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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""Washington, D.C. 20554 #&a\  P6G;0&P#у   S@-#&a\  P6G;0&P#In the Matter of: hhCq)CSR 5059E  S-` `  hhCq)  S-Time Warner Entertainment Company, L.P.q)Columbus Grove, OH  S-d/b/a Time Warner CablehhCq)CUID No. OH0179 ` `  hhCq)  Sx-Petition for Special ReliefhhCq)  S( -   MEMORANDUM OPINION AND ORDER \  S - Adopted: November 17, 1997q  ppReleased: November 20, 1997 By the Chief, Cable Services Bureau:   S8- I.INTRODUCTION  S- oԊ1.` ` Time Warner Entertainment Company, L.P. d/b/a Time Warner Cable ("Time Warner")  d(#has filed a Petition for Special Relief seeking a determination of effective competition. Time Warner  d(#kasserts that it is subject to effective competition in the Village of Columbus Grove, Ohio ("Columbus  d(#Grove") because of the presence of Quality One Technologies, Inc. ("Q1"), a cable operator also providing  d(#service in that Community. This petition is unopposed. For the reasons discussed below, the Petition is granted.  S- 2.` ` In Implementation of Cable Act Reform Provisions of the Telecommunications Act of 1996  S- d(#[("Cable Act Reform Order"),E yO-ԍ11 FCC Rcd 5937, 5944 (1996).E the Commission instructed cable operators believing themselves subject to  d(#local exchange carrier ("LEC") effective competition under Section 623(l)(1)(D) of the Communications  d(#Act to file a petition for determination of effective competition pursuant to Section 76.7 of the  S2- d(#Commission's rules.;2X yO*-ԍ47 C.F.R. 76.7.; A finding that a cable system is subject to effective competition precludes regulation  S - d(#of its cable rates by the local franchising authority.WX  yO- x,ԍ47 U.S.C. 543(a)(2). In situations where there the local franchising authority is not certified to regulate rates,  xja cable operator that becomes subject to effective competition may petition the Commission for a change in regulatory status. 47 C.F.R. 76.915(f).W Section 623(l)(1)(D) of the Communications Act provides that a cable operator is subject to effective competition where:  XX` ` a local exchange carrier or its affiliate (or any multichannel video programming   distributor using the facilities of such carrier or its affiliate) offers video  programming services directly to subscribers by any means (other than directto Thome satellite services) in the franchise area of an unaffiliated cable operator  which is providing cable service in that franchise area, but only if the video",((88W!"  Fprogramming services so offered in that area are comparable to the video  S-programming services provided by the unaffiliated cable operator in that area.hC yO@-ԍCommunications Act 623(l)(1)(D), 47 U.S.C. 543(l)(1)(D).h `  S- II.THE PLEADINGS  S8-  3.` ` Time Warner asserts that it is subject to LEC effective competition in its Columbus Grove,  d(#MOhio franchise area. With regard to the LEC affiliation requirement, Time Warner asserts that Q1 is a  d(#competing franchised cable operator wholly owned by the Columbus Grove Telephone Company, a local  S-exchange carrier serving Columbus Grove, Ohio.XC {O - x=ԍThe Village of Columbus Grove awarded a cable franchise to Q1 on September 9, 1996. See Petition for Special Relief filed by Time Warner on July 15, 1997 at 7.  Sp- #4.` ` With regard to the requirement that the LEC competitor offer( pC yO-  ЍIn implementing the LEC effective competition test on an interim basis, the Commission determined that its pre  existing definition of the term "offer" as used in the three effective competition definitions set forth in the 1992  yOR-  Cable Act would apply to the LEC test. 11 FCC Rcd at 5942. The Commission previously determined that service of a multichannel video programming distributor will be deemed offered:   #CXX` ` (1) When the multichannel video programming distributor is physically able to deliver   #5service to potential subscribers, with the addition of no or only minimal additional   #investment by the distributor, in order for an individual subscriber to receive service; and   #(2) When no regulatory, technical or other impediments to households taking service exist,   #and potential subscribers in the franchise area are reasonably aware that they may purchase the services of the multichannel video programming distributor. ` 47 C.F.R. 76.905(e).  video programming service  d(#in the unaffiliated cable operator's franchise area, Time Warner asserts that Q1 has begun construction  d(#\of a cable system that will lead to an overlapping service area covering the entire Village of Columbus  d(#MGrove. Time Warner states that Q1 has been providing cable service to subscribers since May 1997.  d(#jTime Warner estimates that at least 250 of its subscribers that cancelled service in the Village stated their  d(#yreason for doing so was due to switching service to Q1. Time Warner adds that Q1 has heavily marketed  d(#the availability of its cable service through local media and other means and only requires the return of  d(#za mailin form or a phone call in order to install and activate service to new subscribers. Time Warner asserts there are no regulatory, technical, or other impediments to households taking service from Q1. ",p(p(88"Ԍ S- ~5.` ` Time Warner also asserts that Q1 offers comparable programminghzC yOh- d(#ZЍThe Commission observed that Congress specified a different definition of comparable programming for the  d(# LEC effective competition test from that adopted for the first three effective competition tests enacted as part of the  d(#1992 Cable Act. Although soliciting comment as to the revised definition, the Commission on an interim basis  d(#ydetermined that it will apply this new comparable programming standard which "includes access to at least 12  d(#channels of programming, at least some of which are television broadcasting signals" to the LEC effective  {OP- d(#Jcompetition test. See Cable Act Reform Order, 11 FCC Rcd at 5942 (quoting 1996 Act Conference Report, S. Rep. 104230 at 170 (Feb. 1, 1996)).h to Columbus Grove  d(#subscribers. Specifically, Time Warner provides Q1's channel lineup which demonstrates that Q1 offers  d(#/over 54 channels, of which at least 8 are local television broadcasting signals. Time Warner offers 68 channels of programming in Columbus Grove, of which at least 9 are local television broadcasting signals.  S8- III.ANALYSIS  S-  6.` ` In the absence of a demonstration to the contrary, cable systems are presumed not to be  S- d(#subject to effective competition as defined in the Communications Act.= C yOj-ԍ47 C.F.R. 76.906.= The cable operator bears the  d(#Mburden of rebutting the presumption that such effective competition does not exist and must provide  d(#Nevidence sufficient to demonstrate that effective competition, as defined by Section 76.905 of the  SH -Commission's rules, is present in the franchise area.M H C yO-Ѝ47 C.F.R. 76.911(b)(1).M Time Warner has met this burden.  S -  A7.` ` With regard to the first part of the LEC effective competition test, which requires that the  d(#alleged competitive service be provided by a LEC or its affiliate (or any multichannel video programming  d(# distributor ("MVPD") using the facilities of such LEC or its affiliate), we find that Time Warner has  d(#provided sufficient evidence demonstrating that Q1 is an MVPD wholly owned by a LEC. The Columbus  SX- d(#NGrove Telephone Company is a LEC as defined by the Communications Act,d @X* C yO"-ЍThe Communications Act defines the term "local exchange carrier" as:  XX` ` any person that is engaged in the provision of telephone exchange service or exchange   access. Such term does not include a person insofar as such person is engaged in the  3provision of a commercial mobile service under Section 332(c), except to the extent that the Commission finds that such service should be included in the definition of such term. ` Communications Act 3(26), 47 U.S.C. 153(26).d and Q1 meets the  d(#/Commission's definition of MVPD. Therefore, we find that Time Warner has demonstrated that Q1  d(#satisfies the affiliation prong of the LEC effective competition test. Time Warner is unaffiliated with both Q1 and the Columbus Grove Telephone Company.  S- 8.` ` We also find that Time Warner has submitted sufficient evidence to show that the  d(#programming of Q1 is comparable to the programming which it provides. The channel information for  d(#NQ1 submitted by Time Warner establishes that Q1 offers more than 54 channels of programming, including 8 local broadcast channels. This offering satisfies the programming comparability criterion. "2 ,p(p(88"Ԍ S-  9.` ` In addition, we find that based on the information before us, Q1 is offering service in  d(#Time Warner's franchise area sufficient to demonstrate the presence of effective competition. Time  d(#[Warner presented information indicating that its entire franchise area is being overbuilt by Q1, which has  d(#ja twentyfive year franchise commitment to provide video service in the Village of Columbus Grove, and  d(#is now competing for customers with Time Warner in the area at issue. We find that Q1's presence and  d(#=its undisputed recruitment of 250 subscribers from Time Warner in the franchise area are indicia that Q1 is physically able to offer service in the cable community.  S-  10.` ` We note that Q1's extensive marketing efforts and the wide press coverage of Q1's cable  d(#service offerings in the local media ensure that potential subscribers are reasonably aware of the  d(#/availability of Q1's service. Subscribers in Columbus Grove are able to receive Q1's cable service for  d(#little or no additional investment and without encountering regulatory or technical obstacles. We also note  d(#that Time Warner has instituted a preferred customer plan, and added channels to some service tiers, all  d(#for the benefit of its subscribers. Consistent with Congressional intent in adopting Section 623(l)(1)(d) of the Communications Act, under the circumstances we find "effective competition" to be present.  S - IV.ORDERING CLAUSES  SX-  S0- &11.` ` Accordingly, IT IS ORDERED that the Petition for Special Relief seeking a  d(#determination of effective competition filed by Time Warner Entertainment Company, L.P. d/b/a Time  S-Warner Cable IS GRANTED .  S- 12.` ` This action is taken pursuant to the interim rules adopted in Implementation of Cable  Sj- d(#[Reform Provisions of the Telecommunications Act of 1996, and is without prejudice to any further action  d(#taken by the Commission in adopting final rules pursuant to the Notice of Proposed Rulemaking contained  S-therein.i C {O-ԍCable Act Reform Order, 11 FCC Rcd at 59385945, 59615964.i  S-  S- 13.` ` This action is taken pursuant to delegated authority under Section 0.321 of the  S-Commission's rules, as amended.; ZC yO-ԍ47 C.F.R 0.321.; ` `  hhCFEDERAL COMMUNICATIONS COMMISSION ` `  hhCMeredith J. Jones ` `  hhCChief, Cable Services Bureau 3r#]m#Xj\  P6G;+XP#3