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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $/ FOR FCC RECORD ONLY /$ $// MO&O, Cable Act of 1992, DA 95-1140//$ $/ 300.623 Regulation of Rates /$ $/ 76.914 Petitions for Revocation /$ $/ 76.906 Presumption of no effective competition /$ $/ 76.910 Franchising authority certification /$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of: ) DA 95-1140 ) LAKE CABLEVISION, INC. ) Petition for Reconsideration ) ) of the Certification of ) County of Hall, Georgia ) to Regulate Basic Cable Rates ) (GA0598) ) MEMORANDUM OPINION AND ORDER Adopted: May 22, 1995 Released: May 24, 1995 By the Chief, Cable Services Bureau: I. INTRODUCTION 1. On March 31, 1995, Lake Cablevision, Inc. ("Cablevision") filed a timely petition for reconsideration challenging the certification of Hall County, Georgia (the "County") to regulate rates for basic cable service and associated equipment. On April 27, 1995, the County filed a motion to accept late filing of opposition and an opposition to Cablevision's petition. Cablevision filed a reply to the County's motion and opposition on May 5, 1995. 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 that are not subject to effective competition. 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 knowledge to the contrary. Certification becomes effective 30 days from the date of filing unless the Commission finds that the franchising authority does not meet the statutory certification requirements. Cable operators may file petitions for reconsideration of the franchising authority's certification within 30 days from the date such certification becomes effective. Rate regulation is automatically stayed pending review of a timely-filed petition for reconsideration alleging the presence of effective competition. II. DISCUSSION 3. Cablevision 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 Hall County, its franchise area. Cablevision claims that it currently serves a total of 1,899 of the 26,109 households (that is, occupied housing units) in its franchise area, or 7.3% percent of the total number of households in its franchise area. As supporting documentation, Cablevision provides 1990 Census data which shows that there are a total of 34,721 households in Hall County. To calculate the number of households in the unincorporated areas, Cablevision subtracts from the total number of households in Hall County (34,721), the household figures listed in the Census for each of the incorporated areas of Buford (10), Clermont (147), Flowery Branch (526), Gainesville (6,940), Gillsville (36), Lula (356), Oakwood (590) and Rest Haven (7). This calculation yields a total of 26,109 households in the unincorporated areas of Hall County. Cablevision also submits computer print-outs with sufficient subscriber information to support its claim that it serves a total of 1,899 households in its franchise area. Finally, Cablevision provides a copy of the relevant pages of its franchise agreement which grants Cablevision the authority to serve the unincorporated areas of the County, and an affidavit by a responsible official certifying the accuracy of the data included in the petition. 4. The County asserts that Cablevision's effective competition claim is inappropriately based on areas unserved by Cablevision's cable system. It argues that Cablevision has made an affirmative decision to redefine its franchise area. Specifically, the County alleges that Cablevision has had a franchise agreement authorizing service to the unincorporated areas of the County since July 27, 1987. The County claims that since shortly after entering the franchise agreement, Cablevision has "systematically limited the area in which it offers service to a small portion of the County not served by any other operator." As supporting documentation, the County provides a map of the County with marks highlighting the areas served by Cablevision and Gainesville Cable. The County also provides a copy of the franchise agreement with Cablevision, and the declaration of a responsible official who attests to the facts contained in the opposition. In addition, the County claims that the Commission's standard of proof for showing that a cable operator has redefined its franchise area is virtually impossible to meet. Thus, it requests that we defer action on the petition until it is able to further investigate the situation. Alternatively, the County requests that we conduct our own investigation into whether Cablevision has limited its service. 5. In its reply to the County's motion to accept late filing and opposition to Cablevision's petition, Cablevision argues that the Commission should not accept the County's late opposition, as the County should have been aware that Cablevision would challenge the County's certification in light of our previous proceedings regarding this matter. In addition, Cablevision argues that the County's evidence is insufficient to prove that Cablevision has redefined its franchise area. In support of its argument, Cablevision provides the declaration under penalty of perjury of Mr. Turner O. Waide, Vice President of Lake Cablevision, Inc. In Mr. Waide's declaration, he claims that Cablevision has expanded its subscribership in Hall County at an average of 10% per year from January 1, 1990 through January 1, 1994. He further declares that Cablevision "expects to continue its expansion into unserved areas of Hall County and is presently finalizing plans to provide service to additional homes in Hall County." 6. As a preliminary matter, we find unpersuasive the County's argument that Cablevision has failed to expand into parts of its franchise area served by another cable operator and therefore has redefined its franchise area. The assertion that Cablevision has, in essence, not filled out its entire franchise area, without more, is insufficient to establish that a cable operator has redefined its franchise area. As the Commission stated in its First Recon. Order, "[t]he fact that a franchise area has not as yet been filled out by construction of a system would not by itself be taken as redefining the service area." The County has pointed to no other facts, such as refusals of requests to expand service, agreements not to expand service, or other evidence which could allow us to find that Cablevision has redefined its franchise area. Moreover, it is the franchising authority which has the burden of setting forth evidence sufficient to demonstrate that a cable operator has made an affirmative decision to limit its franchise area. The facts set forth in the County's opposition do not meet this burden. As Cablevision has filed a petition as permitted by our rules, we do not find it appropriate to defer action on its petition, as the County requests. 7. Turning to the specifics of Cablevision's effective competition claim, 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 the franchise area. Cablevision has met this burden. Cablevision appropriately relied on data reflecting the number of households as required by our rules. Relying on this data, Cablevision has submitted sufficient evidence demonstrating that its cable system serving the unincorporated areas of Hall County, its franchise area, serves 1,899 of the 26,109 households, or 7.3 percent of the households, within its franchise area. Thus, we find that Cablevision's system serving the unincorporated areas of Hall County is subject to effective competition. Accordingly, its petition is granted. III. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED that the petition for reconsideration filed by Lake Cablevision, Inc. challenging the certification of Hall County, Georgia to regulate basic cable rates IS GRANTED. 9. IT IS FURTHER ORDERED that the certification of Hall County, Georgia to regulate Lake Cablevision, Inc.'s basic cable rates IS RESCINDED. 10. This action is taken pursuant to delegated authority pursuant to Section 0.321 of the Commission's rules, 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION Meredith J. Jones Chief, Cable Services Bureau