Federal Communications Commission DA 09-416 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of CoxCom, Inc. d/b/a Cox Communications New England Petitions for Determination of Effective Competition in various Franchise Areas in Rhode Island ) ) ) ) ) ) ) CSR 7871-E CSR 8088-E MEMORANDUM OPINION AND ORDER Adopted: February 19, 2009 Released: February 20, 2009 By the Senior Deputy Chief, Policy Division, Media Bureau: I. INTRODUCTION AND BACKGROUND 1. CoxCom, Inc. d/b/a Cox Communications New England , hereinafter referred to as “Petitioner,” has filed with the Commission petitions pursuant to Sections 76.7 and 76.905(b)(4) and 76.907 of the Commission’s rules for a determination that Petitioner is subject to effective competition in those communities listed on Attachment A and hereinafter referred to as “Communities.”1 Petitioner alleges that its cable system serving the Communities is subject to effective competition pursuant to Section 623(1)(1)(D) of the Communications Act of 1934, as amended (“Communications Act”)2 and the Commission’s implementing rules,3 and is therefore exempt from cable rate regulation in the Communities because of the competing service provided by Verizon New England Inc. (“Verizon”) , hereinafter referred to as “Competitor.” The petitions are unopposed. 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 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 Petitions based on our finding that Petitioner is subject to effective competition in the Communities listed on Attachment A. 1 Petitioner states that the Rhode Island Division of Public Utilities and Carriers, the designated local franchising authority under state law, has established the franchise areas involved in this case as Areas 2, 3 and 8 (CSR 7871-E) and Areas 1 and 4 (CSR 8088-E) for cable television purposes. Petition at 1, n.1. 2See 47 U.S.C. § 543(1)(1)(D). 347 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. 6See 47 C.F.R. §§ 76.906 & 907. Federal Communications Commission DA 09-416 2 II. DISCUSSION 3. Section 623(l)(1)(D) of the Communications Act provides that a cable operator is subject to effective competition if a local exchange carrier (“LEC”), 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 offered in that area are comparable to the video programming services provided by the competing unaffiliated cable operator.7 This test is otherwise referred to as the “LEC” test. 4. The Commission has stated that the incumbent cable operator must show that the LEC intends to build-out its cable system within a reasonable period of time if it has not completed its build- out; that no regulatory, technical, or other impediments to household service exist; that the LEC is marketing its services so that potential customers are aware that the LEC’s services may be purchased; that the LEC has actually begun to provide services; the extent of such services; the ease with which service may be expanded; and the expected date for completion of construction in the franchise area.8 It is undisputed that these Communities are served by both Petitioner and Competitor, a local exchange carrier, and that these two MVPD providers are unaffiliated. 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 programming9 and is supported in this petition with copies of channel lineups for Competitor.10 Finally, Petitioner has demonstrated that the Competitor has commenced providing video programming service within the Communities, has marketed its services in a manner that makes potential subscribers reasonably aware of its services, and otherwise satisfied the LEC effective competition test consistent with the evidentiary requirements set forth in the Cable Reform Order.11 5. Based on the foregoing, we conclude that Petitioner has submitted sufficient evidence demonstrating that its cable system serving the Communities has met the LEC test and is subject to effective competition. 7See 47 U.S.C. § 543(l)(1)(D). 8See Implementation of Cable Act Reform Provisions of the Telecommunications Act of 1996, 14 FCC Rcd 5296, 5305-06, ¶¶ 13-15 (1999) (“Cable Reform Order”). 9See 47 C.F.R. § 76.905(g). See also Petitions at 13-14 (CSR 7871-E) and 14-15 (CSR 8088-E). 10See Petitions at Exhibit 5 (CSR 7871-E) and Exhibit 6 (CSR 8088-E). 11See Cable Reform Order, 14 FCC Rcd at 5305-06, ¶¶ 13-15. See also Petitions at 7-13 (CSR 7871-E) and 7-14 (CSR 8088-E). Federal Communications Commission DA 09-416 3 III. ORDERING CLAUSES 6. Accordingly, IT IS ORDERED that the petitions for a determination of effective competition filed in the captioned proceeding by CoxCom, Inc. d/b/a Cox Communications New England ARE GRANTED. 7. IT IS FURTHER ORDERED that the certification to regulate basic cable service rates granted to any of the Communities set forth on Attachment A IS REVOKED. 8. This action is taken pursuant to delegated authority pursuant to Section 0.283 of the Commission’s rules.12 FEDERAL COMMUNICATIONS COMMISSION Steven A. Broeckaert Senior Deputy Chief, Policy Division, Media Bureau 1247 C.F.R. § 0.283. Federal Communications Commission DA 09-416 4 ATTACHMENT A CSR 7871-E COMMUNITIES SERVED BY COXCOM, INC. d/b/a COX COMMUNICATIONS NEW ENGLAND Rhode Island Service Areas 2, 3 and 8. Communities CUIDs Westerley RI0001 Providence RI0003 North Providence RI0004 Cranston RI0013 Johnston RI0014 Narragansett RI0021 South Kingstown RI0023 Scituate RI0032 Hopkinton RI0034 Charlestown RI0035 Richmond RI0036 Foster RI0045 CSR 8088-E Rhode Island Service Areas 1 and 4 Communities CUIDS Pawtucket RI0005 Smithfield RI0015 North Smithfield RI0016 Lincoln RI0017 Central Falls RI0018 Cumberland RI0019 Woonsocket RI0020 East Providence RI0024 Gloucester RI0037 Burrillville RI0038