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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of: ) ) DIGITAL BROADCASTING OVS ) ) Certification to Operate an ) Open Video System ) MEMORANDUM OPINION AND ORDER Adopted: June 25, 1998 Released: June 26, 1998 By the Acting Chief, Cable Services Bureau: I. INTRODUCTION 1. Digital Broadcasting OVS ("DBOVS") filed an Application for Certification for Open Video System (FCC Form 1275) ("Application") on June 19, 1998, pursuant to Section 653(a)(1) of the Communications Act of 1934 ("Communications Act") and the Commission's regulations. DBOVS seeks to operate an open video system in forty-four California communities: Alameda, Albany, Atherton, Belmont, Berkeley, Brisbane, Burlingame, Campbell, Colma, Cupertino, Daly City, East Palo Alto, Emeryville, Foster City, Fremont, Hayward, Hillsborough, Los Altos Hills, Los Altos, Los Gatos, Menlo Park, Millbrae, Milpitas, Monte Serno, Morgan Hill, Mountain View, Newark, Oakland, Pacifica, Palo Alto, Piedmont, Portola Valley, Redwood City, San Bruno, San Carlos, San Francisco, San Jose, San Mateo, Santo Clara, Saratoga, South San Francisco, Sunnyvale, Union City, and Woodside. In accordance with our regulations, we issued a Public Notice acknowledging receipt of DBOVS' Application and setting forth the comment period, which was released and posted on the Internet on June 19, 1998. The California Cable Television Association ("CCTA") and the City and County of San Francisco ("San Francisco") filed Oppositions. 2. Pursuant to Section 653(a)(1) of the Communications Act, any person may obtain certification to operate an open video system. In light of the brief period (ten days) for Commission review of certification filings, the Commission concluded that Congress intended a streamlined certification process. Prospective open video system operators may apply for certification at any point prior to the commencement of service, subject to two conditions. If construction of new physical plant is required, the applicant must obtain Commission approval of its certification prior to the commencement of construction. If no new construction is required, the applicant must obtain certification prior to the commencement of service, allowing itself sufficient time to comply with the Commission's requirements regarding notifications that must be provided to potential programming providers. 3. Despite the streamlined nature of the certification process, the Commission intended it to provide purposeful representations regarding the responsibilities of the open video system operator by requiring that applicants verify their certifications and provide specified information. To obtain certification, an applicant must file FCC Form 1275, which requires, among other things: (a) a statement of ownership, including a list of all affiliated entities; (b) a representation that the applicant will comply with the Commission's regulations under Section 653(b); (c) a list of the names of the communities the applicant anticipates it will serve; (d) a statement of the anticipated type and amount of channel capacity that the system will provide; and (e) a representation as to whether the applicant is a cable operator applying for certification within its cable franchise area. II. OPPOSITIONS 4. San Francisco urges us to deny DBOVS' Application on procedural and substantive grounds. Of particular note, San Francisco states that DBOVS did not provide it with proper notice of its Application, and provides proof of its claim by attaching a photocopy of the United States Postal Service postmark on the envelope containing the Application that DBOVS served on it. CCTA argues that we should deny DBOVS' Application because DBOVS has not demonstrated that it "is prepared to actually construct an OVS system and serve the communities for which it is already certified." III. DISCUSSION 5. We have reviewed DBOVS' FCC Form 1275 and related attachments. As required by FCC Form 1275, DBOVS' Application provides: company information and a separate statement of ownership, including all affiliated entities; eligibility and compliance representations; and system information, system capacity and verification statements. DBOVS certificate of service indicates that it served its Application on the Commission's Office of the Secretary and on the Cable Service Bureau's Office of the Bureau Chief, but does not indicate that service was made on the designated telecommunications officials of the communities affected by its Application. 6. The ten day statutorily mandated review period for open video system certification applications requires us to confine our review to issues concerning DBOVS' FCC Form 1275 and its related attachments. The purpose of the open video system certification process is to determine whether DBOVS' Application complies with Congress' mandate and our regulations. 7. San Francisco provides evidence that DBOVS did not serve it in a timely manner as prescribed by 47 C.F.R.  76.1502(d)(1). That section provides, in relevant part, that an open video system applicant must serve FCC Form 1275 and related attachments on all local communities identified in its application on or before the date it files FCC Form 1275 with the Commission. Service by mail, the regulation states, "is complete upon mailing, but if mailed, the served documents must be postmarked at least three days prior to the filing of the FCC Form 1275 with the Commission." The postmark submitted by San Francisco reveals that DBOVS sent its Application to San Francisco on June 19, 1998 via United States Postal Service Certified Mail. According to San Francisco, it received the Application on June 24, 1998, the same day that comments and oppositions to the Application were due to be filed with the Commission. DBOVS should have mailed its Application to San Francisco and the other communities three days prior to its filing with the Commission. 8. We find that DBOVS did not properly serve San Francisco, and perhaps other municipalities in which it seeks to become certified, as required by our regulations. Accordingly, we deny the Application without prejudice to DBOVS refiling in full accordance with our rules. IV. ORDERING CLAUSES 9. Accordingly, IT IS ORDERED that the certification application of Digital Broadcasting OVS to operate open video systems in Alameda, Albany, Atherton, Belmont, Berkeley, Brisbane, Burlingame, Campbell, Colma, Cupertino, Daly City, East Palo Alto, Emeryville, Foster City, Fremont, Hayward, Hillsborough, Los Altos Hills, Los Altos, Los Gatos, Menlo Park, Millbrae, Milpitas, Monte Serno, Morgan Hill, Mountain View, Newark, Oakland, Pacifica, Palo Alto, Piedmont, Portola Valley, Redwood City, San Bruno, San Carlos, San Francisco, San Jose, San Mateo, Santo Clara, Saratoga, South San Francisco, Sunnyvale, Union City, and Woodside IS DENIED WITHOUT PREJUDICE. 10. This action is taken by the Acting Chief, Cable Services Bureau, pursuant to the authority delegated by Section 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION John E. Logan Acting Chief, Cable Services Bureau