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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 re Ohio University ) ) CSR-5133-X Petition for Clarification of Definition of) "Cable System," or in the alternative, for) Special Relief Requesting Waiver of) 47 C.F.R.  76.501(a) ) ORDER Adopted: August 11, 1998 Released: August 13, 1998 By the Acting Chief, Cable Services Bureau: INTRODUCTION 1. Ohio University ("University") filed the captioned petition requesting waiver of the Commission's cable television station cross-ownership rule, 47 C.F.R.  76.501(a), or for a declaration that the University's planned video distribution system is not a "cable system" as defined in Section 76.5 of the Commission's rules, 47 C.F.R.  76.5. For the reasons set forth below, the University's petition for waiver of the cross-ownership rule is granted. BACKGROUND 2. The University intends to provide a video delivery system (the "System"), consisting of 62 channels including a 36 channel entertainment package purchased by the University from MediaOne Group, Inc., to the residence halls and academic and administrative buildings on its Athens, Ohio campus. MediaOne's entertainment package will also include numerous local broadcast stations from Columbus, Ohio and West Virginia. Coaxial cables will cross Athens city streets in order to deliver the System. In addition, the University is the licensee of public television broadcast station WOUB, Channel 20, that places a Grade B signal over the University's Athens campus. If the University's video delivery system constitutes a "cable system" under the Commission's rule, then the University's common ownership of a broadcast station and a cable system that have overlapping service areas is prohibited under the cross-ownership rule, unless the Commission waives the cross-ownership rule in this instance under Section 0.203, 47 C.F.R.  0.203. 3. The University contends that, notwithstanding that its System crosses city streets, the video delivery system does not constitute a "cable system" for the purposes of the Communications Act of 1934, 47 U.S.C.  533, and the Commission's rules, because the system will not have "subscribers." Pursuant to 47 C.F.R.  76.5, a cable system is defined as a "facility . . . that is designed to provide cable service and which is provided to multiple subscribers within a community . . . ." Pursuant to 47 C.F.R.  76.5(ee), subscribers are defined as members of the general public who receive broadcast programming distributed by a cable television system. In this case, University contends that the intended recipients of the service, its student residents, housing staff, and academic and administrative employees are not members of the general public. 4. In the alternative, if the Commission finds that the University's video delivery system constitutes a "cable system," the University contends that the Commission should waive its cross-ownership rule. The University argues that a waiver would not decrease the diversity of offered programming or harm economic competition in the Athen's broadcast station's market. DISCUSSION 5. We do not need to address the issue of whether the University's video delivery system constitutes a "cable system" under the Commission's rule because a waiver of the cross-ownership rule is appropriate under these circumstances. The Commission's cross-ownership rule 47 C.F.R.  76.501(a) reads in relevant part: No cable television system . . . shall carry the signal of any television broadcast station if such a system directly or indirectly owns, operates, controls, or has an interest in a TV broadcast station whose predicted grade B contour . . . overlaps in whole or in part the service area of such system . . . . The policy goals of Section 76.501(a) are to increase competition in the economic marketplace and in the marketplace of ideas. In cases where enforcement of the ban on cross-ownership does not promote these goals, a waiver of these rules will be entertained by the Commission. Waiver of the television cable cross-ownership rule is particularly appropriate where the television stations involved are noncommercial, because "`they are not engaged in economic competition vis-a-vis other media' in the area the cable system will serve." The Commission may waive any rule, in whole or in part, for good cause. 6. Under the circumstances presented by the University, the policy objectives of the cross- ownership rules would not be impaired by granting a waiver and allowing the University to simultaneously own and operate a broadcast station and its System. As a noncommercial broadcast station, WOUB does not compete economically with the other local broadcast stations. Thus, the University does not have the same incentives to engage in anti-competitive conduct as a commercial cable operator might because its broadcast channel does not compete with the other local broadcast channels for advertising revenue. Furthermore, the University's System will not be available outside of the confines of the University. This limits substantially a waiver's potential to undermine competition in the delivery of video services in Athens, Ohio. 7. Operation of the System would have the beneficial effect of increasing programming choices available to students residing on campus. The University System will enable students to receive instructional and educational programming, in addition to local broadcast stations. Moreover the System will serve as an integral internal part of the University's education function with the students being the primary beneficiaries of the System. The circumstances of this case warrant a waiver of the Commission's cross-ownership rules. ORDERING CLAUSE 8. Accordingly, IT IS ORDERED that the petition for waiver of 47 C.F.R.  76.501(a) filed by Ohio University is GRANTED. 9. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's Rules, 47 C.F.R.  0.321 (1996). FEDERAL COMMUNICATIONS COMMISSION John E. Logan Acting Chief, Cable Services Bureau