*Pages 1--3 from Microsoft Word - 13890.doc* Federal Communications Commission DA 01- 3034 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of: Paul Bunyan Rural Telephone Cooperative Certification to Operate an Open Video System ) ) ) ) ) ) ) MEMORANDUM OPINION AND ORDER Adopted: December 31, 2001 Released: January 3, 2002 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: I. INTRODUCTION 1. On December 21, 2001, Paul Bunyan Rural Telephone Cooperative (" Bunyan") 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 Bunyan seeks to operate an open video system in Red Lake Band of the Chippewa Indian Reservation located in Beltrami, Minnesota (the "Service Area"). In accordance with our procedures, 2 the Commission posted the application on the Internet. 3 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. 4 In light of the brief period (ten days) for Commission review of certification filings, the Commission concluded that Congress intended there to be a streamlined certification process. 5 Open video system operators may apply for certification at any point prior to the commencement of service. Open video system operators must obtain certification 1 47 U. S. C. § 573( a)( 1); 47 C. F. R. § 76.1502. 2 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"). 3 The Bunyan application is available via the Internet at http:// www. fcc. gov/ csb/ ovs/ csovscer. html. Because of a delay in the delivery of the Commission’s mail, the Cable Services Bureau did not receive Bunyan’s application until December 27, 2001. We note, however, that the designated telecommunications official for the service area was hand delivered on December 18, 2001 a copy of Bunyan’s application and informed how to timely oppose or comment on the application. In addition, Commission staff confirmed via telephone on December 28, 2001 that Bunyan’s application was not opposed by the Red Lake Band of the Chippewa Indian Reservation. 4 See 47 U. S. C. § 573( a)( 1); 47 C. F. R. § 76. 1501. However, an operator of a cable system generally may not 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). 5 Second Report and Order, 11 FCC Rcd at 18243. 1 Federal Communications Commission DA 01- 3034 2 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. 6 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. 7 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; 8 (b) a representation that the applicant will comply with the Commission's regulations under Section 653( b) of the Communications Act; 9 (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. Bunyan has submitted an application on FCC Form 1275 for certification to operate an open video system in the Service Area. We have reviewed the information contained in Bunyan’s application. As required by Form 1275, the Bunyan 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. Bunyan also confirmed that it served its application upon the designated telecommunications officials in the Service Area. 5. We find that Bunyan 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 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 Bunyan certification filing proves to be materially false or materially inaccurate, the Commission retains the authority to revoke Bunyan’s certification or impose such other penalties it deems appropriate, including forfeiture. 6 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). 7 Second Report and Order, 11 FCC Rcd at 18245- 46. 8 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). 9 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- 3034 3 III. ORDERING CLAUSES 6. Accordingly, IT IS ORDERED that the application of Paul Bunyan Rural Telephone Cooperative for certification to operate an open video system in the Service Area 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. 10 FEDERAL COMMUNICATIONS COMMISSION Deborah Klein, Chief Consumer Protection and Competition Division Cable Services Bureau 10 47 C. F. R. § 0.321. 3