WPCB 2BJZ Courier#|jx6X@`7X@HP LaserJet 5Si 2100 M RM 8409HPLAS5SI.PRSx  @\O!}cX@26 ZF v#|jHP LaserJet 5Si 2100 M RM 8409HPLAS5SI.PRSx  @\O!}c@a8DocumentgDocument Style StyleXX` `  ` 25pJkk%a4DocumentgDocument Style Style . a6DocumentgDocument Style Style GX  a5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  A.  2vgtQ a7DocumentgDocument Style StyleyXX` ` (#` BibliogrphyBibliography:X (# a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  X(# a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` 2  g  a3DocumentgDocument Style Style B b  ?  1.  a3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# a5Right ParRight-Aligned Paragraph Numbers _o` `  @h(1)  hh#(#h 2   Q * a6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# a8Right ParRight-Aligned Paragraph NumbersyW"3!` `  hh#(-@p/a) -pp2(#p a1DocumentgDocument Style StyleXqq   l ^) I. ׃  2a+( SSDoc InitInitialize Document Style  0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)DocumentgTech InitInitialize Technical Style. k I. A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technicala5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . 2PAa2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   a4TechnicalTechnical Document Style8bv{ 2  a.   a1TechnicalTechnical Document StyleF!<  ?  I.   2Ka7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . PleadingHeader for numbered pleading paperP@n   $] X X` hp x (#%'0*,.8135@8:><q*"xxxxWWxxxWWkkxxx X-#Xj\  P6G;ynXP#э  Bentleyville Tel. Co., File No. WPC6817 (Com. Car. Bur., Dom. Fac. Div., Released  X-May 17, 1995)   ("Bentleyville Order").  The Domestic Facilities Division, the division of the Common Carrier Bureau that issued the Bentleyville Order, subsequently was renamed. The new name of that division is the Network Services Division.  That order granted Bentleyville Telephone Company ("Bentleyville") Section 214 authorization to construct and operate a cable television  X -system in the Borough of Bentleyville, Pennsylvania.Z 4> X$-#Xj\  P6G;ynXP#э Id.Z Also before the Commission is a Request for Stay filed by Helicon in which it seeks a stay of the May 17, 1995 Memorandum Opinion and Order pending the Commission's disposition of Helicon's Application for Review. For the reasons set forth below, we dismiss Helicon's Application for Review and  X!-the companion Request for Stay as moot. @"!0*0*0* "Ԍ X-ԙ  II. APPLICATION FOR REVIEW ă  X-2.xIn its Application for Review,v> XK- x#Xj\  P6G;ynXP#э#Xj\  P6G;ynXP# Helicon filed the present Application for Review and Request for Stay on June 16, 1995.  xBentleyville filed its opposition to the Request for Stay on June 29, 1995 and to the Application  xfor Review on July 3, 1995. The United States Telephone Association ("USTA") also filed  xcomments in opposition to Helicon's Request for Stay on June 29, 1995. Finally, Helicon filed its Reply to Opposition to Application for Review on July 18, 1995.v Helicon contends that the Division failed to engage in a  X-"meaningful analysis" of Bentleyville's Section 214 application.> X -#Xj\  P6G;ynXP#э Application for Review at 3.#x6X@`7X@#є Had the Division conducted such an "independent analysis" of Bentleyville's financial submission, Helicon argues, the Division would have concluded that the cost estimates, revenue projections, and subscriber penetration rates upon which Bentleyville based its conclusions of economic justification for  X_-the proposed service were unreasonable . Helicon maintains that Bentleyville has engaged in cross subsidization of its cable television business at the expense of its telephone service ratepayers to compensate it for unrecovered costs associated with its cable television  X -operations.j > X-#Xj\  P6G;ynXP#э Id. at 1314.j Helicon further contends that the Division erred in failing to condition Bentleyville's Section 214 authorization on Bentleyville's compliance with the Commission's cost accounting rules, thus providing no deterrent to Bentleyville's alleged practice of cross  X -subsidization.  > X-#Xj\  P6G;ynXP#э Id. at 18.#x6X@`7X@#ш  X -3. x In addition, Helicon charges that Bentleyville failed to file copyright statements of account and to file timely cumulative leakage index reports, as required by the Commission's rules, in connection with its provision of cable television services to communities surrounding  Xb-the Borough of Bentleyville.db0 > XC-#Xj\  P6G;ynXP#э Id. at 2021.d According to Helicon, these alleged reporting violations manifest Bentleyville's willingness to flout the Commission's rules and support its claim that  X4-the grant of Section 214 authorization to Bentleyville will not serve the public interest.Z4 > X -#Xj\  P6G;ynXP#э Id.Z  X- 4.xFinally, Helicon argues that the Division erred in approving Bentleyville's Section 214 application in light of Helicon's allegations that Bentleyville engaged in premature construction of the proposed facilities prior to receiving Section 214 authorization to  X-undertake such construction.f > X'-#Xj\  P6G;ynXP#э Id. at 1921. f  X-  III. POSITIONS OF THE PARTIES ă"C 0*0*0*"Ԍ X-ԙ5.xIn opposition, Bentleyville argues that the Division clearly drew its own conclusion that the grant of the Bentleyville Section 214 application would serve the public interest and  X-cites relevant portions of the Division's May 17, 1995 order in support of this position. 4% XK-#Xj\  P6G;ynXP#э Opposition at 45 (citing Bentleyville Order, para. 7). Bentleyville counters Helicon's claims that Bentleyville has cross subsidized its cable facilities at telephone ratepayer expense by asserting that, as an average schedule company, Bentleyville is precluded from increasing its interstate telephone service rates to recover the costs of its cable facilities because those rates are calculated pursuant to a formula that applies uniformly  X_-to Bentleyville and all other average schedule companies.g _y4% X -#Xj\  P6G;ynXP#э Id. at 11.g  X1-6.xWith respect to Helicon's contention that Bentleyville has increased its intrastate telephone service rates to cover the costs of its cable television operations, Bentleyville responds that its intrastate rates have been approved by the Pennsylvania Public Utility Commission and notes that both this Commission and the Pennsylvania Public Utility Commission have rules to ensure that interstate and intrastate rates, respectively, include no  X -subsidies for cable television operations.d *4% X-#Xj\  P6G;ynXP#э Id. at 1213.d  X-7.xIn response to Helicon's claims regarding Bentleyville's alleged failure to file copyright statements and leakage index reports, Bentleyville contends that such allegations, even if proven, would not form a basis for reversing the Division's grant of Section 214  XK-authorization.d K4% X-#Xj\  P6G;ynXP#э Id. at 1516.d In addition, Bentleyville denies Helicon's claims that it engaged in impermissible premature construction and contends that, "under any circumstances," this claim  X-too provides an insufficiently compelling reason to reverse the Division's order.a4% XZ-#Xj\  P6G;ynXP#э Id. at 15.a  X-8.xIn its opposition to Helicon's Request for Stay, the United States Telephone Association urges the Commission to deny Helicon's Request for Stay of Bentleyville's Section 214 authorization, maintaining that Helicon's arguments are intended solely to delay the introduction of competitively provided cable television service in the Borough of  X-Bentleyville.5= 4% X#- x/#Xj\  P6G;ynXP#э USTA Comments at 2. Given that Helicon's Request for Stay is rendered moot by our  Xj$- xNdecision to deny the present Application for Review, we do not further address USTA's comments.5   Xe- V. DISCUSSION ă"e 0*((1"Ԍ X-ԙ9.xUpon reviewing the record established in this proceeding and in recognition of the enactment of the Telecommunications Act of 1996, we hereby dismiss the present Application for Review and the accompanying Request for Stay as moot. On February 8, 1996, the  X-President signed into law the Telecommunications Act of 1996 (the "1996 Act").4% X4-#Xj\  P6G;ynXP#э Telecommunications Act of 1996, Pub. L. No. 104104, 110 Stat. 56 (1996). Section 302(a) of the Act (which added new Section 651(c) to the Communications Act of 1934, as amended) provides that common carriers "shall not be required to obtain a certificate under Section 214 with respect to the establishment or operation of a system for the delivery of video programming." This provision reflects Congress' intent to relieve carriers of the obligation to obtain Section 214 authorization in order to establish a system for the delivery of video programming. In addition, on March 11, 1996, the Commission modified Section 63.01, the rule under which Bentleyville received its Section 214 authorization, to remove the requirement that a carrier obtain Section 214 authorization to establish or operate a video  X -programming delivery system.x y4% X- x?#Xj\  P6G;ynXP#э Implementation of Section 302 of the Telecommunications Act of 1996 Open Video  X- xSystems, Report and Order and Notice of Proposed Rulemaking, CS Docket No. 9646, FCC No.  x9699, para. 76 (Released March 11, 1996). In the report and order portion of that proceeding,  xthe Commission stated: "Pursuant to subsection 651(c), we will no longer require that a common  xcarrier obtain Section 214 authorization to establish or operate a video programming delivery  X-system." Id.  Given that the system for which Bentleyville received Section 214 authorization to construct constitutes "the establishment or operation of a system  X -for the delivery of video programming,"q 4% X(-#Xj\  P6G;ynXP#э 1996 Act, sec. 302,  651(c).q and in light of the modification of former Section 63.01 of the Commission's rules, we find that further review of the Section 214 issues raised by Helicon is no longer necessary.  Xb- 10.xRegarding Helicon's arguments that Bentleyville violated the Commission's rules by failing to file timely reports with the Commission and by constructing cable television facilities prior to obtaining Section 214 authorization, we note that forfeiture actions are not available as of right to parties involved in Commission proceedings. Instead, enforcement proceedings are initiated solely within the discretion of the Commission. Accordingly, we do not address the timely reporting and premature construction arguments raised by the parties in the present order.  X-1 IV. ORDERING CLAUSES ă  X|- 11.xPursuant to Section 4(i) of the Communications Act of 1934, as amended, Section 302(a) of the Telecommunications Act of 1996 (which added new Section 651(c) to the Communications Act of 1934, as amended), and Section 1.115 of the Commission's rules, 47 C.F.R.  1.115, IT IS ORDERED that the Application for Review filed by Helicon IS DISMISSED AS MOOT." j 0*((z"Ԍ X-ԙ 12.xIT IS FURTHER ORDERED that the Request for Stay filed by Helicon IS DISMISSED AS MOOT. x` ` hhFEDERAL COMMUNICATIONS COMMISSION x` ` hhWilliam F. Caton  X1-x` ` hhActing Secretary pp  ? <#x6X@`7X@#