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KA`JD"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>>\g0>03\\\\\\\\\\>>ggg\yyyyyF\yrrygryyrr>3>g\>\\Q\Q>\g33\3g\\\FF3gQy\QF>(>g>0gg>>>0>>>>>>\>\3y\y\y\y\y\yQyQyQyQyQF3F3F3F3g\\\\ggggrQy\\\\rQ\r\y\y\y\yQyQygyQyQyQyQyQ\\\g\ggF3F\F>F\gggy\r3r_r>rFr3ggg\\yFyFyFgFgFgFggrcr3rgggggggyrgrFrFrF\r>ggFr>r\0\\=3=WddddddddddddddddddddddddddddddddddddddddNBnnB\\F\\\\\\07\7>\7>>\\\??n\\pBnnBigg>\\7"yyyy\nyc\gnn\"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$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdJy.X80,IX\  P6G;P Ky.\80, {\4  pG;M2a=5,0&a\  P6G;&P L2e=5,D&e4  pG;&NP:% ,1J:\  P6G;JPOk(N1+,yθN\  P6G;PP@/,} /\  P6G; P\Q0_=5,% &_*f9 xr G;&X Ra$G,',YG\  P6G;P S:*,Y*\  P6G;P\T{,W80,%W*f9 xr G;XU2^=4,<]3&^\  PA&PV1a=5,C&a9 xOG;&7jC:,+Xj\  P6G;XP?? 8<>??????;3!@H`@pH @H@2I yO- X   )^} S-  #&a\  P6G;0&P#Federal Communications Commission`}(#DA 971799 ă  yxdddy )Պv3 #X\  P6G;IP#Before the  yO-  Federal Communications Commission  yO} Washington, D.C. 20554 X01Í ÍX01Í  Í҃  SX-#&a\  P6G;0&P#  S0-In the Matter of:R)h  S-R)hppCSR 4724E TRILAKES CABLE, R) MONUMENT, COLORADO R)  S- R)hpp#gCUID No. CO 0167 Petition for Determination of R) Effective CompetitionR) R R  S -  MEMORANDUM OPINION AND ORDER TP  Sx -X` hp x (#%'0*,.8135@8:  yO-ԍ47 C.F.R.  76.906.> and place the burden on the  S`- xcable operator to show that it does face effective competition in a given franchise area./ `F {OF - xԍSee Report and Order in MM Docket No. 92266, Implementation of Sections of the Cable Television Consumer  {O -Protection and Competition Act of 1992, 8 FCC Rcd 5631, 5669 (1993). See also 47 C.F.R.  76.911(b)(1)./ Ordinarily,  S8- xzeffective competition demonstrations take the form of a petition for reconsideration> 8 yOz-ԍ47 C.F.R.  76.911.> or a petition for  S- x\revocation> 2  yO-ԍ47 C.F.R.  76.914.> of a local franchise authority's certification to regulate the rates of the basic service tier.D   yOr-ԍ47 C.F.R.  76.910.D  x In franchise areas in which the franchising authority does not become certified to regulate basic cable  xservice tier rates, cable operators remain subject to many of the rate requirements of the Communications  x!Act and the Commission's rules, such as the regulation by the Commission of unreasonable cable  Sp- xprogramming service tier ratesHpR  {Ob-ԍSee 47 C.F.R.  76.922.H and the uniform rate structure requirement.vp yO-ԍCommunications Act  623(d), 47 U.S.C.  543(d); 47 C.F.R.  76.984.v A cable system operating  xin an uncertified franchise area may seek a determination of effective competition through a petition for  S - xchange in regulatory status under Section 76.915(f) of the Commission's rules.A t yO4-ԍ47 C.F.R.  76.915(f).A A successful petition  xfor change in regulatory status exempts a cable operator from rate regulation in the same manner as would a successful petition for reconsideration or revocation of a local franchising authority's certification.  S - ` x3.` ` Cable operators filing petitions for change in regulatory status must prove that they are  xsubject to effective competition under one of the four tests set forth in Section 76.905(b) of the  S0- xCommission rules.A0 yO"-ԍ47 C.F.R.  76.905(b).A One basis upon which a cable operator may be deemed subject to effective  xcompetition is the competing provider test. Under the competing provider test, a cable system is subject  x.to effective competition if the franchise area is (1) served by at least two unaffiliated multichannel video  x/programming distributors each of which offers comparable programming to at least 50 percent of the  xhouseholds in the franchise area; and 2) the number of households subscribing to multichannel video  xprogramming other than the largest multichannel video programming distributor exceeds 15 percent of the"h,p(p(88"  S- xhouseholds in the franchise area.2  yOh- xԍCommunications Act  623(l)(1)(B), 47 U.S.C.  543(l)(1)(B); 47 C.F.R.  76.905(b)(2). The Commission  x interpreted the competing provider test for effective competition to mean that only multichannel video programming  x,distributors ("MVPDs") that offer service to at least 50 percent of the households in a franchise area under the first  x<prong of the test can be considered in the aggregate MVPD subscribership count of the second prong of the test.  {O- xhReport and Order and Further Notice of Proposed Rulemaking in MM Docket No. 92266, 8 FCC Rcd 5631, 5664 {OR- x65 (1993) ("Rate Order"). On review, in the case of Time Warner Entertainment Co., L.P., et al. v. FCC, 56 F.3d  {O- x151 (D.C. Cir. 1995) ("Time Warner") the United States Court of Appeals for the District of Columbia Circuit held  xinvalid the Commission's interpretation of the competing provider test. Specifically, the court found that each prong  {O- xof the competing provider test may be satisfied independently, using separate groups of competing MVPDs. Time  {Ox - x<Warner, 56 F.3d at 159. As a result of the Time Warner decision, as long as two MVPDs offer service to at least  x50 percent of the households in a franchise area, the subscribership of all MVPDs, other than the largest MVPD, may  xbe aggregated to satisfy the second prong of the competing provider test, regardless of whether they offer service to at least 50 percent of the households in the franchise area. A finding of effective competition exempts a cable operator from  S-application of the Commission's rate regulations, including the uniform rate structure requirement.  {O:- x<ԍSee Communications Act  623(d), 47 U.S.C.  543(d) ("A cable operator shall have a rate structure, for the  xxprovision of cable service, that is uniform throughout the geographic area in which cable service is provided over  xits cable system. This subsection does not apply to (1) a cable operator with respect to the provision of cable service  xover its cable system in any geographic area in which the video programming services offered by the operator in that  {O\-area are subject to effective competition. . . . ."); see also 47 C.F.R.  76.984 (incorporating the statutory language).  S- ` x4.` ` TriLakes claims that it faces effective competition in the Town of Monument, Colorado  S`- xlfrom ATI, a competing multichannel multipoint distribution service. TriLakes bases its effective  S8- xcompetition claim on the competing provider test.8v {ON-ԍSee Communications Act  623(l)(1)(B), 47 U.S.C.  543(l)(1)(B); 47 C.F.R.  76.905(b)(2). TriLakes has a franchise to provide cable service  x[to the incorporated area of the Town of Monument. TriLakes indicates that the Town of Monument is  xnot certified to regulate the basic cable service rates of cable operators within its boundaries. TriLakes  xfiled its petition for determination of effective competition pursuant to Section 76.915(f) of the  S- xCommission's rules.A yO@-ԍ47 C.F.R.  76.915(f).A TriLakes contends that it was prompted to file its petition because ATI had stated  xits intention to bring a complaint against TriLakes to the Commission alleging that TriLakes had violated  SH - xthe geographic uniform rate structure requirement.H  {O- xԍSee 47 C.F.R.  76.984. We note that although ATI suggested in various letters to TriLakes that it might file  x;a formal complaint with the Commission alleging violation of the uniform rate requirement, no such complaint was  {O - xever filed.  See, e.g., Opposition at Exhibit 1 (Letter dated March 5, 1996 from Deborah C. Costlow to Stanley  xSearle); Exhibit 3 (Letter dated March 27, 1996 from Deborah C. Costlow to Christopher C. Cinnamon); and Exhibit 5 (Letter dated April 15, 1996 from Deborah C. Costlow to Christopher C. Cinnamon). TriLakes argues that it is subject to effective  xjcompetition in Monument and that, therefore, the uniform rate structure requirement does not apply. In  x/correspondence exchanged between TriLakes and ATI prior to the filing of TriLakes' petition, ATI  xaccused TriLakes of violating the uniform rate structure regulation by charging subscribers who switched  xservice from ATI to TriLakes lower rates for installation and basic service than the rates charged to other  S - xjsubscribers in Monument. L {Ol'-ԍSee, e.g., Opposition at Exhibit 1 (Letter dated March 5, 1996 from Deborah C. Costlow to Stanley Searle). While TriLakes argues that it is subject to effective competition, TriLakes" ,p(p(88["  S- xcontends that even if it were found not to face effective competition, its marketing practices comply with  xthe Commission's uniform rate requirement because they involve introductory and promotional discounts  x/offered universally for limited times. In resolving TriLakes' petition, we focus only on the effective  S- xcompetition claim and do not address the merits of ATI's allegations concerning TriLakes' violation of the uniform rate rule.  S- II. x POSITIONS OF THE PARTIES  S- ` x 5. ` ` In its petition, TriLakes states that it is a small cable system serving approximately 290  xsubscribers in Monument, Colorado. TriLakes claims that it is subject to effective competition from ATI  Sr- xunder the competing provider test.r {O -ԍSee Communications Act  623(l)(1)(B), 47 U.S.C.  543(l)(1)(B); 47 C.F.R.  76.905(b)(2). TriLakes contends that at least two unaffiliated multichannel video  SJ - xprogramming distributors ("MVPDs") offer comparable programmingJ Z yOD - 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). to at least 50 percent of the  S" - xhouseholds (i.e., occupied housing units)|"  yOt- 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  x<of "households" as occupied housing units, 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...." in the Monument franchise area. TriLakes asserts that it offers  xcable service to (i.e., passes with cable) 100 percent of the households in the Monument franchise area.  x>In addition, TriLakes claims that, based on information provided by ATI in a letter, ATI's service is  S - xtechnically available to approximately 92 percent of the households in Monument.  {O@- xԍSee Petition attaching letter dated April 15, 1996 from Deborah C. Costlow to Christopher C. Cinnamon at 2, n.1. TriLakes contends,  S - x[therefore, that it satisfies the first part of the competing provider test by demonstrating that at least two  xunaffiliated MVPDs offer comparable programming to more than 50 percent of the residents of the Town of Monument.  S- ` x6.` ` TriLakes asserts that it satisfies the second part of the competing provider test as well.  S- xTriLakes claims that the number of households receiving programming services from MVPDs, other than  x=the largest MVPD, in this case TriLakes, is greater than 15 percent of the total households in the Town  xof Monument. TriLakes states that, according to the 1990 Census, there are 378 occupied households  SB- xin the Town of Monument.&BP  yO2#- xԍThe Commission has stated that cable operators may rely on 1990 Census data to establish the number of  {O#- xhouseholds (i.e., occupied housing units) in their franchise area.  See Cable Operators' Petitions for Reconsideration  {O$- xand Revocation of Franchising Authorities' Certification to Regulate Basic Cable Service Rates,  9 FCC Rcd 3656  {O%-at  3 (1994) ("Effective Competition Order"). TriLakes claims that it serves approximately 290 subscribers or 77 percent  S- xof the 378 households in Monument (290  378 = 77%), while ATI serves 221 subscribers or 58 #g   #g percent">,p(p(88D"  S- xof the households (221  378 = 58%).xZ yOh- xLԍTriLakes notes that the 221 subscriber figure was disclosed by ATI in a letter dated April 15, 1996 from  xxDeborah C. Costlow to Christopher C. Cinnamon at 2, n.1 ("ATI currently provides service to 221 subscribers in  {O-Monument...").  See Petition attaching April 15, 1996 letter.x TriLakes contends that ATI clearly serves more than 15 percent of the households in Monument and, therefore, satisfies the second part of the competing provider test.  xWhile TriLakes asserts that the 1990 Census shows a total of 378 occupied households in Monument,  xTriLakes also states that it "calculates the current number of households at 576 and believes the difference  S`- x=is due to population growth since 1990.">` yO-ԍPetition at 5, n.16. > TriLakes contends that even using the 576 household figure  S8- xin its effective competition analysis, ATI's penetration rate is 38 percent (221  576 = 38%), which is substantially above the 15 percent threshold.  S- ` x7.` ` In opposition, ATI states that the 221 subscriber figure it supplied to TriLakes was  S- xlincorrect due to a mistake over the boundaries of TriLakes' franchise covering Monument.z {O- xwԍSee Opposition at Exhibit 5 (Letter dated April 15, 1996 from Deborah C. Costlow to Christopher C. Cinnamon at 2, n.1). ATI  xexplains that the 221 figure included not only ATI subscribers in the incorporated area of the Town of  xMonument, where TriLakes has its franchise, but also ATI subscribers in some of the unincorporated  S - xareas surrounding Monument, which are not covered by TriLakes' Monument franchise.   yO- xԍOpposition at 89; Opposition at Exhibit 6 (Letter dated May 6, 1996 from Deborah C. Costlow to Christopher C. Cinnamon). ATI contends,  xtherefore, that the subscriber figure first provided to TriLakes was overinclusive and that, in fact, ATI  S - xserved 72 subscribers in the Monument franchise area as of May 6, 1996.! ,  yO- xԍOpposition at 89; Opposition at Exhibit 6 (Letter dated May 6, 1996 from Deborah C. Costlow to Christopher C. Cinnamon). ATI further asserts that as  xof May 20, 1996, the number of subscribers served by ATI in the Monument franchise area had dropped  S - x>to 68.F"  yO-ԍOpposition at 6, n.7 and at 8.F ATI also notes that its service is technically available to 95 percent of the households in the  SX-Monument franchise area.#X yO - xԍOpposition at 7; Opposition at Exhibit 6 (Letter dated May 6, 1996 from Deborah C. Costlow to Christopher C. Cinnamon at 2).  S- ` x8.` ` ATI argues that in determining whether its rate of penetration in the Town of Monument  S- x[has surpassed the 15 percent threshold for effective competition, the Commission should not rely on the  x378 figure for occupied households derived from the 1990 Census. ATI maintains that this figure is  x<outdated and that TriLakes expressly acknowledged in its petition that the number of occupied households  x]in Monument has grown significantly since 1990 from 378 to 576. ATI further contends that the  xCommission does not require that 1990 Census data be used in all determinations of effective competition,  xparticularly where other data exists that more accurately reflects the current number of occupied  xhouseholds. ATI asserts that the Commission has accepted updated census data as well as current"l#,p(p(88C"  S- xstatistical reports generated by private entities.$ yOh- xԍOpposition at Exhibit 6 (Letter dated May 6, 1996 from Deborah C. Costlow to Christopher C. Cinnamon at 2, n.2); Opposition at 910. ATI insists that it would be nonsensical to rely on 1990  x.data in this case where there is an acknowledgement that the number of households has grown since that  S- xtime. ATI argues that the Commission should, instead, rely on TriLakes' calculation of the current  xnumber of occupied households in Monument of 576 or ATI's own estimate of the minimum possible  x.number of current occupied households of 490 to determine the existence of effective competition. ATI  xstates that based on TriLakes' current occupied household number of 576 and ATI's revised subscriber  xpenetration figure of 72, ATI serves 12.5% of occupied households in the Monument franchise area (72  S- x 576 = 12.5%). ATI contends, therefore, that effective competition is not present in Monument because  x=it does not serve more than 15 percent of the households in the franchise area. ATI further states that it  xconducted a visual count of occupied households and concluded that there are no less than 490 such  Sr- xhouseholds in Monument.%zr  yO2 - xYԍOpposition at 7. ATI explains that it directed an employee to conduct a visual count of the number of occupied  xhouseholds in Monument. ATI asserts that the employee was instructed to exclude from the count households that  xappeared unoccupied due to a lack of window coverings, untended lawns, an absence of cars in the driveway, an  {O- xaccumulation of newspapers\fliers, and other such factors indicating abandonment or vacancy. See Opposition at  xExhibit 9 (Affidavit of Deborah Goth at  8). ATI claims that the 490 figure does not represent a full count of  xyoccupied households in Monument but is simply a bare minimum of occupied households that may be used for  yO-purposes of determining the existence of effective competition. Opposition at 7.İ ATI argues that using the 490 household figure in its calculations, ATI serves  SJ - x/14.7 percent of households in Monument (72  490 = 14.7%), which is still less than the 15 percent  xthreshold required to satisfy the second part of the effective competition test. ATI additionally contends  xthat based on its May 20, 1996 subscriber total of 68, ATI's penetration rate in Monument is 11.8 percent  S - xusing TriLakes' occupied household figure of 576 (68  576 = 11.8%) and 13.9 percent using ATI's  S -occupied household figure of 490 (68  490 = 13.8%).  SZ- ` ~x9.` ` ATI asserts that it does not alone, nor in combination with other MVPDs, present Tri x-Lakes with effective competition. ATI claims that, to the best of its knowledge, the only MVPD operating  xin Monument other than TriLakes and ATI is DirecTV. ATI claims that it and DirecTV, together, do  xinot serve the number of subscribers necessary to surpass the 15 percent threshold for effective competition.  x/ATI states that it was unable to obtain penetration data directly from DirecTV. Consequently, ATI  x.explains, in order to obtain a subscriber count for DirecTV, ATI conducted a visual count of the number  Sj- xof households in Monument with a DirecTV satellite dish affixed to the exterior.=&jb  yOl-ԍOpposition at 6, n.8.= ATI reports that no  SB- x]such households were identified.1'B  {O -ԍId.1 ATI argues that because less than 15 percent of households in  x[Monument subscribe to ATI, and none to DirecTV, ATI does not independently or in combination with DirecTV present effective competition to TriLakes.  S- ` x10.` ` In its reply, TriLakes argues that ATI's modification of its penetration disclosure to 72  Sz- xsubscribers from 221 subscribers is untimely under Section 76.911(b)(2) of the Commission's rules.M(z  yO&-ԍ47 C.F.R.  76.911(b)(2).  M Tri x<Lakes asserts that ATI revised its penetration figure to 72 subscribers three weeks after its initial disclosure"R(,p(p(88"  S- xand after TriLakes based its petition on the 221 figure.) {Oh- xԍSee Opposition at Exhibit 6 (Letter dated May 6, 1996 from Deborah C. Costlow to Christopher C. Cinnamon at 2). TriLakes maintains that it is not required to  xindependently verify ATI's penetration figures and should be entitled to rely on the original 221 subscriber  xfigure. TriLakes argues that using either of the penetration numbers disclosed by ATI and applying 1990  xLCensus data, TriLakes is subject to effective competition in Monument. Specifically, TriLakes asserts  xthat applying the 72 subscriber figure to the 1990 Census figure of 378 households yields a penetration  S8- xrate of 19 percent (72  378 = 19%), and using the 221 subscriber figure results in a penetration rate of  S- x58 percent (221  378 = 58%). In either case, TriLakes argues, ATI's penetration rate exceeds the 15 percent threshold.  S- ` x11.` ` TriLakes contends that 1990 Census data is an appropriate measure of occupied  xhouseholds in effective competition cases. TriLakes asserts that there are no cases in which the  xCommission has rejected an operator's application of 1990 Census data. TriLakes suggests that while  xa cable operator may use more recent data, if such data is available, 1990 Census data is still an acceptable  xymeasure. TriLakes contends that the use of non1990 Census data is at the operator's option. TriLakes  xargues that ATI's visual count of the number of households in Monument is not a viable alternative to  xLdecennial census data, which the Commission has consistently relied on to foster certainty and minimize  xdisputes of population measurements. TriLakes acknowledges that the Commission has recognized other  x\measures of occupied households in some cases, such as independent engineering surveys. TriLakes  xargues, however, that ATI's visual survey does not warrant similar consideration because it permits  S- x employees to determine which homes appear unoccupied. In addition, TriLakes cautions that such surveys conducted by the parties to an effective competition proceeding are likely to be selfserving.  S- ` x12.` ` TriLakes asserts that, contrary to ATI's claims, DirecTV, USSB, and Primestar all serve  xsubscribers in Monument. TriLakes indicates that DirecTV and USSB serve a total of 19 subscribers  SB- x.while Primestar serves 9 subscribers.*B" yO-ԍReply at 12; Reply at Exhibit 4 (Affidavit of Rebecca Hendricks, Vice President, TriLakes Cable). TriLakes contends that if the numbers of subscribers served by  xthese additional MVPDs are included in the effective competition analysis, TriLakes would remain subject  xto effective competition even if the number of occupied households were as high as 666. TriLakes  xconcludes, therefore, that if the Commission were to accept either number of occupied households that  xATI has suggested (490 or 576) as well as ATI's revised penetration disclosure (72 subscribers), TriLakes  x=would still be subject to effective competition as long as the total number of subscribers served by other  x[competing MVPDs (28 subscribers) is included in calculating the 15 percent threshold requirement. Tri xLakes explains that adding together ATI's 72 subscribers with the 28 subscribers served by DBS providers  x[yields a total of 100 subscribers, which represents more than 15 percent of households in Monument by  S-either ATI count of households (100  490 = 20.4%; 100  576 = 17.3%).  S- ` Ax13.` ` In its Surreply, ATI questions the accuracy of the DBS penetration data provided by Tri xLakes in its Reply. ATI states that it cannot concede that TriLakes is subject to effective competition  S:- xwithout verification that this penetration data includes only subscribers of each MVPD in the incorporated  xarea of Monument and does not include subscribers in outlying unincorporated areas that are not within  xTriLakes' Monument franchise. ATI explains that while the incorporated area of Monument is within  S!- xythe 80132 zip code, areas that are not within the incorporated area of Monument are also covered by this  xzip code. ATI contends that DirecTV, USSB and Primestar all maintain subscriber data only by zip code""*,p(p(88'$"  x]and cannot breakdown this information any further. ATI claims that there is no evidence that the  xpenetration data for DirecTV, USSB, and Primestar are limited to the incorporated area of Monument.  xATI argues that TriLakes has failed to meet its burden of rebutting the presumption of the absence of  xeffective competition due to the unreliability of the penetration data it presented for other MVPDs  xoperating in Monument. ATI further claims that TriLakes did not formally request penetration data from  xythe other MVPDs pursuant to Section 76.911(b)(2) of the Commission's rules until June 6, 1996, a week  S- xafter TriLakes filed its Reply. + yOx- xԍIn support of this contention, ATI attaches to its Surreply a July 12, 1996 letter from Primestar to TriLakes which states that Primestar is responding to TriLakes' June 6, 1996 request for subscriber information.  ATI contends that this sequence of events indicates that the penetration  xdata for DirecTV, USSB, and Primestar presented in TriLakes' Reply was not obtained directly from  xLthose entities. ATI argues that TriLakes' failure to explain the methods used in computing these figures  xand to verify that the figures only include subscribers within the incorporated area raises questions concerning the accuracy of that data.  S - ` x14.` ` ATI asserts that it conducted a visual home count survey in order to ascertain the "bare  xminimum of occupied households for purposes of presenting the most conservative effective competition  xLanalysis possible" in the absence of any official figure for the current total of occupied households in the  S - xfranchise area.7,  yOh-ԍSurreply at 10.7 ATI insists that it does not advocate use of its home count method as a means of  xdetermining the number of occupied households in all effective competition proceedings. Rather, ATI  xNcontends that its count of 490 households was appropriately presented in this case in light of the  xsignificant population increase in Monument since the 1990 Census. ATI also reiterates that Commission  xprecedent does not mandate use of 1990 Census data in effective competition analyses without regard for  xchanges in population. Lastly, ATI notes that the Commission has adopted an interim definition of  x\"comparable programming" requiring delivery of at least 12 channels of programming at least some of  S- xZwhich are broadcast signals.- {O-ԍSee Order and Notice of Proposed Rulemaking, CS Docket No. 9685, 11 FCC Rcd 5937, 5942 (1996). ATI asserts that if the Commission rules that superstations are not broadcast  xchannels and excludes broadcast channels received via an overtheair antenna, ATI would not offer comparable programming under this definition.  S- ` x15.` ` In response, TriLakes contends that ATI's Surreply is beyond the scope of the pleading  S- xcycle established by Section 76.915(a) and (f) of the Commission's rules and may, therefore, be ignored.S.B {O-ԍSee 47 C.F.R.  76.915(a) and (f).S  xTriLakes argues that Commission regulations with regard to effective competition proceedings provide  Sx- xonly for the submission of a petition, any oppositions, and a reply by the petitioner.1/x {O!-ԍId.1 TriLakes also  xclaims that the Surreply is superfluous because all of the necessary information and arguments were presented previously in the Petition, Opposition, and Reply.  S- ` Cx16.` ` TriLakes responded to a request made by the Cable Services Bureau for additional  xzinformation with respect to two issues: (1) the number of occupied housing units (i.e., households) in"f /,p(p(88-"  S- xMonument and (2) the number of DBS subscribers in Monument.0B {Oh- xԍSee Letter from Ben Golant, Cable Services Bureau, to Christopher C. Cinnamon dated September 12, 1996 and  yO2- xiResponse to Information Request filed by TriLakes on October 11, 1996. In addition to addressing the Bureau's  xspecific request, TriLakes again urged the Commission to rely on 1990 Census data in resolving this case. TriLakes  xstated that although it suggested in a footnote that some growth in the number of households may have occurred since  x1990, TriLakes never indicated that it had access to any updated occupied household data nor did it indicate reliance  xon any occupied household measure other than 1990 Census data. TriLakes also argued that a refusal to use 1990  xCensus data would represent a sharp departure from Commission precedent and would adversely impact small cable operators who may obtain this Census number at a low cost.  Regarding the number of occupied  xyhousing units, TriLakes offers a measure of households based on local residential utility customers. Tri xLakes states that there were 464 residential electric meters in the Town of Monument as of September 25,  S- x1996.o1Z yO - xԍTriLakes explains that it obtained this information from Mountain View Electric Association, Inc., the electrical  {O - xprovider in Monument. See Response to Information Request, Attachment 4 at 3, and Exhibit A (Letter from Mountain View Electric Association, Inc., to TriLakes).o TriLakes states that it could not confirm if each of these meters serves an occupied household  xbut recognizes that the Bureau may conclude that the number of meters may serve as a proxy for occupied  xyhouseholds. In order to determine the number of DBS subscribers in Monument, TriLakes explains that  xzit requested penetration data specific to the Monument franchise area from DBS providers (DirecTV,  S- xPrimestar, USSB) but received penetration data aggregated by zip code rather than by franchise area.2  {O|- xwԍSee, e.g., letter from the Satellite Broadcasting and Communications Association ("SBCA") to the Cable Services  xBureau dated October 7, 1996 which provides DBS penetration data aggregated by zip code rather than by franchise  xarea. The letter explains that "[w]hile we recognize that the zip code reported is greater than the TriLakes Cable  xservice area, SkyTRENDS does not have the capability of reporting subscriber counts in geographical units of less than zip code size because that is the principal basis of customer subscription information."  xIn an effort to be responsive to our inquiry, TriLakes states that it conducted its own visual survey of  xjDBS penetration in Monument. TriLakes explains that its employees identified the addresses of homes  xwhere DBS dishes were visible, telephoned these homes and asked what services were provided. Tri xLakes claims that, based on this survey, there are a total of 32 DBS customers within the Town of  xMonument. TriLakes further states that the telephone inquiry confirmed the specific DBS provider in  S - x all but five homes.3  yO>- xԍTriLakes attaches to its response a chart providing the name and address of each of the 32 DBS subscribers identified as well as the name of the particular DBS provider where available. TriLakes asserts that adding together the 32 DBS subscribers with the 72 ATI  x[subscribers yields a total of 104 subscribers. TriLakes argues that with competing MVPDs serving 104  xjsubscribers, TriLakes is subject to effective competition (i.e., more than 15 percent of households in the  xMonument franchise area subscribe to competing MVPDs) as long as the number of occupied households is 693 or less.  S- III.xANALYSIS  S- ` x17.` ` In the absence of a demonstration to the contrary, cable systems are presumed not to be  S- xsubject to effective competition.@4 yO.&-ԍ47 C.F.R.  76.906. @ The cable operator bears the burden of rebutting the presumption that  xeffective competition does not exist with evidence that effective competition, as defined by Section 76.905"h 4,p(p(88"  S- xof the Commission's rules, is present within its franchise area.5X yOh- xԍ47 C.F.R.  76.905 and 76.911(b)(1). We note that ATI's surreply is beyond the scope of the pleading cycle  xestablished by Section 76.915(a) and (f) of our rules. 47 C.F.R.  76.915(a) and (f). We will, however, accept ATI's submission in the interest of developing a complete record in this proceeding. TriLakes has met this burden by  S-satisfying the competing provider test for effective competition.R6 {O`-ԍ See 47 C.F.R.  76.905(b)(2). R  S- ` x18.` ` The first part of the competing provider test requires that the franchise area be served by  x[at least two unaffiliated MVPDs, each of which offers comparable programming to at least 50 percent of  x/the households in the franchise area. There is no dispute that TriLakes and ATI offer service to the  xrequisite percentage of households. TriLakes asserts that it offers cable service to 100 percent of the  S- xhouseholds in the Monument franchise area.67z yO -ԍPetition at 5.6 ATI states that its service is technically available to 95  S- xpercent of households in the franchise area.88  yOj-ԍOpposition at 6.8 With respect to the issue of programming comparability,  xwe find that the programming of TriLakes and ATI is comparable because they offer at least 12 channels  Sp- xof video programming, including at least one nonbroadcast channel.(9&p {O- xԍSee 47 C.F.R.  76.905(g). The definition of "comparable programming" cited by ATI which requires the  xX delivery of broadcast channels is not applicable in the context of the competing provider test for effective competition  {O<- xbut applies to local exchange carrier effective competition which does not exist here. See Order and Notice of  {O-Proposed Rulemaking, CS Docket No. 9685, 11 FCC Rcd 5937, 5942 (1996).( We conclude, therefore, that TriLakes has satisfied the first part of the competing provider test.  S - ` Rx19.` ` The second part of the competing provider test for effective competition requires a  xdemonstration that more than 15 percent of the households in the franchise area subscribe to multichannel  xvideo programming services from providers other than 9;the largest MVPD, in this case TriLakes. In order  xto determine whether the 15 percent threshold is met, we must ascertain the number of occupied  xhouseholds in the Monument franchise area as well as the number of subscribers receiving service from  xcompeting providers. TriLakes argues that it is entitled to rely on the 1990 Census figure of 378 as a  xmeasure of occupied households. TriLakes concedes, however, that the population in Monument has  x.grown since that time to an estimated 576 households. ATI contends that the Commission ought to use  xthe most current household figure available and urges application of TriLakes estimated 576 household  xcount or ATI's own estimate of current occupied households of 490. In addition, TriLakes offers a  xhousehold count of 464 based on the number of residential electrical meters in Monument. Also in dispute  xis the number of subscribers receiving service from providers other than TriLakes. ATI initially indicated  xMthat it served 221 subscribers in Monument but later revised this figure to 72, claiming that the larger  xfigure included subscribers outside of the TriLakes franchise area. ATI then stated that its most recent  xcount showed a drop to 68 subscribers. TriLakes contends that based on its own visual survey an additional 32 households receive service from DBS providers.  SP- ` Ax20.` ` In order to determine whether TriLakes is subject to effective competition in Monument,  xwe will use those household and subscriber figures proffered in the pleadings that are most adverse to a  xfinding of competition. A high household count coupled with a low competing provider subscriber count" ;,p(p(88k"  x[makes a finding of effective competition least likely. Thus, we will apply a household count of 576, and  x[an ATI subscriber count of 68. Regarding the number of DBS subscribers in Monument, we believe that  x>TriLakes' visual and telephone survey provides an accurate count. TriLakes included the name and  S- xaddress of each DBS subscriber it identified and ATI has not disputed this information.g< {O-ԍSee Response to Information Request, Attachment 4 at 57.g We will include  x27 DBS subscribers in our calculations rather than 32 subscribers because TriLakes was unable to identify  xMthe particular DBS provider with respect to five of the households. We find, therefore, that the total  xnumber of subscribers served by MVPDs other than TriLakes is 95 (68 + 27 = 95). Dividing 95 by 576,  xwe conclude that 16.5 percent of households in Monument are served by competing providers. Thus, even  xunder the most adverse numerical scenario proffered in the pleadings, TriLakes exceeds the 15 percent threshold necessary to satisfy the second part of the competing provider test for effective competition.  SH - ` ox21.` ` We conclude that TriLakes' cable system serving the incorporated area of the Town of  xMonument is subject to effective competition under the competing provider test. TriLakes' petition is hereby granted.  S - IV.xORDERING CLAUSES  SX- ` x 22.` ` Accordingly, IT IS ORDERED that the petition for change in regulatory status filed by  S0-TriLakes Cable with respect to the franchise area of Monument, Colorado IS GRANTED.  S- ` x 23.` ` This action is taken pursuant to delegated authority pursuant to Section 0.321 of the  S-Commission's rules.<=Z yO-ԍ47 C.F.R. 0.321.<  Sh-x` `  hh FEDERAL COMMUNICATIONS COMMISSION x` `  hhMeredith J. Jones x` `  hhChief, Cable Services Bureau  XP-#Xj\  P6G; +XP#