Federal Communications Commission DA 09-71 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Cablevision Systems Huntington Corporation, Cablevision Systems Long Island Corp., and CSC Acquisition-MA Inc. Petition for Determination of Effective Competition in Six Communities in New York ) ) ) ) ) ) ) ) CSR 8091-E CSR 8092-E CSR 8093-E MEMORANDUM OPINION AND ORDER Adopted: January 27, 2009 Released: January 28, 2009 By the Senior Deputy Chief, Policy Division, Media Bureau: I. INTRODUCTION AND BACKGROUND 1. Cablevision Systems Huntington Corporation, Cablevision Systems Long Island Corp., and CSC Acquisition-MA Inc., hereinafter referred to as “Petitioner,” has filed with the Commission a petition 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 the “Communities.” 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”)1 and the Commission’s implementing rules,2 and is therefore exempt from cable rate regulation in the Communities because of the competing service provided by Verizon New York Inc., hereinafter referred to as “Competitor.”3 The petition is 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 Petition based on our finding that Petitioner is subject to effective competition in the Communities listed on Attachment A. 1See 47 U.S.C. § 543(1)(1)(D). 247 C.F.R. § 76.905(b)(4). 3Cablevision states that, in one of the Communities (Manorhaven), its cable rates have never been regulated, but that it is petitioning to be free of rate regulation because “Verizon's provision of cable service [there] . . . removes any doubt regarding the absence of authority to regulate Cablevision's rates” there. See Petition at 4 n.5. We find no flaw in Cablevision's reasoning and filing petitions concerning a Community where there is no present regulation. Accordingly, we will rule on its Petition for Manorhaven. Cablevision also states that in the other five Communities, its cable rates are regulated not by Community-specific bodies, but by the New York Public Service Commission. See Petition at 4. Accordingly, in paragraph 7, infra, we revoke authority to regulate basic cable rates of both those Communities and the New York Public Service Commission. 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 09-71 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 Petition at 13. 10See Petition at Exh. 7. 11See Cable Reform Order, 14 FCC Rcd at 5305-06, ¶¶ 13-15. See also Petition at 6-12. Federal Communications Commission DA 09-71 3 III. ORDERING CLAUSES 6. Accordingly, IT IS ORDERED that the petition for a determination of effective competition filed in the captioned proceeding by Cablevision Systems Huntington Corporation, Cablevision Systems Long Island Corp., and CSC Acquisition-MA Inc., IS GRANTED. 7. IT IS FURTHER ORDERED that the certification to regulate basic cable service rates granted to, or exercised on behalf of, 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 09-71 4 ATTACHMENT A CSR 8091-E, CSR 8092-E, CSR 8093-E COMMUNITIES SERVED BY CABLEVISION SYSTEMS HUNTINGTON CORPORATION, CABLEVISION SYSTEMS LONG ISLAND CORP., AND CSC ACQUSITION-MA INC. Communities CUID(s) CSR 8091-E Northport NY0652 CSR 8092-E Hempstead NY0454 Manorhaven NY0834 Rockville Center NY0953 Roslyn NY0662 CSR 8093-E Lawrence NY1053