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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:sR?T@vVA%Wtoc 5toc 5>` hp x (#h!(# h!(# ` hp x (#toc 6toc 6?` hp x (#!(#!(#` hp x (#toc 7toc 7@ toc 8toc 8A` hp x (#!(#!(#` hp x (#2aBuYC[D]E_toc 9toc 9B` hp x (#!(#B!(#B` hp x (#index 1index 1C` hp x (#` !(# ` !(# ` hp x (#index 2index 2D` hp x (#` !(#B` !(#B` hp x (#toatoaE` hp x (#!(# !(# ` hp x (#2cFvbGlbHrcIsccaptioncaptionF _Equation Caption_Equation CaptionG endnote referenceendnote referenceH head1 #I'd#2p}wC@ #2ZfJ}$dKdL)eMea1Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfJ$ a2Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfK/` ` ` a3Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfL:` ` `  a4Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfME` ` `  2riNfO5gPgQha5Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfNP  ` ` ` hhh a6Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfO[   a7Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfPf  a8Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfQq 2v@i@l@$p@ds"5@^.=f\\3==\i.=.3\\\\\\\\\\==iii\zzpG\zpfzz=3=j\=\fQfQ=\f3=f3f\ffQG=f\\\QH(H_.====IK=\f\\\\\QzQzQzQzQG3G3G3G3f\\\\ffff\\f\\\\pf\\\QQQzQzQzQ\\\\ffIfGfG=Gf\fz3zKff\QQfGfGN@.c\=\\\\\\7<\7\7==\\\==\\=\=7t=eeeeioo.Iji2Z\\yeCpj`vZefeloPpPj`e~~tro.=f\\3==\i.=.3\\\\\\\\\\==iii\zzpG\zpfzz=3=j\=\fQfQ=\f3=f3f\ffQG=f\\\QH(H_=\\\\=f===\\@\=G=.=\\\\(\=7\i=\Ie77=jc.=7<\\zzzzGGGGipf\\\\\\QQQQQ3333\f\\\\\e\ffff\f"5@^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CC!CCPRCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNCNodo8RoodȐYYoNoNNF2ldCddddddd<d<CCoodCCddCoCddzzzzzzzzzzCCCCozdddddddYYYYY8888dddddddndddddYd2$ S' x X   9 S' Federal Communications Commission`(#kDA 98138 ă   yxdddy #&J\  P6QD&P# #&J\  P6QD&P#  x  S' Qb Before the Federal Communications Commission  S`'&2Washington, D.C. 20554 ă In the Matter of:) ) Starpower Communications, LLC) ) ) Certification to Operate an)  S ' Open Video System)pp  *xxX (#(# ) )   S0'  MEMORANDUM OPINION AND ORDER \  S'X` hp x (#%'0*,.8135@8:'#X\  P6G;P#эId. at 3 citing Matthews v. Eldridge, 424 U.S. 319, 333 (1976) and cites therein. Fairfax County bases its objections on the limited time within which comments  X4 xmay be filed0 H yO!' x #X\  P6G;P#эFairfax County complains that the short comment period was effectively shortened by the Martin Luther King holiday weekend. as well as the limited information required to be provided by open video system  xEcertification applicants. With regard to the information contained in Starpower's application,  xFairfax County states that while such information complies with the Commission's rules  xgoverning certification, it does not satisfy the County's need for more detailed information.  x_Fairfax County seeks to reserve all rights it may have under federal and state law which are applicable to Starpower's open video system."e ,`(`(88"Ԍ X4 e ԙ9.` ` The Communities state that they do not oppose Starpower's certification application  xbut that Starpower's application raises certain issues which should be addressed by the  X4 x=Commission.iH yOK'#X\  P6G;P#эCommunities Comments at 3.i The Communities state that, in reviewing Starpower's application, the  x<Commission should be concerned that: 1) the boundaries of Starpower's proposed service area  X4 xare not precisely defined and may involve racial or economic redlining;$XH {O' x* #X\  P6G;P#эId. at 7. For example, the Communities state that with respect to the City of Rockville, it is not clear whether Starpower intends to include Lincoln Park, a predominately AfricanAmerican area.$ 2) Starpower's  X4 xcertification application should not be permitted to undermine the cable franchise renewal process  Xv4 xcurrently underway in many of the communities;^vH {O '#X\  P6G;P#эId. at 8.^ and 3) approval of Starpower's application  X_4 xshould not be construed as permission for Starpower to use the public rightsofway.c_DH {OT'#X\  P6G;P#эId. at 9. c The  xCommunities assert that Starpower may not rely on any connection with the Potomac Electric  xPower Company ("PEPCO") for access to public rightsofway and must seek approval for all  X 4necessary rightsofway authorizations from each community involved." H yO' xg #X\  P6G;P#эThe Communities point out that Starpower does not gain access to the public rightsofway through any  x connection with PEPCO, which provides electric service through its facilities to some of the Communities, because  x^ PEPCO is not one of the affiliates in the Starpower joint venture which was formed to provide open video system  {O'services. Id. at 5, n.4.  X ' III.DISCUSSION  X 4  X 4 e   10. ` ` We have reviewed the information contained in Starpower's FCC Form 1275.  xStarpower has applied to become a certified open video system operator in communities of the  x~District of Columbia, Maryland, and Virginia. As required by Form 1275, Starpower's  xcertification application provides: company information and a separate statement of ownership,  x}including all affiliated entities; eligibility and compliance representations; and system information,  xsystem capacity and verification statements. Starpower indicates that it has served officials of  xcommunities affected by its application in the District of Columbia, Maryland, and Virginia  X4which are the designated telecommunications officials of those respective communities.  X4 e 11.` ` We have also reviewed the comments filed in response to Starpower's Form 1275.  xAs an initial matter, with regard to timing, we note that Congress has required the Commission  xto approve or disapprove any open video system certification application within ten days of  X4 xreceipt. H yO%'#X\  P6G;P#эCommunications Act,  653(a)(1), 47 U.S.C.  573(1)(1). The Commission has required comments and oppositions to be filed within five days"P ,`(`(88"  X4 xVof the applicant's filing.H {Oy' x #X\  P6G;P#эImplementation of Section 302 of the Telecommunications Act of 1996, Open Video Systems, Fourth Report and  {OC'Order, 12 FCC Rcd 7545 (1997). The Commission's rules provide for the most efficient review of open  xvideo system certification applications and related pleadings within the statutory time frame.  X4 e  12.` ` Each commenter has raised the issue of the local authorities' right to manage its  x/public rightsofway. Most commenters have also raised the issue of compensation for the use  xof the public rightsofway by open video system operators. The Commission has stated its belief  x_that "Congress did not intend to infringe upon local communities' prerogative to manage their  XH4 xrightsofway in order to protect the public health and safety."H$H {O '#X\  P6G;P#эSecond Report and Order, 11 FCC Rcd at 18329. ď In addition, the Commission has  xRstated that open video system operators are subject to the payment of a percentage of gross  xrevenues for the provision of open video system service which is in lieu of franchise fees paid  X 4 xby cable system operators.b H {Oj'#X\  P6G;P#эId. at 18330.b Thus the Commission has made clear that the open video system  xcertification process does not usurp the authority of local governments to manage their communities or preempt their right to be justly compensated for use of the public rightsofway.  X 4 e 13.` ` Prince George's County and the Communities each raise the issue of racial and  xeconomic redlining. This issue is not a subject that is within the scope of review in open video system certification proceedings.  XK4 e i14.` ` The commenters were also concerned about the potential disruptive effect that  xStarpower's certification may have on their renewal negotiations with extant cable service  xproviders. The Communities point out that the Commission has been "hesitant to act" in open  X4 xvideo system certification proceedings where a local franchise process is pending. HH {O' x #X\  P6G;P#эCommunities Comments at 9 citing Wedgewood Communications Company, DA 972438,  23 (Cab. Serv. Bur.  {O'rel Nov. 20, 1997) ("Wedgewood"). In  X4 xWedgewood, the open video system certification applicant was involved in a dispute as to  x"whether it was also a cable service operator within the franchise area at issue. We stated that  xthe open video system certification process should not be intertwined with ongoing local  xAfranchise negotiations and we denied the certification application. In the instant case, no  x&allegation has been made or evidence introduced which indicates that Starpower is a cable service  X~4 x/provider in any of the communities affected by its open video system certification application.?! ~H yO#' x* #X\  P6G;P#эStarpower, in response to Part C, Question No. 1, on Form 1275, which asks whether the applicant is a cable  x operator applying for certification within its cable franchise area, checked the box labelled "N/A" for not applicable.  x In Exhibit 2 attached to Starpower's Form 1275, Starpower states that it is not a cable operator applying for certification within a cable franchise area and does not currently offer any video programming services. ?  xWe believe therefore that Starpower's application does not present a situation which would"g !,`(`(88"  xadversely affect the franchise negotiations between the local franchising authorities and their cable service providers.  X4 e ,15.` ` Fairfax County asserts that it has been denied procedural due process because of  xthe short time it has had to review the application. Fairfax County presents no specific  X4 xWinformation within the context of the certification process that challenges Starpower's  xrepresentations. We have addressed this issue in the Commission's orders implementing Open  X_4 xVideo Systems."_H {O'#C\  P6QP#эSecond Report and Order, 11 FCC Rcd at 18245; Third Report and Order, 11 FCC Rcd at 20246. The tenday period is mandated by law.n#_ZH {Oj '#C\  P6QP#эSee  11, supra.n As we have stated, we believe that  xwhile the certification process is by necessity streamlined, adequate opportunity is afforded  xinterested parties through the Commission's procedures, particularly its complaint process, to seek  X 4a remedy of violations of the law and regulations.$ H {O'#C\  P6QP#эSecond Report and Order at 1834142; Fourth Report and Order at 754647.  X 4 e r16.` ` We find that Starpower has provided the requisite facts and representations  xconcerning the open video system it intends to operate and has certified that it "agrees to comply  xand remain in compliance with each of the Commission's regulations" under Section 653(b) of  xthe Communications Act. We note that, if any representation in Starpower's certification filing  xproves to be materially false or materially inaccurate, the Commission retains the authority to  xrevoke Starpower's certification or impose such other penalties it deems appropriate, including  xforfeiture. We further find that the commenters do not oppose and have not raised issues which warrant denial of Starpower's certification application.  X4'  X'IV.ORDERING CLAUSES  X4 e ,17.` ` Accordingly, IT IS ORDERED , that the certification application of Starpower  xCommunications, LLC to operate an open video system in the communities of: Washington, D.C.;  xportions of Montgomery County, Maryland including Chevy Chase, Chevy Chase Sec. III, Chevy  x8Chase Sec. V, Chevy Chase Village, Chevy Chase View, Friendship Heights, Gaithersburg,  xAGarrett Park, Glen Echo, Kensington, Martin's Additions, North Chevy Chase, Oakmont,  x}Rockville, Somerset, Takoma Park, and Washington Grove; portions of Prince George's County,  xMaryland including Berwyn Heights, Bladensburg, Brentwood, College Park, Colmar Manor,  xCottage City, Edmonston, Fairmont Heights, Glenarden, Hyattsville, Landover Hills, Laurel,  xMount Rainier, New Carrollton, North Brentwood, Riverdale, Takoma Park, University Park;  xhportions of Howard County, Maryland; portions of Arlington County, Virginia; portions of  X 4 xFairfax County, Virginia; and the Cities of Alexandria and Falls Church, Virginia IS  X4 APPROVED . "~$,`(`(88"  X4 e `18.` ` This action is taken by the Chief, Cable Services Bureau, pursuant to the authority delegated by Section 0.321 of the Commission's Rules, 47 C.F.R.  0.321. ` `  hhCq ` `  hhCqFEDERAL COMMUNICATIONS COMMISSION ` `  ` `    X14` `  hhCqMeredith J. Jones  *xxX (#(#` `  hhCqChief, Cable Services Bureau