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Certification becomes effective unless the Commission determines that: (1) the franchising authority will not adopt and administer rate regulations that are consistent with the Commission's regulations; (2) the franchising authority lacks the legal authority to adopt, and the personnel to administer, rate regulation; (3) procedural laws and regulations, applicable to rate regulation proceedings by the franchising authority do not provide a reasonable opportunity for the consideration of the views of interested parties; or (4)  {OX-the cable system in question is subject to effective competition. 47 C.F.R.  910(b). See also Communications  yO"-Act  623(a)(4), 47 C.F.R.  543(a)(4).> Cable operators may file  xpetitions for reconsideration of the franchising authority's certification within 30 days from the date such  S- xLcertification becomes effective.O^*  {Ob-ԍ47 C.F.R.  1.106, 76.911; Implementation of Sections of the Cable Television Consumer Protection and  {O,-Competition Act of 1992, Report and Order and Further Notice of Proposed Rulemaking, 8 FCC Rcd 5631, 5693  {O-(1993) ("Rate Order").O Rate regulation is automatically stayed pending review of a timelyfiled  Sp- xpetition for reconsideration alleging effective competition.J pP  yO`-ԍ47 C.F.R.  76.911(c)(1).J Under Section 76.914 of the Commission's  xrules, after the 30day deadline for filing petitions for reconsideration has elapsed, cable operators may  S -challenge the franchising authority's certification by filing a petition for revocation.G  yO-ԍ47 C.F.R. at  76.914.G  S - ` x4.` ` Section 623(l)(1)(B) of the Communications Act provides that a cable operator is subject to effective competition if: XxX` ` the franchise area is `  x` ` X (i) served by at least two unaffiliated multichannel video programming  distributors each of which offers comparable video programming to at least 50 percent of the households in the franchise area; and   x` ` X (ii) the number of households subscribing to programming services   offered by multichannel video programming distributors other than the   largest multichannel video programming distributor exceeds 15 percent  S@-of the households in the franchise area. @p {OP&-ԍCommunications Act of 1934, as amended, 623(1)(1)(B), 47 U.S.C. 543(B); see also 47 C.F.R. 76.905(2). "@ ,`(`(88r"Ԍ xԙIn the absence of a demonstration to the contrary, cable systems are presumed not to be subject to  S- xLeffective competition,>  yO@-ԍ47 C.F.R.  76.906.> as that term is defined by Section 76.905 of the Commission's rules.D X yO-ԍ47 C.F.R.  76.905.D The cable  xzoperator bears the burden of rebutting the presumption that effective competition does not exist with evidence that effective competition is present within the relevant franchise area.  S8- III.xSUMMARY OF PLEADINGS  S- `  x5.` ` Falcon alleges that its cable system serving the City is subject to competing provider  S- xeffective competition and is therefore exempt from rate regulation under the Commission's rules. {OH -ԍSee 47 C.F.R.  76.905(a) (only rates of cable systems that are not subject to effective competition may be regulated). Falcon  xargues that both prongs of the competing provider effective competition test set forth in Section  x>623(1)(1)(B) of the Communications Act are satisfied because Falcon, Clear Vision and SkyView are  xunaffiliated multichannel video programming distributors ("MVPDs") each of which offers comparable  xkprogramming to at least 50 percent of the households in the City. Falcon further argues that the total  xnumber of subscribers to programming services offered by MVPDs other than the largest MVPD in the City exceeds 15 percent of the households in the City.  S -x a. ` ` Household Service  S0-x ` ` 1. Falcon  S-  S- ` x6.` ` Falcon asserts that it satisfies the requirement of the competing provider test since it offers  xjservice to 50 percent of the households in the franchise area. Falcon states that according to Census data  S- xthe City had 9,450 households and 11,766 housing units in 1990.DZB yOr-ԍPetition at Exhibit 1 (Census data). The figures are taken from the 1990 U.S. Census. Falcon correlated housing units to households by using a housing multiplier, a methodology sanctioned by the Commission in  {O-Falcon Telecable, 10 FCC Rcd 1654 (1995).D In order to determine an estimate of  x[the current number of households it serves in the City, Falcon divided the number of households in 1990  x(9,450) by the number of housing units in that year (11,766) resulting in a "housing multiplier" (.803).  xyFalcon then multiplied the housing multiplier (.803) by the number of housing units to which it currently  S- xoffers service (20,175) and concluded that it currently offers service to 16,201 households in the City.6d  yO -ԍPetition at 8.6  xFalcon further states that the difference between the estimate of households to which it currently offers  xservice (16,201) and the number of households in 1990 according to Census data (9,450) can be attributed  Sx-to intervening housing growth.LXx  yO %-ԍAs noted earlier, the Commission has stated that discrepancies can be attributed to intervening housing growth. Nonetheless, for the sake of consistency in our effective competition orders, we will rely upon the Census data for the total number of housing units and households in the City. L "P,`(`(88"Ԍ S-x` ` 2. Clear Vision  S-  S- ` Bx7.` ` Falcon states that Clear Vision has constructed its cable plant throughout a substantial  xportion of the City and that Clear Vision's service is technically available to residents of the City. Falcon  xfurther states that there are no regulatory or other impediments that encumber the service offered by Clear  xVision because it is operating under a franchise awarded to the cable operator by the City in 1996. To  x/show that Clear Vision's service meets the 50 percent household threshold for effective competition,  xFalcon multiplied the housing multiplier (.803) by the number of housing units currently offered service  S- xby Clear Vision (8,220) yO( -ԍFalcon states that Clear Vision orally informed Falcon that Clear Vision passes 8,220 homes in the City. Petition at 3. to estimate the number of households to which Clear Vision currently offers  xjservice (6,601). Falcon thus maintains that Clear Vision currently offers service to 6,601 households out  xLof the 9,450 households reflected in the 1990 Census which satisfies the 50 percent household threshold  SH -of the first prong of the competing provider test.6H  yO-ԍPetition at 8.6  S -x` ` 3.  SkyView  S - ` x 8.` ` Falcon states that SkyView, a wireless cable operator, operates from three transmitter sites  xwhich blanket the City with video coverage. Falcon asserts that this fact demonstrates that the competing  xlservice offered by SkyView is technically available to residents of the City. Falcon notes that the  xCommission has determined that wireless cable is deemed to be offered anywhere within a 35mile  S- x[interferencefree zone and that the City lies completely within 35 miles of SkyView's transmitter sites.f {OX-ԍPetition at 3 citing Implementation of Cable Act Reform Provisions of the Telecommunications Act of 1996 (Section 301 of the 1996 Telecommunications Act: Section 623 of the Communications Act of 1934, Order and  {O-Notice of Proposed Rulemaking, FCC 96154, 11 FCC Rcd 5937 (1996) ("Cable Reform Order") at 10. The Commission's rules provide that the zone in which an MMDS licensee is protected from harmful electrical interference is a circle with a radius of 35 miles centered on the MMDS transmitter site. 47 C.F.R.  21.902(d).f  xFalcon provides a map of SkyView's transmitter sites which shows that the City lies within 35 miles of  S-SkyView's transmitters.>d  yO-ԍPetition at Exhibit B.> x  Sh- ` Px9.` ` Falcon asserts that there are no regulatory or other impediments that encumber the service  xoffered by SkyView and that SkyView has been licensed by the Commission to offer service within its  S- x>interferencefree zone.7  {O!-ԍId. at 4.7 Falcon further asserts that SkyView can serve subscribers with the minimal  xinvestment needed to install a rooftop antenna on or near a subscriber's home. Falcon further asserts that  xSkyView has launched a marketing campaign which includes marketing materials describing SkyView's  x!rates for its MMDS service and for its DBS service. Falcon maintains that SkyView's marketing  Sx- xcampaign has resulted in SkyView gaining 765 subscribers in the Cityx  yO&-ԍFalcon states that, as of March 27, 1997, SkyView served 765 subscribers in the City. Petition at Exhibits C and I. and has made potential subscribers"x,`(`(88"  xlreasonably aware of the availability of SkyView's service. Falcon argues that SkyView's technical  x=availability, regulatory status, and marketing campaign demonstrate that SkyView offers service to more  x/than 50 percent of the households in the City. Falcon notes that, irrespective of SkyView's MMDS  xLservice, the Commission has stated that DBS service, which is also offered by SkyView, is deemed to be  S`-available nationwide.` {O-ԍPetition at 9 citing Reexamination of the Effective Competition Standard for the Regulation of Cable  {O-Television Basic Service Rates, MM Docket No. 904, 6 FCC Rcd 4545 (1991) at  42, n. 52.  S-x` ` 4. Updated Data  S- ` x10.` ` Falcon also introduced evidence to show that it would still satisfy the 50 percent household  xrequirement using updated 1995 population figures. Falcon shows that, according to 1995 population  Sp- xestimates, the City had a population of 64,770 persons with approximately 3.1 persons per household.wp$ yO4 -ԍPetition at 8 and Exhibit J (Data from the Utah Office of Planning and Budget).w  xLBy dividing the population by the number of persons per household, Falcon calculates that the City had  x20,894 households in 1995. Falcon asserts that the number of households offered service by Falcon  x(16,201) satisfies the 50 percent threshold prong of the competing provider test using the City's 1995  xypopulation data. Falcon neither calculates the number of households to which Clear Vision offers service  xusing 1995 population data nor suggests that Clear Vision offers service to 50 percent of current  xhouseholds. With regard to the second prong of the competing provider test discussed below, Falcon does  xnot introduce evidence to show that the number of subscribers for both services exceeds 15 percent of 1995 households.  S-x b.` ` Comparable Programming  S- ` qx11.` ` Falcon asserts that the programming offered by Clear Vision and by SkyView is  xcomparable to its own programming. Falcon states that it currently offers 43 channels of programming,  S@- xincluding several channels of nonbroadcast programming@ {O-ԍSee Petition at Exhibit H. Falcon states that it offers the nonbroadcast programming of, among others, ESPN, Home Box Office and CNN. and several local television stations@ {O-ԍSee Petition at Exhibit H. Falcon offers local television stations such as KUTV (CBS, Channel 2 Salt  yO-Lake City, UT), KVBC (NBC, Channel 3 Las Vegas, NV), and KSGITV (Ind. Channel 4 Cedar City, UT).  while  S- xSkyView offers 36 channels of programming, including several channels of nonbroadcast stationsh  {O -ԍSee Petition at Exhibit G. SkyView's nonbroadcast channels include CNN, ESPN and The Learning  yO -Channel. ij and  S- xLlocal television stations  {OR#-ԍSee Petition at Exhibit G. SkyView's local stations include KUTV (CBS), KVBC (NBC) and KJZZ (Ind.). and Clear Vision offers 57 channels of programming, including several channels  S- xof nonbroadcast programming {O&-ԍSee Petition at Exhibit E. Clear Vision's nonbroadcast stations include such stations as CNN, ESPN and  {ON'-The Discovery Channel.   and local television channels.x {O-ԍSee Petition at Exhibit E. Local television stations include such stations as WUTV (CBS), KVBC (NBC) AND KJZZ (Ind.). Thus, while acknowledging that"",`(`(88"  x considerable growth has occurred in the City since 1990, Falcon asserts that at least two unaffiliated MVPDs each offers comparable programming to more than 50 percent of the households in the City.  S- x c.` ` Number of Subscribers  S8- ` x12.` ` With regard to the second prong of the competing provider effective competition test,  xFalcon states that the total number of households in the City subscribing to the smaller MVPDs, Clear  S- x[Vision and SkyView, is 3,265.9 " yO -ԍPetition at 10. 9 Falcon states that Clear Vision has 2,500 subscribers and that SkyView  xhas 765 subscribers in the City. Falcon calculates that, based upon the 1990 Census data of 9,450  xhouseholds, the number of households subscribing to MVPDs in the City other than Falcon exceeds 15  Sp-percent of households in the City in 1990.!p yO-ԍFalcon's data indicate that the number of subscribers to Clear Vision and to SkyView equal 34 percent of households in the City in 1990.  S -x IV.` ` DISCUSSION  S - ` x 13.` ` Pursuant to the competing provider effective competition test, the cable operator must  xjshow that at least two competitors each offers comparable programming to 50 percent of the households  xin the area and that at least 15 percent of the households in the area subscribe to service from an  xalternative provider offering a comparable video programming service. We note that, with regard to the  x=15 percent subscribership requirement, the number of subscribers of all MVPDs that offer service in the  S- xfranchise area will be aggregated."  {O-ԍ47 C.F.R. 76.905(f); see also Time Warner Entertainment Co. v. FCC, 56 F.3d 151 (D.C. Cir. 1995). We further note that while the Commission has stated that 1990  xCensus data is an acceptable source of household data in establishing the 50 percent household  S- xrequirement of the competing provider test,# {O-ԍCable Operators' Petitions for Reconsideration and Revocation of Franchising Authorities' Certifications to  {O-Regulate Basic Cable Service Rates, 9 FCC Rcd 3656 (1994). operators may submit updated household data if they so  S- xchoose.1$  {O(-ԍId.1 More recent data can more closely determine whether the 50 percent threshold has been satisfied.  S- ` x14.` ` With regard to the 50 percent household requirement, Falcon introduced two sets of  xycalculations, one based upon 1990 Census household data and the other based upon 1995 household data  S- x\it obtained from the Utah Office of Planning and Budget.E%  {O$-ԍSee 6, supra.E With respect to the 1990 household data,  xFalcon demonstrates that it currently offers service to 16,201 households which when compared with the"%,`(`(88"  S- x1990 Census data shows that it offers service to all of the 1990 households (9,450).&" yOh-ԍFalcon properly employed a "housing multiplier" as a means of correlating the number of households to the number of housing units in the City to determine the proper percentage of households served by each MVPD. The Commission has previously recognized this method of correlating the number of households to the number  {O-of housing units. Petition at 8 citing Falcon Telecable, 10 FCC Rcd 1654 (1995) at 8. We have previously  xstated that a discrepancy in the number of 1990 households and the number of households an operator  S- xcurrently offers service can be reasonably attributed to housing growth in the intervening years.g' {O-ԍSee Falcon Telecable, 10 FCC Rcd at n.10. g With  xrespect to the updated data, Falcon used 1995 population data to show that it offered service to approximately 77.5 percent of the households in the City in 1995 (16,201 out of 20,894 households). x  S- ` x15.` ` In order to show that Falcon meets the 50 percent household requirement of the competing  xprovider test, Falcon introduced both 1990 Census data and updated household data based upon 1995  xpopulation estimates. Falcon demonstrated that it satisfied the 50 percent household requirement with  xLregard to both sets of data. With regard to its showing that Clear Vision meets the 50 percent household  xrequirement, Falcon calculated the number of households to which Clear Vision offers service using the  x=1990 Census data but did not calculate such households using the updated household data. Thus Falcon  xdemonstrated that Clear Vision meets the requirement with regard to only the 1990 Census data. If we  xupdate Clear Vision's household data by making our own calculations from the data Falcon introduced,  xwe find that Clear Vision offers service to approximately 31.5 percent of the households in the City in  x1995 (6,601 out of 20,894 households) and thus fails to meet the 50 percent household requirement of the competing provider test.  S0- ` x16.` ` With regard to SkyView, Falcon offered evidence that SkyView meets the 50 percent  xthreshold with its MMDS and DBS services. Falcon submits evidence to demonstrate that SkyView's  xMMDS service offers service to 50 percent of the households in the City within the meaning of Section  S- x76.905(e) of the Commission's rules.(D {O-ԍ 47 C.F.R.  76.905(e); see discussion at  9, supra. Falcon states that "in addition to offering wireless cable service,  S- x=SkyView markets DirectTV DBS service" to residents of the City."6) yO-ԍPetition, n.4.6 We note that the Commission has  xzstated that MVPD service providers other than those offering 15 percent of subscribers service in the  xfranchise area may be considered for purposes of meeting the 50 percent portion of the test and that in  xthe absence of evidence to the contrary DBS service providers, which provide a nationwide service, are  S- xpresumed to satisfy this requirement.e*\f  {O -ԍMemorandum Opinion and Order, FCC 96491 (December 31, 1996). Following the decision in Time  {O!-Warner Co., L.P. et al. v. FCC, 56 F.3d 151 (D.C. Cir. 1995), the Commission revised its interpretation of the competing provider test to recognize the service offered by DBS providers.e Thus we conclude that the City is served by at least two MVPDs, Falcon and SkyView, each of which is offering service to at least 50 percent of the households in the City.  Sx- `   x17.` ` The competing provider test requires comparable programming among the competing  x>MVPDs. We find that Falcon, Clear Vision and SkyView each meets the Commission's definition of  xL"comparable programming" contained in Section 76.905(g) because their channel lineups show that each"( *,`(`(88"  xoffers "at least twelve channels of programming, including at least one channel of nonbroadcast  S-programming."+ yO@-ԍ76 C.F.R.  76.905(g). Falcon shows that each MVPD at issue offers more than the minimum number of channels of both broadcast and nonbroadcast programming in the City.  S- ` x18.` ` The second prong of the competing provider test requires that the number of households  xsubscribing to MVPDs other than the largest MVPD exceeds 15 percent of the households in the franchise  xarea. We noted above that the number of subscribers of all MVPDs offering service in the City will be  S- xaggregated when calculating the percentage of subscribers under the second prong of the test.F,  {O -ԍSee 13, supra.F Falcon  x!shows that, using 1990 Census data, the percentage of households in the City subscribing to the  xprogramming services of Clear Vision and SkyView, respectively, is approximately 34.5 percent (3,265  xsubscribers of 9,450 households). Falcon has shown that the percentage of households in the City  xsubscribing to the services of all MVPDs, other than the largest MVPD in the City, meets the 15 percent requirement of the competing provider test.  S - ` x19.` ` Falcon has introduced updated household data which shows that at least two unaffiliated  xMVPDs each offers comparable programming to at least 50 percent of the households in the City. Falcon  xhas also shown that the number of households in the City subscribing to programming services offered  xby MVPDs other than the largest MVPD exceeds 15 percent of the households in the City. Thus, Falcon has met the requirements of the competing provider effective competition test.  S-x V.` ` ORDERING CLAUSES  S- x  S- ` x20.` ` Accordingly, IT IS ORDERED that the Petition for Change in Regulatory Status filed  S-by Falcon Telecable d/b/a/ Falcon Cable TV IS GRANTED .  S@- ` 2x21.` ` IT IS FURTHER ORDERED that the certification granted to the City of St. George,  S-Utah to regulate Falcon's basic cable rates IS REVOKED .  S- ` x22.` ` This action is taken pursuant to delegated authority under Section 0.321, 47 C.F.R.  0.321, of the Commission's rules. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh x` `  hh@John E. Logan x` `  hh@Acting Chief, Cable Services Bureau