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 Federal  Communications  Commission  DA  04-  2066 
 1 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of: 
 BeamSpeed,  LLC 
 Determination  Of  Effective  Competition  in  Wellton,  Arizona 


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 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  July  8,  2004  Released:  July  9,  2004 
 By  the  Deputy  Chief,  Policy  Division,  Media  Bureau: 
 1.  BeamSpeed,  LLC  (“  BeamSpeed”)  requests  a  finding  of  effective  competition  in  Wellton,  Arizona  in  conjunction  with  its  showing  of  compliance  with  Section  21.912  of  the  Commission’s  rules.  1 


 2.  The  Communications  Act  and  the  Commission’s  rules  provide  that  only  the  rates  of  cable  systems  that  are  not  subject  to  effective  competition  may  be  regulated.  2  One  of  the  bases  by  which  a 
 cable  system  will  be  deemed  subject  to  effective  competition  is  where  a  franchise  area  is:  (i)  served  by  at  least  two  unaffiliated  multichannel  video  programming  distributors  (“  MVPD”)  each  of  which  offers 
 comparable  programming  to  at  least  50  percent  of  the  households  in  the  franchise  area;  and  (ii)  the  number  of  households  subscribing  to  multichannel  video  programming  other  than  the  largest 
 multichannel  video  programming  distributor  exceeds  15  percent  of  the  households  in  the  franchise  area.  3  In  the  absence  of  a  demonstration  to  the  contrary,  cable  systems  are  presumed  not  to  be  subject  to 
 effective  competition.  4  The  cable  operator  bears  the  burden  of  rebutting  the  presumption  that  effective  competition  does  not  exist  with  evidence  that  effective  competition,  as  defined  by  Section  76.905  of  the 
 Commission’s  rules,  is  present  within  its  franchise  area.  5  BeamSpeed  has  met  this  burden. 
 3.  BeamSpeed  has  submitted  reliable  evidence  demonstrating  that  Wellton  is  served  by  at  least  two  unaffiliated  MVPDs  offering  comparable  service  to  more  than  50%  of  the  households  therein. 


 BeamSpeed  asserts  that  the  service  of  direct  broadcast  satellite  providers  such  as  DIRECTV  and  EchoStar 
 1  See  47  C.  F.  R.  §  76.  905;  Application  of  Cardiff  Communications  Partners  II  to  Transfer  Control  of  MMDS  Station 
 Licenses  to  BeamSpeed,  LLC;  47  C.  F.  R.  §  21.  912;  Letter  dated  January  21,  1998  from  Roy  J.  Stewart,  Chief,  Mass  Media  Bureau  to  Charles  G.  Cline,  Kenneth  W.  Garrard,  BellSouth  Wireless  Cable,  Inc.  and  BellSouth  Corporation 


 (File  Nos.  50849-  CM-  AL(  1)-  97  and  50851-  CM-  AL(  2)-  97).  2 
 47  U.  S.  C.  §  543(  a)(  2);  47  C.  F.  R.  §  76.  905(  a).  3 
 47  U.  S.  C.  §  543(  l)(  1)(  B);  47  C.  F.  R.  §  76.  906(  b)(  2).  4 
 47  C.  F.  R.  §  76.  906.  5 
 47  C.  F.  R.  §  76.  911(  b)(  1). 
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 Federal  Communications  Commission  DA  04-  2066 
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 satisfy  this  requirement.  6  In  addition,  BeamSpeed  maintains  that  its  own  cable  facilities  serving  Wellton  pass  nearly  100%  of  the  households  therein.  7  We  therefore  find  that  BeamSpeed  has  submitted  sufficient 
 evidence  to  satisfy  the  first  prong  of  the  competing  provider  test. 
 4.  BeamSpeed  has  also  submitted  sufficient  evidence  demonstrating  that  the  number  of  households  subscribing  to  MVPDs  other  than  the  largest  MVPD,  in  this  case  BeamSpeed,  exceeds  15%  of 


 the  households  in  all  of  the  franchise  areas.  Relying  on  DBS  subscribership  reports  obtained  from  the  Satellite  Broadcasting  and  Communications  Association  (“  SBCA”),  BeamSpeed  submits  evidence  that 
 the  aggregate  subscribership  to  DBS  service  in  Wellton  exceeds  15%  of  the  households  therein.  8  We  find  that  BeamSpeed  has  submitted  sufficient  evidence  to  satisfy  the  second  prong  of  the  competing  provider 
 test,  thereby  establishing  the  presence  of  effective  competition. 
 5.  Accordingly,  IT  IS  ORDERED  that  the  request  for  a  determination  of  effective  competition  in  Wellton,  Arizona  filed  by  BeamSpeed,  LLC  IS  GRANTED. 


 6.  This  action  is  taken  pursuant  to  delegated  authority  pursuant  to  Section  0.283  of  the  Commission’s  rules.  9 


 FEDERAL  COMMUNICATIONS  COMMISSION 
 Steven  A.  Broeckaert  Deputy  Chief,  Policy  Division,  Media  Bureau 


 6  Petition  at  1. 
 7  Id. 
 8  Supplement  to  Petition  at  Exhibit  1.  The  precise  DBS  penetration  rate  for  Wellton  is  17.  6  percent. 
 9  47  C.  F.  R.  §  0.283. 
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