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 Federal  Communications  Commission  DA  00-  2861 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of: 
 Constel  Communications,  L.  P. 
 Petition  for  Determination  of  Effective 
 Competition  in  Orange  County  (CUID  Nos. 
 FL1053,  FL1054  &  FL1056)  and  Hernando 
 County  (CUID  No.  FL  1055),  Florida 


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 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  December  19,  2000  Released:  December  20,  2000 
 By  the  Deputy  Chief,  Cable  Services  Bureau: 
 I.  INTRODUCTION 
 1.  1.  Constel  Communications,  L.  P.  (“  Constel”)  has  filed  with  the  Commission  a  petition 
 pursuant  to  Section  623(  a)(  1)  of  the  Communications  Act  of  1934,  as  amended  ("  Communications  Act") 
 and  Sections  76.7(  a)(  1)  and  76.905(  b)(  1)  of  the  Commission's  rules  for  a  determination  of  effective 
 competition  in  unincorporated  portions  of  Orange  County  and  Hernando  County,  Florida  (the 
 “Communities”).  Constel  alleges  that  its  cable  systems  serving  the  Communities  are  subject  to  effective 
 competition  and  are  therefore  exempt  from  cable  rate  regulation.  Constel  claims  the  presence  of  effective 
 competition  in  the  Communities  because  fewer  than  thirty  percent  of  the  households  in  the  Communities 
 subscribe  to  the  cable  services  of  its  cable  systems  serving  the  Communities.  No  opposition  to  the  petition 
 was  filed. 


 II.  DISCUSSION 
 2.  In  the  absence  of  a  demonstration  to  the  contrary,  cable  systems  are  presumed  not  to  be 
 subject  to  effective  competition,  1  as  that  term  is  defined  by  Section  76.905  of  the  Commission's  rules.  2  The 
 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.  3  Section  623(  l)(  1)(  A)  of 
 the  Communications  Act  provides  that  a  cable  operator  is  subject  to  effective  competition,  and  therefore 
 exempt  from  cable  rate  regulation,  if  “fewer  than  30  percent  of  the  households  in  the  franchise  area 
 subscribe  to  the  cable  service  of  the  cable  system.”  4  For  these  purposes,  the  Commission  accepts  1990 


 1  47  C.  F.  R.  §  76.906. 
 2  47  C.  F.  R.  §  76.905. 
 3  See  47  C.  F.  R.  §§  76.906  &  907. 
 4  47  U.  S.  C  §  543(  l)(  l)(  A). 
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 Federal  Communications  Commission  DA  00-  2861 
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 census  data  as  an  appropriate  measure  of  households  and  defines  households  as  occupied  housing  units.  5 
 The  Commission  has  stated: 


 The  first  statutory  test  for  effective  competition  is  fulfilled  when  fewer 
 that  30  percent  of  the  households  in  the  franchise  area  subscribe  to  the 
 cable  service  of  the  cable  system.  The  measurement  of  subscribership 
 under  this  test  will  be  based  on  the  subscribership  of  the  particular  cable 
 system  in  question,  and  not  on  the  aggregation  of  the  subscriberships  of 
 all  cable  systems  and  competitors  in  the  franchise  area.  6 


 3.  Constel  submitted  evidence  regarding  household  and  subscriber  data  which  show  that  its 
 cable  systems  serve  less  than  30  percent  of  households  in  the  cable  communities  at  issue.  Constel  provided 
 occupied  household  data  based  on  1990  Census  data  from  each  community  in  the  franchise  area,  which  it 
 then  used  to  calculate  subscriber-  to-  occupied  household  penetration  ratios.  Constel  provided  data  showing 
 that  it  had  a  total  of  524  subscribers  in  Orange  County  where  there  were  159,000  occupied  households,  and 
 984  subscribers  in  Hernando  County  where  there  were  39,  063  occupied  households.  This  data  shows  a 
 total  penetration  level  of  0.  3%  in  Orange  County  and  of  2.  5%  in  Hernando  County.  7  Based  on  this  record, 
 we  conclude  that  Constel  has  demonstrated  that  its  cable  systems  meet  the  requirements  of  low  penetration 
 effective  competition  under  our  rules,  and  we  grant  its  petition. 


 III.  ORDERING  CLAUSES 
 4.  Accordingly,  IT  IS  ORDERED  that  the  petition  for  a  determination  of  effective 
 competition  filed  by  Constel  of  Communications,  L.  P.  IS  GRANTED. 


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


 FEDERAL  COMMUNICATIONS  COMMISSION 


 William  H.  Johnson 
 Deputy  Chief,  Cable  Service  Bureau 


 5  See  Implementation  of  Sections  of  the  Cable  Television  Consumer  Protection  and  Competition  Act  of  1992:  Third 
 Order  on  Reconsideration,  9  FCC  Rcd  4316,  4325-  26  (1994). 
 6  See  Implementation  of  Sections  of  the  Cable  Television  Consumer  Protection  and  Competition  Act  of  1992, 


 Report  and  Order  and  Further  Notice  of  Proposed  Rulemaking,  8  FCC  Rcd  5631  (1993)  and  47  C.  F.  R  §  76.915(  a). 
 7  Despite  the  fact  that  Constel’s  1990  Census  data  is  nearly  a  decade  old,  we  have  no  concern  that  any  intervening 


 population  changes  have  rendered  our  effective  competition  determination  incorrect,  considering  that  intervening 
 household  increases  would  only  serve  to  lower  Constel’s  penetration  levels. 
 8  47  C.  F.  R.  §0.321. 
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