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

In the Matter of                     )
                                     )
James Cable Partners, L.P.           )     Putnam County, Georgia 
d/b/a/ Cable Florida                 )
                                     )     CUID No.  GA0675
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 James Cable Partners, L.P. ("James
Cable"), was charging for its cable programming service ("CPS") tier in Putnam County, Georgia. 
James Cable 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.  James Cable
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, James Cable argues that its cable system serving Putnam County
was subject to low penetration effective competition and, therefore, not subject to rate regulation. 
Specifically, James Cable asserts that Putnam County has at least 6,007 households and that its system
served no more than 1,578 basic service subscribers, or 26.27% of the households, in its Putnam County
franchise area as of March 28, 1994, the date James Cable filed its motion to dismiss (1,578 ö 6,007
= 26.27%).  James Cable indicates that the 6,007 household figure represents the "count of residential
property in the County" including "all new buildings for 1994," and that it derived this figure from the
Putnam County Tax Assessors Office.  

  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.  James Cable has not 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.  James Cable has done so. The complaint that initiated this
proceeding was received by the Commission on February 26, 1994.  The subscribership information
provided by James Cable in its motion to dismiss reflects the number of subscribers that James Cable
served in Putnam County as of March 28, 1994. 

  6.    The Commission has stated that cable operators may rely on data more recent than the
1990 Census data to establish the number of households in their franchise area.  James Cable has opted
to use a count from 1994.  Specifically, James Cable used a "count of residential property in the County"
including "all new buildings for 1994" as derived from the local tax assessors office.  It is not clear,
however, that the household figure provided by James Cable includes only occupied housing units as
required by our rules.  Because James Cable's claim of a 26.27% penetration rate in its franchise area
does not appear to be based on occupied housing units, we cannot accept it.  

  7.    If we use the 1990 Census figure for occupied housing units in Putnam County or,
alternatively, apply a vacancy rate to the 6,007 household count provided in the motion to dismiss, we
find that James Cable serves more than 30 percent of the households in its franchise area and, therefore
is not subject to effective competition.  The 1990 Census figure for occupied housing units in Putnam
County is 5,229.  Dividing the number of James Cable subscribers, 1,578, by the 1990 Census figure
for occupied housing units, 5,229, yields a penetration rate of 30.17%  (1,578 ö 5229 = 30.17%),
which is slightly higher than the "fewer than 30 percent" rate needed to establish effective competition
under our rules.  If we reduce the 6,007 household figure by an appropriate vacancy rate in order to
ensure that only occupied housing units and not unoccupied units are included in the our calculation, that
calculation also shows that James Cable serves more than 30 percent of the households in its franchise
area.  Using 1990 Census figures for Putnam County and subtracting the number of occupied housing
units, 5,229, from the number of total housing units, 7,113, we find that there are 1,884 vacant units
(7,113 - 5,229 = 1,884).  Dividing the number of vacant units, 1,884, by the number of total units,
7,113, we find that Putnam County had a vacancy rate of 26.48% (1,884 ö 7,113 = 26.48%). 
Reducing the 6,007 household figure by the vacancy rate of 26.48%, yields an occupied housing unit
figure of 4,416 (26.48% x 6,007 = 1,591; 6,007 - 1,591 = 4,416).  Finally, dividing the number of
James Cable subscribers in Putnam County, 1,578, by the number of occupied housing units, 4,416,
produces a penetration rate of 35.73%.  Under both analyses, James Cable serves more than 30 percent
of the households in its Putnam County franchise area and, therefore, is not subject to effective
competition under Section 76.905(b)(1) of our rules.  Consequently, we will order James Cable to file
FCC Form 393, and the relevant FCC Form 1200 series forms, to justify its rates.

  8.    In its motion to dismiss, James Cable also contends that the complaint is deficient for
failure to provide a description of the cable programming service at issue as required by Section 76.951
of our rules.  James Cable states that the complaint was filed on an amended version of the FCC Form
329 and that this amended form fails to request any description of the cable programming service in
question.  In particular, James Cable contends that information provided on line 8 of the amended Form
329 cannot reasonably be characterized as a "description" as required by Section 76.951. James Cable
states that the complaint filed against it, as well as all other complaints filed on the amended Form 329,
is deficient for failure to make the prima facie showing required by the Commission's rules.

  9.    In general, we will find valid any complaint that states a claim on which relief can be
granted and provides adequate information to allow us to process the complaint, despite minor flaws or
inaccuracies.  We believe this approach best implements the mandate of the 1992 Cable Act.  Line 8 of
the Amended FCC Form 329 provides us with adequate information to conclude that James Cable offers
CPST service and that a CPST rate is being challenged.  Consequently, we deny James Cable's motion
to dismiss.

  10.   Accordingly, IT IS ORDERED, pursuant to Section 0.321 of the Commission's rules,
47 C.F.R.  0.321, that the motion of James Cable Partners, L.P. to dismiss the complaint against its
cable programming service price charged in Putnam County, Georgia, CUID No. GA0675, IS DENIED.

  11.   IT IS FURTHER ORDERED, pursuant to Section 0.321 of the Commission's Rules,
47 C.F.R. Section 0.321, that James Cable file with the Chief, Cable Services Bureau, FCC Form 393,
and the appropriate FCC Form 1200 series forms, within 30 days of the release of this order.

        FEDERAL COMMUNICATIONS COMMISSION



        Meredith J. Jones
        Chief, Cable Services Bureau