WPCA 2MB%RK Z3|XTimes New RomanTimes New Roman Bold P6G;P"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNK#4Kn6K8 K<"i~'^ ((C>(-((((((((((---#J:55:2-:::2F::-:5-2::K::2%(#(#(#(((>((((((:((#&&++%(:#:#:#:#:#F45#2#2#2#2#:(:(:(:(:(:(:(:(:(:(:#:(:':(:(:(-(:#:#:#5#5#5+5#:22#2#2#2#:(:(:(:+:(:+:(((8-++:(22 222:(/:(:(:(:(F:555----+2"22%:(:(:(:(:(:(K::+2#2#2#:(2:(-2:(2((W888888888888888888888888888888888888888888888888xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN00%(#((((M(==(==(=##(P0P((N1=PP00/CC--P#(CP"5555==JPP(=P0.+(-N00P("i~'^09FSS999Sq+9+/SSSSSSSSSS99qqqSggnxggxx9In]nxgxgS]xgg]]?/?FS9SSISI/SS//I/xSSSS??/SInII?C/CZ9+ZF999+999999S9S/gSgSgSgSgSnnIgIgIgIgI9/9/9/9/nSxSxSxSxSxSxSxSxS]IgSxSxSxS]IxSgSgSgSgSnInInZnIxdgIgIgIgIxSxSxSxZxSxZxS9/9S999SSZZnI]/]<]9]5]/nSanSnSxSxSng?g?g?S?S?S?ZZ]<]/]FxSxSxSxSxSxSn]Z]?]?]?xS]9nSS?]9]Sd+SS8%8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuddddddddddddddddddddddddddddddddddddddddN; Ay.X80,IX\  P6G;P7jC:,+Xj\  P6G;XP7nC:,Xn4  pG;Xy.\80, {\4  pG;W!@(#,9h@\  P6G;hPa$G,',YG\  P6G;P:*,Y*\  P6G;P\{,W80,%W*f9 xr G;X\5hC:,%Xh*f9 xr G;XX 6jC:,<LXj9 xOG;X yO- X   (^} X-w #Xj\  P6G;+XP# Federal Communications Commission`(#DA 97550 ă  yxdddy (Պv3 #C\  P6QIP#Before the  yO-  Federal Communications Commission  yO} Washington, D.C. 20554 X01Í ÍX01Í  Í҃  XX-#Xj\  P6G;+XP# In the Matter of:R) R)  X-MEDIAONE OF GEORGIA, INC. R)hppCUID No. GA0222 R) Petition for RevocationR) of the Certification ofR) Gwinnett County, GeorgiaR) to Regulate Basic Cable Service RatesR) in Unincorporated Gwinnett County R)  X[ -  MEMORANDUM OPINION AND ORDER TP  X--X` hp x (#%'0*,.8135@8:thirtyday deadline for filing petitions for reconsideration has elapsed, cable operators may  X- xjchallenge the franchising authority's certification by filing a petition for revocation.=h yr yO-ԍ47 C.F.R. 76.914.= However,  x.regardless of its grounds, a petition for revocation does not automatically trigger a stay of the  Xv-franchising authority's power to regulate basic rates.@v yr yO-ԍ47 C.F.R. 76.914(d).@  X_-  XH- (DISCUSSION  X -xA.` ` MediaOne's Petition  X - ` x3.` ` MediaOne argues that it is, and has been since January 1, 1996, subject to effective  X - xcompetition in Unincorporated Gwinnett County.  yr yO- xԍMediaOne asserts that it holds a cable television franchise to serve all portions of Unincorporated Gwinnett County, Georgia. MediaOne contends that it meets the definition  X - x[of effective competition set forth under the competing provider test. @ yr yOO- xYԍThe 1992 Cable Act and the Commission's rules provide that only the rates of cable systems that are not subject  xto effective competition may be regulated. Communications Act 623(a)(2), 47 U.S.C. 543(a)(2); 47 C.F.R.  x76.905(a). One of the bases on which a cable system is deemed subject to effective competition is if the franchise  xarea is: 1) served by at least two unaffiliated multichannel video programming distributors each of which offers  xcomparable programming to at least 50% of the households in the franchise area; and 2) the number of households  xsubscribing to multichannel video programming other than the largest multichannel video programming distributor  x,exceeds 15% of the households in the franchise area. Communications Act 623(l)(1)(B), 47 U.S.C. 543(l)(1)(B); 47 C.F.R. 76.905(b)(2). MediaOne claims that it  xKand various direct broadcast satellite ("DBS") providers offer comparable programming to at least  x50% of the households in Unincorporated Gwinnett County. MediaOne further alleges that the  xnumber of households receiving multichannel video programming from providers other than the  xlargest multichannel video programming distributor ("MVPD"), in this case MediaOne, exceeds 15% of the households in Unincorporated Gwinnett County."K ,-(-(ZZg"Ԍ X- ` Aԙx4.` ` MediaOne claims that there are 96,662 households (i.e., occupied housing units)  X- xin Unincorporated Gwinnett County. |yr yOb- xԍThe United States Census Bureau assigns different meanings to the terms "household" and "housing units." The  {O*- x,term "household" is defined by the Census Bureau to include only occupied housing units. See Bureau of the Census,  xU.S. Dept. of Commerce, 1990 Census of Population, CP11B, Appendix B at B8. "Housing units," on the other  {O- xhand, refer to both occupied and unoccupied units. In the Third Order on Reconsideration, MM Docket Nos. 92266  xand 92262, 9 FCC Rcd 4316, 4324 (1994), the Commission adopted the United States Census Bureau's definition  xiof "households," stating that "[a]s used in the Cable Act, we presume that Congress did not intend 'households' to have a different meaning than in the 1990 Census that would include vacant units..." MediaOne indicates that it derived the 96,662 household  X- xfigure through a series of calculations based on figures obtained from the 1990 Census. $ yr yO - xԍThe Commission has stated that cable operators may rely on 1990 Census data to establish the number of  {OW - x;households (i.e., occupied housing units) in their franchise area. See Cable Operators' Petitions for Reconsideration  {O! - xiand Revocation of Franchising Authorities' Certification to Regulate Basic Cable Service Rates, 9 FCC Rcd 3656 at  3 (1994) ("Effective Competition Order").  x[MediaOne contends that there are 30,309 households within the incorporated municipalities of  X- xGwinnett County.  yr yOM- xԍMediaOne arrived at the figure of 30,309 households by adding together the numbers of occupied housing units identified in the 1990 Census for each of the incorporated municipalities within Gwinnett County. MediaOne explains that it subtracted this figure from 126,971, which,  x>according to the 1990 Census, represents the total number of households in all of Gwinnett  xCounty (incorporated and unincorporated areas combined). MediaOne contends that the resulting  xfigure of 96,662 (126,971 30,309 = 96,662) represents the total number of households in  x=Unincorporated Gwinnett County. MediaOne states that it currently provides cable service to  x=over 74,000 households in Unincorporated Gwinnett County, which represents more than 50%  X - xof the 96,662 households.| P yr yO- xԍMediaOne contends that it need not apply a housing vacancy rate to its subscriber number since 74,000  {O- xrepresents the number of households actually served in Unincorporated Gwinnett County as of September 1996 rather  {O- xithan the number of households passed by its cable system. MediaOne points out that households which subscribe  xto its cable service are not likely to be unoccupied. MediaOne states that it does not maintain records of the exact  xKnumber of homes within Unincorporated Gwinnett County that are passed by its cable system. MediaOne argues  xithat even if a vacancy rate, which MediaOne calculates to be 7.7%, were applied to the 74,000 figure, MediaOne still would pass over 50% of the households in Unincorporated Gwinnett County. MediaOne further alleges that, as of January 1, 1996, it served more  x[than 69,000 subscribers in Unincorporated Gwinnett County, which also amounts to more than  X -50% of the 96,662 households. yr yO1 - xԍMediaOne likewise contends that it need not apply a housing vacancy rate to this subscriber number since 69,000  {O - x;represents the number of households actually served in Unincorporated Gwinnett County rather than the number of  {O!- xhouseholds passed by its cable system.  See supra note 14. MediaOne argues that even if a vacancy rate, which  xMediaOne calculates to be 7.7%, were applied to the 69,000 figure, MediaOne still would pass over 50% of the households in Unincorporated Gwinnett County.  X - ` Px5.` ` MediaOne asserts that the video programming services of television receiveonly  xearth station ("TVRO") and direct broadcast satellite ("DBS") operators, including  xDirectTV/USSB and PrimeStar, have been available and marketed in Unincorporated Gwinnett"H,-(-(ZZ"  X- x{County since prior to January 1, 1996.]Hyr yOy- xԍThe Commission has stated that cable systems alleging that they face effective competition from another MVPD  {OA- xmust demonstrate that the services of the competing MVPD are technically and actually available. Rate Order at  xw5654, 5656. TVRO service is presumed to be technically and actually available nationwide in all franchise areas that  {O- xdo not, by regulation, restrict the use of home satellite dishes. Rate Order at 56585660. A DBS service is deemed  xtechnically available in a franchise area if its satellite footprint covers the franchise area and there are no local  {Oe- xregulations prohibiting reception by home satellite dishes.  Rate Order at 56605661. A DBS service is presumed  xZto be actually available if households in the franchise area are made reasonably aware that the service is available  {O-through, for example, local, regional or national media. Id.] MediaOne states that currently DirectTV/USSB,  xPrimeStar, AlphaStar, and EchoStar each market their multichannel video programming services  xthroughout Gwinnett County through local, regional and national advertisements. MediaOne  xfurther claims that since prior to January 1, 1996, DBS operators have marketed their services  xthroughout the Atlanta metropolitan area, including Unincorporated Gwinnett County. MediaOne  xsubmits advertisements from the Gwinnett County yellow pages, the City of Atlanta yellow pages,  xand Atlanta area newspapers demonstrating the availability of DBS services. In addition,  xMediaOne includes Effective Competition Tracking Reports from SkyTRENDS which, according  xjto MediaOne, indicate that residents in Unincorporated Gwinnett County actually subscribe to  xDBS and TVRO services. Furthermore, MediaOne avers that there are no local laws in effect  xLin Unincorporated Gwinnett County which would prohibit the use of satellite dishes to receive DBS service.  X - ` &x6.` ` MediaOne contends that it, DBS and TVRO operators offer comparable  X - x/programming as defined by the Commission for purposes of the competing provider test. yr yOG- xԍProgramming is considered "comparable" if it consists of at least "12 channels of video programming, including at least one channel of nonbroadcast service programming." 47 C.F.R.  76.905(g).  xMediaOne states that, as of January 1, 1996, and as of the conclusion of September, 1996,  xlMediaOne's cable system serving Gwinnett County offered at least 60 channels of video  xprogramming, at least 47 of which consisted of nonbroadcast programming. MediaOne also  xasserts that DBS operators such as DirectTV/USSB and PrimeStar as well as TVRO operators  xserving Gwinnett County offer more than 12 channels of video programming, including many  xnonbroadcast channels. MediaOne maintains, therefore, that it satisfies the first prong of the  xcompeting provider test which requires that at least two unaffiliated MVPDs offer comparable programming to more than fifty percent of occupied households in the franchise area.  X- ` x7.` ` MediaOne states that beginning prior to January 1, 1996, and continuing to the  xpresent, MediaOne has provided multichannel video programming service to more subscribers in  x.Unincorporated Gwinnett County than has any other MVPD providing service in the County.  xKAlthough MediaOne asserts that it is the largest MVPD serving the County, MediaOne contends  xthat another MVPD, Rifkin & Associates, Inc./Cable Equities of Colorado, LTD d/b/a N.E.  xGwinnett CableVision ("Rifkin"), has provided service to more than 15% of the households in  xUnincorporated Gwinnett County since January 1, 1996. MediaOne states that Rifkin served  xz18,545 residential subscribers in Unincorporated Gwinnett County as of January 1, 1996 and"70 ,-(-(ZZ{"  X- x19,915 residential subscribers in Unincorporated Gwinnett County as of September 30, 1996."yr yOy- xԍMediaOne submits a letter from Rifkin confirming these figures and stating that Rifkin's subscribership level  {OA- xKhas not fallen below the January 1, 1996 level at any time subsequent to January 1, 1996. See Letter from Dan  xRyan, Director of Operations and Regulatory Affairs, Rifkin, to Richard A. Seamon, Vice President and General Manager, MediaOne, dated October 29, 1996.  xMediaOne points out that 15% of the 96,662 households in Unincorporated Gwinnett County  xequals 14,499. According to MediaOne, therefore, Rifkin has served more than 15% of  x-Unincorporated Gwinnett County since at least January 1, 1996. MediaOne also notes that Rifkin  xxprovides more than 12 channels of video programming, including channels of nonbroadcast video programming.  X_- x B.` ` Analysis  X1- ` x8.` ` In the absence of a demonstration to the contrary, cable systems are presumed not  X - xto be subject to effective competition.? yr yO}-ԍ47 C.F.R. 76.906. ? The cable operator bears the burden of rebutting the  xjpresumption that effective competition does not exist with evidence that effective competition,  X - xas defined by Section 76.905 of the Commission's Rules, is present within its franchise area.D Byr yO-ԍ47 C.F.R. 76.911(b)(1). D  xMediaOne has met this burden by satisfying the competing provider test for effective competition.  X - ` x9.` ` The first prong of the competing provider test requires that the franchise area be  xyserved by at least two unaffiliated MVPDs, each of which offers comparable programming to at  xleast 50% of the households in the franchise area. MediaOne asserts that there are 96,662  xhouseholds in Unincorporated Gwinnett County based on 1990 Census data. MediaOne derived  x/the 96,662 figure by subtracting 30,309, the total number of households for all incorporated  xmunicipalities located within Gwinnett County according to MediaOne's calculations, from  x126,971, the total number of households for the entire County (incorporated and unincorporated  xareas). We accept MediaOne's count of 96,662 households in Unincorporated Gwinnett County.  x#We also accept MediaOne's claim that it served 74,000 or 76.5% of subscribers in  xyUnincorporated Gwinnett County as of September, 1996 and 69,000 or 71% of subscribers as of  X- x-January 1, 1996./$yr yOD - x.ԍWe agree with MediaOne that it is unnecessary to reduce its subscriber figures of 74,000 and 69,000 by a  {O !- xvacancy rate because these numbers represent the number of subscribers actually served rather than the number of  {O!- xhomes passed. Even if we were to reduce these figures by the vacancy rate of 7.7 calculated by MediaOne, we still would find that MediaOne serves well over 50% of the households in Unincorporated Gwinnett County./ Additionally, MediaOne has provided evidence that TVRO and DBS operators  xcurrently offer, and offered as of January 1, 1996, service to more than 50% of the households  x=in Unincorporated Gwinnett County. With respect to the issue of programming comparability,  x[we also find that the programming of MediaOne, DirectTV/USSB, and PrimeStar is comparable.  xzWe note that these providers satisfy the Commission's programming comparability criterion  xbecause they offer at least 12 channels of video programming, including at least one non"N ,-(-(ZZ"ԫ X- xMbroadcast channel.Kyr {Oy-ԍSee 47 C.F.R.  76.905(g).K We find, therefore, that MediaOne has satisfied the first prong of the competing provider test.  X- ` x10.` ` The second prong of the competing provider test for effective competition requires  xa demonstration that more than 15% of the households in the franchise area subscribe to  X- xmultichannel video programming services other than from MediaOne, the largest MVPD.Zyr yO- xԍThe Commission interpreted the competing provider test to mean that, in determining whether 15% of  xhouseholds in the franchise area subscribe to cable services, only those MVPDs that offer service to at least 50% of  {O( - xthe households in the franchise area may be included. Rate Order at 56645665. On review, the court in Time  {O - xWarner Entertainment Co., L.P. et al. v. F.C.C., 56 F.3d 151 (D.C. Cir. 1995) ("Time Warner") held invalid the  xCommission's interpretation of the competing provider test. Specifically, the court found that the 15% subscribership  xirequirement and the 50% coverage provision may be satisfied independently, using separate groups of competing  {OL - xMVPDs. As a result of the Time Warner decision, the subscribership of all MVPDs, other than the largest MVPD,  xKmay be aggregated to satisfy the 15% subscribership requirement, regardless of whether the MVPDs offer service to at least 50% of households in the franchise area.   xMediaOne has submitted evidence indicating that Rifkin served 18,545 subscribers or 19% of the  x?96,662 households in Unincorporated Gwinnett County as of January 1, 1996 and 19,915  xsubscribers or over 20% of the 96,662 households as of September 30, 1996. The evidence  x=further indicates that Rifkin's subscribership level did not drop below the January 1, 1996 level  xat any time subsequent to January 1, 1996 and that Rifkin offers comparable programming to  x.subscribers in Unincorporated Gwinnett County. We conclude, therefore, that MediaOne has satisfied the 15% subscribership requirement of the competing provider test.  X - ` 2x11.` ` MediaOne has submitted sufficient evidence demonstrating that its cable system  xKserving Unincorporated Gwinnett County is subject to effective competition under the competing provider test. Its petition is hereby granted. "y ,-(-(ZZ-"  X-  ORDERING CLAUSES  X- ` x 12.` ` Accordingly, IT IS ORDERED that the petition for revocation filed by MediaOne  xof Georgia, Inc. challenging the certification of Gwinnett County, Georgia to regulate basic cable  X-service rates in Unincorporated Gwinnett County IS GRANTED.  Xv- ` x 13.` ` IT IS FURTHER ORDERED that the certification of Gwinnett County, Georgia  X_-to regulate the basic cable service rates of MediaOne of Georgia, Inc. IS REVOKED. x  X1- ` x 14.` ` This action is taken pursuant to delegated authority pursuant to Section 0.321 of  X -the Commission's Rules.< yr yO -ԍ47 C.F.R. 0.321.<  X -x` `  hh@ FEDERAL COMMUNICATIONS COMMISSION x` `  hh@Meredith J. Jones x` `  hh@Chief, Cable Services Bureau 9n"