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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: ) ) ) GLADES TELECOMMUNICATIONS, INC. ) ) ) Application For Review ) of Certification to Operate an ) Open Video System ) MEMORANDUM OPINION AND ORDER Adopted: November 19, 1998 Released: December 3, 1998 By the Commission: I. INTRODUCTION 1. The City of Deerfield Beach, Florida, the local franchising authority for cable and telecommunications matters ("City"), pursuant to Section 1.115 of the Commission's rules, has filed an application for review of an order ("Order") released by the Cable Services Bureau ("Bureau") which granted certification to Glades Telecommmunications, Inc. ("Glades") to operate an open video system. Glades filed an opposition to the application for review to which the City replied. II. BACKGROUND 2. On April 30, 1998, Glades filed with the Commission an application to become a certified open video system operator in certain communities within the State of Florida. The City filed an opposition to Glades' certification application. In its opposition, the City argued that local exchange carriers ("LECs") are the only entities eligible to obtain certification to become open video system operators. In addition, the City asserted that Glades' service of process of its open video system certification application was deficient because Glades served the City's Risk Manager instead of the City Clerk. The City also maintained that the five-day time period within which comments must be filed in response to certification applications is inadequate to permit a meaningful response and, thus, deprived the City of due process. 3. The Bureau reviewed Glades' FCC Form 1275, the City's opposition, and comments filed by others, and found that Glades provided the requisite facts and representations concerning its anticipated operation of an open video system. The Bureau's Order further found that neither the City's opposition nor other comments filed raised issues which would warrant denial of Glades' open video system certification application. III. DISCUSSION 4. The City argues that Glades should not have been certified to operate an open video system because it is not a LEC and, therefore, does not meet the requirement established in the 1996 Act that only LECs can provide cable service via an open video system. The City argues that the Bureau's decision in the Order misinterpreted Congressional intent expressed in Section 653(a)(1) of the Communications Act which provides, in pertinent part, that: "a [LEC] may provide cable service to its cable service subscribers in its telephone service area through an open video system that complies with this section. To the extent permitted by such regulations as the Commission may prescribe consistent with the public interest, convenience, and necessity, an operator of a cable system or any other person may provide video programming through an open video system that complies with this section." The City maintains that the proper interpretation of Section 653(a)(1) is that LECs can provide "cable service" while cable operators or other persons can only provide "video programming." The City asserts that support for its position can be found in the definitions of "cable service" and "video programming" found in the Communications Act. The City thus maintains that the statutory language prohibits entities other than LECs from operating an open video system but permits all entities, including Glades, to gain access to an open video system by becoming a video programming provider. 5. In its opposition to the application for review, Glades responds that the City has restated the same arguments which were rejected by the Bureau in the Order granting Glades' certification application. Glades argues that the City has chosen the wrong proceeding in which to air its grievances. Glades maintains that the City's arguments actually pertain to the statutory interpretation contained in the Commission's rules governing open video systems and not specifically to Glades' certification application. Glades points out that the Commission's rules governing open video systems are the result of notice and comment rulemakings. Glades asserts that the City's arguments should have been raised during the pendency of the Commission's rulemaking proceedings and are inappropriate in the context of review of a certification application. Glades cites the City's distinction between "cable service" and "video programming" as an example of an issue which has been addressed and resolved and which does not pertain specifically to Glades' application. Glades states that the City's purported distinction between the two terms is without merit because they have been construed by the Commission and are used to refer to the same activity. Glades further points out that Section 651(a)(3) of the Communications Act states, in pertinent part, that: "[t]o the extent a common carrier is providing video programming to its subscribers ... such carrier shall be subject to the requirements of this title, unless such programming is provided by means of an open video system for which the Commission has approved a certification." Glades maintains that the City's argument that only LECs can operate an open video system finds no support in the language and history of the 1996 Act, Commission rules, or judicial decision. 6. The City maintains that its position finds support in the statutory language of the Section 653(a)(1) of the 1996 Act which authorizes LECs to offer "cable service" through an open video system and restricts others to offering "video programming" to be carried on an open video system. This issue has been previously addressed by the Commission. The Commission has conducted a notice and comment rulemaking which asked whether Section 653(a)(1) permits the Commission to certify cable operators and others as open video system operators. Specifically, in the Second Report and Order, the Commission concluded that: [W]e interpret the statute as allowing non-LECs to operate open video systems to the extent permitted by Commission regulations. As a preliminary matter, we note that neither the statute nor the legislative history states that non-LECs are prohibited from operating open video systems. Second, we agree with several commenters that Congress has used the phrases "provide cable service" and "provide video programming" to refer to the same activity. The Commission further stated that, with regard to the goals underlying the creation of open video systems as an alternative source of cable service: We conclude, therefore, that Section 653(a)(1) does not preclude entities other than LECs in their service areas from becoming open video system operators. We believe that permitting non-LECs outside their service areas to become open video system operators is not only a "permissible" reading of the statute, but a reading that adheres most closely to Congressional intent to "accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition. Accordingly, the Commission adopted Section 76.1501 of its rules which provides that "any person" may obtain certification to operate an open video system. The Bureau properly determined that neither Section 653 of the Communications Act, nor our rules promulgated pursuant thereto, restrict open video system certification to LECs. The City has not persuaded us that either the Bureau's decision below, or our initial determination in the Second Report and Order, was in error. 7. The City next argues that Glades' FCC Form 1275 does not provide any information concerning the use of the public rights-of way and does not provide sufficient information regarding the technical operation of the anticipated open video system. The City further argues that Glades' certification application is procedurally deficient because it was not properly served on the City Clerk before it was filed with the Commission. The City states that Glades served the City's Risk Manager instead of the City Clerk and, thus, the City was deprived of due process. The City further argues that it was denied due process of law because of the five-day period in which comments or oppositions to a certification application must be filed with the Commission. The City maintains that the five-day response period denied it a meaningful notice and an adequate opportunity to prepare an appropriate defense to Glades' certification application. 8. In its opposition, Glades maintains that the Bureau properly found in its Order that Glades had furnished all the information required by FCC Form 1275. Glades further maintains that it properly served the City because it relied in good faith upon information provided by the City. Glades states that it telephoned the City to ascertain the appropriate official to be served and was told to serve the City's Risk Manager. 9. We find that the Bureau properly concluded in the Order that Glades' certification application on FCC Form 1275 was complete and contained the requisite facts and representations concerning the anticipated operation of an open video system. FCC Form 1275 does not require certification applicants to provide information concerning use of the public rights-of-way nor does it require information concerning the technical operation of the open video system beyond anticipated channel capacity. With regard to the issue of service of the application on the City, we note that Glades has adequately explained why it served its certification application on the City's Risk Manager rather than the City Clerk. Glades has provided evidence of its good faith efforts to ascertain the proper city official to serve with its certification application. Moreover, as noted in the Order, the City filed extensive comments prepared by its City Attorney opposing Glades' certification as an open video system operator. Accordingly, we cannot conclude that the City's ability to fully and fairly address the issues raised by Glades' certification application was materially infringed. We therefore uphold the Bureau's finding of sufficient service of process. 10. The City argues that the five-day period in which comments or oppositions may be filed in response to an open video system certification application denies it due process of law. The Commission has previously addressed this issue. The 1996 Act provides the Commission with only ten days for open video system certification applications to be processed and reviewed. Thus, the entire open video system certification process must be, by statutory necessity, streamlined. In order to provide affected parties with an opportunity to be heard, the Commission provides that comments or oppositions must be filed within five days of a certification application's filing date. We find that the five-day comment period provides the maximum opportunity to be heard within the time constraints imposed by the 1996 Act. 11. We conclude that the City has not raised arguments in its application for review which warrant reversal of the Bureau's decision in the Order. Accordingly, the City's application for review is denied. IV. ORDERING CLAUSES 12. Accordingly, IT IS ORDERED, pursuant to Section 1.115 of the Commission's rules, 47 C.F.R. 1.115, that the application for review filed by the City of Deerfield Beach, Florida IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary