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                                Before the
                     Federal Communications Commission
                          Washington, D.C. 20554

In the Matter of                     )
                                     )
Falcon/Capital Cable Partners, L.P.  )     City of Columbia, Missouri 
                                     )     CUID No.  MO0808
Complaint Regarding Cable            )
Programming Service Rates            )


                      MEMORANDUM OPINION AND ORDER

        Adopted:  October 23, 1997                 Released:  October 27, 1997

By the Chief, Cable Services Bureau:

  1.    Here we consider a complaint about the price that Falcon/Capital Cable Partners, L.P.
("Capital") was charging for its cable programming service ("CPS") tier in the City of Columbia,
Missouri.  Capital filed a motion to dismiss the complaint, arguing that it is subject to effective
competition and thus its cable programming service rate is not subject to regulation by the Commission. 
Capital did not provide evidence that its rate was justified under Commission rules.

  2.    The Communications Act of 1934, as amended ("Communications Act"), and the
Commission's rules provide that only the rates of cable systems that are not subject to effective
competition may be regulated.  One basis on which a cable system is deemed subject to effective
competition is if fewer than 30 percent of the households in the system's franchise area subscribe to the
system's cable service. 

  3.    In its motion to dismiss, Capital asserts that its cable system serving the City of Columbia
was subject to low penetration effective competition and, therefore, not subject to rate regulation. 
Specifically, Capital asserts that the City of Columbia has 25,955 households and that its system served
a total of 261 subscribers, or 1% of the households, in its Columbia franchise area as of December 3,
1993, the date Capital filed its motion to dismiss (261 ö 25,955 = 1%).  Capital states that it derived
its 25,955 household figure based on the 1990 Census of the City Planning and Zoning Commission of
the City of Columbia.

  4.    In the absence of a demonstration to the contrary, cable systems are presumed not to be
subject to effective competition.  The cable operator bears the burden of rebutting the presumption that
effective competition does not exist with evidence that effective competition, as defined by Section 76.905
of the Commission's rules, is present within its franchise area.  We find that Capital has met this burden. 

  5.    In rate complaint proceedings, the Commission requires cable operators defending against
such complaints on the basis of effective competition to use subscriber data derived from the approximate
time the CPS tier complaint was filed.  The complaint that initiated this proceeding was received by the
Commission on November 9, 1993.  The subscribership information provided by Capital reflects the
number of subscribers that Capital served in the City of Columbia as of December 3, 1993.  Capital has
demonstrated that it served only 1% of the households in the City of Columbia around the time that the
complaint was filed, which is significantly lower than the "fewer than 30 percent" rate needed to establish
effective competition under our rules.  Even if we use the household figure of 25,841 for the City of
Columbia which is derived from the 1990 United States Census in our calculation to determine the
existence of effective competition, that calculation also shows that Capital serves only 1% of households
in its franchise area (261ö 25,841 = 1%).  We find, therefore, that Capital was subject to effective
competition in the City of Columbia, under Section 76.905(b)(1) of our rules, at the time the complaint
was filed and its motion to dismiss the complaint filed against it by the City of Columbia is hereby
granted.

  6.    Accordingly, IT IS ORDERED, pursuant to Section 0.321 of the Commission's rules,
47 C.F.R.  0.321, that the motion of Falcon/Capital Cable Partners, L.P. to dismiss the complaint
against its cable programming service price charged in the City of Columbia, Missouri, CUID No.
MO0808, IS GRANTED.

  7.    IT IS FURTHER ORDERED that the complaint against the cable programming service
price charged by Falcon/Capital Cable Partners, L.P. in the City of Columbia, Missouri, CUID No.
MO0808, IS DISMISSED.

        FEDERAL COMMUNICATIONS COMMISSION



        Meredith J. Jones
        Chief, Cable Services Bureau