*Pages 1--4 from Microsoft Word - 7955.doc* Federal Communications Commission DA 01- 826 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: April 2, 2001 Released: April 2, 2001 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: I. INTRODUCTION 1. On March 23, 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 Baltimore 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 Baltimore County (" Baltimore") filed comments. 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 Maryland are: Baltimore (CUID 0064 and 0269); Randallstown (CUID 0080); Catonsville (CUID 0081); Pikesville (CUID 0082); Woodlawn (CUID 0083); Arbutus (CUID 0084); Lansdowne (CUID 0085); Edgemere (CUID 0086); Baltimore West (CUID 0087); Lutherville Timonium (CUID 0088); Reisterstown (CUID 0089); Baltimore North (CUID 0090); Overlea (CUID 0091); Owings Mills (CUID 0092); Towson (CUID 0093); Parkville (CUID 0094); Perry Hall (CUID 0095); Middle River (CUID 0096); Rosedale (CUID 0097); Essex (CUID 0098); Dundalk (CUID 0099); Baltimore East (CUID 0100); Baltimore Inner Harbor (CUID 0384). 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- 749 (CSB, rel. March 23, 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 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). 1 Federal Communications Commission DA 01- 826 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. COMMENTS 4. The comments of Baltimore County relate to the use of its public rights- of- way. 12 Baltimore states that it is responsible for protecting and promoting the health, safety, and welfare of its citizens and that part of this responsibility is to manage the use of the public rights of way. 13 It asserts that Baltimore has a legitimate interest in regulating the impact that construction and operation of an OVS may have on the rights- of way. 14 It therefore urges the Commission to make clear that the county retains discretion and oversight to determine the use of its public rights- of- way. 15 III. DISCUSSION 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). 12 Baltimore County Comments at 1- 3. 13 Id. at 1- 2. 14 Id. 15 Id. 2- 3 2 Federal Communications Commission DA 01- 826 3 5. 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 each of the communities involved. 6. The ten day statutorily mandated review period for open video system certification applications requires us to confine our review to issues concerning BroadbandConnect’s FCC Form 1275 and its related attachments. 16 The purpose of the open video system certification process is to determine whether BroadbandConnect’s application complies with Congress’ mandate and our regulations. 17 By submitting a completed Form 1275, BroadbandConnect has certified that it will comply with all of the Commission’s rules for open video systems. With regard to the use and management of public rights- of-way, this issue relates to matters beyond the adequacy and accuracy of BroadbandConnect’s application. Nevertheless, we note that the Commission has stated that “[ m] anagement of the rights- of- way is a traditional local government function. Local governments should be able to manage the rights- of- way in their usual fashions without the imposition of unique requirements for open video systems.” 18 7. 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 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. 16 See RCN Telecom Services of California, Inc. d/ b/ a RCN of California, 13 FCC Rcd 12009 (1998). 17 Id. 18 Third Report and Order, 11 FCC Rcd at 20311. 3 Federal Communications Commission DA 01- 826 4 IV. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED, that the application of BroadbandConnect, Inc. for certification to operate an open video system in the Service Areas 19 IS GRANTED. 9. 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. 20 FEDERAL COMMUNICATIONS COMMISSION Deborah Klein, Chief Consumer Protection and Competition Division Cable Services Bureau 19 See supra n. 2, listing the communities contained within the Service Areas. 20 47 C. F. R. § 0.321. 4