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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: ) ) LyncStar Integrated Communications, LLC ) ) Certification to Operate an ) Open Video System ) MEMORANDUM OPINION AND ORDER Adopted: September 11, 1998 Released: September 14, 1998 By the Deputy Chief, Cable Services Bureau: I. INTRODUCTION 1. LyncStar Integrated Communications, LLC ("LyncStar") filed an Application for Certification for Open Video System (FCC Form 1275) ("Application") on September 4, 1998, pursuant to Section 653(a)(1) of the Communications Act of 1934 ("Communications Act") and the Commission's regulations. LyncStar seeks to operate an open video system in portions of Aurora, Adams County, and Denver, Colorado. In accordance with our regulations, we issued a Public Notice that noted receipt of LyncStar's Application and set forth the comment period, and posted the Application on the Internet. The City and County of Denver, Colorado ("Denver") filed comments in opposition to the Application. 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. COMMENTS AND OPPOSITION 4. Denver challenges LyncStar's Application on the grounds that LyncStar is not a local exchange carrier ("LEC"), and, therefore, is ineligible to provide open video system service. Denver also argues that LyncStar will not be providing "true consumer choice" in video programming to Denver residents because it intends to offer open video system service on an exclusive basis to certain multiple dwelling units. Additionally, Denver contends that the Commission's five-calendar day response period violates the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution. III. DISCUSSION 5. We have reviewed LyncStar's Application. As required by FCC Form 1275, LyncStar's 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. LyncStar's served its Application on the Commission's Office of the Secretary, the Cable Service Bureau's Office of the Bureau Chief, and on the designated telecommunications officials of the communities affected by its Application. 6. Denver argues that Section 653 permits only local exchange carriers to apply for and operate open video systems. The Commission addressed this issue in the Second Report and Order, where it rejected that contention and described the statutory support for the position that both LECs and non-LECs may operate open video systems. Indeed, the Commission has certified a number of non-LECs for open video system operation. 7. According to Denver, LyncStar represented that it would offer only open video system service to certain multiple dwelling units within Denver that signed an agreement guaranteeing LyncStar exclusive rights to those properties. Such allegations do not relate to the adequacy and accuracy of LyncStar's Application and, therefore, are beyond the scope of the open video system certification process. We note that, in enacting the open video system provisions of the Communications Act, Congress expressly excluded requirements, such as build-out obligations, which would impede the rapid development and operation of open video systems. Accordingly, LyncStar's representation that it would initially provide service only to multiple dwelling units is not grounds for denying LyncStar's certification. 8. Finally, Denver contends that the Commission's five-calendar day response period did not afford it sufficient time in which to prepare objections to LyncStar's Application and, thus, deprived it of its right to Due Process of law under the Fifth and Fourteenth Amendments to the United States Constitution. The Commission has previously addressed and rejected this argument. The ten-day review period is mandated by statute. Given that constraint, the Commission established the five-day comment period to provide that affected parties receive the maximum opportunity to be heard consistent with the ten-day review requirement. In addition, although the certification process is by necessity streamlined, the Commission's regulations afford adequate opportunity to interested parties, particularly through the complaint process, to seek a remedy of any violation of law or regulation. 9. We find that Lyncstar has provided the requisite facts and representations concerning the open video system it intends to operate and has certified that it "agrees to comply and remain in compliance with each of the Commission's regulations" under Section 653(b) of the Communications Act. We note that, if any representation in Lyncstar's Application proves to be materially false or materially inaccurate, the Commission retains the authority to revoke Lyncstar's certification or impose such other penalties it deems appropriate, including forfeiture. IV. ORDERING CLAUSES 10. Accordingly, IT IS ORDERED that the Application for Certification for Open Video System of LyncStar Integrated Communications, LLC to operate an open video system in Aurora, Adams County, and Denver, Colorado IS APPROVED. 11. This action is taken by the Deputy Chief, Cable Services Bureau, pursuant to the authority delegated by Section 0.321 of the Commission's rules, 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION John E. Logan, Deputy Chief Cable Services Bureau