Before the

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | **CSR 7588-E**               |
|                                  | * |                              |
| Comcast Cable Communications,    | ) | **CSR 7589-E**               |
| LLC, on behalf of subsidiaries   | * |                              |
| and affiliates                   | * | **CSR 7590-E**               |
|                                  |   |                              |
| Petitions for Determination of   | * | **CSR 7591-E**               |
| Effective Competition in 107     | * |                              |
| Franchise Areas in New Jersey    | ) | **CSR 7592-E**               |
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|                                  | * | **CSR 7800-E**               |
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|                                  | * | **CSR 7801-E**               |
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|                                  | ) | **CSR 7803-E**               |
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|                                  | * | **CSR 7804-E**               |
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|                                  | * | **CSR 7805-E**               |
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|                                  | ) | **CSR 7818-E**               |
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|                                  | * | **CSR 7865-E**               |
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|                                  | * | **CSR 7866-E**               |
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|                                  | ) | **CSR 7867-E**               |
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|                                  | * | **CSR 7868-E**               |
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|                                  | * | **CSR 7869-E**               |
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|                                  | ) | **CSR 7870-E**               |
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|                                  | * | **CSR 7872-E**               |
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|                                  | * | **CSR 7877-E**               |
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+----------------------------------+---+------------------------------+

MEMORANDUM OPINION AND ORDER

**Adopted: February 18, 2009 Released: February 19, 2009**

By the Senior Deputy Chief, Policy Division, Media Bureau:

# introduction and Background

1.  Comcast Cable Communications, LLC, on behalf of subsidiaries and
    affiliates, hereinafter referred to as "Petitioner," has filed with
    the Commission a petition pursuant to Sections 76.7, 76.905(b)(1),
    76.905(b)(2), 76.905(b)(4) and 76.907 of the Commission's rules for
    determinations that Petitioner is subject to effective competition
    in those franchise areas listed on the Attachments hereto.
    Petitioner alleges that its cable systems serving those franchise
    areas listed in Attachment A hereto and hereinafter referred to as
    the "Attachment A Communities" are subject to effective competition
    pursuant to Section 623(1)(1)(B) of the Communications Act of 1934,
    as amended ("Communications Act")[^1] and the Commission's
    implementing rules,[^2] and are therefore exempt from cable rate
    regulation in the 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 three
    Communities listed on Attachment B, hereinafter referred to as the
    "Attachment B Communities," because the Petitioner serves fewer than
    30 percent of the households in those Communities. Petitioner
    finally claims that it is exempt from cable rate regulation in the
    Communities listed on Attachment C, hereinafter referred to as the
    "Attachment C Communities," because of the competing service
    provided by Verizon New Jersey, Inc., hereinafter referred to as
    "Competitor."

2.  All the petitions are opposed by the Division of Rate Counsel (the
    "DRC") of the Department of the Public Advocate of the Board of
    Public Utilities of the State of New Jersey (the "BPU"). In
    addition, individual oppositions were filed by the Townships of
    Lumberton and Mount Holly, two Communities in CSR 7877-E. The
    Township of Lumberton makes specific arguments against the Petition
    in CSR 7877-E;[^3] the Township of Mount Holly generally states its
    support for the DRC's arguments.[^4] Petitioner filed a reply to
    every opposition but the Township of Mount Holly's.

3.  Petitioner has requested permission to withdraw one Community in CSR
    7872-E (Lyndhurst, NJ0297) and one in CSR 7885-E (Fairfield, NJ0186)
    from consideration herein without prejudice to their later
    re-submission.[^5] The DRC does not object, and we grant
    Petitioner's request.

4.  In the absence of a demonstration to the contrary, cable systems are
    presumed not to be subject to effective competition,[^6] as that
    term is defined by Section 623(l) of the Communications Act and
    Section 76.905 of the Commission's rules.[^7] 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.[^8] 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 Attachments A, B, and C.

# DISCUSSION

## The Competing Provider Test

5.  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;[^9] this
    test is otherwise referred to as the "competing provider" test.

6.  The first prong of this test has three elements: the franchise area
    must be "served by" at least two unaffiliated MVPDs who offer at
    least "50 percent" of the households in the franchise area
    "comparable programming."[^10]

7.  Turning to the first prong, 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.[^11]
    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.[^12] 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 is undisputed.[^13]

8.  The "comparable programming" element of the first prong is satisfied
    if a competing MVPD provider offers at least 12 channels of video
    programming, including at least one channel of nonbroadcast service
    programming[^14] and is supported in the petitions with copies of
    channel lineups for both DIRECTV and Dish.[^15] In CSR 7877-E, the
    Township of Lumberton (NJ 0389), through its Mayor, makes an
    argument that we interpret as going to whether the DBS providers'
    programming is comparable to Petitioner's. The Mayor alleges that
    many of that Township's residents enjoy watching Philadelphia sports
    teams.[^16] The Mayor appears to believe that those teams can be
    seen only on Petitioner's cable service, and are not available on
    the DBS providers' services. The Mayor claims that Petitioner
    therefore has a "monopoly or something approaching a monopoly on the
    broadcast of the majority of local professional sports games in the
    Philadelphia market."[^17] The Mayor concludes that, therefore,
    Petitioner lacks effective competition in Lumberton.[^18]

9.  We find that the Township of Lumberton's argument lacks merit. As
    noted in the preceding paragraph, all that is necessary for the
    programming to be "comparable" is that it offer at least 12 channels
    of video programming, including at least one channel of nonbroadcast
    service programming. The presence or absence of any kind of program
    content, even popular local sports, is not material. It also appears
    that local sports are available to households in Lumberton in some
    packages offered by the DBS providers.[^19] Accordingly, we cannot
    give weight to the Township of Lumberton's allegations and we find
    the DBS providers' programming to be comparable to Petitioner's.
    Accordingly we conclude that the first prong of the competing
    provider test is satisfied, both in Lumberton and the other
    Attachment A Communities.

10. 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, without objection from the DRC, that it is the
    largest MVPD in all the Attachment A Communities.[^20] Petitioner
    sought to determine the competing provider penetration in the
    Attachment A Communities by purchasing a subscriber tracking report
    from the Satellite Broadcasting and Communications Association
    ("SBCA") that identified the number of subscribers attributable to
    the DBS providers within the Attachment A Communities on a
    five-digit zip code basis.[^21]

11. The aggregate DBS subscriber penetration levels that were calculated
    using Census 2000 household data[^22] (and, in one Community, a 2006
    Census estimate[^23]) as reflected in Attachment A, indicate 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. This evidence, if
    unrefuted, satisfies the second prong of the competing provider test
    for each of the Attachment A Communities.[^24]

### The DRC's Objections

12. The DRC makes several objections to Petitioner's calculations. Some
    objections apply to how Petitioner calculated the numerators of its
    ratios, and others to their denominators. Some apply to all the
    Attachment A Communities, and others only to individual ones.

##### General Objections {#general-objections .unnumbered}

13. [Timeliness of Data.]{.underline} The DRC objects that Petitioner's
    calculations use DBS subscriber numbers from 2007 or 2008 and
    household data from 2000 (and, in one case, 2006). The DRC argues
    that the Census-derived household data is stale and that
    Petitioner's subscribership and household data should be
    contemporaneous with each other and the date on which the Petition
    that contains it is filed.[^25] We disagree with the DRC. The use of
    the most recent Census count of "households," while allowing for the
    use of more recent and equally or more reliable household counts, is
    a practice that we authorized early in litigation about effective
    competition.[^26] Petitioner submitted such data (the most recent
    available Census data) here and that sustained its initial burden of
    proof about household numbers in each Attachment A Community. We
    have also stated that we will accept more recent household numbers
    that are at least as reliable as Census numbers,[^27] but the DRC
    has submitted no such numbers here. In many decisions, including
    involving the State of New Jersey, we have found competing provider
    effective competition to exist based on household and DBS
    subscribership data that are several years apart in time.[^28]
    Accordingly, we conclude that the DRC's general allegations about
    the timeliness of the data submitted by Petitioner reveal no flaw in
    the petitions.

14. We also dismiss the DRC's advocacy of a "complete when filed" rule,
    which apparently would prohibit late-filed updates to Petitioner's
    data, and which the DRC advocates in the course of its argument that
    Petitioner's data is stale.[^29] In previous proceedings, the DRC
    advocated such a rule as a procedural one, and we adopt the analysis
    by which we declined to follow it in those proceedings.[^30] In
    addition, no updates to the data in the petitions were necessary, so
    the petitions herein were complete when filed.

15. [Cancellations.]{.underline} The DRC objects that Petitioner's
    estimates of DBS subscribership do not account for cancellations of
    DBS service after the dates on which SBCA estimated subscribership
    and before each Petition was filed.[^31] Attached to the DRC's
    comments are publications that, the DRC says, show "a steady decline
    in satellite subscribership in 2007."[^32] We find no merit in the
    DRC's objection, which we recently rejected in another
    proceeding.[^33] The available evidence shows that DBS
    subscribership, as a percentage of subscription to all MVPD
    services, generally has increased over time (that is, new
    subscriptions have outnumbered cancellations).[^34] Indeed, the very
    publications the DRC attaches to its Comments state that DBS
    subscriber numbers grew steadily in absolute terms, and did not
    decline, in 2007.[^35] Accordingly, we decline the DRC's request
    that we fault Petitioner for not making post-Petition updates of
    cancellations of DBS service.

16. [Requests for Petitioner's "Analysis and Work Papers."]{.underline}
    The DRC objects that Petitioner's filings did not include "the
    analysis and work papers that underlie and support its calculation
    of satellite penetration percentage."[^36] Without the analysis and
    papers, the DRC says, it cannot examine, verify, and challenge the
    underlying numbers from which Petitioner's household and DBS
    subscriber numbers were derived.[^37] We have rejected this
    objection before[^38] and we affirm that rejection, but here the DRC
    cites for the first time several Court of Appeals decisions. The
    decisions reversed regulatory agencies, including this Commission,
    for not allowing interested parties to examine calculations the
    agencies made and used as the bases for new regulations.[^39] The
    DRC argues that, as in those cases, it would be reversible error for
    the Commission to rule on the present petitions without allowing it
    to examine all the analysis and work papers Petitioner used in
    preparing its case.

17. What Petitioner filed herein are all the numbers of DBS subscribers
    and households, the calculations by which Petitioner used those
    numbers to estimate DBS subscribership in the Attachment A
    Communities, and detailed statements by Media Business Corporation
    ("MBC") and SBCA describing how they derived the numbers that
    Petitioner used. These appear to be all the numbers of households
    and DBS subscribers with which Petitioner estimated competing
    provider effective competition. We have accepted these statements
    and kinds of numbers in scores of earlier competing provider
    effective competition decisions. The DRC reveals no significant
    omission, technical flaw or analytical unsoundness in either the
    numbers, their derivation, or the calculations made with them; and
    gives no indication of what additional "underlying data," assuming
    that there are any, would have added in substance to the record
    before the Bureau.

18. The Court of Appeals decisions cited by the DRC are inapposite on
    several grounds. First, those decisions found that regulators had
    failed to comply with the notice-and-comment requirements of Section
    5 of the Administrative Procedure Act.[^40] That Section applies
    only to rulemakings, however, and this proceeding is an
    adjudication, to which Section 5 is inapplicable. Second, the
    calculations that the courts reversed the regulators for not making
    available were calculations by the regulatory agencies
    themselves.[^41] The information and analysis that the DRC seeks
    here, however, are by Petitioner or its independent contractors (MBC
    and SBCA). Third, the calculations involved in the decisions that
    the DRC cites led to new regulations or changes in existing
    regulations.[^42] As noted in the preceding paragraph, the
    information that the DRC seeks here is of the same kind, and the
    calculations are by the same formulas, that we have used in scores
    of previous effective competition decisions.[^43] The DRC gives us
    no reason to suspect them.

19. We agree wholeheartedly that the data on which we base our decisions
    should be made available for analysis by commenting parties.
    Petitioner has made that data available, in the Exhibits to its
    Petitions. The DRC has simply asked for more, without any specific
    indication that more exists, would reveal an error, or would
    otherwise be helpful to efficient, pro-consumer regulation.

##### Specific Objections  {#specific-objections .unnumbered}

20. In CSR 7800-E, concerning Jersey City (NJ0558), the DRC objects that
    Petitioner's count of DBS subscribers omitted those in one zip
    code (07311) that it should have included.[^44] Petitioner answers
    that that zip code is entirely included within another, 07302, which
    it did include.[^45] Petitioner appears to be correct, and we accept
    its answer. We also note that, in this and other instances of
    alleged omissions of zip codes addressed in the following
    paragraphs, if Petitioner erroneously omitted a zip code from its
    calculation of DBS subscriber numbers in an Attachment A Community,
    that error would reduce the number of DBS subscribers and would
    weaken Petitioner's showing of competing provider effective
    competition there. Petitioner has no incentive to weaken its own
    case, and it does not appear to have done so with the zip codes in
    question. If it did, however, the DRC would not be prejudiced;
    indeed, only Petitioner's showing would suffer.

21. In CSR 7801-E, concerning Plainfield (NJ0126), the DRC objects that
    Petitioner's count of DBS subscribers omitted those in one zip
    code (07069) that it should have included and included those in
    another zip code (08812) that it should have excluded.[^46] The
    source of the DRC's objection is a service on the United States
    Postal Service's ("USPS's") web page that associates zip codes with
    place names.[^47] The USPS's service identifies one or more place
    names with which a zip code is primarily identified for purposes of
    mail delivery. It does not, however, purport to precisely track what
    is important for measuring competing provider effective competition,
    namely the political boundaries of New Jersey's many municipalities.
    Thus, the zip code 07069 is primarily associated by the USPS, in the
    web page the DRC uses, with Plainfield for mail delivery and yet
    includes no part of the political entity named the City of
    Plainfield;[^48] and the zip code 08812 is associated with Dunellen
    and Green Brook for purposes of mail delivery but includes a small
    part of the City of Plainfield.[^49] Petitioner's method of
    associating zip codes with New Jersey municipalities' precise
    boundaries[^50] is more nuanced, for our purposes in these
    decisions, than the particular USPS web page that the DRC relies on.
    Accordingly, it appears that Petitioner correctly included and
    excluded these zip codes in estimating DBS subscriber numbers in its
    Plainfield franchise area in CSR-7801-E.

22. The DRC makes the same kind of objections, and Petitioner makes the
    same kind of convincing response, in CSR 7804-E about the omission
    of seven zip codes for Trenton (NJ0478);[^51] in CSR 7805-E about
    the treatment of parts of one zip code for Carney's Point
    (NJ0537);[^52] in CSR 7818-E about the omission of one zip code and
    the inclusion of two zip codes for Ocean (NJ0216);[^53] in CSR
    7866-E about Petitioner's allocation of parts of one zip code
    between two Attachment A Communities (Long Branch (NJ0436) and West
    Long Branch (NJ0157));[^54] in CSR 7867-E about Petitioner's
    inclusion of parts of three zip codes in Clayton (NJ0368);[^55] in
    CSR 7868-E about Petitioner's inclusion of part of one zip code in
    High Bridge (NJ0078), parts of three zip codes in Lebanon (NJ0041),
    parts of three zip codes in Liberty (NJ0502), and part of one zip
    code in Oxford (NJ0116);[^56] in CSR 7877-E about Petitioner's
    inclusion of part of one zip code in Camden (NJ0388), parts of five
    zip codes in Chesterfield (NJ0395), and part of one zip code in
    Lumberton (NJ0389);[^57] and, in CSR 7885-E about Petitioner's
    inclusion of part of one zip code in Irvington (NJ0164), one in
    Orange (NJ0202), two in Perth Amboy (NJ0350), one in Roselle Park
    (NJ0247), one in Union (NJ0222), and one in Woodbridge
    (NJ0329).[^58] After a thorough review of the arguments of the DRC
    and the responses of Petitioner, we conclude that in all these
    Attachment A Communities Petitioner has correctly estimated DBS
    subscriber numbers and the DRC has failed to find flaws in them.

##### Conclusion {#conclusion .unnumbered}

23. Based upon the subscribership levels for the DBS providers that are
    reflected in Attachment A, and despite the general and specific
    objections made by the DRC, 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. Accordingly, we conclude that
    Petitioner has submitted sufficient evidence demonstrating that both
    prongs of the competing provider test are satisfied in the
    Communities listed on Attachment A and that Petitioner is subject to
    effective competition there.

## The Low Penetration Test

24. 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";[^59] this test is otherwise referred to as the "low
    penetration" test. Petitioner alleges that it is subject to
    effective competition under the low penetration effective
    competition test in the three Attachment B Communities because it
    serves less than 30 percent of the households there.[^60]
    Petitioner's calculations, in particular, show that its own
    subscribership amounts to 2 percent of the households in Mount Olive
    (NJ0012),[^61] 16.78 percent in New Hanover (NJ0392), and 14.59
    percent in Woodland (NJ0596).[^62]

### The DRC's Objections

25. The DRC makes two general objections to Petitioner's showings of low
    penetration effective competition. The first is to Petitioner's use
    of 2008 data for its own subscribers and 2000 Census data for the
    number of households.[^63] This is the same objection that the DRC
    made to Petitioner's data showing competing provider effective
    competition, and we dismiss it for the reasons stated in paragraphs
    13-14 above.[^64]

26. The DRC's second objection to Petitioner's showings is that
    Petitioner has failed to show that its plant passes all the homes in
    its franchise area and/or that there is another cable operator
    there.[^65] The DRC seems to assume that low penetration effective
    competition is premised on the existence of a second cable operator
    throughout the petitioner's franchise area to whom subscribers to
    petitioner's service can turn in the event of a price increase. This
    is incorrect; Section 623(l)(1)(A) states no such requirement, and
    we discern none that is implicit in the statute. The statute
    requires only household penetration of less than 30 percent in the
    petitioner's franchise area, and there is no dispute that Petitioner
    has shown that in each of the Attachment B Communities.

27. The DRC briefly alludes to a line of cases in which franchise
    authorities showed that cable operators had made affirmative
    decisions, confirmed by their own conduct, to serve less than the
    whole area granted in their franchises, in which cases we measured
    effective competition in the lesser areas.[^66] The DRC has not
    attempted to make such a showing in this case, however, and
    therefore cannot invoke those cases' holdings.

28. 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
    Communities listed on Attachment B. Therefore, the low penetration
    test is satisfied in the Attachment B Communities.

## The LEC Test

29. 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.[^67] This test is otherwise
    referred to as the LEC test. Petitioner asserts that the cable
    service offered by Competitor (Verizon New Jersey, Inc.) satisfies
    the LEC test in the Attachment C Communities.

30. The Commission has stated that the incumbent cable operator must
    show that the LEC intends to build out its cable system, in an area
    that substantially overlaps the incumbent cable operator's, 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.[^68]

31. It is undisputed that the Attachment C Communities are served by
    both Petitioner and Competitor, that Competitor is a LEC, 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 programming[^69] and is supported in
    this petition with copies of channel lineups for Competitor.[^70]
    Finally, Petitioner has demonstrated that the Competitor has
    commenced providing video programming service within the Communities
    pursuant to its "system-wide" franchise,[^71] 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*.[^72]

32. These showings, if unrefuted, would demonstrate that Petitioner's
    cable systems serving the Communities listed on Attachment C have
    met the LEC test and are subject to effective competition.

### The DRC's Objections

33. The DRC makes three general objections to Petitioner's showings of
    LEC effective competition. The first are legal. The DRC objects that
    system-wide franchises were not contemplated when Congress enacted
    the statutory provision for LEC effective competition,[^73] and
    therefore no system-wide franchise may lawfully be the basis for a
    finding of LEC effective competition.[^74] The DRC also bases this
    objection on our decision in *Service Electric Cable TV of New
    Jersey,*[^75] where the Commission refused to allow a cable operator
    to aggregate franchise areas, making it inconsistent to allow
    Petitioner to rely on Verizon's system-wide franchise here.[^76]
    Finally, the DRC objects that, given the novelty of system-wide
    franchises, the Bureau may not lawfully rule on them as a basis for
    LEC effective competition findings until the Commission has ruled on
    them.[^77]

34. Petitioner's objections lack merit. First, even if we assume that
    the applicable statute was enacted before system-wide franchises,
    that would not disable the statute from applying to such franchises.
    The DRC has given us neither legislative history nor reasoning
    indicating that LEC competition may be found only with reference to
    types of franchises that existed at the statute's enactment. In
    fact, we have found LEC effective competition in previous cases
    based on a statewide franchise.[^78] Our decision in *Service
    Electric Cable TV of New Jersey*, relied on by the DRC, is not to
    the contrary. That decision, which ruled on a competing provider
    test of effective competition rather than a LEC test, prohibited a
    cable operator from combining DBS subscribership data for many
    franchise areas in a single sum, attempting to thereby show
    subscribership in excess of 15 percent in all the franchise areas
    combined. We required that the cable operator document
    subscribership counts based on a franchise by franchise basis.[^79]
    *Service Electric Cable TV of New Jersey* is not applicable in this
    case since it does not concern the LEC test, which we are addressing
    here. Furthermore, issues of subscribership data do not even arise
    under the LEC test. Rather, the elements of LEC effective
    competition are those stated in paragraphs 28 and 29 above.

35. The DRC's second objection to Petitioner's showing of LEC effective
    competition is that Competitor does not offer video programming that
    is "comparable" to Petitioner's because Competitor's programming
    does not yet include "public, government, and educational" or PEG
    channels.[^80] The DRC misunderstands our standard for what
    constitutes comparable programming for purposes of effective
    competition. 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
    programming[^81] and is supported in this petition with citations to
    the channel lineups for Competitor.[^82] There is no doubt that the
    petitions satisfy that standard. Whether Competitor's service is
    comparable for effective competition purposes does not depend on
    whether it includes PEG channels.[^83]

36. The DRC's final objection to Petitioner's showing of LEC effective
    competition is that Petitioner has not shown that Competitor has any
    subscribers for its video service.[^84] This is incorrect.
    Petitioner has shown that Competitor has subscribers in each
    Attachment C Community.[^85] Moreover, it is not necessary that
    Petitioner show that Competitor's service has reached a certain
    level of subscribership in those Communities.[^86] In adopting the
    LEC competition test, Congress believed that a LEC would be a
    formidable competitor to an incumbent cable operator from its
    commencement of service in part of a community.[^87] Therefore, we
    have consistently required that a petitioner show only that a LEC
    has actually begun to provide service in areas that substantially
    overlap petitioner's (which the DRC does not deny), that the LEC is
    marketing its services so that potential customers are aware of it,
    and that it intends to build out its cable system within a
    reasonable period of time if it has not already done so.[^88]
    Petitioner has shown that Competitor has done all these things, thus
    sustaining its burden of proof. The DRC has not successfully refuted
    any of Petitioner's evidence.

37. Based on the foregoing, we conclude that Petitioner has submitted
    sufficient evidence demonstrating that its cable systems serving the
    Communities listed on Attachment C have met the LEC test and are
    subject to effective competition.

# MISCELLANEOUS

38. In its Comments in several proceedings, the DRC observes that the
    Commission has rules requiring the payment of fees in connection
    with the petition and the listing of franchise areas in the
    petition.[^89] Because the DRC does not allege, much less
    substantiate, any specific violation of those rules by Petitioner,
    we find no significance in its observations. The DRC also makes the
    additional and more specific objection in some proceedings that
    Petitioner erred in paying only one filing fee per cable system
    instead of one fee per Community.[^90] In support of its allegation,
    the DRC cites a Commission rule that does not exist.[^91] The DRC's
    objection is mistaken. Petitioner filed the correct amount of fees,
    which is one per cable system regardless of how many Communities are
    involved.[^92]

# ordering clauses 

39. Accordingly, **IT IS ORDERED** that the petitions for a
    determination of effective competition filed in the captioned
    proceeding by Comcast Cable Communications, LLC, on behalf of its
    subsidiaries and affiliates, **ARE GRANTED.**

40. **IT IS FURTHER ORDERED** that the certification to regulate basic
    cable service rates granted to any of the Communities set forth on
    Attachments A, B, and C **IS REVOKED**.

41. This action is taken pursuant to delegated authority pursuant to
    Section 0.283 of the Commission's rules.[^93]

    FEDERAL COMMUNICATIONS COMMISSION

Steven A. Broeckaert

Senior Deputy Chief, Policy Division, Media Bureau

**ATTACHMENT A**

**CSR 7800-E, CSR 7801-E**, **CSR 7803-E**, **CSR 7804-E**, **CSR
7805-E, CSR 7818-E, CSR 7865-E**, **CSR 7866-E**, **CSR 7867-E**, **CSR
7868-E**, **CSR 7869-E**, **CSR 7870-E**, **CSR 7872-E**, **CSR
7877-E**,

**CSR 7885-E**

**COMMUNITIES SERVED BY SUBSIDIARIES AND AFFILIATES OF**

**COMCAST CABLE COMMUNICATONS, LLC**

**2000 Estimated**

**Census DBS**

## Communities CUID(s) CPR\* Households Subscribers  {#communities-cuids-cpr-households-subscribers .unnumbered}

**CSR 7800-E**

Jersey City NJ0558 20.20% 88632 17901

**CSR 7801-E**

North Plainfield NJ0124 21.88% 7202 1576

Plainfield NJ0126 22.18% 15137 3358

South Plainfield NJ0130 26.28% 7151 1879

**CSR 7803-E**

Beachwood NJ0091 17.35% 3475 603

**CSR 7804-E**

Trenton NJ0478 20.42% 29437 6011

**CSR 7805-E**

Carneys Point NJ0537 21.07% 3121 658

Township

**CSR 7818-E**

Ocean Township NJ0216 24.89% 2446 609

**CSR 7865-E**

Cranbury NJ0437 36.18% 1091 395

East Brunswick NJ0021 18.86% 16372 3088

Jamesburg NJ0438 20.64% 2176 449

Spotswood NJ0440 20.09% 3099 623

**CSR 7866-E**

Atlantic Highlands NJ0363 16.57% 1969 326

Deal NJ0471 36.55% 434 159

Long Branch NJ0436 22.61% 12594 2847

West Long Branch NJ0157 17.60% 2448 431

**CSR 7867-E**

Clayton NJ0368 19.74% 2464 486

East Greenwich NJ0460 20.58% 1901 391

Paulsboro NJ0413 15.79% 2353 372

**CSR 7868-E**

Belvidere NJ0115 27.68% 1088 301

Califon NJ0555 28.48% 401 114

High Bridge NJ0078 24.19% 1428 346

**2000 Estimated**

**Census DBS**

**Communities CUID(s) CPR\* Households Subscribers**

**CSR 7868-E (continued)**

Lebanon NJ0041[^94] 27.84% 1963 547

Liberty NJ0502 36.67% 980 359

Oxford NJ0116 37.03% 886 328

White NJ0240 28.94% 1668 483

**CSR 7869-E**

Atlantic City NJ0006 15.13% 15848 2398

Bass River NJ0629 19.83% 548 109

Corbin City NJ0455 19.26% 172 33

Dennis NJ0454 16.79% 2159 362

Egg Harbor City NJ0528 17.11% 1658 284

Egg Harbor Township NJ0002 23.95% 11199 2682

Galloway NJ0415 17.17% 10772 1849

Hamilton NJ0332 23.49% 7148 1679

Pleasantville NJ0004 23.27% 6402 1489

Port Republic NJ0623 24.38% 365 89

Ventnor NJ0031 15.24% 5480 835

Weymouth NJ0583 51.92% 851 442

Woodbine NJ0466 18.65% 773 144

**CSR 7870-E**

Barnegat Light NJ0182 18.22% 371 68

Beach Haven NJ0016 20.92% 586 123

Long Beach NJ0018 21.35% 1664 355

Ship Bottom NJ0019 21.52% 664 143

Surf City NJ0020 20.36% 706 144

**CSR 7872-E**

Carlstadt NJ0296 22.86% 2393 547

East Newark NJ0300 32.90% 767 252

Wallington NJ0382 18.24% 4752 867

**CSR 7877-E**

Camden City NJ0388 16.39% 24271 3979

Chesterfield NJ0395 49.93% 899 449

Easthampton NJ0416 19.21% 2226 428

Fieldsboro NJ0384 23.19% 189 44

Florence NJ0387 18.16% 4149 753

Lumberton NJ0389 18.98% 3930 746

Mansfield NJ0419 32.85% 2077 682

Mount Holly NJ0356 19.38% 3903 757

Pemberton Borough NJ0390 19.71% 470 93

Pemberton Township NJ0310 18.52% 10050 1861

Pennsauken NJ0257 17.74% 12389 2198

Plumstead NJ0391 28.47% 2510 715

Shamong NJ0594 15.29% 2132 326

Southampton NJ0418 15.32% 4574 701

Springfield NJ0411 25.27% 1098 278

**2000 Estimated**

**Census DBS**

**Communities CUID(s) CPR\* Households Subscribers**

**CSR 7877-E (continued)**

Tabernacle NJ0595 15.41% 2346 361

Westhampton NJ0417 19.63% 2525 496

Wrightstown NJ0394 17.12% 312 53

**CSR 7885-E**

Belleville NJ0220 22.16% 13731 3043

Bloomfield NJ0221 15.51% 19017 2949

Carteret NJ0402 29.69% 7039 2090

Irvington NJ0164 16.09% 22032 3545

Orange NJ0202 17.25% 11885 2051

Perth Amboy NJ0350 24.70% 14562 3596

Rahway NJ0354 20.12% 10028 2017

Roselle NJ0248 21.40% 7520 1609

Roselle Park NJ0247 15.43% 5137 793

Secaucus NJ0325 15.38% 6214 956

South River NJ0443 32.45% 5606 1819

Union NJ0222 23.66% 19534 4621

Winfield NJ0361 23.89% 694 166

Woodbridge NJ0329 22.22% 34562 7681

\*CPR = Percent of competitive DBS penetration rate.

**ATTACHMENT B**

**CSR 7868-E, 7877-E**

**COMMUNITIES SERVED BY SUBSIDIARIES AND AFFILIATES OF**

**COMCAST CABLE COMMUNICATONS, LLC**

##  Franchise Area Cable Penetration  {#franchise-area-cable-penetration .unnumbered}

## Communities CUID(s) Households Subscribers Percentage  {#communities-cuids-households-subscribers-percentage .unnumbered}

##  {#section .unnumbered}

**CSR 7868-E**

Mount Olive NJ0012 9068 181 2.00%

**CSR 7877-E**

New Hanover NJ0392 1162 195 16.78%

## Woodland NJ0596 425 62 14.59% {#woodland-nj0596-425-62-14.59 .unnumbered}

##  {#section-1 .unnumbered}

**ATTACHMENT C**

**CSR 7588-E, CSR 7589-E, CSR 7590-E, CSR 7591-E, CSR 7592-E**

**COMMUNITIES SERVED BY SUBSIDIARIES AND AFFILIATES OF**

**COMCAST CABLE COMMUNICATONS, LLC**

## Communities CUID(s)  {#communities-cuids .unnumbered}

##   {#section-2 .unnumbered}

**CSR 7588-E**

Eatontown NJ0132

Fair Haven NJ0435

Freehold NJ0474

Holmdel NJ0487

Little Silver NJ0206

Middletown NJ0362

Oceanport NJ0158

Red Bank NJ0433

Rumson NJ0469

Sea Bright NJ0156

Shrewsbury Borough NJ0274

Tinton Falls NJ0434

**CSR 7589-E**

Audubon Borough NJ0172

Barrington NJ0230

Cherry Hill NJ0241

Haddon Heights NJ0205

Haddonfield NJ0301

Lawnside NJ0303

**CSR 7590-E**

East Rutherford NJ0295

Wallington NJ0382

**CSR 7591-E**

Cranford NJ0360

Garwood NJ0378

Kenilworth NJ0351

**CSR 7592-E**

Monroe NJ0372

[^1]: *See* 47 U.S.C. § 543(l)(1)(B).

[^2]: 47 C.F.R. § 76.905(b)(2).

[^3]: *See* ¶ 9 *infra.*

[^4]: Letter from Brian M. Guest, Esq., Parker McCay, counsel for the
    Township of Mount Holly, to Marlene H. Dortch, Commission Secretary,
    dated July 24, 2008.

[^5]: Motion to Withdraw Lyndhurst, New Jersey, from Petition for
    Special Relief, filed by Petitioner on Aug. 7, 2008; Motion to
    Withdraw Fairfield, New Jersey, from Petition for Special Relief,
    filed by Petitioner on July 3, 2008.

[^6]: 47 C.F.R. § 76.906.

[^7]: *See* 47 U.S.C. § 543(l) and 47 C.F.R. § 76.905.

[^8]: *See* 47 C.F.R. §§ 76.906 & 907.

[^9]: 47 U.S.C. § 543(1)(1)(B); *see* also 47 C.F.R. § 76.905(b)(2).

[^10]: 47 C.F.R. § 76.905(b)(2)(i).

[^11]: *See, e.g.,* Petition in CSR 7800-E at 3; Petition in CSR 7801-E
    at 3; Petition in CSR 7803-E at 3.

[^12]: *Mediacom Illinois LLC,* 21 FCC Rcd 1175, 1176, ¶ 3 (2006)*.*

[^13]: *See* Petition in CSR 7867-E at 2-3; Petition in CSR 7868-E at 3;
    Petition in CSR 7869-E at 2-3.

[^14]: *See* 47 C.F.R. § 76.905(g); *see also, e.g.,* Petition in CSR
    7804-E at 4; Petition in CSR 7805-E at 4; Petition in CSR 7818-E at
    4.

[^15]: *See, e.g.,* Petition in CSR 7865-E at Exh. 1; Petition in CSR
    7866-E at Exh. 1; Petition in CSR 7867-E at Exh. 1.

[^16]: Affidavit of Patrick Delany, Mayor of Lumberton Township at ¶¶
    11-12 (dated June 26, 2008), attached to Comment & Opposition to
    Petition for Special Relief Filed by Comcast Cable Commun., LLC,
    filed by the Township of Lumberton on June 26, 2008.

[^17]: *Id.* at ¶ 21.

[^18]: *Id.* at ¶ 22.

[^19]: Expert Satellite, *Lumberton, New Jersey DIRECTV Offers &
    Information,*
    http://www.expertsatellite.com/direct-tv-lumberton-new-jersey
    ("Local sports teams in Lumberton. Catch the best local sports
    action in Lumberton. Philadelphia Eagles. Philadelphia Flyers.
    Philadelphia Phillies."), visited Oct. 8, 2008; Dish Network,
    http://snl.jt.org/dishnetwork/dish-network-lumberton-nj.html ("When
    you upgrade to America's Top 120, . . . you can take advantage of
    your regional sports network"), visited Oct. 8, 2008.

[^20]: *See, e.g.,* Petition in CSR 7870-E at 5; Petition in CSR 7872-E
    at 5; Petition in CSR 7877-E at 5.

[^21]: *See, e.g.,* Petition in CSR 7885-E at 4-7; Petition in CSR
    7800-E at 4-7; Petition in CSR 7801-E at 4-7.

[^22]: *See, e.g.,* Petition in CSR 7803-E at 6-7; Petition in CSR
    7804-E at 6-7; Petition in CSR 7805-E at 6-7.

[^23]: The Community in question is Camden, NJ0388. Petition in CSR
    7877-E, Exh. 7 at 14. Petitioner estimates DBS subscribership at
    3,979 ÷ 24,271, or 16.39%.

[^24]: In its replies, Petitioner has supplied DBS subscribership
    estimates using DBS subscriber numbers that are more recent than
    those in its petitions. This is not necessary and we do not rely on
    the more recent data. In the vast majority of cases, however, DBS
    subscribership has increased based on the more recent data; in no
    case has it fallen below the statutory minimum. *Compare, e.g.,*
    Petition in CSR 7865-E, Exh. 5, *with* Reply in CSR 7865-E, Exh. B;
    Petition in CSR 7870-E, Exh. 5, *with* Reply in CSR 7870-E, Exh. B;
    Petition in CSR 7885-E, Exh. 6, *with* Reply in CSR 7885-E, Exh. D.

[^25]: *See, e.g.,* Comments in CSR 7800-E at 4; Comments in CSR 7801-E
    at 4-5; Comments in CSR 7803-E at 4.

[^26]: *Cable Operators' Petitions for Reconsideration & Revocation of
    Franchising Authorities' Certifications to Regulate Basic Cable
    Service Rates,* Order, 9 FCC Rcd 3656, ¶ 2(3) (1994):

    > "With respect to household data, we realize that in many cases
    > 1990 census data represents the most recent data available.
    > Accordingly, we believe that 1990 census data is an appropriate
    > measure of households. Operators that have access to more recent
    > data may submit such information if they so choose."

    *See also* *Subsidiaries of Cablevision Systems Corp.,* Memorandum
    Opinion & Order DA 08-2217 ("*Cablevision New Jersey 101*") at ¶ 13
    (rel. Oct. 2, 2008), available at 2008 WL 4449658 ("the most recent
    available Census data may be used to show the number of households
    in a community"); *Cablevision of Rockland/Ramapo Inc.,* 22 FCC Rcd
    11487, 11493, ¶ 16 (2007); *Cablevision of Raritan Valley, Inc.,* 19
    FCC Rcd 6966, 6968, ¶ 6 (2004) ("2000 Census data is sufficiently
    reliable for effective competition determinations").

[^27]: *Adelphia Cable Commun.,* 22 FCC Rcd 4458, 4462, ¶ 14 (2007);
    *Bright House Networks, LLC,* 22 FCC Rcd 4390, 4393, ¶ 11 (2007);
    *Bright House Networks, LLC,* 22 FCC Rcd 4161, 4165, ¶ 11 (2007).

[^28]: *See, e.g., Cablevision New Jersey 101, supra* note 26; *Time
    Warner Cable Inc.,* 23 FCC Rcd 12210, 12214, ¶ 15 (2008) (accepting
    2000 Census data and 2007 DBS subscribership data); *Jones
    Intercable, Inc.*, 15 FCC Rcd 7254, 7256, n.12, ¶ 5 (2000) (using
    1990 Census despite the fact that it was nearly a decade old);
    *Tel-Com, Inc.*, 11 FCC Rcd 9153, n.36, 9159, ¶ 11 (1996) (1996
    decision using 1990 Census data).

[^29]: *See*, *e.g.,* Comments in CSR 7800-E at 5 ("A 'complete when
    filed' rule is necessary in order to weigh supporting data of even
    date").

[^30]: *Cablevision New Jersey 101*, *supra* note 26, at ¶¶ 21-22.

[^31]: *See, e.g.,* Comments in CSR 7801-E at 6; Comments in CSR 7803-E
    at 5; Comments in CSR 7804-E at 5.

[^32]: *See, e.g.,* Comments in CSR 7805-E at 5; Comments in CSR 7818-E
    at 5; Comments in CSR 7866-E at 6.

[^33]: *Cablevision New Jersey 101*, *supra* note 26, at ¶ 15.

[^34]: *Annual Assessment of the Status of Competition in the Market for
    the Delivery of Video Programming*, Twelfth Annual Report, 21 FCC
    Rcd 2503, 2617 (2006) (showing annual growth in the percent of MVPD
    subscribers receiving DBS service, rising to 28% in the most recent
    reported year).

[^35]: *See, e.g.,* Comments in CSR 7800-E at Exh. A, which consists of
    several company announcements and securities analyses, including
    *EchoStar Reports First Quarter 2007 Financial Results* ("DISH
    Network(tm) added approximately 310,000 net new subscribers during
    the first quarter of 2007"); *EchoStar Reports Second Quarter 2007
    Financial Results* ("DISH Network(r) service added approximately
    170,000 net new subscribers during the second quarter of 2007");
    *EchoStar Reports Third Quarter 2007 Financial Results* ("DISH
    Network(r) service . . . added approximately 110,000 net new
    subscribers during the third quarter of 2007"); *EchoStar Reports
    Fourth Quarter 2007 Financial Results* ("DISH Network added
    approximately 85,000 net new subscribers during the quarter ended
    Dec. 31, 2007"); DIRECTV Investors Day (DIRECTV "\[e\]xpects 17.5
    million \[subscribers\] by year end . . . DIRECTV has 16.8 million
    subscribers"); Cable360Net, *Satellite in the Slow Lane?*
    (predicting growth, albeit slow, for DBS); Lisa Daniel, *Subscriber
    Bases: Quantity or Quality*, [Satellite Today]{.smallcaps} (Sept. 1,
    2008) ("The leader in satellite's trend toward higher-paying
    subscribers is . . . DIRECTV, analysts say. . . . . DIRECTV posted
    its lowest churn rate in three years in the first quarter of this
    year. . . . EchoStar is adding subscribers . . . Cable has not added
    subscribers in several years and their penetration rate is declining
    because of satellite," according to one analyst).

[^36]: *See, e.g.,* Comments in CSR 7865-E at 6; Comments in CSR 7866-E
    at 6; Comments in CSR 7869-E at 6.

[^37]: *Id.*

[^38]: *Cablevision New Jersey 101*, *supra* note 26, at ¶¶ 19-20.

[^39]: *American Radio Relay League, Inc. v. FCC,* 524 F.3d 227 (D.C.
    Cir. 2008); *Owner-Operator Independent Drivers Ass'n, Inc. v.
    FMCSA*, 494 F.3d 188 (D.C. Cir. 2007); *S**olite Corp. v. EPA*, 952
    F.2d 473 (D.C. Cir. 1991).

[^40]: 5 U.S.C. § 553(b-c).

[^41]: *American Radio Relay League, Inc.,* 524 F.3d at 236 ("More
    persuasive is the League\'s contention that the Commission has
    failed to comply with the APA by not disclosing in full certain
    *studies by its staff* upon which the Commission relied in
    promulgating the rule") (italics added); *Owner-Operator Independent
    Drivers Ass'n, Inc.*, 494 F.3d at 202 ("we cannot say that *the
    agency\'s operator-fatigue model* was 'made public in the proceeding
    and exposed to refutation' as required by the APA") (italics added);
    *Solite Corp.*, 952 F.2d at 500 ("We hold that *EPA\'s
    determination* that lightweight aggregate air pollution control
    dust/sludge does not meet the high volume criteria violated notice
    and comment requirements").

[^42]: *American Radio Relay League, Inc.,* 524 F.3d at 232;
    *Owner-Operator Independent Drivers Ass'n, Inc.*, 494 F.3d at 193
    ("the agency violated the Administrative Procedure Act because it
    failed to give interested parties an opportunity to comment on the
    methodology of the crash-risk model that the agency used to justify
    *an increase* in the maximum number of daily and weekly hours that
    truck drivers may drive and work.") (italics added); *Solite Corp.*,
    952 F.2d at 499.

[^43]: *Cf. Solite Corp.,* 952 F.2d at 485 ("because EPA\'s methodology
    remained constant, and because the added data was used to check or
    confirm prior assessments, we hold that the Agency did not violate
    the notice and comment provisions of the APA").

[^44]: Comments in CSR 7800-E at 7.

[^45]: Reply in CSR 7800-E at 6.

[^46]: Comments in CSR 7801-E at 7-8.

[^47]: *Id.*, Exhs. C & D.

[^48]: Another USPS web page lists Plainfield as an "Acceptable City
    name" for zip code 07069. *USPS -- Zip Code Lookup -- Find a City by
    ZIP Code Results*, http://zip4.usps.com/zip4/zcl_3_results.jsp
    (visited Oct. 14, 2008).

[^49]: Reply in CSR 7801-E at 6-7; *id.* at Exh. B (associating 1.08% of
    zip code 08812 with Plainfield); *id.,* Exh. C (Affidavit of K.
    Pinna Gallant, Senior Vice President, Product Marketing, MBC, at ¶ 4
    (dated June 12, 2008)).

[^50]: *See* note 21 *supra.*

[^51]: Comments in CSR 7804-E at 6-7; *id*., Exhs. B, C; Reply in CSR
    7804-E at 6-7; *id.*, Exhs. B, D, E.

[^52]: Comments in CSR 7805-E at 7; *id*., Exh. B; Reply in CSR 7805-E
    at 6-7; *id.*, Exhs. B-D.

    The DRC, in its Comments in CSR 7805-E (and those in CSR 7866-E, CSR
    7867-E, CSR 7868-E, and CSR 7885-E) also notes that names that the
    USPS service gives certain zip codes for mailing purposes are also
    listed by the New Jersey BPU as separate franchise areas. *See,
    e.g.,* Comments in CSR 7805-E, Exh. B ("Cable Facts 2007," a
    publication of the BPU's Office of Cable Television). This is
    immaterial; a single zip code may include all or parts of two or
    more franchise areas because, as noted in the text above, zip code
    boundaries do not always coincide precisely with municipal
    boundaries or with popular names associated with them.

[^53]: Comments in CSR 7818-E at 6-7; *id*., Exhs. B, C; Reply in CSR
    7818-E at 6-7; *id.*, Exhs. B-E.

[^54]: Comments in CSR 7866-E at 7-8; *id*., Exhs. C, D; Reply in CSR
    7866-E at 5-7; *id.*, Exhs. B, C.

[^55]: Comments in CSR 7867-E at 7-8; *id*., Exhs. C, D; Reply in CSR
    7867-E at 5-7; *id.*, Exhs. B, C.

[^56]: Comments in CSR 7868-E at 7-8; *id.*, Exhs. C-E; Reply in CSR
    7868-E at 5-8; *id.*, Exhs. B, C.

[^57]: Comments in CSR 7877-E at 7-8; *id*., Exhs. C, D; Reply in CSR
    7877-E at 5-8; *id.*, Exhs. B, C.

[^58]: Comments in CSR 7885-E at 7-8; *id*., Exhs. C, D; Reply in CSR
    7867-E at 6-8; *id.*, Exhs. D, E.

[^59]: 47 U.S.C. § 543(l)(1)(A).

[^60]: Petition in 7868-E at 8; Petition in CSR 7877-E at 8.

[^61]: Petition in 7868-E at 8.

[^62]: Petition in 7877-E at Exh. 8. Petitioner states incorrect
    percentages at page 8 of its Petition.

[^63]: Comments in 7868-E at 8-9; Comments in 7877-E at 8-9.

[^64]: The DRC notes a Census Bureau estimate that Mount Olive's number
    of households has grown since 2000 (Comments in 7868-E at Exh. F),
    but that would make Petitioner's penetration even lower than as
    stated by Petitioner.

[^65]: Comments in 7868-E at 9; Comments in 7877-E at 8-9.

[^66]: Comments in 7868-E n.22 at 9, citing *Comcast of Greater
    Florida/Georgia, Inc.,* 22 FCC Rcd 4588, 4589-90, ¶ 6 (2007). *See
    also, e.g., Cablevision of Paterson*, 17 FCC Rcd 17239, 17240-41, ¶¶
    2-4 (2002); *Century Cable of Northern California, Inc.,* 14 FCC Rcd
    18604, 18606-08, ¶¶ 4, 6-7 (1999); *TKR Cable of Northern Kentucky*,
    11 FCC Rcd 9973, 9982, ¶ 20 (1996) *Cecilton CATV, Inc.*, 10 FCC Rcd
    2937, 2939, ¶ 11 (1995).

[^67]: *See* 47 U.S.C. § 543(l)(1)(D).

[^68]: *See Implementation of Cable Act Reform Provisions of the
    Telecommunications Act of 1996*, 14 FCC Rcd 5296, 5305-06, ¶¶ 13-16
    (1999) ("*Cable Reform Order*").

[^69]: *See* 47 C.F.R. § 76.905(g). *See also* Petition in CSR 7588-E at
    10-11.

[^70]: *See, e.g.,* Petition in CSR 7589-E at Exh. 11; Petition in CSR
    7590-E at Exh. 11; Petition in CSR 7591-E at Exh. 11.

[^71]: Under a New Jersey law enacted in 2006, a company may receive
    from the BPU "a system-wide franchise by constructing or operating a
    \[cable\] system at any location within the State in which the
    company, at the time of issuance of the system-wide franchise,
    either has plant or equipment in use for the provision of any
    consumer video, cable or telecommunications service, or has proposed
    to place such plant or equipment into use to provide such service."
    Evidently, Verizon's system-wide franchise has the scope of the
    territory in which it has provided telecommunications service. *See*
    The Assembly Telecommunications & Utilities Committee reports
    favorably Assembly Committee Substitute for Assembly Bill No. 804,
    No. 804\--L.2006, c.83 (May 11, 2006), printed in N.J.S.A. 48:5A-2.

[^72]: *See Cable Reform Order*, 14 FCC Rcd at 5305-06, ¶¶ 13-16. *See
    also,* *e.g.,* Petition in CSR 7592-E at 5-10 & Exhs. 7-9; Petition
    in CSR 7588-E at 5-10 & Exhs. 7-9; Petition in CSR 7589-E at 5-10 &
    Exhs. 7-9.

[^73]: The provision, 47 U.S.C. § 543(l)(1)(D) was first enacted in
    1996. Telecommunications Act of 1996, Pub. L. No. 104-104 §
    301(b)(3)(C), 110 Stat. 56, 115, approved Feb. 8, 1996.

[^74]: *See, e.g.,* Comments in CSR 7590-E at 4-5; Comments in CSR
    7591-E at 4-5; Comments in CSR 7592-E at 4-5.

[^75]: *Service Elec. Cable TV of New Jersey, Inc.* ("*Service
    Electric*")*,* 20 FCC Rcd 20532 (2005).

[^76]: *See, e.g.,* Comments in CSR 7588-E at 5; Comments in CSR 7589-E
    at 5; Comments in CSR 7590-E at 5.

[^77]: *Id.*

[^78]: *Cablevision Systems of Connecticut, L.P.,* 14 FCC Rcd 15883,
    15884, ¶ 4 (1999); *Cablevision Systems of Connecticut, L.P.,* 14
    FCC Rcd 15253, 15254, ¶ 3 (1999).

[^79]: *Service Electric,* 20 FCC Rcd at 20534, ¶ 6 ("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.") (internal quotations and footnote omitted).

[^80]: *See, e.g.,* Comments in CSR 7589-E at 6-7; Comments in CSR
    7590-E at 6-7; Comments in CSR 7591-E at 6-7.

[^81]: 47 C.F.R. § 76.905(g).

[^82]: *See* note 70 *supra.*

[^83]: *CoxCom, Inc.,* 14 FCC Rcd 7134, 7142, ¶19 (1999) ("PEG
    programming is not one of the factors the Commission has indicated
    is germane in determining whether comparable programming is being
    offered by a competitor."), *reconsideration granted on other
    grounds,* 15 FCC Rcd 728 (2000).

[^84]: *See, e.g.,* Comments in CSR 7590-E at 7; Comments in CSR 7591-E
    at 7; Comments in CSR 7592-E at 7.

[^85]: Petition in CSR 7588-E at Exh. 10 (Declaration of Marge Jackson,
    Vice President of Marketing for the Comcast New Jersey Region, that
    "there are former Comcast subscribers from each of the \[Attachment
    C\] Communities that have discontinued service since the beginning
    of \[2007\] for the stated reason that they were switching to
    Verizon's competing cable service"); see also *id.* at Exh. 3
    (Letter from Zedford D. Dancey, Assistant General Counsel, Video
    Services, Verizon, to Steven J. Horvitz, Esq., Davis Wright Tremaine
    LLP, dated April 5, 2007, stating that "to the best of my knowledge,
    Verizon's FiOS TV service is currently being offered to one or more
    residents" in each Attachment C Community).

[^86]: *See Armstrong Commun., Inc.*, 16 FCC Rcd 1039, 1043-44, ¶ 9
    (2001) (LEC test does not specify any minimum amount of service to
    be offered by the LEC or include any penetration standards; it
    requires only that the offering be substantially more than *de
    minimis*); *CoxCom, Inc.,* 14 FCC Rcd 7134, 7143, ¶ 24 (1999)
    ("Congress did not include a pass or penetration test in the LEC
    effective competition standard and the Commission has not indicated
    that it would impose such a test"), *reconsideration granted on
    other grounds*, 15 FCC Rcd 728 (2000); *Cable Reform Order,* 14 FCC
    Rcd at 5303, ¶ 10 ("we reject arguments that we should adopt
    penetration standards").

    The DRC misstates our decision in *Marcus Cable Assocs., L.P.,* 13
    FCC Rcd 9326 (1998), *review denied*, 16 FCC Rcd 15612 (2001), as
    holding that LEC effective competition requires "direct evidence of
    subscribership." Comments in CSR 7589-E at 7; Comments in CSR 7590-E
    at 7; Comments in CSR 7591-E at 7. Our *Marcus Cable* decision noted
    that the cable operator indeed showed that the LEC had 50
    subscribers for its service, but that that and other evidence failed
    to show that most consumers were "reasonably aware" of its
    availability. *Marcus Cable Assocs., L.P.,* 13 FCC Rcd at 9331, ¶
    14.

[^87]: *Cable Reform Order*, 14 FCC Rcd at 5302, ¶ 9 ("The thrust of the
    1996 Act is Congress\' expectation that LECs will be robust
    competitors of cable operators because of their financial and
    technical ability and . . . their ubiquitous presence in the
    market") (footnote omitted); *id.* at 5303, ¶ 11 (noting with
    approval that "the Cable Services Bureau has found that a LEC\'s
    presence can have a competitive impact on a cable operator before
    the LEC finishes installing its plant or rolling out its service");
    *id.* at 5304, ¶ 11 (noting "Congress\' intent that the Commission
    have the discretion to consider the likelihood and extent of
    impending competition when considering whether effective competition
    exists under the LEC test. Congress sought to restrain cable rates
    and stimulate quality cable services. Once the LEC\'s competitive
    presence is sufficient to achieve these goals, even if the LEC\'s
    buildout or roll out is not complete, the intent of the effective
    competition test has been met").

[^88]: *Id.*, 14 FCC Rcd at 5303, ¶ 11, 5305, ¶ 13.

[^89]: *See*, *e.g.*, Comments in CSR 7801-E at 5-6; Comments in CSR
    7865-E at 5-6; Comments in CSR 7566-E at 5-6; Comments in CSR 7867-E
    at 5-6.

[^90]: *See*, *e.g.*, Comments in CSR 7801-E at 5-6; Comments in CSR
    7869-E at 5-6; Comments in CSR 7870-E at 5-6; Comments in CSR 7872-E
    at 5-6; Comments in CSR 7877-E at 5-6; Comments in CSR 7885-E at
    5-6.

[^91]: *Id.*, citing "Section 1.104(8)(g) of the FCC rules." 47 C.F.R. §
    1.104 of the Commission's rules concerns "Preserving the right of
    review; deferred consideration of application for review" and has no
    subsection numbered 8 or g. Section 1.1104(9)(g) requires a fee with
    each Petition, but is silent about whether a fee is required for
    each system or each community.

[^92]: *Reminder as to Procedures for Filing Cable Television Effective
    Competition Petitions*, Public Notice DA 05-921, 20 FCC Rcd 7294
    (2005) ("Although for the convenience of the filing parties multiple
    communities and multiple cable physical systems ('PSIDs') may be
    combined in a single filing, each PSID must be separately identified
    and *a separate fee must be paid for each PSID*") (italics added);
    *see also* *Cablevision New Jersey 101, supra* note 26, at ¶ 46;
    *Comcast Cable Commun., LLC, Memorandum Opinion & Order* DA 08-1908
    at ¶ 6 n.14 (rel. Aug. 14, 2008) ("Two petitions were filed because
    some of the Communities with different CUIDs numbers are on a
    separate Comcast cable system and required the filing of a separate
    filing fee"); *CoxCom, Inc.,* 22 FCC Rcd 4522, ¶ 1 n.1 (2007)
    ("regulatory filing fees are assessed by cable system").

[^93]: 47 C.F.R. § 0.283.

[^94]: Petitioner gave this system the CUID NJ00415, but we assume it
    intended to give it NJ0041 rather than NJ00415 or another CUID that
    has been assigned to Lebanon, NJ0491.