WPCP 2MBVRKZ3|j7jC:,+Xj\  P6G;XP"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdHP4Si (Additional); Rm. 907_1; LPT2HPLA4SAD.PRSXj\  P6G;\! EXP2> K Z3|j"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNFranchise Agreement that BIMS has with Chamblee indicates that BIMS is either wholly or  xLsubstantially owned by BellSouth and, therefore, is a LEC affiliate within the meaning set forth  X_- x[in Section 3 of the 1996 Act._X} {Oh - xԍComcast Chamblee Petition at 3 and DeKalb Petition at 6; See Communications Act 3(26), 47 U.S.C. 153(26). Comcast also points out that the "Amended Notice of Election"  XH- xwas filed by BellSouth on behalf of BIMS.FH} yO -ԍComcast DeKalb Petition at 6. F Comcast also states that it is not affiliated with  X1-either BellSouth or BIMS.l1B} yO$-ԍComcast Chamblee Petition at 5 and Dekalb Petition at 6, n.18.l  X - ` #x8.` ` With regard to the requirement in the LEC effective competition test that the LEC  X - xcompetitor offer, } yOo- xԍIn implementing the LEC effective competition test on an interim basis, the Commission determined that its  xpreexisting definition of the term "offer' as used in the three effective competition definitions set forth in the 1992  {O- xCable Act would apply to the LEC test. Cable Reform Act Order at 5941. The Commission previously determined that service of a multichannel video programming distributor will be deemed offered:  Xx(1) When the multichannel video programming distributor is physically able to deliver service to  ~potential subscribers, with the addition of no or only minimal additional investment by the  distributor, in order for an individual subscriber to receive service; and (2) When no regulatory,  mtechnical or other impediments to households taking service exist, and potential subscribers in the  franchise area are reasonably aware that they may purchase the services of the multichannel video programming distributor.   {O-47 C.F.R. 76.905(e).    video programming service in the unaffiliated cable operator's franchise area,  xComcast asserts that BIMS is physically able to deliver video programming service to potential  X - x>subscribers with minimal additional investment. BIMS is currently offering cable service in  x0Chamblee over the network that BellSouth had already constructed in its VDT trial area.  xComcast further adds that the service rate card filed by BellSouth with Chamblee provides for  xMa standard installation fee for cable service of $39.95 for a "residence within 150 of existing  Xb- xplant."b} {O$- xԍSee Comcast Chamblee Petition, Exhibit 5 ("BellSouth SERVICE RATES" filed with the City of Chamblee on April 22, 1996). According to Comcast, this establishes that BIMS' cable service is at least available to  xall potential subscribers within 150 feet of its existing plant, and is further evidence that BIMS"K ,-(-(ZZg"  xycan provide such service with only minimal additional investment. In addition, Comcast points  xout that the Chamblee Franchise Agreement requires BIMS to provide cable service in the  X- xBellSouth trial area and authorizes the provision of cable service throughout Chamblee.z} yOK-ԍComcast Chamblee Petition, Exhibit 3, Franchise Agreement at Sections 3.6 and 1.1.z  xComcast also states that its service personnel have witnessed BIMS representatives engaging in  X- xxdoortodoor marketing efforts in its Chamblee service area.TX} yO-ԍComcast Chamblee Petition, Exhibit 6. T Comcast goes on to state that since  xApril 29, 1996, when sales solicitations began, at least 23 of Comcast's subscribers in Chamblee  xhave notified the company that they have decided to discontinue receiving Comcast's service in  xfavor of the service now being provided by BIMS. Overall, Comcast estimates that  XH-approximately 34 to 40 Chamblee residents are currently subscribing to BIMS' cable service.H} yO - xԍComcast Chamblee Petition, Exhibit 7. In support of its statement, Telescripps submits a newspaper article  {O - xwritten by Michael Kanell in the Atlanta Journal and Constitution (May 31, 1996) entitled "BellSouth meets rival  {Os- x,in trial by wire." That article reported that in the Spring of 1996, the 4weekold service had 34 paying households  x[and 70 employees who received the service free of charge. TeleScripps makes reference to another story on  {O- xBellSouth's service written by Kent Gibbons in an issue of Multichannel News (June 3, 1996) entitled "BellSouth  {O- xStarts Knocking on Doors." TeleScripps notes that article reported that after a month of doortodoor marketing, BellSouth had some 40 paying customers, along with 70 of its employees receiving free service.   X - ` px9.` ` Comcast also states that BIMS is currently offering cable service in DeKalb  xjCounty. Comcast notes that in its "Amended Notice of Election," BellSouth specifically states  xjthat "`BellSouth Interactive is now providing cable service in DeKalb County, pursuant to [the  X - xNovember 26, 1996] franchise.'"] 0 } yO-ԍDekalb Petition at 7, Exhibit 3, Amended Notice at 2.] As with Chamblee, Comcast also notes that BIMS' service  xrate card establishes that cable service is available to all potential subscribers within 150 feet of  xLits existing plant and its $39.95 installation fee is evidence that BIMS can provide such service  X- xwith only minimal additional investment.E } yO-ԍComcast DeKalb Petition at 7.E Furthermore, BIMS is authorized to provide cable  x.television service to the entire unincorporated area of DeKalb County pursuant to the DeKalb  xFranchise Agreement. BIMS is financially committed under its Franchise Agreement by a  x>performance bond in the amount of $175 million to guarantee the faithful performance of its  X4- xiobligations under its franchise.l4P } yO5!-ԍComcast DeKalb Petition at 11, Exhibit 3, Agreement at Section 19.2.l Comcast states that its service personnel have witnessed BIMS  X- x]representatives installing coaxial cable in DeKalb's service area.P} yO#-ԍComcast DeKalb Petition at 9, Exhibit 8.P In addition, Comcast  x[represents that its personnel have also visited the home of a former Comcast subscriber that is  X- xnow receiving service from BIMS.1p} {O'-ԍId.1 Comcast also notes that there has been local newspaper",-(-(ZZ "  X- xLcoverage of BIMS service in Dekalb County,l } yOy-ԍComcast Dekalb Petition at 9, Exhibit 7 (newspaper not identified). l and the DeKalb County Council meeting which  xwas the forum for the approval of the BIMS and DeKalb Franchise Agreement was aired several  X-times to Comcast's viewers on Comcast's Government Access channel.F!X} yO-ԍComcast DeKalb Petition at 9. F  X- ` "x10.` ` Comcast also asserts that BIMS cable service satisfies the comparable programming  xelement of the LEC effective competition test. Comcast states that the BIMS channel lineup for  Xv- x>Chamblee contains 56 "Premier Basic Channels" and 25 "Advantage Premium Channels.""v} {O - xԍSee Comcast Chamblee Petition, Exhibit 5 ("BellSouth's americast service" channel lineup filed with the City of Chamblee on April 22, 1996).  xComcast also notes that there are at least six local broadcast channels among the "Premier Basic  x0Channels" offering. In DeKalb, Comcast notes that, according to the DeKalb Franchise  xAgreement, BIMS must offer at least 70 channels to subscribers and is required to offer 78  X - xKchannels within four years of the effective date of its franchise._# B} yO -ԍComcast Dekalb Petition at 9, Exhibit 4, Section 9.1.2._ In addition, Comcast notes that  xMthe BIMS channel lineup for DeKalb shows BIMS offers 65 "Premiercast" channels and 23  X - x "Americast Advantage" premium channels.I$ } yOo-ԍDeKalb Petition at 10, Exhibit 6.I According to Comcast, at least seven of the  X -"Premiercast" channels are local broadcast channels.% b } {O- xԍId; Comcast also notes that BIMS offers six other special services which include "PPV Events," "Sega Channel," and "Movies on Demand." (Dekalb Petition at 10, Exhibit 6).  X - ` ~x11.` ` With regard to the benefits of competition, Comcast notes that in May of 1996,  xyin anticipation of competition from BIMS, Comcast began an upgrade of its system to 750 MHz  Xy- xwith twoway capability.F&y } yO-ԍComcast DeKalb Petition at 11.F Comcast further notes that 85% of the upgrade was to be completed  xby February, 1997. In those locations where the upgrade is complete, Comcast states that it has  x.already added 22 channels and has moved the Disney Channel to its expanded basic package.  x/With regard to other benefits, Comcast states that it also began "adding multiplex premium  xchannels on HBO, Showtime, and Cinemax and is in the process of replacing all settop boxes  xywith advanced analog boxes that have VCR record, electronic program guide, and realtime pay  X- xper view ordering capabilities."F'L } yO#-ԍComcast DeKalb Petition at 12.F Comcast reports that it currently provides these additional  xmultiplex channels and settop replacements to approximately 35% of its subscribers and expects  xyto reach 100% of its subscribers by May, 1997. Comcast adds that it also has been providing a  x24 hour a day call center to accept orders and resolve billing disputes since May, 1996. In"',-(-(ZZ"  xaddition, Comcast notes that it has extended its customer service hours to 12 hours daily, seven days per week, since November 15, 1996.  X- III.xAnalysis  X- `  x12.` ` In the absence of a demonstration to the contrary, cable systems are presumed not  Xv- xto be subject to effective competition as defined in the Communications Act.=(v} yO-ԍ47 C.F.R. 76.906.= The cable  xoperator bears the burden of rebutting the presumption that such effective competition does not  xexist and so must provide evidence sufficient to demonstrate that such effective competition, as  X1- xdefined by Section 76.905 of the Commission's rules, is present in the franchise area.C)1X} yO: -ԍ47 C.F.R. 76.911(b)(1).C Comcast has met this burden.  X - ` x13.` ` With regard to the LEC ownership or affiliation aspect of the effective competition  xytest, which requires that the alleged competitive service be provided by a LEC or its affiliate (or  xany multichannel video programming distributor ("MVPD") using the facilities of such carrier or  X - xits affiliate),?* } yO@- x/ԍThe Commission's rules define a MVPD as "an entity such as, but not limited to, a cable operator, a  xmultichannel multipoint distribution service, a direct broadcast satellite service, a television receiveonly satellite  xprogram distributor, a video dialtone service provider, or a satellite master antenna television service provider that  xmakes available for purchase, by subscribers or customers, multiple channels of video programming." 47 C.F.R. 76.905(d).? we find that BIMS, a cable operator, is using the facilities of BellSouth, a  X- xLEC,_+X} yO- xԍThe Communications Act defines the term "local exchange carrier" as "any person that is engaged in the  xprovision of telephone exchange service or exchange access." Communications Act 3(26), 47 U.S.C. 153(26). BellSouth is one of the Regional Bell Operating Companies. _and therefore satisfies this aspect of the effective competition test.z,X } yO- xԍCommunications Act 3(26), 47 U.S.C. 153(26). While it appears from the Franchise Agreement and Exhibits  xattached thereto that BIMS is owned, in whole or in part, by BellSouth, Comcast does show, and the Franchise Agreement confirms, that BIMS uses BellSouth's plant and facilities. z Based on Comcast's  xuncontroverted petitions, we also conclude that Comcast is unaffiliated with either BellSouth or BIMS.  X4- ` Sx14.` ` With regard to the comparable programming aspect of the LEC effective  xxcompetition test, Comcast has submitted evidence sufficient to demonstrate that the programming  xjof BIMS is comparable. In Chamblee, BIMS offers over 70 channels, including at least six local  xbroadcast channels, which satisfies the Commission's programming comparability criteria. In  x0DeKalb, the BIMS Franchise Agreement requires it to provide at least 70 channels, with",,-(-(ZZ"  x "vL   "vL additional channels to be provided within four years. BIMS offers 88 channels in DeKalb, seven  X-of which are local broadcast channels.-z} yOb- xԍThe Commission has observed that Congress specified a different definition of comparable programming for  xJthe LEC effective competition test from that adopted for the first three effective competition tests enacted as part  xof the 1992 Cable Act. Although soliciting comment as to the revised definition, the Commission on an interim basis  xydetermined that it will apply this new comparable programming standard which "includes access to at least 12  xchannels of programming, at least some of which are [local] television broadcasting signals" to the LEC effective  {OJ- xZcompetition test. See Cable Act Reform Order, 11 FCC Rcd at 5942 (quoting Telecommunications Act of 1996 Conference Report, S. Rep. 104230 at 170 (Feb. 1, 1996)).  "vL   "vL   X- ` ox15.` ` The LEC effective competition test requires that competitive service be offered  xydirectly to subscribers in the franchise area of an unaffiliated cable operator which is providing  xcable service in that franchise area. In enacting the LEC effective competition test, Congress  x=indicated that the Commission should apply its preexisting definition of the term "offer" to the LEC effective competition test. This definition provides that service is offered:  QXx(1) When the multichannel video programming distributor is physically able to  odeliver service to potential subscribers, with the addition of no or only minimal  additional investment by the distributor, in order for an individual subscriber to  oreceive service; and (2) When no regulatory, technical or other impediments to  households taking service exist, and potential subscribers in the franchise area are  reasonably aware that they may purchase the services of the multichannel video  X -programming distributor.. } {Ob- xhԍ47 C.F.R. 76.905(e); see Cable Act Reform Order, 11 FCC Rcd at 5941 (citing Telecommunications Act 1996 Conference Report, S. Rep. 104230 at 170 (Feb. 1, 1996) ("Conference Report") ).   Xy- ` x16.` ` With respect to Chamblee, Comcast has demonstrated that BIMS is currently  x.offering cable service over the network that BellSouth constructed in its VDT trial area. In the  xZBIMS Franchise Agreement with Chamblee, the system is described as "[a]n advanced fiber/coax  x<network ("network") for the delivery of video programming and other services in parts of the City  X- xof Chamblee, Georgia . . . ."]/d } yO2-ԍComcast Chamblee Petition, Exhibit 3, Agreement at 1.] Attached to the Franchise Agreement is a map which  xKdemonstrates that a significant portion of the facilities to be used by BIMS has already been built  X- xKby BellSouth.M0Z } {O!- xԍId., Franchise Agreement at Exhibit A. With regard to the map submitted by Comcast, what we have deemed  xto be a significant portion of completed construction is what we estimate to be the rough equivalent of half of the geographic area of Chamblee. M According to the Franchise Agreement, BIMS is also required to activate service  x=throughout its trial area over a six month period beginning on April 16, 1996, the effective date"0,-(-(ZZ"  X-of the Franchise Agreement.1"} yOy- xԍComcast Chamblee Petition, Exhibit 3, Franchise Agreement at Appendix D. The agreement also provides that  xBIMS will offer Multiple Dwelling Unit ("MDU") service in its trial area when at least 25% of such residents desire  {O - x;the service and BIMS has contracted with the MDU property owner to provide the service. See  1(b) of Appendix D.  X- ` x17.` ` Comcast provides evidence through the service rate card filed by BellSouth with  xChamblee that BIMS' cable television service is available to all households within 150 feet of  X- xits existing plant.2} {O -ԍSee n. 23, supra. Comcast does not indicate how many households fall within this area. ē Thus, with the facilities of BellSouth already in place, BIMS can provide  xservice to potential customers with only minimal additional investment. Moreover, although the  xBIMS Franchise Agreement requires only that BIMS provide service in the already constructed  X_-trial area, it authorizes the provision of service to all of Chamblee.z3_D} yOT-ԍComcast Chamblee Petition, Exhibit 3, Franchise Agreement at Sections 3.6 and 1.1.z  X1- ` x18.` ` We conclude that there are no regulatory, technical or other impediments to  xhouseholds taking service, and potential subscribers in the franchise area have been made aware  xthat BIMS' cable service is available in Chamblee. BIMS representatives have engaged in door xtodoor marketing efforts in order to gain subscribers in neighborhoods currently served by  xComcast in Chamblee, and cable television installations have been performed in Chamblee, on  X - xbehalf of BIMS.4 } yOC- xԍComcast Chamblee Petition, Exhibit 6. Telescripps provides the Declaration of its Service and Maintenance Supervisor, Randy Ruotanen, along with marketing material provided to TeleScripps by a BellSouth subscriber.  Comcast reports the loss of subscribers to BIMS, and local press coverage  xindicates that more than 100 Chamblee residents are currently receiving cable television service  X- xLfrom BIMS.E5, } {Om-ԍSee n. 28, supra.E In addition, information on file in another Commission proceeding indicates that  xthe number of subscribers served has increased and the Chamblee cable system currently serves  Xb-220 subscribers.6b } {O- x<ԍSee In re: Application for the Assignment of the Authorization for the Atlanta, Georgia Basic Trading Area  xhfrom Atlantic Microsystems, Inc. to BellSouth Wireless Cable, Inc. (File No. BMDAL(2)961206HY) and Applications  xto Transfer Control of Wireless Cable of Atlanta, Inc. and Vidcomm, Inc. to BellSouth Corporation (File Nos. 50433 {O+ - xCMTC(1)97 and 50434CMTC(3)97, by the Assistant Chief, Audio Services Division, Mass Media Bureau, (In  {O -reply refer to: 1800E6), released April 9, 1997.     X4- ` $x19.` ` With respect to DeKalb, we find that Comcast has demonstrated that BIMS is  X- xoffering cable service in that location as well. Comcast has shown through its rate card that  xLservice is available to all potential customers within 150 feet of its existing plant in DeKalb and  X-that service can be provided with only minimal additional investment.J7t} {O'-ԍSee n.26, supra.J " 7,-(-(ZZ"Ԍ X- ` ԙx20.` ` Comcast has demonstrated that coaxial cable is being installed in the DeKalb  X- xZCounty area.J8} {Ob-ԍSee n.30, supra.J While Comcast does not indicate how many homes are currently receiving service  x>in DeKalb, information on file in another Commission proceeding indicates that the DeKalb  X- xjsystem currently serves 697 subscribers.9Z} {O- x<ԍSee In re: Application for the Assignment of the Authorization for the Atlanta, Georgia Basic Trading Area  xhfrom Atlantic Microsystems, Inc. to BellSouth Wireless Cable, Inc. (File No. BMDAL(2)961206HY) and Applications  xto Transfer Control of Wireless Cable of Atlanta, Inc. and Vidcomm, Inc. to BellSouth Corporation (File Nos. 50433 {O - xCMTC(1)97 and 50434CMTC(3)97, by the Assistant Chief, Audio Services Division, Mass Media Bureau, (In  {O -reply refer to: 1800E6), released April 9, 1997.    The fact that BIMS is authorized to provide service  xto the entire unincorporated area of DeKalb County is indicative of BIMS' potential capability  xto serve many households in the area. Currently, BIMS is utilizing facilities that have been built  xyout to 7,000 homes and is committed to constructing a larger system because it is authorized to  X_- xprovide service throughout the county.D:_} {O -ԍSee n.13, supra.D In addition, BIMS has also made a financial  xcommitment in the form of a performance bond in order to guarantee its commitment to  xproviding service. Comcast has also demonstrated that potential subscribers are aware of BIMS'  X - x/service through local press coverage and televised local Council meetings.G; } {Om-ԍSee n.3132, supra.G We therefore  xyconclude that no regulatory, technical or other impediments prevent potential subscribers from  xreceiving BIMS' service, and potential subscribers in DeKalb County are reasonably aware that they may receive BIMS' service.  X - ` Px21.` ` Because of the introduction of competition by BIMS, Comcast also has upgraded  xits system and moved the Disney Channel to its expanded basic package in those places where  xZthe upgrade is complete. Comcast also has provided multiplex channels and settop replacements  xfor some of its subscribers with the goal of providing these additions to all of its subscribers.  XK- xIn addition, Comcast also has improved the customer service that it provides to subscribers.G<K4 } {O0-ԍSee  13, supra.G  X- ` x22.` ` In light of all of the circumstances herein, we conclude that Comcast has  xdemonstrated that BIMS, a cable operator, has met all three prongs of the local exchange carrier  xeffective competition test as stated in Section 623(1)(1)(D) of the Communications Act. With  xLregard to the LEC ownership or affiliation aspect of the test, Comcast has shown that BIMS is  xya cable operator using the facilities of a LEC. Comcast has also demonstrated that BIMS offers  xvideo programming services directly to subscribers in Chamblee and DeKalb County and that such programming is comparable to its own.  Xe- ` x23.` ` As Comcast has submitted sufficient evidence demonstrating that its cable systems  xserving DeKalb County and Chamblee, Georgia are subject to LEC effective competition from"N <,-(-(ZZ" BIMS, its petitions are granted.  X- IV. x Ordering Clauses  X- ` x24.` ` Accordingly, IT IS ORDERED that the Petitions for Special Relief filed by  X-Comcast Cablevision of the South ARE GRANTED.  X_- ` x25.` ` IT IS FURTHERED ORDERED that the certifications of the City of Chamblee,  xGeorgia and DeKalb County, Georgia to regulate the basic cable rates of Comcast Cablevision  X1-of the South ARE REVOKED.  X - ` ~x26.` ` This action is taken pursuant to the interim rules adopted in Implementation of  X - xyCable Act Reform Provisions of the Telecommunications Act of 1996, and is without prejudice  xjto any further action taken by the Commission in adopting final rules pursuant to the Notice of  X -Proposed Rulemaking contained therein.i= } {O;-ԍCable Act Reform Order, 11 FCC Rcd at 593845, 6164.i  X- ` ox27.` ` This action is taken pursuant to delegated authority under Section 0.321 of the  X}-Commission's rules, as amended.<>}Z} yO-ԍ47 C.F.R. 0.321.< x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhMeredith J. Jones x` `  hhChief, Cable Services Bureau