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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In re Complaint Against          )
                                )
Comcast Corporation              )
                                )    EB-02-MD-033
                                )
For Systemic Abuse of Customer   )
Service Standards Established    )
by the Federal Communications    )
Commission Pursuant to Section   )
632(b) of the Communications     )
Act of 1934, as Amended.



                  MEMORANDUM OPINION AND ORDER

   Adopted:  December 22, 2003          Released:  January 8, 
2004

By the Commission:


I.   INTRODUCTION

     1.   In this Memorandum Opinion and Order, we dismiss a 
complaint filed by WideOpen West Holdings, LLC (``WOW'') against 
Comcast Corporation (``Comcast'') alleging that Comcast is 
violating the Commission's cable customer service rules1 in the 
Detroit, Michigan metropolitan area by failing to provide proper 
written notice of certain promotional discounts.2  We do so 
because WOW has not demonstrated that Comcast's actions 
constitute ``systemic abuses that undermine the statutory 
objectives,'' a threshold established by the Commission for 
invocation of the Commission's enforcement authority regarding 
the cable customer service rules.3  

II.  BACKGROUND

     II.A.     Statutory and Regulatory Background

     2.   Section 8 of the 1992 Cable Act (``Section 8'') 
provides that ``a franchise authority may establish and enforce'' 
cable operator ``customer service requirements.''4  It then 
requires the Commission to ``establish standards by which cable 
operators may fulfill their customer service requirements.''5  It 
further states that ``[s]uch standards shall include, at a 
minimum, requirements governing - (1) cable system office hours 
and telephone availability; (2) installations, outages, and 
service calls; and (3) communications between the cable operator 
and the subscriber (including standards governing bills and 
refunds).''6  

     3.   With regard to ``communications between the cable 
operator and the subscriber,'' the standards adopted by the 
Commission pursuant to this congressional mandate provide, in 
pertinent part: 

          [T]he cable operator shall provide written 
          information on each of the following areas at 
          the time of installation of service, at least 
          annually to all subscribers, and at any time 
          upon request:
          (1) Products and services offered;
          (2) Prices and options for programming 
          services and conditions of subscription to 
          programming and other services.7

The standards also provide:

          Customers will be notified of any changes in 
          rates  .  .  .  as soon as possible in 
          writing.  Notice must be given to subscribers 
          in a minimum of thirty (30) days in advance 
          of such changes if the change is within the 
          control of the cable operator.8

     4.   Although the 1992 Cable Act directed the Commission to 
promulgate customer service standards, it referred only to local 
franchising authorities as enforcers of the Commission's customer 
service standards.9  The Commission, based on its view of 
legislative intent,10 concluded in the Consumer Protection Order 
that local franchise authorities, rather than the Commission, 
would enforce the customer service rules. 11  Consistent with 
that conclusion, the Commission's rules provide that ``[a] cable 
franchise authority may enforce the customer service standards'' 
established in the rules.12  The Consumer Protection Order, 
however, articulated a narrow circumstance where the Commission 
would retain enforcement authority: ``to address, as necessary, 
systemic abuses that undermine the statutory objectives'' of 
Section 8.13

     II.B.     Factual Background and Pleadings

     5.   Comcast is an incumbent cable services provider in many 
regions of the United States, including metropolitan Detroit, 
Michigan.14  WOW is a competitive cable and broadband services 
provider, known as an ``overbuilder,'' serving the metropolitan 
Detroit area, among other locations.15  According to WOW, it 
competes with Comcast in 42 communities in the Detroit area,16 
and WOW's share of the cable services market in the state of 
Michigan is approximately 24%.17



     6.   WOW alleges - and Comcast concedes - that Comcast 
offers limited-term discounts in an effort (1) to retain 
customers who would otherwise switch to another provider, and (2) 
to persuade former customers to return to Comcast.18  WOW further 
alleges - and Comcast also concedes - that Comcast does not 
publish or publicize all of these retention or win-back discounts 
in writing, such as in filings with local franchising authorities 
or notices to subscribers.19  According to WOW, these oral, 
unpublished ``secret, targeted rates'' may vary ``from day to 
day, call to call.''20 

     7.   WOW contends that, by not disclosing in writing to all 
its customers every limited-term retention and win-back discount 
offer, Comcast is violating the Commission's customer service 
rules requiring cable operators (1) to provide written 
information to subscribers regarding ``prices and options for 
programming services,'' and (2) to notify customers in writing of 
``any changes in rates.''21  According to WOW, these oral 
discount offers constitute an anticompetitive practice that 
treats some Comcast customers unequally and may drive WOW out of 
the market.22  WOW requests that the Commission order Comcast to 
publish in writing all of its rates and charges, including any 
limited-term win-back or retention offers made only to a limited 
number of customers, and to pay a forfeiture in the amount of 
$27,000.00 for each day that Comcast has failed to comply with 
the Commission's regulations.23

III.      DISCUSSION

     8.   Comcast argues that the Commission lacks authority to 
adjudicate WOW's complaint because the challenged actions do not 
constitute ``systemic abuses that undermine the statutory 
objectives,''24 which is the standard the Commission established 
for the limited scope of its jurisdiction to enforce the cable 
customer service rules.  Acknowledging this threshold hurdle 
previously established by the Commission in this area, WOW claims 
that Comcast's practice of failing to disclose in writing to all 
subscribers each and every retention or win-back offer meets the 
test.25  

     9.   WOW's position is that Comcast's failure to disclose in 
writing to all of its customers each and every offer made to  any 
customer for any  reason for  any period of  time undermines  the 
objectives of Section 8.26  While WOW's complaint implicates  the 
statutory  objectives  insofar  as  it  concerns   communications 
between cable operators and subscribers, based on the broad scope 
of the complaint, we are unable to conclude that such a  sweeping 
proposition  in  all  cases  undermines  these  objectives.    By 
alleging that  Comcast  should disclose  in  writing to  all  its 
customers every  limited-term  retention  and  win-back  discount 
offer made to any subscriber,  WOW essentially seeks to  preclude 
all win-backs and other promotional activities.  We are unable to 
determine  that   allegations  premised   on  such   a   sweeping 
proposition  conclusively  undermine  the  statutory   objectives 
concerning  communications  with  subscribers.27   We   therefore 
conclude that  WOW has  not demonstrated  that Comcast's  actions 
constitute  ``systemic  abuses   that  undermine  the   statutory 
objectives''  in   order  to   invoke  our   direct   enforcement 
authority.28

     10.  WOW's support for its sweeping proposition relies on a 
single, isolated statement in the Senate Report indicating that 
the Commission's customer service standards should address, among 
other things, ``disclosure of all available service tiers'' and 
prices for those tiers.29  WOW's complaint, however, does not 
concern written disclosures regarding the kinds of service tiers 
offered, but more generally seeks disclosure of all promotional 
activity.  We find this support a far cry from a mandate that any 
limited-term win-back or retention offers ever made be disclosed 
or extended uniformly to all subscribers.  The pertinent language 
of the statute, moreover, does not support this broad 
proposition.  The relevant statutory language states that the 
Commission should establish standards relating to 
``communications between the cable operator and the subscriber 
(including standards governing bills and refunds).''30  Further, 
the relevant legislative history says nothing about requiring 
cable operators to communicate in writing to all subscribers 
every limited-term retention or win-back offer made to any 
subscriber.31  In sum, there is simply no indication in either 
the language or legislative history of Section 8 that Congress 
meant for the Commission to exercise jurisdiction to enforce 
quasi-tariffing regime precluding cable operators from engaging 
in the kind of win-back and retention efforts shown by Comcast 
here.  We do not address here whether some other promotional or 
win-back practices could raise systemic issues that undermine 
Section 8's statutory objectives.  
Rather, we conclude only that Comcast's alleged action in this 
case is not a systemic abuse that undermines the statutory 
objective.32``''33343536``''3738

Our conclusion that WOW has not alleged a systemic abuse that 
undermines Section 8's customer service objectives does not 
preclude WOW from seeking relief from other appropriate sources.  
For example, WOW still has at least three avenues of potential 
recourse that it could pursue.  First, WOW could file complaints 
with local franchise authorities under any applicable rules or 
ordinances.  Second, WOW could file a lawsuit in court alleging 
unfair competition/antitrust type claims, which appear to be the 
real concern of its complaint here.39  Third, WOW could file a 
claim at the Commission under the uniform price provisions of the 
Communications Act and the Commission's rules.40

IV.  ORDERING CLAUSE

ACCORDINGLY, IT IS ORDERED, pursuant to sections 1, 4(i), 4(j), 
601, and 632 of the Communications Act of 1934, as amended, 47 
U.S.C.  151, 154(i), 154(j), 521, and 552, and sections 76.6, 
76.7, 76.1602, and 76.1603 of the Commission's rules, 47 C.F.R. 
 76.6-76.7, and 76.1602-1603, that the Complaint filed by 
WideOpen West Holdings, LLC against Comcast Corporation for 
systemic abuse of customer service standards established by the 
Federal Communications Commission pursuant to Section 632(b) of 
the Communications Act of 1934, as amended, IS DISMISSED in its 
entirety with prejudice.

                         FEDERAL COMMUNICATIONS COMMISSION





                         Marlene H. Dortch                       
Secretary

_________________________

1 47 C.F.R.  76.1602-1603.  The Commission promulgated these 
rules pursuant to section 632 of the Communications Act of 1934, 
47 U.S.C.  552, as amended by section 8 of the Cable Television 
Consumer Protection and Competition Act of 1992, Pub. L. No. 02-
385  8, 106 Stat. 1490 (1992) (``1992 Cable Act'' or ``1992 
Act'').
2 In Re Complaint Against Comcast Corporation, File No. EB-02-MD-
033 (filed May 23, 2002) (``Complaint'').   
3 Implementation of Section 8 of the Cable Television Consumer 
Protection and Competition Act of 1992, Report and Order, 8 FCC 
Rcd 2892, 2897 at  19 (1993) (``Consumer Protection Order''), 
pets. for recon. dismissed, Order of Dismissal, 17 FCC Rcd 11916 
(Med. Bur. June 24, 2002) (``CPO Dismissal Order).
4 47 U.S.C.  552(a).
5 47 U.S.C.  552(b).
6 Id.
7 47 C.F.R.  76.1602(b).  See Consumer Protection Order, 8 FCC 
Rcd at 2906-07,  64-68.  Rule 76.1602(b) also requires the 
provision of written information regarding ``(3) Installation and 
service maintenance policies; (4) Instructions on how to use the 
cable service; (5) Channel positions .  .  . ; and (6) Billing 
and complaint procedures. . . .''  47 C.F.R.  76.1602(b).
8 47 C.F.R.  76.1603(b).  As directed by Congress, the 
Commission also adopted customer service rules regarding billing, 
see 47 C.F.R.  76.1619; Consumer Protection Order, 8 FCC Rcd at 
29,  65-68; office hours and telephone availability, see 47 
C.F.R.  76.309; Consumer Protection Order, 8 FCC Rcd at 2903-
2904,  45-56; and installations, outages, and service calls, 
see 47 C.F.R.  76.309; Consumer Protection Order, 8 FCC Rcd at 
2905-2906,  56-64.
9 47 U.S.C.  552(a).  
10 See Consumer Protection Order, 8 FCC Rcd at 2895,  10, n.15, 
in which the Commission discusses the following portions of the 
legislative history: House Comm. on Energy and Commerce, H.R. 
Rep. No. 102-628, 102d Cong., 2d Sess. at 37 (1992) (``House 
Report''); Statement of Chairman John Dingell, 138 Cong. Rec. 
H6500 (daily ed. July 23, 1992); Statement of Chairman Edward 
Markey, 138 Cong. Rec. E1034 (daily ed. Apr. 10, 1992).  See also 
House Report at 78 (Section 8 requires the ``FCC to establish 
federal customer service standards which may be required in local 
cable franchises and enforced by local franchising 
authorities''); Senate Comm. on Commerce, Science and 
Transportation, S. Rep. No. 102-92, 102d Cong., 2d Sess. at 21 
(1992), reprinted in 1992 U.S.C.C.A.N. 1133 (``Senate Report'') 
(local franchising authorities, ``who are closest to the 
consumer, would be in the best position to effectively address 
[customer service issues]''); House Report at 105 (Congress 
intended that the Commission would develop standards that are 
sufficiently flexible in nature to allow local authorities to 
tailor the rules to meet the needs of the local community and to 
adopt more stringent standards in accordance with local needs).  
Although the Senate version of Section 8 did not differ 
substantially from the House version, the Conference Committee 
adopted the latter.  See H.R. Conf. Rep. No. 102-862, 102d Cong., 
2d Sess. at 79 (1992), reprinted in 1992 U.S.C.C.A.N. 1231 
(``Conference Report'').
11 See Consumer Protection Order, 8 FCC Rcd at 2897,  19 (``it 
does not appear that Congress intended for the Commission to bear 
the responsibility of enforcing the new FCC standards''); id. at 
2893,  3 (the customer service rules ``will then be enforced by 
local franchising authorities''); id. at 2895,  10 (``the 
Commission is required to establish baseline customer service 
standards on which local governments may rely to ensure that the 
cable systems they regulate provide an adequate level of customer 
service''); id. at 2899,  26 (``Local franchise authorities will 
enforce the self-executing Federal standards we adopt today''); 
CPO Dismissal Order, 17 FCC Rcd at 11916 (``the Commission 
established customer service standards which are subject to 
enforcement by local franchising authorities.'')  Because the 
Commission found that the 1992 Act delegated enforcement of 
customer service rules to the local franchising authorities, the 
Commission determined that ``it is unnecessary for this 
Commission to establish specific customer service reporting 
requirements or refund or penalty guidelines applicable to all 
cable operators nationwide. . . .  Local governments should be 
free to avail themselves of reasonable remedies to assure 
compliance and fairness to all parties.''  Consumer Protection 
Order, 8 FCC Rcd at 2898,  21.
12 47 C.F.R.  76.1602(a), 76.1603(a).
13 Consumer Protection Order, 8 FCC Rcd at 2897,  19.
14 Complaint at 1; Response of Comcast Corporation to Questions 
Posed By the Enforcement Bureau, File No. EB-01-MD-033 (filed 
Sept. 20, 2002) (``Comcast Response to Commission Questions'') at 
2-4.
15 Complaint at 2.  See Comcast Response to Commission  Questions 
at 2-3.
16 Complaint at 2.
17 Reply to Comcast's Response to Commission's Questions of 
September 20, 2002, File No. EB-02-MD-033 (filed Oct. 4, 2002) 
(``WOW Reply to Commission Questions'') at 10.
18 Complaint at 1-2; Comcast Response to Commission Questions  at 
1-6.
19 Complaint at 1-2; Comcast Response to Commission Questions  at 
5-6, 8-10.
20 Complaint at 3.
21 47 C.F.R.  76.1602(b), 1603(b).  See Complaint at 1, 5-6; 
Reply at 1-3, 7-10; WOW Response to Commission Questions at 1-2, 
4-6, 8-10; WOW Reply to Commission Questions at 7-9, 11-27.  WOW 
asserts that any price reduction must be disclosed to all 
customers and the franchising authority within 30 days of making 
the offer.  See WOW Response to Commission Questions at 4.  WOW 
does not seek to enforce 47 C.F.R.  76.1602(b), however, which 
requires cable operators to notify customers 30 days in advance 
of any rate changes.  See Id. at 4-5.
22 Complaint at 6 (Comcast's conduct has ``one purpose alone - to 
preclude other Comcast customers from receiving the same rates 
and charges, thus diminishing the cost of eliminating competition 
in the greater metropolitan Detroit market''); Comcast Response 
to Commission Questions at 1-3, 6 (same); Reply to Opposition to 
Complaint of WideOpen West Holdings, LLC, File No. EB-02-MD-033 
(filed June 28, 2002) (``Reply'') at 1-2, 7 (same).
23 Complaint at 6.
24 Answer of Comcast Corporation and Request for Dismissal, File 
No. EB-02-MD-033, (filed June 11, 2002) (``Answer'') at 3-6.  
Comcast seeks dismissal of the complaint on several other 
grounds, as well: as a competitor, WOW lacks standing to 
challenge Comcast's compliance with the customer service rules; 
the disclosure requirements do not encompass promotional or win-
back offers; and the challenged actions exemplify vigorous 
competition, which is the broader legislative purpose of the 1992 
Cable Act.  Id. at 6-12.  
25 See Complaint at 1, 4-6; Reply at 1, 3-4, 6-10; WOW Response 
to Commission Questions at 1-2, 6-10; WOW Reply to Commission 
Questions at 2, 17-18.
26 See  Complaint at  1, 4-6;  Reply  at 1,  6-10; WOW  Reply  to 
Commission Questions at 17-18.
27 Our review  of the  legislative history  does not  demonstrate 
that the statutory objectives are definitively undermined without 
the type of sweeping relief  that WOW seeks.  See generally  H.R. 
Rep. 104-204(I), 104th Cong., 1st Sess. at 112 (1995).   Granted, 
it is not  surprising that Congress  did not focus  Section 8  on 
win-back or  retention offers  because, at  the time  it  enacted 
Section 8,  cable  operators in  virtually  every region  of  the 
country were monopoly providers.    
28 We  take no  position on  whether discrete  types of  win-back 
behavior would  run  afoul  of  customer  service  standards  for 
communicating with subscribers  or other provisions  of the  Act.  
See 47 U.S.C.  543(d); 47 C.F.R.  76.901-990 (requiring  inter 
alia cable operators to  have geographically uniform rates  under 
certain circumstances, with a stated objective ``to prevent cable 
operators from dropping the rates  in one portion of a  franchise 
area to undercut a competitor temporarily.'').  
29 WOW  Reply to  Commission Questions  at 16-17,  citing  Senate 
Report at 27.
30 47 U.S.C.  552(b).
31 See generally H.R. Rep. 104-204(I), 104th Cong., 1st Sess.  at 
112 (1995),  reprinted  in 1996  US.C.C.A.N.  10;``''``''.  House 
Report at ``''34-35``'''';``'' Senate Report at 20. ``''
32 See  Complaint at  1, 4-6;  Reply  at 1,  6-10; WOW  Reply  to 
Commission Questions at 17-18.
33 47 U.S.C.  552(b).
34 Indeed, with respect to rates and bills specifically, Congress 
appears to have  been concerned  primarily with  ensuring that  a 
customer can understand his/her rate and programming choices  and 
then determine whether he/she is actually receiving the rates and 
programming that he/she  ordered.  See generally  H.R. Rep.  104-
204(I), 104th Cong., 1st Sess.  at 112 (1995), reprinted in  1996 
US.C.C.A.N. 10 (in amending 47 U.S.C.   552 to permit notice  of 
rate changes ``by  any reasonable means,''  Congress stated  that 
the ``purpose of a notice requirement is to ensure that consumers 
have sufficient warning  about rate and  service changes so  they 
can  choose   to   disconnect   their  service   prior   to   the 
implementation  of  the  change'').   More  generally,  Congress' 
Section 8 objectives also  included remedying prevalent  consumer 
complaints about  day-to-day  customer service  issues,  such  as 
office  hours,  telephone  availability,  installation   outages, 
service calls, and refunds.  See e.g. House Report at 34  (``some 
cable  operators   frequently  break   installation  and   repair 
appointments,   subject    customers    to    frequent    service 
interruptions, fail to answer  customer calls or place  customers 
on hold for extended periods.''); id. at 34-35 (``The results  of 
a New York City survey  of cable subscribers'' demonstrated  that 
more than half  [the respondents] encountered  a busy signal  the 
last time  they  telephoned  the  cable  company.  And  of  those 
respondents ultimately connected by telephone, approximately one-
half were put on `hold' for longer than one minute'');  id. at 35 
(a Consumer Reports  survey revealed that  ``about 60 percent  of 
respondents experienced service outages  .   .  .   one in  eight 
respondents  experienced   billing  problems    .   .    .    and 
respondents reported that they had difficulty reaching the  cable 
company by telephone nearly 50  percent of the times they  tried. 
Respondents also reported that in roughly 15 percent of the times 
a service call was made in person, the installation or repair was 
done improperly,  and in  another 15  percent of  the times,  the 
service person failed to keep the service appointment'');  Senate 
Report at 20 (``the Committee has found that many cable operators 
provide poor service to their customers.  Phones are not answered 
promptly, if at all.   Offices are open for  a minimal number  of 
hours.  Service  calls take  far too  long'').  WOW  presents  no 
evidence that Comcast's conduct at  issue here undermines any  of 
these statutory objectives.
35 See Senate Report at 8 (``A cable system serving a local 
community, with rare exceptions, enjoys a monopoly''); id. at 13 
(``out of over 11,000 cable systems, there are only 53 
communities where there is currently some overbuild''); House 
Report at 165.  Note that WOW was not established until 1999.  
Complaint at 2.
36 See 47 U.S.C.  543(d); 47 C.F.R.  76.901-990.  Section 3 
contains a provision requiring cable operators to have 
geographically uniform rates under certain circumstances, and one 
of the stated objectives of the provision is ``to prevent cable 
operators from dropping the rates in one portion of a franchise 
area to undercut a competitor temporarily.'' Senate Report at 76.  
See 47 U.S.C.  543.
37 WOW  Reply to  Commission Questions  at 16-17,  citing  Senate 
Report at 27.
38 See Senate Report at 21. (enumerating the following cable 
service problems to be rectified by the FCC standards: 
``inequitable billing practices, unreasonable responses to cable 
outages, rebates during outages, time frames for installation and 
the telephone answering services provided by the operator to 
handle consumer complaints.'')
39 See, e.g., Complaint at 1 (the ``sole purpose'' of Comcast's 
conduct is ``an effort to drive WideOpen West from those markets 
in which it competes directly with Comcast.''); id. at 2, 6; 
Reply at 2, 7.
40 47 U.S.C.  543(d); 47 C.F.R.  76.984.  We note that, by 
describing potential avenues for WOW to seek relief, we express 
no view on the ultimate validity of such claims on the merits.