Federal Communications Commission DA 09-1489 
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Comcast of Potomac, LLC
Petition for Determination of Effective 
Competition in Franchise Areas in 
Montgomery County, Maryland
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CSR-7179-E
MEMORANDUM OPINION AND ORDER
Adopted:  June 29, 2009 Released:  June 30, 2009
By the Senior Deputy Chief, Policy Division, Media Bureau:
I. INTRODUCTION
1. Comcast of Potomac, LLC, hereinafter referred to as “Petitioner,” has filed a petition 
pursuant to Sections 76.7, 76.905(b)(2), 76.905(b)(4), and 76.907 of the Commission’s rules for a 
determination that Petitioner is subject to effective competition in the franchise areas of Montgomery 
County, Maryland (the “County”).  Petitioner alleges that its cable systems serving the County1 are 
subject to “competing provider” effective competition pursuant to Section 623(1) of the Communications 
Act of 1934, as amended (“Communications Act”)2 and the Commission’s implementing rules,3 and are 
therefore exempt from cable rate regulation in the franchise areas of the County because of the competing 
service provided by two direct broadcast satellite (“DBS”) providers, DirecTV, Inc. (“DirecTV”) and 
Dish Network (“Dish”), and by RCN Corporation (“RCN”).  Petitioner alternatively claims that its cable 
systems serving the County are subject to “local exchange carrier” or “LEC” effective competition 
because of the competing service provided by Verizon and RCN.  The petition is opposed.   
2. In the absence of a demonstration to the contrary, cable systems are presumed not to be 
subject to effective competition,4 as that term is defined by Section 623(l) of the Communications Act and 
Section 76.905 of the Commission’s rules.5 The cable operator bears the burden of rebutting the 
  
1The franchise areas named in the pleadings herein and each one’s Community Unit Identification (“CUID”) number 
include Barnesville MD0229, Bethesda MD0348, Boyds MD0343, Brookeville MD0230, Burtonsville MD0341, 
Cabin John MD0347, the Town of Chevy Chase MD0223, Section III of Chevy Chase Village MD0274, Section IV 
of Chevy Chase Village (apparently annexed by the Town of Chevy Chase) MD0275, Section V of Chevy Chase 
Village MD0276, Chevy Chase Village (also known as Section VII of Chevy Chase Village) MD0277, Derwood 
MD0345, Gaithersburg MD0057, Garrett Park MD0231, Germantown MD0340, Glen Echo MD0233, Kensington 
MD0234, Laytonsville MD0235, Olney MD0346, Poolesville MD0228, Potomac MD0342, Rockville MD0222, 
Silver Spring MD0224, Somerset MD0227, Takoma Park MD0226, Washington Grove MD0225, West Bethesda 
MD0349, Wheaton MD0344, and the remainder of Montgomery County MD0236.  The pleadings omit mention of 
three additional municipalities in Montgomery County, which may be franchise areas but do not have CUID 
numbers:  Chevy Chase View, the Village of Martin’s Additions, and the Village of North Chevy Chase.  
2See 47 U.S.C. § 543(a)(1).
347 C.F.R. § 76.905(b)(2) and 47 C.F.R. § 76.905(b)(4).
447 C.F.R. § 76.906.
5See 47 U.S.C. § 543(l) and 47 C.F.R. § 76.905.
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presumption that effective competition does not exist with evidence that effective competition is present 
within the relevant franchise area.6 For the reasons set forth below, we grant the petition as to the City of 
Gaithersburg (the “City”), but deny it for the rest of the County.
II. BACKGROUND
3. The Filings. The filings herein indicate that there are approximately 20 franchise areas in 
the County that consist of many municipalities (cities, towns, and villages), or parts thereof, and one area 
consisting of the remainder of the County.  Eighteen municipalities (apparently all of them except the 
City of Gaithersburg) filed separate Motions to Dismiss the Petition,7 and the County government filed 
another on behalf of its remaining unincorporated territory.8 Only one Opposition was filed to the 
Petition, by the County government on behalf of eighteen named municipalities and the remainder of the 
County except for the City of Gaithersburg.9 In sum, Motions to Dismiss and an Opposition were filed 
covering all of Montgomery County except for Gaithersburg.10
4. The City of Gaithersburg is one of the franchise areas named in the Petition.  No Motion 
to Dismiss or Opposition was filed by the City or on its behalf.  Therefore, we assume that the City does 
not object to a finding that effective competition exists within Gaithersburg.  Nevertheless, Petitioner 
must sustain its statutory burden of proof that effective competition exists there and we have put 
Petitioner to its proof.11
5. The Motions to Dismiss (the “Motions”) are almost identical and allege a structural 
evidentiary flaw in the Petition, namely that the Petition treats Montgomery County as having only two 
franchise areas – the City of Gaithersburg and the remainder of the County.12 In fact, the Motions allege, 
there are many more franchise areas in the County and the law requires that the Petition present a separate 
showing of effective competition for each of them.  
6. Petitioner also filed its Reply to Opposition and Motions to Dismiss (“Reply”).  The 
Reply argues that the many Motions and the Opposition are frivolous and duplicative, that they are partly 
or wholly unauthorized, that they should therefore be stricken, and that their claims are baseless;13 that, 
despite much artful paperwork, Montgomery County consists of two franchise areas; and that Petitioner 
has shown both “competing provider” and “local exchange carrier” or “LEC” effective competition in 
both of the County franchise areas alleged by Comcast.
  
6See 47 C.F.R. §§ 76.906 & 907.
7These are Barnesville, Brookeville, the Town of Chevy Chase (apparently including Section IV of Chevy Chase 
Village), Section III of Chevy Chase Village, Section V of Chevy Chase Village, Chevy Chase View, Chevy Chase 
Village, Garrett Park, Glen Echo, Kensington, Laytonsville, Martin’s Additions, North Chevy Chase, Poolesville, 
Rockville, Somerset, Tacoma Park, and Washington Grove.
8Because the other Motions to Dismiss are almost identical, in the interests of brevity we will refer to only one of 
them, the Motion to Dismiss Comcast’s Petition for Special Relief, dated May 23, 2007, and filed by the 
Commissioners of Barnesville, Maryland (“Barnesville Motion to Dismiss”).     
9Opposition to Comcast’s Petition for Special Relief, filed by Montgomery County on behalf of itself and others 
(“County Motion to Dismiss”), dated May 31, 2007.  The Opposition also incorporates Motions to Dismiss at 3 n.2.
10We assume that the Motion to Dismiss filed by the Town of Chevy Chase represents Section IV of the Village of 
Chevy Chase, which the Town appears to have annexed.  Barnesville Motion to Dismiss at 3.
1147 C.F.R. §§ 76.906, 79.907(b).
12See Petition at 22-23, Exhs. 5-6.
13Reply at 4, 35-38.
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7. The County and municipalities filed a surreply14 to respond to several minor points made 
for the first time in Petitioner’s Reply, and a motion asking permission to file the surreply.15 We grant the 
motion because, although the surreply does repeat some previously made points, it also illuminates 
several specific points in response to matters raised for the first time in the Reply.  Because we find the 
surreply to be relevant to resolving this proceeding, we deny Petitioner’s motion to strike it.16
8. Summary. On the fundamental issue of whether there are two or more franchise areas in 
Montgomery County, we find that there are more than two franchise areas.  This finding renders 
insufficient Petitioner’s evidence of effective competition for all of Montgomery County except for the 
City of Gaithersburg.  We find that Petitioner is subject to competing provider effective competition in 
the City of Gaithersburg.  In light of that finding, we need not address Petitioner’s claim that it is also 
subject to LEC effective competition in Gaithersburg.  Accordingly, we grant Petitioner’s Petition for the 
City and deny it in all other respects.
III. FRANCHISE AREAS OTHER THAN GAITHERSBURG
9. Statutory Standards. Petitioner claims that it is subject to “competing provider” effective 
competition throughout Montgomery County.17 Section 623(l)(1)(B) of the Act provides that a cable 
operator is subject to that kind of effective competition if its
“franchise area is
(i) served by at least two unaffiliated multichannel video programming distributors 
[“MVPDs”] each of which offers comparable video programming to at least 50 percent of 
the households in the franchise area;  and
(ii) the number of households subscribing to programming services offered by [MVPDs] 
other than the largest [MVPD] exceeds 15 percent of the households in the franchise 
area; . . .”18  
Petitioner also claims that it is subject to “LEC” effective competition throughout the County.19 Section 
623(l)(1)(D) of the Act provides that a cable operator is subject to LEC effective competition if 
“a [LEC] or its affiliate (or any [MVPD] using the facilities of such carrier or its affiliate) 
offers video programming services directly to subscribers by any means (other than 
direct-to-home satellite services) in the franchise area of an unaffiliated cable operator 
which is providing cable service in that franchise area, but only if the video 
programming services so offered in that area are comparable to the video programming 
services provided by the unaffiliated cable operator in that area.”20
  
14Surreply of Montgomery County, Maryland, & Participating Municipalities Regarding Comcast’s Petition for 
Special Relief (“Surreply”).
15Motion for Leave to File Surreply. 
16Motion to Strike Surreply of Montgomery County, Maryland; see also Opposition to Comcast’s Motion to Strike 
Surreply.
17Petition at 8.  
1847 U.S.C. § 543(1)(1)(B) (emphasis added); see also 47 C.F.R. § 76.905(b)(2).
19Petition at 22.
2047 U.S.C. § 543(1)(1)(D) (emphasis added); see also 47 C.F.R. § 76.905(b)(4).
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These sections of the statute thus make clear that a “franchise area” is the geographic territory within 
which a petitioning cable operator must show competing provider and LEC effective competition. 
10. Evidence and Contentions of the Parties. Petitioner presents its evidence for effective 
competition in terms of only two areas, the City of Gaithersburg and the remainder of Montgomery 
County.21 The Motions argue that this is fundamentally flawed because Montgomery County actually 
consists of many more franchise areas.  According to the Motions, the County government and each of 
the municipalities within the County has the legal authority to issue its own franchise(s) – each 
municipality has authority within its borders and the County government has authority for the reminder of 
the County, or parts thereof.22 The government of Montgomery County started the franchising process by 
issuing Petitioner one franchise and signing a franchise agreement, which covered the entire County.23  
The County government also allowed each individual municipality to adopt the County’s franchise (and 
the agreement) as its own.  Each municipality (except Gaithersburg) took up that option, independently 
deliberated, and many held public hearings.  Each municipality passed a resolution adopting the County’s 
franchise as its own to govern Petitioner’s service within its municipal borders,24 and signed the franchise 
agreement that Petitioner had signed with the County.25  
11. Then, each municipality appointed the County government as its agent to administer its 
franchise.  Each agency was for a discrete fee, was for a fixed term, and was subject to premature 
termination in certain conditions.26 Of particular interest, each written agreement in which a municipality 
appointed the County as its agent provided that, “Termination of this Agreement . . . shall not result in the 
termination of the franchise agreement [between Petitioner and the municipality.  Rather,] the 
Municipality shall become responsible for the administration and enforcement of the franchise agreement 
within its corporate limits.”27 When transfers affecting Petitioner occurred, the affected municipalities 
signed individual documents reflecting those transfers.28 More recently, this process was largely followed 
by the County and different sets of municipalities in granting franchises to RCN and Verizon.29
12. Therefore, the Motions argue, there are many franchise areas in Montgomery County 
despite the fact that Montgomery County is the only active regulator of Petitioner in all of the 
  
21Petition at 2-22 passim, Exhs. 5-6.
22MD. STAT. ANN., art. 23A § 2(b)(13), art. 25A, § 5B.   
23County Motion to Dismiss, Exh. A; Barnesville Motion to Dismiss, Exh. A at 1 (second WHEREAS). 
24Barnesville Motion to Dismiss at 4, Exh. C. 
25Id. at 4, Exh. B, Exh. G (Declaration of Jane E. Lawton, Cable Communications Administrator for the County, 
dated May 18, 2007, at ¶ 3): 
“The County and various of the municipalities have negotiated cable franchises with Comcast, . . .   
In those negotiations, each of the municipalities in Montgomery County retained the right to grant 
or deny its own franchise.  Moreover, the municipalities were represented by their own legal 
counsel, and made their own independent determinations as to whether to enter into the 
agreements negotiated by my office on their behalf.”  
See also Surreply at 5.  Section 3 of Chevy Chase Village, Glen Echo, Kensington, and Laytonsville appear to have 
omitted this last step of signing an agreement with the County.
26Barnesville Motion to Dismiss, Exh. A at 2, §§ 1, 6, 8, 13.
27Id. at 4, Exh. A, § 13.
28County Motion to Dismiss at 4-5.  It appears that this process occurred when the first franchises for cable service 
were adopted and were repeated at their most recent renewal in 1998.  County Motion to Dismiss at 4-6 & n.10.
29County Motion to Dismiss at 6-7 & Exhs. C, G; Opposition at 14-15, 20-22.
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communities (except for Gaithersburg).  The Motions argue that the Petitioner’s lack of data specific to 
any franchise area in the County (except for Gaithersburg) to satisfy any test for effective competition 
makes the Petition fundamentally insufficient to satisfy Petitioner’s burden of proof.30
13. In Reply, Petitioner claims that the franchising process described above is a virtual sham, 
that in reality there has always been only one franchise area and franchise authority in the County (other 
than the City of Gaithersburg).31 Petitioner maintains that the County government has represented itself 
to the Commission and others as the only franchise authority and has always acted as such,32 and that the 
County government is therefore estopped to claim otherwise in this case.33
14. Precedent. When the Commission implemented the effective competition provisions of 
the statute, it interpreted the term “franchise area.”  First, the Commission observed that determinations 
about effective competition would be made “on a franchise-area basis.   Thus, if a cable system serves
more than one franchise area in a geographic region, then a separate effective competition determination 
would have to be made for each distinct franchise area.”34 The Commission defined “franchise area” as 
“the area a system operator is granted authority to serve in its franchise.”35 The Commission also 
recognized that measuring competing provider effective competition in an unduly wide area might merge 
competitive and noncompetitive franchise areas and prematurely end rate regulation in the latter.36  
15. Several effective competition decisions have hinged on whether a given area is covered 
by one or more franchises.  In Mediacom Minnesota, several separate municipalities had created a new 
entity, a single regulatory commission to regulate cable service.  The new commission issued one 
franchise to a cable operator for all the municipalities’ territories.  The Commission concluded in 
Mediacom Minnesota that there was one franchise area.37 In TKR Cable of Northern Kentucky, despite 
several kinds of activity by a county on behalf of itself and a municipality, the Commission concluded 
that the county and municipality remained separate franchise areas, chiefly because the municipality 
performed some activities alone and retained the authority and autonomy to grant and administer a 
franchise on its own.38 In TKR Cable of Northern Kentucky and the later CoxCom, Inc., the Commission 
stated that it wanted to allow local governments to engage in efficiency-maximizing joint activities 
  
30The Motions also state that Petitioner failed to serve each franchising authority with a copy of the Petition, in 
violation of 47 C.F.R. § 76.7(a)(3).  Barnesville Motion to Dismiss at 2 n.1.
31Reply at 2 n.1 (accusing the Motions and Opposition of “false representations”), 3 (characterizing the same as 
“nothing less than astounding”).
32Id. at 3-5, 8 & n.25, 15-16.
33Id. at 5, 16-20.
34Implementation of Sections of the Cable Television Consumer Protection & Competition Act of 1992:  Rate 
Regulation, 8 FCC Rcd 510, 515, ¶ 18 (1992); see also Service Electric Cable TV of New Jersey, Inc., 20 FCC Rcd 
20532, 20534, ¶ 6 (2005) (“the fact that Service Electric operates the 26 franchises as a single contiguous system is 
immaterial to our analysis.  The statute requires Service Electric to demonstrate effective competition in each 
franchise area.”) (footnote, internal quotations and brackets omitted); Century M.L. Cable Corp., 16 FCC Rcd 
14102, 14104, ¶ 5 (2001).
35Implementation of Sections of the Cable Television & Consumer Protection Act of 1992: Rate Regulation, 9 FCC 
Rcd 1164, 1180, ¶ 24 (1993).
36Implementation of Section of the Cable Television Consumer Protection & Competition Act of 1992; Rate 
Regulation, 8 FCC Rcd 5631, 5672-73, ¶ 49 (1993), reversed in part on other grounds, Time Warner Entertainment 
Co., L.P. v. FCC, 56 F.3d 151 (D.C. Cir. 1995), cert. denied, 516 U.S. 1112 (1996).
37Mediacom Minnesota LLC, 20 FCC Rcd 4984, 4985, ¶¶ 3-4 (2005).
38TKR Cable of Northern Kentucky (“TKR”), 11 FCC Rcd 9973, 9982-83, ¶¶ 20-22 (1996).
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without losing the autonomy to act independently should they wish to regain and exercise it.39
16. Analysis. There is no doubt that the numerous incorporated municipalities of 
Montgomery County are real, functioning legal entities and not shams created to magnify Petitioner’s 
evidentiary burden and slow deregulation.  The franchising process described above reflected those 
separate identities and that of the County.  It preserved the separate autonomous municipalities as 
franchising authorities, each with a franchise area identical to its historic boundaries.  The process that the 
County and municipalities followed was painstaking and undeniably complicated, but it was not a sham.  
It would have been more painstaking and complicated for each municipality as well as Petitioner to 
negotiate alone with Petitioner, grant it a slightly different franchise, and then regulate Petitioner 
independent of all the other municipalities.  What the County and municipalities engaged in was a prudent 
means of achieving efficiencies by centralizing a common regulatory function, while each municipality 
preserved its right to restore its independence.  We, by accepting what they did as valid, continue our 
policy of allowing local governments to engage in efficiency-maximizing joint activities without losing 
the autonomy to act independently later should they wish to do so. We conclude that the Motions and 
Opposition are correct that the borders of each municipality in Montgomery County mark a different 
franchise area for purposes of demonstrating competing provider and LEC effective competition.
17. The facts of Mediacom Minnesota closely resemble those of the present case.  We find, 
however, that there are enough distinguishing facts between that case and this to warrant concluding that 
there was one franchise area in Mediacom Minnesota and many more in this case.  First, the arguments 
that there are many franchise areas were stated with much more detail and analysis in this case.  Second, 
each municipality in this case took more steps than the ones in Mediacom Minnesota did to preserve its 
independent authority and its franchise area as a stand-alone entity.  The most important of those steps 
occurred when, after the County had granted one franchise for the entire County, each municipality 
deliberately carved its own franchise area out of the County-wide one.  No such steps were taken in 
Mediacom Minnesota.40  We conclude that those factors distinguish this case from Mediacom Minnesota,
and that its conclusion that that case involved one franchise area does not bind us in this case.   
18. Petitioner invokes the doctrine of equitable estoppel, which has been described as arising 
when a party made a definite misrepresentation of fact and had reason to believe that another party would 
rely on it, and the other party reasonably relied on that misrepresentation to its detriment.41 Petitioner 
argues that the County government has so often represented itself as the County’s sole franchising 
authority to this Commission and others (such as Petitioner’s subscribers) that we should not allow the 
County government to deny that here.42 Equitable estoppel is a doctrine that we may apply in our 
  
39CoxCom, Inc., 22 FCC Rcd 4041, 4046, ¶ 14 (2007); TKR, 11 FCC Rcd at 9982-83 ¶ 22; see also 47 C.F.R. § 
76.912 (authorizing franchise authorities to apply for “joint certification” with the Commission).
40See CSR 6241-E, Opposition to Petition for Special Relief, filed by the Lake Minnetonka Cable Commission, 
dated Nov. 6, 2003, at 11 (“The LMCC franchise does not and could not limit the ability of the member cities to 
immediately establish 16 discrete franchises by simply adopting the franchise [granted by the LMCC] by 
reference.”); Reply to Opposition (“Minnesota Reply”), filed by Mediacom Minnesota LLC, dated Nov. 19, 2003, at 
5 (“Nor is there any evidence that any of the founding municipalities executed or individually adopted the single 
LMCC franchise agreement.”).  The Agreement creating the LMCC stated that its purpose was to “enforce a single . 
. . cable communications franchise,” not to have one body (Montgomery County in the present case) be agent for 
municipalities and administer many franchises.  Minnesota Reply, Exh. 2 at 1, § 1.
41Kavowras v. New York Times Co., 328 F.3d 50, 56 (2d Cir. 2003).  Another statement of the doctrine is that 
“[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may 
not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the 
prejudice of the party who has acquiesced in the position formerly taken by him.”  New Hampshire v. Maine, 532 
U.S. 742, 749 (2001), quoting Davis v. Wakelee, 156 U.S. 680, 689 (1895).  
42Reply at 20.  
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discretion,43 and we choose not to do so here for several reasons.  The County represented itself to this 
Commission as “the franchising authority for all of the community unit identifier numbers listed below” 
on its Form 32844 and made similar statements to subscribers (telling them to contact the County with 
inquiries or complaints).  Those statements, even if technically inaccurate, did accurately describe the 
day-to-day realities in the County, namely that the County was the actual regulator of Petitioner and that 
the Commission and subscribers should contact the County if they had inquiries.  There is no indication 
that these statements were intended to deceive the Commission, Petitioner, or subscribers, or to make a 
mockery of the regulatory system.45 No Petitioner subscriber seeking redress from government would 
have been helped by a technically accurate description of the complex process described in the preceding 
paragraphs, at the end of which the subscriber would still need to contact the County government to seek 
redress.  
19. Third, Petitioner has pointed us to no affirmative misstatement by the County to the 
Commission about the geographic scope of any “franchise area,” which is the material issue in this 
proceeding.  Finally, we cannot accept Petitioner’s claim of detrimental reliance on the County 
government’s statements.  Petitioner itself was aware of the complex process employed by the County 
government and the municipalities and of their belief that it was valid.46 For example, the County’s 
franchise agreement bears the words, on its signature page, “Add signature pages for each participating 
municipality”; the words “Participating Municipalities” appear throughout the agreement; 47 and page 3 of 
the agreement spells out in detail the possibility that municipalities would appoint the County their 
agent.48 The agreement itself was signed by Petitioner’s predecessor and the record herein does not 
contain any signed acceptance of it by Petitioner.  Nevertheless, we feel safe in assuming that Petitioner 
(a seasoned cable operator) read the franchise agreement before taking on its rights and obligations and 
was therefore aware of its provisions.  Certainly, Petitioner nowhere claims that it was unaware of the 
possibility of municipalities becoming “Participating Municipalities” as explicitly provided for in the 
agreement.  Nor does Petitioner claim that it had no idea that any municipality had actually appointed the 
County government as its agent to administer its franchise before Petitioner assumed the franchise 
agreement.  Accordingly, we cannot let Petitioner claim surprise that the County and municipalities now 
  
43New Hampshire v. Maine, 532 U.S. at 750; see also Ajaka v. Brooksamerica Mortgage Corp., 453 F.3d 1339, 
1343-44 (11th Cir. 2006) (judicial or equitable estoppel “is an equitable doctrine invoked at a court's discretion.  . . .  
Judicial estoppel is intended to be a flexible rule in which courts must take into account all of the circumstances of 
each case in making our determination.”) (internal quotations and citations omitted). 
44FCC Form 328 (Certification of Franchising Authority to Regulate Basic Cable Service Rates & Initial Finding of 
Lack of Effective Competition) filed by Montgomery County, signed Aug. 31, 1993.
45Ajaka v. Brooksamerica Mortgage Corp., 453 F.3d at 1344 (judicial or equitable estoppel “is an equitable concept 
intended to prevent the perversion of the judicial process.”).  If the County inaccurately described itself to the 
Commission in a 1994 rate appeal (SBC Media Ventures, Inc., 9 FCC Rcd 7175 (1994)) as the franchising authority 
throughout Montgomery County, there is no indication that it intended to deceive or injure the Commission or 
wrongfully alter the outcome of the appeal.  Petitioner implies that that case involved geographic rate discrimination 
and potentially uniform County-wide rates.  Reply at 13-14.  The issue in that case, however, is better described as 
temporal discrimination – existing customers paying one rate and new customers paying another.  SBC Media 
Ventures, Inc., 9 FCC Rcd at 7176, ¶ 5.  Even if, however, the County had imposed geographically uniform rates for 
Petitioner in every decision under the agreements that are before us, that would be a predictable efficiency achieved 
by the municipalities all appointing the County as their agent, and not evidence that there was only one franchise 
area.  See Surreply at 3.
46Surreply at 6.
47Reply at Exh. 1 (“Comcast Cable Franchise Agreement (Excerpts)”) at 3, 6, 10, 12, 26, 57-58, 69, 101, 107.  
Comcast’s Reply at 7 n.21 quotes the words “Add signature pages for each participating municipality.”
48Id. at 3 (“certain municipalities . . . have requested that the County administer and enforce the terms of their cable 
television franchises”).
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claim to be separate franchising authorities, each with a unique franchise area.  Nor is there any indication 
that the Commission or any consumer was misled into relying on the County’s statements and suffered 
harm as a result.
20. Two other matters merit mention.  First, we considered studying Petitioner’s evidence 
about all of Montgomery County other than Gaithersburg and attempting to compose from its pieces a 
showing of effective competition in individual municipalities or the franchise areas in the unincorporated 
remainder of the County.  We decline to do so, however.  There is no evidence in the record that the 
second element of competing provider effective competition – 15 percent penetration by MVPDs other 
than the largest one49 – is satisfied in any of those individual areas.  Also, Petitioner has not submitted 
evidence of LEC competition on a franchise-area-by-franchise-area basis.  Although it may be that 
evidence of the conduct of Verizon and/or RCN in one or more areas would establish the elements of 
LEC competition there, that evidence is not stated clearly in the record before us and the parties have not 
discussed its strengths and weaknesses thoroughly.  
21. Second, Petitioner objects that some of the franchise areas asserted in the Motions are 
small in population and that establishing effective competition in them would burden it unreasonably.50  
This objection is meritless because, as a matter of law, the Communications Act makes the “franchise 
area,” large or small, the unit of measurement of competing provider and LEC effective competition.51  
Other cable operators have attempted to bear the burden of showing effective competition in small 
franchise areas.52 It is not unreasonable to require the same of Petitioner.
22. After considering the voluminous record on the franchise area issue, we conclude that 
Petitioner’s failure to produce separate evidence of effective competition for each of the County’s 
municipalities (other than the City of Gaithersburg) is fatal to the majority of its Petition.  We are guided 
to this conclusion not only by the steps taken by the municipalities, but especially also by our caution at 
the prospect of measuring competing provider effective competition in an unduly wide area,  merging 
competitive and noncompetitive franchise areas, and prematurely end rate regulation in the latter.53  
Accordingly, we conclude that Petitioner has failed to show competing provider or LEC effective 
competition in the franchise areas of Montgomery County, Maryland, other than the City of Gaithersburg.  
Petitioner is free to re-file a Petition for determination of effective competition for the various franchise 
areas of Montgomery County consistent with the findings set forth herein.54
  
49See supra ¶ 9.
50Reply at 11 n.41.
51See supra ¶ 9.
52See, e.g., Time Warner Cable Inc., 23 FCC Rcd 12210, 12212, ¶ 7, 12219, reconsideration denied, 23 FCC Rcd 
16483 (2008) (Teterboro, New Jersey, 7 households), application for review pending on other grounds; MCC 
Missouri LLC, 20 FCC Rcd 17031, 17035 (2005) (Excelsior Estates and Homestead, Missouri, 95 and 72 
households, respectively); MCC Missouri LLC, 20 FCC Rcd 17025, 17029 (2005) (Newtonia, Missouri, 89 
households). 
53Implementation of Section of the Cable Television Consumer Protection & Competition Act of 1992; Rate 
Regulation, 8 FCC Rcd 5631, 5672-73, ¶ 49 (1993), reversed in part on other grounds, Time Warner Entertainment 
Co., L.P. v. FCC, 56 F.3d 151 (D.C. Cir. 1995), cert. denied, 516 U.S. 1112 (1996).
54See infra ¶ 32.
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IV. THE CITY OF GAITHERSBURG
23. In Montgomery County, Gaithersburg is a franchise territory.  The City granted Petitioner 
its own franchise55 and administers it itself.56 The Petition submits evidence for Gaithersburg alone, 
purporting to show that Petitioner faces competing provider effective competition there.    
A. Competing Provider Effective Competition
24. The competing provider test in Section 623(l)(1)(B) of the Communications Act provides 
that a cable operator is subject to effective competition if the franchise area is (a) served by at least two 
unaffiliated multi-channel video programming distributors (“MVPD”), each of which offers comparable 
video programming to at least 50 percent of the households in the franchise area; and (b) the number of 
households subscribing to programming services offered by MVPDs other than the largest MVPD 
exceeds 15 percent of the households in the franchise area.57
25. The first prong of this test has three elements: the franchise area must be “served by” at 
least two unaffiliated MVPDs who offer “comparable programming” to at least “50 percent” of the 
households in the franchise area.58   
26. Turning to the first prong of this test, it is undisputed that Gaithersburg is “served by” 
both DBS providers, DIRECTV and Dish, and that these two MVPD providers are unaffiliated with 
Petitioner or with each other.  A franchise area is considered “served by” an MVPD if that MVPD’s 
service is both technically and actually available in the franchise area.  DBS service is presumed to be 
technically available due to its nationwide satellite footprint, and presumed to be actually available if 
households in the franchise area are made reasonably aware of the service's availability.59 The 
Commission has held that a party may use evidence of penetration rates in the franchise area (the second 
prong of the competing provider test discussed below) coupled with the ubiquity of DBS services to show 
that consumers are reasonably aware of the availability of DBS service.60 We further find that Petitioner 
has provided sufficient evidence of DBS advertising in local, regional, and national media that serve 
Gaithersburg to support its assertion that potential customers in Gaithersburg are reasonably aware that 
they may purchase the service of these MVPD providers.61 The “comparable programming” element is 
met if a competing MVPD provider offers at least 12 channels of video programming, including at least 
one channel of nonbroadcast service programming62 and is supported in this petition with copies of 
channel lineups for both DIRECTV and Dish.63 Also undisputed is Petitioner’s assertion that both 
DIRECTV and Dish offer service to at least “50 percent” of the households in Gaithersburg because of 
their national satellite footprint.64 Accordingly, we find that the first prong of the competing provider test 
is satisfied.  
  
55Petition at 13.
56Barnesville Motion to Dismiss at 5.
5747 U.S.C. § 543(1)(1)(B); see also 47 C.F.R. § 76.905(b)(2).
5847 C.F.R. § 76.905(b)(2)(i).
59See Petition at 10.
60Mediacom Illinois LLC, 21 FCC Rcd 1175 (2006).
6147 C.F.R. § 76.905(e)(2).   
62See 47 C.F.R. § 76.905(g).  See also Petition at 9.
63See Petition at Exh. 7.
64See id. at 10-11.
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27. The second prong of the competing provider test requires that the number of households 
subscribing to MVPDs, other than the largest MVPD, exceed 15 percent of the households in a franchise 
area.  Petitioner asserts that it is the largest MVPD in Gaithersburg.65 Petitioner sought to determine the 
competing provider penetration in Gaithersburg by purchasing a subscriber tracking report from the 
Satellite Broadcasting and Communications Association that identified the number of subscribers 
attributable to the DBS providers within Gaithersburg on a zip code plus four basis.66
28. Based upon the aggregate DBS subscriber penetration levels that were calculated using 
Census 2000 household data,67 as reflected in Attachment A, we find that Petitioner has demonstrated that 
the number of households subscribing to programming services offered by MVPDs, other than the largest 
MVPD, exceeds 15 percent of the households in Gaithersburg.  Therefore, the second prong of the 
competing provider test is satisfied for Gaithersburg.
29. Based on the foregoing, we conclude that Petitioner has submitted sufficient evidence 
demonstrating that both prongs of the competing provider test are satisfied and Petitioner is subject to 
effective competition in Gaithersburg, as shown on Attachment A.
V. PROCEDURAL MATTERS
30. Request to Strike. Petitioner requests that we strike the Motions and the Opposition for 
violating the Commission’s pleading rules and for being frivolous.68 We decline to do so.  Typically, a 
franchise authority is entitled to file only one pleading opposing a petition for special relief.  Additional 
pleadings are allowed only “upon a showing of extraordinary circumstances.”69 The County and the 
municipalities did ask for permission to file their Motions to Dismiss, launching their fundamental attack 
on the structure of Petitioner’s evidence and characterizing it as a flaw requiring immediate dismissal, 
even before the normal filing of Oppositions.70 The Motions plausibly alleged “extraordinary 
circumstances” and, therefore, did not violate the Commission’s pleading rules. 
31. Because we conclude above that the County and the municipalities revealed a real 
structural flaw in Petitioner’s evidence, the pleadings in which they did so are not, to that extent, 
frivolous.  Nor was it frivolous for many separate entities to file many separate Motions to Dismiss.  The 
bulk of those filings included copies of various agreements and franchises, which would have been 
submitted to us even had only one Joint Motion been filed.  The remainder of the frivolities alleged by 
Petitioner are either matters of interpretation, or arguments that we do not analyze in this decision because 
of our conclusion on the number of franchise areas in Montgomery County.  Accordingly, we deny 
Petitioner’s motion to strike and we allow the County’s and municipalities’ Motions to Dismiss in 
addition to its Opposition.  
32. Possible Subsequent Proceedings. If Petitioner files another petition for special relief for 
the various franchise areas in Montgomery County, we request that it and any other parties clarify one 
important subject that is less than clear in the present record.  This is, in general, what are the many 
  
65Id. at 8, 12.
66Petition at 15.  A zip code plus four analysis allocates DBS subscribers to a franchise area using zip code plus four 
information that generally reflects franchise area boundaries in a more accurate fashion than standard five digit zip 
code information.
67Petition at 17. 
68Reply at 35-38.
6947 C.F.R. § 76.7(d).
70Barnesville Motion to Dismiss at iv, 12.
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separate “franchise areas” in Montgomery County for purposes of determining the presence of effective 
competition under the standards set by our decisions.71 Specifically, we wish the parties to address (1) 
whether Chevy Chase Village and Section VII of Chevy Chase Village (MD 0277) are the same entity; 
(2) whether Section IV of Chevy Chase Village and the Town of Chevy Chase (MD0275), which has 
apparently annexed Section IV, are one franchise area; (3) whether Chevy Chase View, the Village of 
Martin’s Additions, and the Village of North Chevy Chase are franchise areas separate and apart from 
unincorporated Montgomery County; and (4) whether what appear to be eleven unincorporated areas that 
the County may have designated as separate franchise areas should be treated as such or as part of 
unincorporated Montgomery County.72
VI. ORDERING CLAUSES
33. Accordingly, IT IS ORDERED that the petition for a determination of effective 
competition filed in the captioned proceeding by Comcast of Potomac, LLC, IS GRANTED for the City 
of Gaithersburg, and IS DENIED for all other franchise areas in Montgomery County, Maryland.
34. IT IS FURTHER ORDERED that the certifications to regulate basic cable service rates 
granted to the City of Gaithersburg, Maryland, IS REVOKED.
35. This action is taken pursuant to delegated authority pursuant to Section 0.283 of the 
Commission’s rules.73
FEDERAL COMMUNICATIONS COMMISSION
Steven A. Broeckaert
Senior Deputy Chief, Policy Division, Media Bureau
  
71See supra ¶¶ 14-15.
72The eleven areas are Bethesda, Boyds, Burtonsville, Cabin John, Derwood, Germantown, Olney, Potomac, Silver 
Spring, West Bethesda, and Wheaton.  Although they are mentioned in pleadings opposing the Petition (County 
Motion to Dismiss at 1 n.1, 2, 3 n.4), it appears that no party asserts any of them is a franchise area separate and 
apart from unincorporated Montgomery County.
7347 C.F.R. § 0.283.
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ATTCAHMENT A
CSR 7179-E
COMMUNITY SERVED BY COMCAST OF POTOMAC, LLC
2000 Estimated
Census  DBS
Community CUID CPR* Households Subscribers
Gaithersburg MD0057 15.28%  19621 2999
CPR = Percent of competitive DBS penetration rate