WPC[$ 2BVXZ3|P (TT).7PC2X 4XP\  P6QXP"5^2CRdd$CCdq2C28dddddddddd88qqqYzoCNzoozzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`l2CCCCPCddYYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddoddYYYYzYzYzYdddddPdCdCCCdNdoNNF2ZdCYddddd7>d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddndddddddDeidra's printerDESPRINT.WRSXj\  P6G;,,,&YXP2 *4D Z43|P "5^*8DSS88S^*8*.SSSSSSSSSS..^^^Jxooxf]xx8Axfxx]xo]fxxxxf8.8NS8JSJSJ8SS..S.SSSS8A.SSxSSJP!PZ*8888C8SSxJxJxJxJxJooJfJfJfJfJ8.8.8.8.xSxSxSxSxSxSxSxSxSxSxJxSxSxSxSxS]SxSxJxJoJoJfJfJfJxSxSxSxSxSCS8S888SAxSx]AN:*KS8JSSSSS.4}}S2S}288JJS88SS8J82N8\\^C`^SS`*8DSS88S^*8*.SSSSSSSSSS..^^^Jxooxf]xx8Axfxx]xo]fxxxxf8.8NS8JSJSJ8SS..S.SSSS8A.SSxSSJP!PZv8SJSS8]888JJ:S8A8xx*8SSSS!S8.S^8SC\228`K*824S}}}Jxxxxxxoffff8888xxxxxxx^xxxxxx]SJJJJJJoJJJJJ....SSSSSSS\SSSSSSSDeidra's printerDESPRINT.WRSX\  P6G;,,,&YP2R   "5^2CRdd$CCdq2C28dddddddddd88qqqYzoCNzoozzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`l2CCCCPCddYYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddoddYYYYzYzYzYdddddPdCdCCCdNdoNNF2ZdCYddddd7>d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddndddddddTimes New Roman (TT)Times New Roman (Bold) (TT)Times New Roman (Italic) (TT) X- I. A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#Xj\  P6G;XP#"5^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CCCCPCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYdddooPoNoNCNoddȐoNNF2ldCdddddd%7777777777>>>1eOIIOC=OO%+OCbOO=OI=COOhOOC%%47%17171%777V7777%+77O77155<%%%%,%77O1O1O1O1O1bII1C1C1C1C1%%%%O7O7O7O7O7O7O7O7O7O7O1O7O7O7O7O7=7O7O1O1I1I1C1C1C1O7O7O7O7O7,7%7%%%7+O7bO=+N&27%177777"RR7!TT7R!%%117n%%77ln%1n%!N%<<>,?>77?%-77\V%%7>%7777777777>>>1eOIIOC=OO%+OCbOO=OI=COOhOOC%%47%17171%777V7777%+77O77155%T7,OOOOOO=7111111I111117777777<7777777"5^!)22SN!!28!2222222222888,\HCCH=8HH!'H=YHH8HC8=HH^HH=!!/2!,2,2,!222N2222!'22H22,006!!!!(!22H,H,H,H,H,YCC,=,=,=,=,!!!!H2H2H2H2H2H2H2H2H2H2H,H2H2H2H2H282H2H,H,C,C,=,=,=,H2H2H2H2H2(2!2!!!2'H2YH8'N#-2!,22222KK2LL2K!!,,2d!!22bd!,d!N!778(:822:!)22SN!!28!2222222222888,\HCCH=8HH!'H=YHH8HC8=HH^HH=!!/2!,2,2,!222N2222!'22H22,006G!2,d22!d8!Y!!,,#2d!b'!HH!22222!L28!L2(7!:-!2KKK,HHHHHHYC====!!!!HHHHHHH8HHHHHH82,,,,,,C,,,,,2222222722222222'$\ R"5^.=M\\'==\|.=.3\\\\\\\\\\==|||\ppzpp=Qzfzpp\fppffG3GM\=\\Q\Q3\\33Q3\\\\GG3\QzQQGI2Ic.====I=\\p\p\p\p\p\zzQpQpQpQpQ=3=3=3=3z\\\\\\\\\fQp\\\\fQ\p\p\p\p\zQzQpQpQpQ\\\\\I\=\===\Q\z\GN@.`\G\\\\\\39\7\7==ff\==\\=f=7N=ee|Ij|\\j.=M\\'==\|.=.3\\\\\\\\\\==|||\ppzpp=Qzfzpp\fppffG3GM\=\\Q\Q3\\33Q3\\\\GG3\QzQQGI2Ic=\f\\=\===ff@\=G=zf.G\\\\2\=3\|=\Ie77=j`.=79\\ppppppzpppp====z|fp\\\\\\\zQQQQQ3333\\\\\\\e\\\\\Q\"5^*8FSS$88Sp*8*.SSSSSSSSSS88pppSffoxffxx8Jo]oxfxfS]xff]]A.AFS8SSJSJ.SS..J.xSSSSAA.SJoJJAC.CZ*8888C8SSfSfSfSfSfSooJfJfJfJfJ8.8.8.8.oSxSxSxSxSxSxSxSxS]JfSxSxSxS]JxSfSfSfSfSoJoJfJfJfJxSxSxSxSxSCS8S888SJxSoSAN:*WSASSSSSS.4}}S2S}288]]S88SS8]82N8\\pC`pSS`*8FSS$88Sp*8*.SSSSSSSSSS88pppSffoxffxx8Jo]oxfxfS]xff]]A.AFS8SSJSJ.SS..J.xSSSSAA.SJoJJAC.CZv8S]SS8S888]]:S8A8o]*ASSSS.S8.Sp8SC\228`W*824S}}}Sffffffoffff8888xoxxxxxpxxxxx]fSSSSSSSoJJJJJ....SSSSSSS\SSSSSJS.y.C8*X?C\  P6QP.7PC2XXP\  P6QXPl7UC2XXU4  pQX.2J=.Xw&J\  P6Q&Pl2N=.X&N4  pQ&.P,%XJ,\  P6QJP.I(!X,(\  P6Q,P0J=.X3U&J*f9 xQ&X{,C8*X3FC*f9 xQX         2Y$ S' X   )a X4 #&a\  P6G;w&P#Federal Communications Commission`~(#cDA 991685 ă   yxdddy )Պ#&a\  P6G;w&P#Qb Before the Federal Communications Commission  S'&2Washington, D.C. 20554 ă In the Matter of: #&a\  P6G;w&P#) )  S'Time Warner Communications)ppFranklin Township, OH, et. al.jh yOx' x ԍThe communities subject to Time Warner's petition include: (1) Franklin Township (OH0241); (2) Hilliard  x (OH0489); (3) Grandview Heights (OH0510); (4) Marble Cliff (OH0514); (5) Grove City (OH0516); (6) Valley View  x (OH0521); (7) Worthington (OH0532); (8) Riverlea (OH0580); (9) Dublin (OH0821); (10) Norwich (OH0997); (11)  x Jackson Township (OH1047); (12) Prairie Township (OH1146); (13) Minerva Park (OH1277); (14) Mifflin Township (OH1490); (15) Clinton Township (OH1491); (16) Perry Township (OH1509); and (17) Sharon Township (OH2417). )  S'Petition for Determination of )ppCSR5378E Effective Competition)    S '  MEMORANDUM OPINION AND ORDER \  S 'X` hp x (#%'0*,.8135@8:(>(II"Ԍ S' e 5.` ` With regard to the requirement that the LEC competitor offer ( GM yOh' x ԍIn implementing the LEC effective competition test on an interim basis, the Commission determined that its  x preexisting definition of the term "offer" as used in the three effective competition definitions set forth in the 1992  xx Cable Act would apply to the LEC test. 11 FCC Rcd at 5942. The Commission previously determined that service of a multichannel video programming distributor will be deemed offered:   X(1) When the multichannel video programming distributor is physically able to deliver service to  F potential subscribers, with the addition of no or only minimal additional investment by the   distributor, in order for an individual subscriber to receive service; and (2) When no regulatory,  u technical or other impediments to households taking service exist, and potential subscribers in the   franchise area are reasonably aware that they may purchase the services of the multichannel video programming distributor.  47 C.F.R. 76.905(e).  video programming service  xin the unaffiliated cable operator's franchise area, Time Warner asserts that Ameritech New Media was  xQawarded franchises to provide cable television service in the Affected Communities. Time Warner states  xthat Ameritech New Media's cable service is available to all of the residents in 15 out of the 17  S`' x communities. With regard to the two incomplete communities, Grove City and Dublin, Time Warner  S8' xstates that about half of the city's homes are currently wired with construction progressing rapidly.H8 GM yO'ԍTime Warner Petition at 8.H Time  S' xDWarner asserts that Ameritech New Media serves over 48,000 subscribers in the Affected Communities>H GM {O'čId. at 7. >  xThus, Time Warner argues that Ameritech New Media is physically able to, and in fact is, offering service  xto residents in the Affected Communities. Moreover, Time Warner states that because Ameritech New  xkMedia has cable franchises for the Affected Communities, and is serving thousands of residents, there are  Sp'no regulatory impediments to households taking its cable service.7pGM {O'ԍId. at 8.7  S ' e 6.` ` Time Warner asserts that potential subscribers in the franchise area are reasonably aware  x"that they may purchase Ameritech New Media's service. Time Warner submits sample marketing  xmaterials (direct mail), promotional materials (press releases and newspaper stories), and advertisements  S ' x(local newspaper, television, and radio ads) that Ameritech New Media has distributed throughout the  S ' xAffected Communities for purposes of promoting its services.; lGM {O'ԍId. at 1011.; Time Warner also notes that Ameritech  SX'New Media is offering realtors a $30 "finder's fee" for every Ameritech customer the realtor refers.1XGM {O!'ԍId.1  S' e 7.` ` Time Warner states that Ameritech New Media offers comparable programming to  S' xsubscribers in the Affected Communities.8GM {O&'ԍId. at 11.8 Specifically, Time Warner provides Ameritech New Media's  S' x^channel lineup which demonstrates that Ameritech New Media offers subscribers more than 80 channels"",>(>(IIk"  S' xof programming, several of which are local television broadcasting signals.8GM {Oh'ԍId. at 12.8 Time Warner also asserts  x^that Ameritech New Media's channel lineup presently replicates a number of programming services Time  S'Warner offers to its subscribers.2ZGM {O'ԍId. 2  S'  S`' e  8.` ` Time Warner states that it has responded to competition from Ameritech in several  xdifferent ways. Time Warner asserts that it has: (1) upgraded its cable plant, (2) moved the Disney  xChannel to its expanded basic package; (3) added new channels; (4) added email customer service; (5)  S'added a customer service website; (6) and shortened its appointment window to two hours.8GM {Ot 'ԍId. at 13.8  S' e 9.` ` In its Comments, the City of Worthington states that it does not object to a determination  Sp' x"that effective competition exists within its city limits.Jp~GM yO'ԍCity of Worthington Comments at 1.J The City agrees with Time Warner that its  xresidents have benefitted from competition, which, it believes, has controlled the rates of the incumbent  S ' xcable operator.1 GM {O'ԍId.1 The City also states that competition has resulted in Time Warner speeding the  xintroduction of new services, such as Roadrunner cable modem service, that has proved to be "very  S ' x*popular and beneficial" to city residents.7 GM {O'ԍId. at 3.7 According to the City, it has actively refrained from reviewing  S ' xTime Warner's rates because of the level of competition that now exists.7 2 GM {Oz'ԍId. at 2.7 However, the City states its  xconcern that effective competition may not exist in the future if Southwestern Bell successfully acquires  SX' x7Ameritech, and the new combined entity decides to exit the multichannel video business.7X GM {O'ԍId. at 2.7 The City adds  S0'that if competitive video service is no longer offered, it intends to file a petition for recertification.70V GM {O&'ԍId. at 2.7  S'  S' "x,>(>(II"Ԍ S'ԙIII.ANALYSIS  S' e q10.` ` In the absence of a demonstration to the contrary, cable systems are presumed not to be  S' xZsubject to effective competition as defined in the Communications Act.=GM yO'ԍ47 C.F.R. 76.906.= The cable operator bears the  xburden of rebutting the presumption that such effective competition does not exist and must provide  xevidence sufficient to demonstrate that effective competition, as defined by Section 76.905 of the  S'Commission's rules, is present in the franchise area.DXGM yO 'ԍ47 C.F.R. 76.911(b)(1). D Time Warner has met this burden.  S' e 11.` ` With regard to the first part of the LEC effective competition test, which requires that the  xalleged competitive service be provided by a LEC or its affiliate (or any multichannel video programming  xdistributor ("MVPD") using the facilities of such a LEC or its affiliate), we find that Time Warner has  xprovided sufficient evidence demonstrating that Ameritech New Media is an MVPD wholly owned by a  S ' x&LEC. Ameritech is a LEC as defined by the Communications Act,P@ GM yO'ԍThe Communications Act defines the term "local exchange carrier" as:   Xany person that is engaged in the provision of telephone exchange service or exchange access.   Such term does not include a person insofar as such person is engaged in the provision of a  q commercial mobile service under Section 332(c), except to the extent that the Commission finds that such service should be included in the definition of such term.  Communications Act 3(26), 47 U.S.C. 153(26). P and Ameritech New Media meets  S ' xthe Commission's definition of a MVPD. \ GM {O' x* ԍSee 47 C.F.R. 76.905(d). The Commission has previously noted that Ameritech is unquestionably a LEC as  x defined by the Communications Act, and Ameritech New Media meets the Commission's definition of a MVPD.  {O'See Time Warner Entertainment Co., L.P., Columbus OH, 11 FCC Rcd 17298 (1996).  Therefore, we find that Ameritech New Media meets the affiliation prong of the LEC effective competition test.  S ' e 12.` ` We also find that Time Warner has submitted sufficient evidence to show that the  xprogramming of Ameritech New Media is comparable to Time Warner's programming. The channel  xinformation for Ameritech New Media submitted by Time Warner establishes that Ameritech New Media offers more than 80 channels of programming, including several local broadcast channels.  S' e 13.` ` Time Warner has submitted sufficient evidence demonstrating that Ameritech New Media  xDis offering service in Time Warner's franchise areas. Time Warner has provided evidence that Ameritech  xNew Media's cable television service is available in the Affected Communities and will be offered  xthroughout the franchise areas pursuant to the franchise agreements that Ameritech New Media has  xobtained. Time Warner also reports that Ameritech New Media has some 48,000 subscribers in the  xtAffected Communities. Thus, we find that Ameritech New Media is physically able to offer service to  xcvirtually all of the residents in each of its franchise areas, and soon will completely wire the City of  xcDublin and Grove City as required by its franchise agreements with these cities. As for the City of  xWorthington's comments about Southwestern Bell's possible departure from the video business, we believe  x^this issue is too speculative to address at this time. As the City of Worthington correctly states, it can file"P ,>(>(II"  xZa Petition for Recertification at any time it believes that effective competition is no longer present in its  S'franchise area.G!GM {O@'ԍSee 47 C.F.R. 76.916.G  S' e 14.` ` We note that Ameritech New Media's marketing efforts, including advertisements and  xdistribution of promotional materials, as well as local press coverage of Ameritech New Media's  xconstruction and service offerings, ensure that potential subscribers are reasonably aware of the availability  x<of Ameritech New Media's service. In those areas wired and marketed by Ameritech New Media,  x*potential subscribers can contact the company 24 hours a day to activate service. Those subscribers are  xable to receive Ameritech New Media's cable service for little or no additional investment and without  xencountering regulatory or technical obstacles. With regard to the competitive responses Time Warner  xhas made, we agree with the City of Worthington that competition from Ameritech New Media has greatly  xbenefitted subscribers. Consistent with Congressional intent in adopting Section 623(1)(1)(D) of the  S ' x3Communications Act,C" ZGM yO'ԍ47 U.S.C. 543(1)(1)(D).C and under the circumstances presented to us in this matter, we find "effective competition" to be present.  S ' IV.ORDERING CLAUSES  SX' e h15.` ` Accordingly, IT IS ORDERED that the Petition for Special Relief/Petition for Revocation  S0'seeking a determination of effective competition by Time Warner Communications IS GRANTED.  S' e  16.` ` IT IS FURTHER ORDERED that the certifications of the City of Worthington and  xNorwich Township, to regulate the basic cable rates of Time Warner in their respective Ohio franchise  S'areas ARE REVOKED.  S@' e 17.` ` This action is taken pursuant to delegated authority under Section 0.321 of the  S'Commission's rules, as amended.<#GM yO'ԍ47 C.F.R. 0.321.< ` `  hhCFEDERAL COMMUNICATIONS COMMISSION ` `  hhCWilliam H. Johnson  S'` `  hhCDeputy Chief, Cable Services Bureau