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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** FOR FCC RECORD ONLY $//Shelby Cable, Inc., Shelby County, AL., MO&O, DA 95-1181//$ $/76.922 Rates for Cable Programming Service Tier/$ $/benchmark cable rates/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 95-1181 In the matter of ) ) Shelby Cable, Inc. ) CUID No. AL0543 (Shelby County) ) Complaints Regarding Cable ) Programming Service Rate ) Memorandum Opinion and Order Adopted: May 30, 1995 Released: June 6, 1995 By the Chief, Cable Services Bureau: Introduction 1. Here we consider complaints about the price Shelby Cable, Inc. ("Shelby") was charging for its cable programming service ("CPS") tier in Shelby County, Alabama. Shelby filed a motion to dismiss the complaints arguing that it is subject to effective competition and thus its cable programming service rate is not subject to regulation by the Commission. Shelby did not file a rate justification as required by the Commission Rules. 2. The first complete and timely complaint regarding Shelby's CPS rate for Shelby County, Alabama was filed with the Commission on November 1, 1993. In response to this complaint, Shelby filed a motion to dismiss on November 29, 1993. On December 23, 1994, Shelby filed additional information styled "Supplement to Motion to Dismiss." On April 12, 1995, Shelby submitted additional information in response to a request by Commission staff for further documentation. Because in this Order we are dismissing the complaints on the grounds that effective competition is present, we find it unnecessary to rule on Shelby's other objections to the complaints filed against it in this franchise area. Discussion 3. In its Supplement to Motion to Dismiss, Shelby asserts that its cable system is subject to effective competition, and therefore its cable programming service rate is not subject to rate regulation, because it serves fewer than 30 percent of the households (i.e., occupied housing units) within its franchise area, the unincorporated area of Shelby County. Specifically, Shelby claims that as of November 1993 and February 1994, it served a total of 5,794 and 5,863 subscribers, respectively, or 28 percent of the total number of households in the unincorporated area of Shelby County. Shelby states that, based on projected estimates prepared by CACI Marketing Systems (CACI) as of November 1993 and February 1994, there were 20,596 and 20,772 households, respectively, in the relevant franchise area. As supporting documentation, Shelby submits copies of the relevant 1990 Census data and a household trend report prepared by CACI from which the estimated 1993 and 1994 household data are derived. In addition, Shelby provides a computer printout as of November 1993 and February 1994 which indicates that it served 5,794 and 5,863 subscribers, respectively. 4. 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 its franchise area. 5. By its submissions, Shelby has demonstrated that its system met this statutory definition of effective competition at the time of the November 1993 complaint. As with our treatment of petitions for reconsideration of effective competition, we require cable operators to demonstrate a showing of effective competition using subscriber data at or around the time the request for certification was filed. According to Shelby's calculation, the total households figure for the unincorporated area of Shelby County as of November 1, 1993 was 20,596. Thus, a comparison of the number of subscribers as of November 1, 1993 (5,794) in relation to the households figure (20,596) yields a penetration level of 28.1 percent. Conclusions 7. Accordingly, IT IS ORDERED, pursuant to Section 0.321 of the Commission's Rules, 47 C.F.R.  0.321, that the motion of Shelby Cable, Inc. to dismiss the complaints against its cable programming service price charged in Shelby County, Alabama, CUID No. AL0543, IS GRANTED. 8. IT IS FURTHER ORDERED that the complaints against the cable programming service price charged by Shelby Cable, Inc. in Shelby County, Alabama, CUID No. AL0543, ARE DISMISSED. FEDERAL COMMUNICATIONS COMMISSION Meredith J. Jones Chief, Cable Services Bureau