y-also Communications Act of 1934  623(a)(4), 47 U.S.C.  543(a)(4).#Xj\  P6G;+XP#Ѽ Cable operators may file petitions for reconsideration of the"  0*0*0*" franchising authority's certification within 30 days from the date such certification becomes  Y-effective.5  o Y -ԍ#Xw PE37=9XP#47 C.F.R.  1.106, 76.911, Report and Order and Further Notice of Proposed  Y -Rulemaking, MM Docket No. 92266, 8 FCC Rcd 5631, 5693 (1993).#Xj\  P6G;+XP#5 Rate regulation is automatically stayed pending review of a timelyfiled petition for reconsideration (filed pursuant to Section 76.911 of the Commission's rules) alleging the  Y-presence of effective competition.  o Y-ԍ#Xw PE37=9XP#47 C.F.R.  76.911(c).#Xj\  P6G;+XP#Ѥ  Y-4.` ` In its original petition for reconsideration, Horizon argued that its Victor Township system was subject to effective competition in its franchise area. Horizon based its claim of effective competition on the allegation that its system's subscriber penetration  YH-rate was less than 30% of the "homes" in its franchise area.] _HY o YR-ԍThe 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 fewer than 30 per cent of the households in the system's franchise area subscribe to the system's service. Communications Act of 1934 623(l)(1)(A); 47 U.S.C. 543(l)(1)(A); 47 C.F.R.  76.905(b)(1). ] To support its claim, Horizon submitted a copy of a computer printout which indicated that its system served 222 subscribers as of October 21, 1993. Horizon also provided a copy of 1990 Census data which indicated that there were 936 "housing units" within the franchise area. In addition, Horizon also submitted a declaration under penalty of perjury by a responsible official certifying to the accuracy of the subscriber data included in the petition. Using these figures, Horizon argued that the ratio of total Horizon subscribers in relation to the total number of "housing units" in the franchise area yielded a subscriber penetration rate of 23% of the "households" in its franchise area. Because the penetration rate fell below 30%, Horizon argued that its system was subject to effective competition, and that the Township's certification to regulate Horizon's basic cable rates and associated equipment should be rescinded.  Y-5.` ` In its Order, the Bureau denied Horizon's petition for reconsideration because Horizon, in deriving its penetration rate, inappropriately relied upon "housing unit" data, rather than household ("occupied housing unit") data, to determine the total number of" 0*((" households in its franchise area. Specifically, the Bureau found that Horizon's "housing unit" count inappropriately included vacant housing units. Because Horizon failed to base its claim on "household" or "occupied housing unit" data, the Bureau rejected Horizon's claim of effective competition.  Y-6.` ` In its petition, Horizon now argues that use of recently located "household" (occupied housing unit) data confirms that its system's penetration level falls below 30%. Specifically, Horizon submits a copy of the relevant page of 1990 Census data which demonstrates that there are 902 occupied housing units in Horizon's franchise area. In addition, Horizon submits updated subscribership data which indicates that Horizon serves a total of 240 subscribers as of January 21, 1995. This yields a penetration level of 26.6%. Horizon argues that the public interest warrants acceptance of this new data because it demonstrates that Horizon is subject to effective competition based on a low penetration  Y -level.  X - II.DISCUSSION  Yy-7.` ` Generally, reconsideration is appropriate where the petitioner shows either a material error or omission in the original order or raises additional facts not known or not  YK-existing until after the petitioner's last opportunity to present such matters. Ko Y-ԍWWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub nom. Lorain Journal v. FCC, 351  Y-F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S. 967 (1966). See also 47 C.F.R.  1.106(c).  A petition for reconsideration which relies on facts or information not previously presented to the Commission or its delegated authority may be considered if the Commission or designated  Y-authority determines that consideration of such facts is required in the public interest.LOo Y-ԍ47 C.F.R.  1.106(c)(2).L  Y-8.` ` In its original petition, Horizon based its effective competition claim on housing unit data which inappropriately included vacant housing units. In this petition,  Y-however, Horizon now submits household (i.e., occupied housing unit) data in support of its  Y-effective competition claim.57o YF -ԍHorizon provides no adequate reason as to why it failed to submit this data in its original petition and thus this pleading more properly resembles a petition for revocation. Horizon claims that it had no notice that effective competition claims must be demonstrated  Y#-by using "household" (i.e., occupied housing unit) data. This argument lacks merit. Both the Cable Act and the Commission's rules require that effective competition be demonstrated based on the number of "households" in the franchise area. Communications Act of 1934  623(l)(1), 47 U.S.C.  543(l)(1); 47 C.F.R.  76.905 (b). As the Commission stated previously, "we presume that Congress did not intend households' to have a different  Y'-meaning than in the 1990 Census that would include vacant units." Third Order on"'0*(('"  Y-Reconsideration, MM Docket Nos. 92266 and 92262, 9 FCC Rcd 4316, 4324 (1994)  Y{-("Third Recon. Order"). The count of "households" in the 1990 Census reflects only  Yf-occupied housing units. See Bureau of the Census, U.S. Dept. of Commerce, 1990 Census of Population, CP11B, Appendix B at B8. Nonetheless, we note that Section 623(a)(2) of the Communications Act of 1934, as amended, provides that only the rates of cable systems that are not subject to effective competition may be regulated. Moreover, we note that acceptance of this new data reveals that Horizon's penetration level is substantially below the penetration level needed to become subject to rate regulation. In light of these circumstances, we believe that the public interest requires acceptance of this information." 0*((n"Ԍ Y-ԙ9.` ` Relying on this household data, we find that Horizon currently serves 240  Y-subscribers in an area with 902 households (i.e., occupied housing units). This yields a penetration level of 26.6%. In light of this, we find that Horizon has submitted sufficient evidence demonstrating that it serves fewer than 30% of the households in its franchise area. Accordingly, its cable system is subject to effective competition and its petition is granted.  Y-  Xx- III.ORDERING CLAUSES  YJ- 10.` ` Accordingly, IT IS ORDERED that the petition for reconsideration filed by  Y4-Horizon Cable I Limited Partnership challenging the certification of Victor Township,  Y -Michigan to regulate basic cable rates IS GRANTED.  Y -11.` ` IT IS FURTHER ORDERED that the certification of Victor Township,  Y -Michigan to regulate the basic cable rates of Horizon Cable I Limited Partnership IS  X -RESCINDED.  Y-12.` ` This action is taken pursuant to delegated authority pursuant to Section 0.321 of the Commission's rules, 47 C.F.R.  0.321.   Y#-` `   FEDERAL COMMUNICATIONS COMMISSION ` `  Meredith J. Jones ` `  Chief, Cable Services Bureau