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 Federal  Communications  Commission  DA  00-  1672 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of: 
 MediaOne  of  Colorado,  Inc. 
 Petition  for  Determination  of  Effective 
 Competition  in  Atlanta,  Georgia  and  Nearby 
 Communities 


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 CSR  5413-  E 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  July  21,  2000  Released:  July  28,  2000 
 By  the  Deputy  Chief,  Cable  Services  Bureau: 
 I.  INTRODUCTION 
 1.  MediaOne  of  Colorado,  Inc.  (MediaOne)  has  filed  with  the  Commission  a  petition  1 
 pursuant  to  Sections  76.7  and  76.907  of  the  Commission's  rules  for  a  determination  of  effective 
 competition  in  the  City  of  Atlanta,  Georgia,  and  certain  surrounding  cable  service  franchise  areas  (the 
 “Communities”).  2  MediaOne  alleges  that  its  cable  systems  serving  the  Communities  are  subject  to  effective 
 competition  pursuant  to  Section  623(  a)(  2)  of  the  Communications  Act  of  1934,  as  amended 
 ("  Communications  Act"),  3  and  the  Commission's  implementing  rules,  4  and  are  therefore  exempt  from  cable 
 rate  regulation.  MediaOne  claims  the  presence  of  effective  competition  in  the  Communities  stems  from  the 
 competing  services  provided  by  BellSouth  Entertainment,  Inc.  (“  BSE”),  a  multi-  channel  multi-  point 
 distribution  service  (MMDS)  operator  affiliated  with  a  local  exchange  carrier  (“  LEC”).  MediaOne  also 
 filed  a  Supplement  to  Petition  for  Relief.  No  opposition  to  the  petition  or  supplement  was  filed. 


 2.  In  the  absence  of  a  demonstration  to  the  contrary,  cable  systems  are  presumed  not  to  be 
 subject  to  effective  competition,  5  as  that  term  is  defined  by  Section  76.905  of  the  Commission's  rules.  6  The 


 1  See  Public  Notice,  Cable  Services  Bureau  Registrations;  Special  Relief  and  Show  Cause  Petitions,  Report  No. 
 1237,  dated  July  13,  1999. 
 2  The  communities  subject  to  this  petition  are  listed  on  Appendix  A. 


 3  47  U.  S.  C.  §  543(  a)(  2). 
 4  47  C.  F.  R.  §  76.905(  b)(  4). 


 5  47  C.  F.  R.  §  76.906. 
 6  47  C.  F.  R.  §  76.905. 
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 cable  operator  bears  the  burden  of  rebutting  the  presumption  that  effective  competition  does  not  exist  with 
 evidence  that  effective  competition  is  present  within  the  relevant  franchise  area.  7  Section  623(  l)(  1)(  D)  of 
 the  Communications  Act  provides  that  a  cable  operator  is  subject  to  effective  competition,  and  therefore 
 exempt  from  cable  rate  regulation,  if  a  LEC  or  its  affiliate  offers  video  programming  services  directly  to 
 subscribers  by  any  means  (other  than  direct-  to-  home  satellite  services)  in  the  franchise  area  of  an 
 unaffiliated  cable  operator  which  is  providing  cable  service  in  that  franchise  area,  provided  the  video 
 programming  services  thus  offered  are  comparable  to  the  video  programming  services  provided  by  the 
 unaffiliated  cable  operator  in  that  area.  8 


 3.  The  Commission  has  stated  that  an  incumbent  cable  operator  could  satisfy  the  “LEC” 
 effective  competition  test  by  showing  that  the  LEC  is  technically  and  actually  able  to  provide  services  that 
 substantially  overlap  the  incumbent  operator’s  service  in  the  franchise  area.  9  The  incumbent  also  must 
 show  that  the  LEC  intends  to  build-  out  its  cable  system  within  a  reasonable  period  of  time  if  it  has  not 
 already  done  so,  that  no  regulatory,  technical  or  other  impediments  to  household  service  exist,  that  the  LEC 
 is  marketing  its  services  so  that  potential  customers  are  aware  that  the  LEC’s  services  may  be  purchased, 
 that  the  LEC  has  actually  begun  to  provide  services,  the  extent  of  such  services,  the  ease  with  which  service 
 may  be  expanded  and  the  expected  date  for  completion  of  construction  in  the  franchise  area.  10 


 II.  DISCUSSION 
 4.  MediaOne  holds  franchises  issued  by  the  Communities  and  is  authorized  to  provide  and 
 provides  cable  services  within  the  Communities’  territorial  boundaries.  11  As  such,  MediaOne  qualifies  as 
 the  incumbent  cable  operator  within  the  Communities  for  purposes  of  the  “LEC”  effective  competition  test 
 at  issue  in  this  proceeding.  On  the  other  hand,  BSE  provides  “wireless  cable”  service  within  the 
 Communities  by  means  of  digital  MMDS  technology  from  four  MMDS  transmitter  sites  located  in  and 
 around  Atlanta.  12  BSE  is  a  wholly-  owned  subsidiary  of  BellSouth  Corporation,  a  holding  company  which 
 wholly  owns  BellSouth  Telecommunications,  Inc.,  a  provider  of  telecommunications  services,  systems  and 
 products.  We  have  found  previously  that  BSE  is  a  wholly-  owned  subsidiary  of  BellSouth,  and  that 
 BellSouth  Telecommunications,  Inc.  is  unquestionably  a  LEC.  13  We  further  find  here  that  MediaOne  is 
 unaffiliated  with  BellSouth  Corporation,  BellSouth  Telecommunications,  Inc.,  or  BSE.  Therefore, 
 BellSouth  Telecommunications,  Inc.  qualifies  as  a  “LEC,”  and  BSE  qualifies  as  an  affiliate  of  a  “LEC”  for 
 purposes  of  the  “LEC”  effective  competition  test.  14 


 7  See  47  C.  F.  R.  §§  76.906  &  907. 
 8  Communications  Act,  §  623(  1)(  1)(  D),  47  U.  S.  C.  §  543(  1)(  1)(  D);  see  also  47  C.  F.  R.  §  76.905(  b)(  4).  This  fourth 
 statutory  effective  competition  test  within  Section  632(  l)  may  be  referred  to  as  the  “LEC”  effective  competition  test. 


 9  See  Implementation  of  Cable  Act  Reform  Provisions  of  the  Telecommunications  Act  of  1996,  14  FCC  Rcd  5296, 
 5305  (1999)  (“  Cable  Reform  Order”).  No  showing  of  meeting  a  penetration  standard  is  required  under  the  “LEC” 
 effective  competition  test.  Id.  at  5303. 


 10  Id.  at  5305. 
 11  Petition,  Exhibit  2. 
 12  Petition  at  7-  8  and  Exhibit  5. 
 13  In  the  Matter  of  CoxCom,  Inc.,  14  FCC  Rcd  7134  (CSB  1999). 
 14  See  47  U.  S.  C.  §  543(  1)(  1)(  D);  47  U.  S.  C  §  153(  a)(  1). 
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 5.  MediaOne  presented  information  establishing  that  a  viewable  signal  form  BSE’s  MMDS 
 transmitters  can  be  received  in  an  area  that  overlaps  MediaOne’s  franchised  service  area.  This  information 
 consists  of  overlay  maps  depicting  the  35  mile  predicted  service  contours  and  shadow  plot  maps  of  BSE’s 
 four  MMDS  transmitter  sites.  These  maps  show  that  all  56  of  MediaOne’s  franchise  areas  listed  on 
 Attachment  A  hereto  lie  within  the  interference-  free  contours  of  BSE’s  MMDS  transmitters.  Most 
 importantly,  these  maps  also  show  that  there  are  no  terrain  or  other  obstacles  to  line  of  sight  service  and 
 that  BSE  stations’  signal  strength  is  adequate  throughout  the  area  15  BSE  has  distributed  marketing 
 materials  within  the  Communities  pointing  out  that  Communities’  residents  need  only  call  BSE  for 
 installation  and  commencement  of  services.  16  BSE’s  marketing  materials  show  that  its  MMDS  service 
 offers  160  channels  of  digital  video  programming  that  includes  non-  broadcast  programming  services  such 
 as  Fox  Sports  South,  CNN,  ESPN,  Discovery,  BET,  and  Turner  South,  as  well  as  a  complement  of  local 
 television  broadcast  stations.  17  Therefore,  BSE  provides  comparable  programming  as  required  by  the 
 “LEC”  effective  competition  test.  MediaOne’s  petition  also  provides  substantial  evidence  that  there  are  no 
 regulatory,  technical  or  other  impediments  to  BSE’s  provision  of  service  within  the  Communities. 
 MediaOne  has  also  shown  that  BSE  has  commenced  providing  service  not  only  within  the  Communities  but 
 also  within  several  other  nearby  communities  within  the  greater  Atlanta  area,  18  is  marketing  its  services  in  a 
 manner  that  makes  potential  subscribers  reasonably  aware  of  those  services,  and  otherwise  satisfies  the 
 “LEC”  effective  competition  test  consistent  with  evidentiary  requirements  set  forth  in  the  Cable  Reform 
 Order.  19 


 6.  Based  on  the  foregoing,  we  conclude  that  MediaOne  has  submitted  sufficient  evidence 
 demonstrating  that  its  cable  systems  serving  Atlanta,  Georgia  and  the  communities  listed  in  Appendix  A  are 
 subject  to  effective  competition. 


 15  Petition  at  8-  9  and  Exhibits  6  &  7.  See  Cable  Reform  Order  at  5305-  06.  See  also  Supplement  to  Petition  at  2 
 &  Attachment  1. 
 16  Petition  10  and  Exhibits  13,  14,  &  15.  See  also  Supplement  to  Petition  at  2  &  Attachment  3 


 17  Id.  at  7-  9  and  Exhibit  17.  See  also  Supplement  to  Petition  at  2  &  Attachment  2. 
 18  MediaOne  presented  data  showing  that  as  of  February  1999  BES  provided  service  to  approximately  18500 
 subscribers  within  Chamblee,  Duluth,  Lawrencville,  and  Woodstock,  Georgia,  and  in  unincorporated  portions  of 
 Cherokee,  DeKalb,  Gwinnett  and  Cobb  Counties  of  Georgia.  See  Supplement  to  Petition  at  2  &  Attachment  1.  See 
 also  Time  Warner  Cable  (Atlanta,  GA),  DA  00-  1347  (Cable  Serv.  Bur.,  released  June  20,  2000)  (2000  WL  780337 
 (FCC)). 
 19  14  FCC  Rcd  at  5305.  The  Commission  found  Time  Warner  to  be  subject  to  effective  competition  from  HTC  in 


 the  unincorporated  portions  of  Horry  County,  South  Carolina,  under  the  “LEC”  effective  competition  test  in  Time 
 Warner  Entertainment-  Advance/  Newhouse  Partnership,  d/  b/  a  Time  Warner  Company,  12  FCC  Rcd  18166  (CSB 
 1997). 
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 III.  ORDERING  CLAUSES 
 7.  Accordingly,  IT  IS  ORDERED  that  the  petition  for  a  determination  of  effective 
 competition  filed  by  MediaOne  of  Colorado,  Inc.  IS  GRANTED. 


 8.  This  action  is  taken  pursuant  to  authority  delegated  under  Section  0.321  of  the 
 Commission’s  rules.  20 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 William  H.  Johnson 
 Deputy  Chief,  Cable  Service  Bureau 


 20  47  C.  F.  R.  §0.321. 
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 APPENDIX  A 
 MediaOne  Atlanta  Area  Cable  Communities 
 Communities  CUID  Nos. 
 Acworth  GA0280 
 Apphretta  GA0411 
 Atlanta  GA0018 
 Austell  GA0128 
 Avondale  Estates  GA0081 
 Bartow  County  GA0475 
 Berkeley  Lake  GA0262 
 Brooks  GA0842 
 Clarkston  GA0080 
 Clayton  County  GA0143 
 Cobb  County  GA0169,  GA0236,  GA0246 
 College  Park  GA0349 
 Conyers  GA0269 
 Coweta  County  GA0731 
 Decatur  GA0079 
 DeKalb  County  GA0078 
 Dobbins  AFB  GA0530 
 Douglas  County  GA0781,  GA0121,  GA0386 
 Douglasville  GA0168 
 Duluth  GA0920 
 East  Point  GA0350 
 Fairfield  Plantation  GA0780 
 Fayette  County  GA0389 


 Communities  CUID  Nos. 
 Fayeteville  GA0470 
 Forest  Park  GA0238 
 Ft.  Gillem  GA0567 
 Ft.  McPherson  GA0556 
 Fulton  County  (N)  GA0819,  GA0700 
 Fulton  County  (S)  GA0633 
 Fulton  County  (W)  GA0889 
 Grayson  GA0260 
 Gwinnett  County  GA0222 
 Hapeville  GA0356 
 Henry  County  GA0534 
 Jonesboro  GA0259 
 Kennesaw  GA0235 
 Lake  City  GA0258 
 Lilburn  GA0227 
 Lithia  Springs  GA0965 
 Lithonia  GA0440 
 Loganville  GA0960 
 Lovejoy  GA0259 
 Marietta  GA0156 
 Morrow  GA0248 
 Newtown  GA0309 
 Norcross  GA0261 
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 APPENDIX  A  (Cont’d) 
 MediaOne  Atlanta  Area  Cable  Communities  (Cont’d) 
 Communities  CUID  Nos. 
 Peachtree  City  GA0847 
 Pine  Lake  GA0106 
 Powder  Springs  GA0655 
 Riverdale  GA0247 
 Rockdale  GA0308 


 Communities  CUID  Nos. 
 Roswell  GA0919 
 Snellsville  GA0221 
 Stone  Mountain  GA0077 
 Tyrone  GA0388 
 Woolsey  GA0841 
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