WPC!D 2B'J  CourierCG TimesCG Times BoldCG Times ItalicE37XPCG Timeset 4_230_1HPLAS4.PRS 4x  @\_)^X@2' 6f ] Z  3|ws BoldCG Times Italic",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@\@\`LHP LaserJet 4_230_1HPLAS4.PRS 4Xw PE37\_)^XP2%Y f i Xf '3|w",tB^ f ^;C]ddCCCdCCCCddddddddddCCdxN`xoCCCddCdoYoYFdo8Co8odooYNCodddYdddd4dddddCddddddddo8dddddYYYYYN8N8N8N8oddddooooddpddddxodddXXddXddXdddddooL8doddNorddo8PdN8ppoddXXdpLoNpLodPDdopoopodXYXodoodddCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCdUUddddddFddddFCCssd44ddzzddd~ooCsdF"dsd9dCCzCddoddCdYds`zUvdddCCCCzozoYNYYYN8YooYdYzzdzddYYzozzzNdzYzzzzCCdddddddzCzdYC\   pxtll\tll@\@\`Lh8wC;,Xw PE37XPDi7zC;, c!Xz_ pi7Xj6uC;,cXu&_ x7XXV"G($,hG PE37hP",tB^ f ^;C`ddCCCdCCCCddddddddddCCdxxxsCYoxxdoxxooCCCddCddYdY8dd88Y8ddddLL8dYYYLYdYd4dddddCddddddddd8xdxdxdxdxdYxYxYxYxYC8C8C8C8dddddddddoYxddddoYdxdxdxdxdXXddxxXxdxdxXdddddddD8ddddCdddddp8pHodp8p8dxddddxLxLxddLdLdLddpHp8odddddddodpLpLpLdoddddododxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCd]]ddddddFddddFCCddd88ddzzdddkddCddF"ddd9dCCzCdzdoddCdYds]zUvdYYCCCCzzzozoYzNoYdYC8YooYdYzzdzddoYoYzzozzzzzCdoozYzzzzCCddddzdddooozCsdYC\   pxtll\tll@\@\`L2,%v+p+ki,"i~'K2^$(8<><q*"xxxxWWxxxWWkkxxxH; <<3=a1TechnicalTechnical Document StyleF!<  ?  I.   a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . Doc InitInitialize Document Stylez   0*0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)Documentg2C{>eBBdCPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:&{0*0*0*o'"  Y-("the City") to regulate rates for basic cable service and associated equipment.1 Yy-ԍxThe City of Monroe filed its "Certification of Franchising Authority to Regulate Basic Cable Service Rates and Initial Finding of Lack of Effective Competition" ("FCC Form 328") on October 4, 1993. The certification became effective on November 3, 1993. 1 In its petition, Mercom requests that the Bureau grant its petition for reconsideration, find that  Y-Mercom is subject to effective competition, and rescind the City's certification to regulate basic cable service   rates. The City did not file an opposition to Mercom's January 11, 1995  Y-petition.K Y -ԍxSection 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.  Xv- II. xBACKGROUND  YH-x2.` ` Section 405 of the Communications Act of 1934, as amended, allows parties to  Y1-petition for reconsideration of an order issued by the Commission or its delegated authority.i1 Y-ԍxCommunications Act of 1934  405; 47 U.S.C.  405.i  Y -Such a petition must be filed within 30 days from the date of public notice of that action.   YJ-ԍxCommunications 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-ԍx47 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  Y9-ԍx47 C.F.R.  1.106(d)(2).L  Yy- x3. ` ` Section 623 (a)(4) of the Communications Act of 1934, as amended, allows franchising authorities to become certified to regulate the basic cable service rates of cable  YK-systems that are not subject to effective competition.uK Y!-ԍxCommunications Act of 1934  623(a)(4), 47 U.S.C.  543(a)(4).u For the 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  Y-knowledge to the contrary.Y C Y%-ԍx47 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 meet the statutory" 0*0*0*"  Y-certification requirements.5 L= Yy-ԍx47 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 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)  Y-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). 5 Cable operators may file petitions for reconsideration of the franchising authority's certification within 30 days from the date such certification becomes  Y-effective. = Y_ -ԍx47 C.F.R.  1.106, 76.911; Report and Order and Further Notice of Proposed  YJ -Rulemaking, MM Docket No. 92266, 8 FCC Rcd 5631, 5693 (1993) ("Rate Order"). 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.J z = Y-ԍx47 C.F.R.  76.911(c).J  Yv-x4. ` ` In its original petition for reconsideration, Mercom argued that its system was subject to effective competition in its franchise area. Mercom based its claim of effective competition on the allegation that its system's subscriber penetration rate was less than 30%  Y1-of the "homes" in its franchise area.a _1+ = Y -ԍxThe 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 by which a cable operator 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 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). a To support its claim, Mercom submitted evidence which indicated that its system served 77 subscribers in a franchise area consisting of 8,840 "housing units." Mercom also submitted a declaration under penalty of perjury by a responsible official certifying to the accuracy of the data included in the petition. Using these figures, Mercom argued that the ratio of total Mercom subscribers in relation to the total number of housing units in the franchise area yielded a subscriber penetration rate of less than 1%. Because the penetration rate fell below 30%, Mercom argued that its system was subject to effective competition, and that the City's certification to regulate Mercom's basic rates and associated equipment should be rescinded.  YK-x5. ` ` In its Order, the Bureau denied Mercom's petition for reconsideration because Mercom, in deriving its penetration rate, inappropriately relied upon "housing unit" data, rather than household ("occupied housing unit") data, to determine the total number of"R 0*((" households in its franchise area. Specifically, the Bureau found that Mercom's "housing unit" count inappropriately included vacant housing units. Because Mercom failed to base its claim on "household" or "occupied housing unit" data, the Bureau rejected Mercom's claim of effective competition.  Y-x6. ` ` In its petition, Mercom now argues that the use of "household" (i.e., occupied housing unit) data confirms that its system's penetration level falls below 30%. Specifically, Mercom submits updated subscribership data which indicates that Mercom serves a total of 70 subscribers as of October, 1994. In addition, Mercom provides the complete citation to the relevant page of 1990 Census data which demonstrates that there are 8,430 occupied housing units in Mercom's franchise area. This yields a penetration level of .83%. Mercom argues that the public interest warrants acceptance of this new data because it demonstrates that Mercom is subject to effective competition based on a low penetration level.  X - III. xDISCUSSION  Y-x7. ` ` 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  Yb-existing until after the petitioners last opportunity to present such matters.b= Y-ԍxWWIZ, 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)(2). 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 delegated  Y-authority determines that consideration of such facts is required in the public interest.RO= Y-ԍx47 C.F.R.  1.106(c)(2).R  Y-x8. ` ` In its original petition, Mercom based its effective competition claim on housing unit data which inappropriately included vacant housing units. In this petition, however, Mercom now submits sufficient household (i.e., occupied housing unit) data in  Y-support of its effective competition claim. L= Y[-ԍxMercom provides no adequate reason as to why it failed to submit this data in its original petition, and thus, this pleading properly resembles a petition for revocation. Mercom 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  Y'-Reconsideration, MM Docket Nos. 92266 and 92262, 9 FCC Rcd 4316, 4324 (1994)"'0*(('"  Y-("Third Recon. Order"). The count of "households" in the 1990 Census reflects only  Y{-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 Mercom'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*((~"Ԍ Y-ԙx9. ` ` Relying on this household data, we find that Mercom serves 70 subscribers in an area with 8,430 households (i.e., occupied housing units). This yields a penetration level of .83%. In light of this, we find that Mercom 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.  X-  Xv-IV. xORDERING CLAUSES  YH-x10. ` ` Accordingly, IT IS ORDERED that the petition for reconsideration filed by Mercom, Inc. and its subsidiary, Communications and Cablevision, Inc. d/b/a River Raisin Cablevision challenging the certification of the City of Monroe, Michigan to regulate basic  Y -cable rates, IS GRANTED .  Y -x11.` ` IT IS FURTHER ORDERED that the certification of the City of Monroe,  Y -Michigan to regulate the basic cable service rates of Mercom, Inc. IS RESCINDED .  Y-x12.` ` This action is taken pursuant to delegated authority under Section 0.321 of the Commission's Rules, 47 C.F.R.  0.321. x` `  FEDERAL COMMUNICATIONS COMMISSION x` `  Meredith J. Jones x` `  Chief, Cable Services BureauT T T T T T T T T T