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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 Digital Broadcasting OVS ) ) Certification To Operate ) An Open Video System ) ORDER Adopted: September 19, 1997 Released: September 19, 1997 By the Deputy Chief, Cable Services Bureau: 1. On September 9, 1997, Digital Broadcasting OVS filed an application for certification to operate an open video system pursuant to Section 653(a)(1) of the Communications Act of 1934 ("Communications Act") and the Commission's rules. In accordance with our procedures, the Commission published notice of receipt of the certification application and posted the application on the Internet. The California Cable Television Association ("CCTA") and the City of Redondo Beach, California ("Redondo Beach") filed timely comments regarding the application. For the reasons stated below, we approve this application. 2. Pursuant to Section 653(a)(1) of the Communications Act, any person may obtain certification to operate an open video system. In light of the brief period for Commission review of certification filings, the Commission concluded that Congress intended a streamlined certification process. Thus, to keep the open video system certification process from erecting the same barriers to entry and potential for delay that Congress sought to avoid by eliminating the requirement that a common carrier obtain Commission approval under Section 214 to construct a new facility prior to the establishment of a video delivery system, no pre-certification submissions or approvals are required of open video system applicants. Open video system operators may apply for certification at any point prior to the commencement of service, subject to two conditions. If construction of new physical plant is required, the applicant must obtain Commission approval of its certification prior to the commencement of construction. If no new construction is required, certification must be obtained prior to the commencement of service, allowing sufficient time to comply with the Commission's requirements regarding notifications that must be provided to programming providers. 3. Despite the streamlined nature of the certification process, the Commission intended it to provide purposeful representations regarding the responsibilities of the open video system operator by requiring that applicants verify their certifications and provide specified information. To obtain certification, an applicant must file FCC Form 1275, which requires, among other things: (a) a statement of ownership, including a list of all affiliated entities; (b) a representation that the applicant will comply with the Commission's regulations under Section 653(b); (c) a list of the names of the communities the applicant anticipates it will serve; and (d) a statement of the anticipated type and amount of capacity that the system will provide. 4. Digital Broadcasting OVS previously obtained Commission certification to operate an open video system in the same general service area that it identifies on the September 9, 1997 application. The instant application reflects a change in the company's ownership structure and a modification to the proposed service area. As requested by Form 1275, Digital Broadcasting OVS provides company information, including a separate statement of ownership and a list of all affiliated entities; makes the required eligibility and compliance representations; and provides the required system information, system capacity, list of communities to be served, and verification statements. 5. We have reviewed the comments of CCTA and Redondo Beach and conclude that the commenters have not presented arguments that justify rejection of Digital Broadcasting OVS's application. CCTA opposes certification of Digital Broadcasting OVS on the grounds that the company has not met the certification requirements. CCTA states that Digital Broadcasting OVS "has neither deployed sufficient facilities to distribute video signals to customers nor has any intention of deploying or constructing an open video system." Contending that the Telecommunications Act of 1996 and the Commission's open video system orders "both require that [open video system] operators construct or provide a facilities-based platform to others for the provision of video programming," CCTA maintains that the Commission should require Digital Broadcasting OVS to give a more detailed description of how and when it plans to deploy its facilities. CCTA also asserts that Digital Broadcasting OVS has failed to provide the information required by the Commission's regulations because its application "makes no reference to any programmers which may have applied to distribute" programming on the open video system. Finally, CCTA alleges that Digital Broadcasting OVS has not remedied any of the deficiencies CCTA identified in its opposition to Digital Broadcasting OVS's previously approved application. Redondo Beach does not oppose Digital Broadcasting OVS's application, stating only that it expects Digital Broadcasting OVS to comply with "all federal, state, and local requirements regarding payment of fees and public benefits such as access channels, support for access operations, customer service standards, and the like." 6. CCTA's opposition does not address the accuracy or sufficiency of the information that Digital Broadcasting OVS provided in compliance with our rules and Form 1275. Rather, CCTA alleges that Digital Broadcasting OVS failed to provide certain information that it is not required to provide. Neither our rules nor Form 1275 require applicants to provide a roll-out schedule or similarly detailed information on the timing and manner of deployment of facilities or service. Nor do our rules or Form 1275 require applicants to provide information regarding programmers that may have applied to distribute programming on the open video system the applicant seeks to operate. Thus, the issues CCTA raises fall outside the scope of the certification process and do not constitute grounds for denial. CCTA raised similar objections with respect to Digital Broadcasting OVS's September 30, 1996 filing. We reject its arguments here for the same reasons we previously rejected them. We have reviewed the record and do not find that an issue has been raised regarding the applicant's qualifications. 7. Digital Broadcasting OVS has provided the requisite facts and representations concerning the open video system it intends to operate and has certified that it "agrees to comply and remain in compliance with each of the Commission's regulations" under Section 653(b) of the Communications Act. No party has demonstrated that Digital Broadcasting OVS has failed to provide an accurate and adequate certification. If the representations contained in the certification filing prove to be materially false or materially inaccurate, the Commission retains the authority to revoke Digital Broadcasting OVS's certification or to impose such other penalties as it deems appropriate, including forfeiture. 8. Accordingly, IT IS ORDERED that the certification of Digital Broadcasting OVS to operate an open video system IS APPROVED. 9. This action is taken by the Chief, Cable Services Bureau, pursuant to the authority delegated by Section 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION John E. Logan Deputy Chief, Cable Services Bureau