Federal Communications Commission DA 11-251 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Time Warner Cable Inc. Petition for Determination of Effective Competition in Ten Nebraska Franchise Areas ) ) ) ) ) ) CSR 8376-E MEMORANDUM OPINION AND ORDER Adopted: February 7, 2011 Released: February 11, 2011 By the Senior Deputy Chief, Policy Division, Media Bureau: I. INTRODUCTION AND BACKGROUND 1. Time Warner Cable Inc., hereinafter referred to as “Petitioner,” has filed with the Commission a petition pursuant to Sections 76.7, 76.905(b)(1-2), 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 (the “Attachment A Communities”). Petitioner alleges that its cable system serving the Attachment A Communities is subject to effective competition pursuant to Section 623(l) 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 Attachment A Communities because of the competing service provided by two direct broadcast satellite (“DBS”) providers, DIRECTV, Inc. (“DIRECTV”), and DISH Network (“DISH”). Petitioner also claims to be exempt from cable rate regulation in the Communities listed on Attachment B (the “Attachment B Communities”) because the Petitioner serves fewer than 30 percent of the households in those franchise areas. 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,3 as that term is defined by Section 623(l) of the Communications Act and Section 76.905 of the Commission’s rules.4 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.5 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 Attachments A and B. 1 See 47 U.S.C. § 543(l). 2 47 C.F.R. § 76.905(b)(2). 3 47 C.F.R. § 76.906. 4 See 47 U.S.C. § 543(l); 47 C.F.R. § 76.905. 5 See 47 C.F.R. §§ 76.906, -.907(b). Federal Communications Commission DA 11-251 2 II. DISCUSSION A. The Competing Provider Test 3. 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 (“MVPDs”) 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.6 This test is referred to as the “competing provider” test. 4. 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.7 5. Turning to the first prong of this test, it is undisputed that the Attachment A Communities are “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.8 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.9 We further find that Petitioner has provided sufficient evidence to support its assertion that potential customers in the Communities are reasonably aware that they may purchase the service of these MVPD providers.10 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 programming11 and is supported in the petition with citations to the channel lineups for both DIRECTV and DISH.12 Also undisputed is Petitioner’s assertion that both DIRECTV and DISH offer service to at least “50 percent” of the households in the Attachment A Communities because of their national satellite footprint.13 Accordingly, we find that the first prong of the competing provider test is satisfied. 6. 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 the Attachment A Communities, except for Cedar Bluffs.14 Petitioner sought to determine the competing provider penetration in those Communities by 6 47 U.S.C. § 543(l)(1)(B); see also 47 C.F.R. § 76.905(b)(2). 7 47 C.F.R. § 76.905(b)(2)(i). 8 See Petition at 3. 9 Mediacom Illinois LLC, 21 FCC Rcd 1175, 1176, ¶ 3 (2006). 10 47 C.F.R. § 76.905(e)(2). 11 See 47 C.F.R. § 76.905(g). See also Petition at 5-6. 12 See Petition at 6. Petitioner cites program listings available on www.directv.com and www.dishnetwork.com. 13 See Petition at 6-7. 14 See Petition at 7-8 and attached Declaration of Ann Shrewsbury, Vice President of Communications for Time Warner Cable. Time Warner states it is not clear if Time Warner is the largest MVPD in Cedar Bluffs. However, Time Warner asserts that for this franchise area, both DBS and cable penetration exceed 15% of the occupied households. In (continued....) Federal Communications Commission DA 11-251 3 purchasing a subscriber tracking report from the Satellite Broadcasting and Communications Association that identified the number of subscribers attributable to the DBS providers within the Attachment A Communities on a five digit zip code basis.15 7. Based upon the aggregate DBS subscriber penetration levels that were calculated using Census 2000 household data,16 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 the Attachment A Communities. Therefore, the second prong of the competing provider test is satisfied for each of the Attachment A Communities. 8. 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 the Communities listed on Attachment A. B. The Low Penetration Test 9. Section 623(l)(1)(A) of the Communications Act provides that a cable operator is subject to effective competition if the Petitioner serves fewer than 30 percent of the households in the franchise area. This test is referred to as the “low penetration” test.17 Petitioner alleges that it is subject to effective competition under the low penetration effective competition test because it serves less that 30 percent of the households in the Attachment B Communities. 10. Based upon the subscriber penetration level calculated by Petitioner, as reflected in Attachment B, we find that Petitioner has demonstrated the percentage of households subscribing to its cable service is less than 30 percent of the households in the Attachment B Communities. Therefore, the low penetration test is satisfied as to the Attachment B Communities. (...continued from previous page) such cases, the Commission has recognized that the second prong of the competing provider test is satisfied. See, e.g., Charter Communications – Seven Local Franchise Areas in Missouri, 21 FCC Rcd 1208, 1210 at ¶ 5 (2006). 15 Petition at 8-9. Time Warner states that it has used the five-digit zip code allocation formula previously used by the Commission in numerous decisions to calculate the DBS providers’ subscribership in various Communities. See, e.g., Comcast of Dallas, L.P., 20 FCC Rcd 17968, 17969-70 (2005) (approving of a cable operator’s use of a Media Business Corporation “allocation factor, which reflects the portion of a five digit postal zip code that lies within the border of the City,” to determine DBS subscribership for that franchise). 16 Petition at 8-9 and Exhibit E. 17 47 U.S.C. § 543(l)(1)(A). Federal Communications Commission DA 11-251 4 III. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED that the petition for a determination of effective competition filed in the captioned proceeding by Time Warner Cable Inc. IS GRANTED. 12. IT IS FURTHER ORDERED that the certification to regulate basic cable service rates granted to any of the Communities set forth on Attachments A and B IS REVOKED. 13. This action is taken pursuant to delegated authority pursuant to Section 0.283 of the Commission’s rules.18 FEDERAL COMMUNICATIONS COMMISSION Steven A. Broeckaert Senior Deputy Chief, Policy Division, Media Bureau 18 47 C.F.R. § 0.283. Federal Communications Commission DA 11-251 5 ATTACHMENT A CSR 8376-E COMMUNITIES SERVED BY TIME WARNER CABLE INC. Communities CUIDs CPR* 2000 Census Households Estimated DBS Subscribers Cedar Bluffs NE0521 45.91% 247 113.30 Inglewood NE0074 29.27% 154 45.08 Lincoln NE0032 15.04% 90,485 13,606.01 Lancaster County (unincorporated) NE0082 22.94% 6,367 1,460.68 *CPR = Percent of competitive DBS penetration rate. Federal Communications Commission DA 11-251 6 ATTACHMENT B CSR 8376-E COMMUNITIES SERVED BY TIME WARNER CABLE INC. Communities CUIDs Franchise Area Households Cable Subscribers Penetration Percentage Dodge County (unincorporated) Dodge County, Lake Ventura (unincorporated) NE0470 NE0525 2,189 313 14.30% Platte County (unincorporated) NE0441 2,472 71 2.87% Saunders County (unincorporated) Saunders County, Woodcliffe Lakes (unincorporated) NE0523 NE0524 3,048 272 8.92% Seward County (unincorporated) NE0522 1,967 12 0.61%