*Pages 1--3 from Microsoft Word - 8759.doc* Federal Communications Commission DA 01- 1139 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of: BroadbandConnect, Inc. Certification to Operate an Open Video System ) ) ) ) ) ) ) MEMORANDUM OPINION AND ORDER Adopted: May 2, 2001 Released: May 4, 2001 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: I. INTRODUCTION 1. On April 25, 2001, BroadbandConnect, Inc. (" BroadbandConnect") filed an application for certification to operate an open video system pursuant to Section 653( a)( 1) of the Communications Act of 1934 (" Communications Act") and the Commission's rules. 1 BroadbandConnect seeks to operate an open video system in various communities in Montgomery County, Maryland (the "Service Areas"). 2 In accordance with our procedures, 3 the Commission published notice of receipt of the BroadbandConnect certification application 4 and posted the application on the Internet. 5 No comments were received. 2. Pursuant to Section 653( a)( 1) of the Communications Act, any entity meeting the requirements may obtain certification to operate an open video system. 6 In light of the brief period (ten 1 47 U. S. C. § 573( a)( 1); 47 C. F. R. § 76.1502. 2 The Service Areas for which BroadbandConnect seeks certification in Montgomery County, Maryland are: Gaithersburg (CUID 0057); Chevy Chase (CUID 0274, 0275, 0276, 0223); Chevy Chase Village (CUID 0277); Nob Hill Apts (CUID 0285); Park Montgomery Apts (CUID 0286); Rockville (CUID 0222); Silver Spring (CUID 0224); Washington Grove (CUID 0225); Takoma Park (CUID 0226); Somerset (CUID 0227); Poolesville (CUID 0228); Barnesville (CUID 0229); Brookville (CUID 0230); Garrett Park (CUID 0231); Glen Echo (CUID 0233); Kensington (CUID 0234); Laytonsville (CUID 0235); Montgomery (CUID 0236); The Promenade (CUID 0166); Germantown (CUID 0340); Burtonsville (CUID 0341); Potomac (CUID 0342); Boyds (CUID 0343); Wheaton (CUID 0344); Derwood (CUID 0345); Olney (CUID 0346); Cabin John (CUID 0347); Bethesda (CUID 0348 and 0349); Cinnamon Run Apts ET (CUID 0358). 3 See Implementation of Section 302 of the Telecommunications Act of 1996, Open Video Systems, Second Report and Order, 11 FCC Rcd 18223, 18247 (1996) (" Second Report and Order"). 4 See Public Notice, "BroadbandConnect, Inc. Files An Application For Open Video System Certification," DA 01- 1098 (CSB, rel. April 26, 2001). 5 The BroadbandConnect application is available via the Internet at http:// www. fcc. gov/ csb/ ovs/ csovscer. html. 6 See 47 U. S. C. § 573( a)( 1); 47 C. F. R. § 76. 1501. However, an operator of a cable system generally may not 1 Federal Communications Commission DA 01- 1139 2 days) for Commission review of certification filings, the Commission concluded that Congress intended there to be a streamlined certification process. 7 Open video system operators may apply for certification at any point prior to the commencement of service. Open video system operators must obtain certification prior to the commencement of service, allowing sufficient time to comply with the Commission's requirements regarding notifications that applicants must provide to potential programming providers. 8 3. As part of the certification process, the applicant must acknowledge and accept the obligations associated with operation of an open video system and must provide certain information regarding its proposed system. 9 To obtain certification, an applicant must file FCC Form 1275, which requires, among other things: (a) a statement of ownership, including a list of all affiliated entities; 10 (b) a representation that the applicant will comply with the Commission's regulations under Section 653( b) of the Communications Act; 11 (c) a list of the names of the communities the applicant intends to serve; (d) a statement of the anticipated type and amount of capacity that the system will provide; and (e) a statement as to whether the applicant is a cable operator applying for certification within its cable franchise area. II. DISCUSSION 4. BroadbandConnect has submitted an application on FCC Form 1275 for certification to operate an open video system in the Service Areas. We have reviewed the information contained in BroadbandConnect’s application. As required by Form 1275, the BroadbandConnect application provides the following: company information and a separate statement of ownership listing affiliated entities; eligibility and compliance representations; and system information and verification statements. BroadbandConnect also confirmed that it served its application upon the designated telecommunications officials in the communities involved. 5. We find that BroadbandConnect has provided the requisite facts and representations concerning the open video system it intends to operate and has certified that it "agrees to comply and remain obtain such certification within its service area unless it is subject to "effective competition" as defined in Section 623( 1)( l) of the Communications Act, 47 U. S. C. § 543( l)( l). 7 Second Report and Order, 11 FCC Rcd at 18243. 8 Id. at 18247; 47 C. F. R. § 76. 1502( a). See also Implementation of Section 302 of the Telecommunications Act of 1996: Open Video Systems, Order on Remand, 14 FCC Rcd 19700, 19705 (1999)( deleting the pre- construction certification requirement from Section 76. 1502( a) of our rules). 9 Second Report and Order, 11 FCC Rcd at 18245- 46. 10 We note that for purposes of determining whether a party is an affiliate, we have adopted the definitions contained in the notes to Section 76. 501 of our rules, 47 C. F. R. § 76. 501, with certain modifications. 47 C. F. R. § 1500( g). Generally, we will consider an entity to be an open video system operator's "affiliate" if the open video system operator holds 5% or more of the entity's stock, whether voting or non- voting. Implementation of Section 302 of the Telecommunications Act of 1996, Open Video Systems, Third Report and Order and Second Order on Reconsideration, 11 FCC Rcd 20227, 20235 (1996) (" Third Report and Order"); 47 C. F. R. § 1500( g). 11 47 U. S. C. § 573( b). This provision sets forth the Commission's requirements regarding non- discriminatory carriage; just and reasonable rates, terms and conditions; a one- third capacity limit on the amount of activated channel capacity on which an open video system operator may distribute programming when demand for carriage exceeds system capacity; channel sharing; sports exclusivity, network non- duplication and syndicated exclusivity; and non-discriminatory treatment in presenting information to subscribers. See also 47 C. F. R. § 1502( a). 2 Federal Communications Commission DA 01- 1139 3 in compliance with each of the Commission's regulations" under Section 653( b) of the Communications Act. We note that if any representation in the BroadbandConnect certification filing proves to be materially false or materially inaccurate, the Commission retains the authority to revoke BroadbandConnect’s certification or impose such other penalties it deems appropriate, including forfeiture. III. ORDERING CLAUSES 6. Accordingly, IT IS ORDERED, that the application of BroadbandConnect, Inc. for certification to operate an open video system in the Service Areas 12 IS GRANTED. 7. This action is taken by the Chief, Consumer Protection and Competition Division, Cable Services Bureau, pursuant to the authority delegated by Section 0.321 of the Commission's Rules. 13 FEDERAL COMMUNICATIONS COMMISSION Deborah Klein, Chief Consumer Protection and Competition Division Cable Services Bureau 12 See supra n. 2, listing the communities contained within the Service Areas. 13 47 C. F. R. § 0.321. 3