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ZH  yO - xԍCommunications Act 623(l)(1)(A), (B), (C), (D), 47 U.S.C. 543(l)(A), (B), (C), (D); Section (D) was added  xby Section 301(b)(2) of the Telecommunications Act of 1996, Pub. L. No. 104104, 110 Stat. 56 (1996) (the "1996  {O@ -Act"); see also, 47 C.F.R. 76.905(b)(1), (2), (3), (4).  `  S -x III. ` ` SUMMARY OF PLEADINGS  S - ` x4.` ` Time Warner alleges that its cable system in the City is subject to effective competition  SX- xand, therefore, is exempt from rate regulation pursuant to the Commission's rules. X {O- x,ԍSee 47 C.F.R.  76.905(b)(2) (only rates of cable systems that are not subject to effective competition may be regulated). Time Warner bases  x\its allegation that it is subject to effective competition on the availability of WANTV's wireless cable  x[service in the City. Time Warner claims that both parts of the competing provider effective competition  xytest in Section 623(1)(1)(B) of the Communications Act are satisfied because Time Warner and WANTV  xeach offers comparable programming to 50 percent of the households in the City and the number of  xsubscribers to WANTV, which is the smaller of the two systems, exceeds 15 percent of the households in the City.  S- ` x5.` ` Time Warner states that WANTV's transmitter is located in the same city, Lakeland,  S- x\Florida, as Time Warner's headend.6 D yO-ԍPetition at 3.6 Time Warner further states that the geographical coordinates of  S- xjWANTV's transmitter are it approximately 10 miles from Time Warner's headend. yO< - xxԍTime Warner states that distance calculations were made using the method set forth in Section 73.208(c) of the Commission's rules, 47 C.F.R.  73.208(c). Time Warner states  xjthat the evidence that WANTV's transmitter is in place and that it is closely proximate to Time Warner's headend demonstrates that WANTV's service is technically available to residents of the City.  S(- ` $x6.` ` Time Warner asserts that there are no regulatory or other impediments that encumber  x/WANTV's service in the City. Time Warner maintains that WANTV can serve subscribers with the  S- xminimal investment needed to install a rooftop antenna on, or near, a subscriber's home. Time Warner  xstates that WANTV's marketing materials include a letter distributed to residents of the City which", ,>(>(II"  xdescribes WANTV's cable service and rates. Time Warner further states that WANTV's marketing  S- xlcampaign has resulted in WANTV gaining hundreds of subscribers in the City yO@- x;ԍTime Warner states that as of August 15, 1996, WANTV served 291 subscribers out of 796 serviceable homes in the City. Petition at Exhibit C. and that potential  S- xksubscribers in the City are reasonably aware of WANTV's service.   {Op-ԍId. at 5 and Exhibit D (Time Warner attached a copy of WANTV's marketing materials). For these reasons, Time Warner  S- xsubmits that WANTV clearly offers service to more than 50 percent of the households in the City.UZ {O- x;ԍId. at 4. The Commission's rules provide that the zone in which an MMDS licensee is protected from harmful  xelectrical interference is a circle with a radius of 35 miles centered on the MMDS transmitter site. 47 C.F.R.   yOl -21.902(d). U Time  xWarner also states that the City lies completely within 35 miles of WANTV's transmitter site and that the  xCommission has determined that wireless cable is deemed to be offered anywhere within a 35mile  S-interferencefree contour zone.\ {O- xhԍId. at 4 citing Implementation of Cable Act Reform Provisions of the Telecommunications Act of 1996 (Section  x301 of the 1996 Telecommunications Act; Section 623 of the Communications Act of 1934), Order and Notice of  {O-Proposed Rulemaking, FCC 96154, 11 FCC Rcd 5937 (1996) ("Cable Reform Order") at  10.   S- ` x7.` ` With regard to whether Time Warner meets the 50 percent threshold, Time Warner states  S- xkthat in 1990 the City had 1,141 households and 1,444 housing units.  {O0-ԍId. at 8. The numbers of households and housing units are from 1990 Census data. Time Warner calculates that it  Sp- x[currently offers service to 1,311 households.<Zp  {O- xZԍId. Time Warner notes that, in some cases, the current number of households served exceeds the number of  yOd- xhouseholds as reported by the 1990 Census and attributes the excess to housing growth since the Census was taken.  < Thus, while acknowledging that considerable growth has  xoccurred in the City since 1990, Time Warner asserts that it clearly offers service to more than 50 percent  xof the households in the City. Time Warner notes that, in any event, the 50 percent threshold prong of  xythe test could be met by considering the presence of direct broadcast satellite ("DBS") services which the  S -Commission has found to be available nationwide.N\  {O- xԍId. at n. 21 citing Reexamination of the Effective Competition Standard for the Regulation of Cable Television  {O- xxbasic Service Rates, MM Docket No. 904, 6 FCC Rcd 4545 (1991) at  42, n. 52 and Report and Order at  32. N   Ox8. Time Warner argues that WANTV's programming is comparable to that of its own since  SX- xWANTV currently offers 36 channels of programming, including several channels of nonbroadcast  S0- x[programming0 yO#- xhԍPetition at 6. Time Warner states that WANTV offers the nonbroadcast services of ESPN, Home Box Office  yOh$-and CNN.  and several local television broadcast stations.Z0( {O- xԍId. at 6 and Exhibit E. Time Warner states that WANTV offers local television stations such as WFLATV  xi(NBC, Channel 8, Tampa, FL), WTSP (CBS, Channel 10, TampaSt. Petersburg, FL), WTVT (Fox, Channel 13,  yO"-TampaSt. Petersburg, FL), WFTS (ABC, Channel 28, Tampa, FL) and several others. Ď Time Warner further states that it offers"0,>(>(II;"  S- xLa channel lineup that is similar to WANTV's.v {O-ԍId. at Exhibit F. Time Warner attaches a copy of its channel lineup. v Time Warner argues that, because of the similar channel  xlineups offered by itself and WANTV, the City is being served by at least two unaffiliated MVPDs each  xof which offers comparable programming. Finally, Time Warner argues that WANTV, the smaller of  x!the two MVPDs, meets the requirement that at least 15 percent of the households in the City be  x<subscribers to the smaller of the two MVPDs. Data from the 1990 Census show that WANTV serves 25.5  S8-percent of the households in the City.o8| {OT - xԍPetition at 9. Time Warner also argues that WANTV meets the requirements specified in the Cable Reform  {O - xOrder concerning the definitions of "offer" and comparable programming" Petition at 25. The Cable Reform Order  xhdiscussion of effective competition is limited to the context of the new effective competition standard applicable to  xlocal exchange carrier ("LEC") competition. Time Warner fails to allege that WANTV is offered by, or over the facilities of, a LEC or its affiliate. o  S-  S-xIV. ` ` DISCUSSION  S- ` x9.` ` In the absence of a demonstration to the contrary, cable systems are presumed not to be  Sp- xsubject to effective competition,>p0  yO@-ԍ47 C.F.R.  76.906.> as that term is defined in Section 76.905 of the Commission's rules.Dp  yO-ԍ47 C.F.R.  76.905.D  xThe cable operator bears the burden of rebutting the presumption that effective competition does not exist  xwith evidence that effective competition is present within the relevant franchise area. Pursuant to the  x-competing provider effective competition test, the cable operator must show that the two competitors each  xLoffer comparable programming to 50 percent of the households in the area and that at least 15 percent of  xthe households in the area subscribe to service from an alternative provider offering a comparable video programming service.  S0- ` Qx10.` ` With regard to the first portion of the test, Time Warner introduced evidence from the  x.1990 Census to show that it and WANTV each offer comparable programming. to at least 50 percent of  xthe households in the City. We also find that Time Warner meets the 50 percent threshold by serving  xj1,311 households in the City, a greater number of households than existed in the City in 1990, which can  S- x/be attributed to housing growth in the intervening years.,"P  yO!- xxԍTime Warner properly employed a "housing multiplier" as a means of correlating the number of households  xYto the number of housing units in the City to determine the proper percentage of households served by each MVPD.  xThe Commission has previously recognized this method of correlating the number of households to the number of  {O#-housing units. Petition at 8 citing Falcon TeleCable, DA 9523, 10 FCC Rcd 1654 (1995) at  8., With respect to the availability of service  xwithin the franchise area from a competing provider, it appears that WANTV offers comparable service  x.to at least 50 percent of the households in the City. Time Warner has introduced evidence showing that  x=WANTV's transmitter is located in the same city as Time Warner's headend and in close proximity to it.  xA lineofsight/shadow plot map of the area indicates that the City lies within WANTV's lineofsight":,>(>(II"  x.area. In any event, as Time Warner argues, the 50 percent threshold of the competing provider effective  xycompetition test is met, regardless of WANTV's service, because of the availability of DBS service in the  S- xjCity. The Commission concluded in the Rate Order that DBS providers that provide nationwide service  S- x<are presumed to satisfy the 50 percent threshold.[ {O-ԍRate Order, 8 FCC Rcd at 565960.[ Accordingly, whether by virtue of the service WANTV  x\provides or because of the DBS service presumed to be available, we conclude that, in addition to the  xMVPD service being offered by Time Warner, at least one other entity is providing MVPD service to  S-more than 50 percent of the households in the City. h x  S- ` x13.` ` We also find that the programming offered by Time Warner and WANTV meets the  S- x/Commission's definition of "comparable programming" contained in Section 767.905(g) because each  xoffers "at least twelve channels of programming, including at least one channel of nonbroadcast  SJ -programming."J Z yOD - xԍPetition at 6. Time Warner's channel lineups indicate that it is offering more than the minimum number of channels of both broadcast and nonbroadcast programming in the City.  S - ` ox14.` ` The second part of the competing provider test requires that the number of households  S - xjsubscribing to an MVPD other than the largest MVPD exceeds 15 percent of the households in the City.  S - xyTime Warner submitted evidence that WANTV serves 25.5 percent of households in the City.E  {O-ԍId. at 9 and Exhibit C.E We find  xythat Time Warner has demonstrated that WANTV's penetration rate in the City satisfies the requirement of the second prong of the competing provider test.  S - ` x15.` ` We conclude that Time Warner has established that the competing provider effective  x[competition test has been met and we therefore grant Time Warner's petition and revoke the certification of the City to regulate Time Warner's basic service and equipment rates.  Sj-x` ` V.  ORDERING CLAUSES  SB-  S- ` 2x16.` ` Accordingly, IT IS ORDERED that the Petition for Revocation of the Certification of the  xCity of Mulberry to Regulate the Basic Cable Service Rates of Time Warner Entertainment x.Advance/Newhouse Partnership d/b/a Time Warner Communications, CSR4852E, pursuant to Section 76.905(b)(2) of the Commission's rules, 47 C.F.R.  76.905(b)(2), IS GRANTED.  SR- ` x17.` ` IT IS FURTHER ORDERED that the certification of the City of Mulberry, Florida, CUID No. FL0275, to regulate the basic cable rates of Time Warner in that community IS REVOKED. x  S- ` x18.` ` This action is taken pursuant to delegated authority under Section 0.321, 47 C.F.R.  0.321, of the Commission's rules.  +#P x` `  FEDERAL COMMUNICATIONS COMMISSION  +#P  x` `  Meredith J. Jones x` `  Chief, Cable Services Bureau