Before the

Federal Communications Commission

Washington, D.C. 20554

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| BroadbandConnect, Inc.           | ) |                              |
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| Certification to Operate an      | * |                              |
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MEMORANDUM OPINION AND ORDER

**Adopted: April** **2, 2001** **Released: April 2**, **2001**

By the Chief, Consumer Protection and Competition Division, Cable
Services Bureau:

# INTRODUCTION

1\. On March 23, 2001, BroadbandConnect, Inc. (\"BroadbandConnect\")
filed an application for certification to operate an open video system
pursuant to Section 653(a)(1) of the Communications Act of 1934
(\"Communications Act\") and the Commission\'s rules.[^1]
BroadbandConnect seeks to operate an open video system in various
communities in Baltimore County, Maryland (the \"Service Areas\").[^2]
In accordance with our procedures,[^3] the Commission published notice
of receipt of the BroadbandConnect certification application[^4] and
posted the application on the Internet.[^5] Baltimore County
(\"Baltimore\") filed comments.

2\. Pursuant to Section 653(a)(1) of the Communications Act, any entity
meeting the requirements may obtain certification to operate an open
video system.[^6] In light of the brief period (ten days) for Commission
review of certification filings, the Commission concluded that Congress
intended there to be a streamlined certification process.[^7] Open video
system operators may apply for certification at any point prior to the
commencement of service. Open video system operators must obtain
certification prior to the commencement of service, allowing sufficient
time to comply with the Commission\'s requirements regarding
notifications that applicants must provide to potential programming
providers.[^8]

3\. As part of the certification process, the applicant must acknowledge
and accept the obligations associated with operation of an open video
system and must provide certain information regarding its proposed
system.[^9] To obtain certification, an applicant must file FCC Form
1275, which requires, among other things: (a) a statement of ownership,
including a list of all affiliated entities;[^10] (b) a representation
that the applicant will comply with the Commission\'s regulations under
Section 653(b) of the Communications Act;[^11] (c) a list of the names
of the communities the applicant intends to serve; (d) a statement of
the anticipated type and amount of capacity that the system will
provide; and (e) a statement as to whether the applicant is a cable
operator applying for certification within its cable franchise area.

**II. COMMENTS**

4\. The comments of Baltimore County relate to the use of its public
rights-of-way.[^12] Baltimore states that it is responsible for
protecting and promoting the health, safety, and welfare of its citizens
and that part of this responsibility is to manage the use of the public
rights of way.[^13] It asserts that Baltimore has a legitimate interest
in regulating the impact that construction and operation of an OVS may
have on the rights-of way.[^14] It therefore urges the Commission to
make clear that the county retains discretion and oversight to determine
the use of its public rights-of-way.[^15]

**III. DISCUSSION**

5\. BroadbandConnect has submitted an application on FCC Form 1275 for
certification to operate an open video system in the Service Areas. We
have reviewed the information contained in BroadbandConnect's
application. As required by Form 1275, the BroadbandConnect application
provides the following: company information and a separate statement of
ownership listing affiliated entities; eligibility and compliance
representations; and system information and verification statements.
BroadbandConnect also confirmed that it served its application upon the
designated telecommunications officials in each of the communities
involved.

6\. The ten day statutorily mandated review period for open video system
certification applications requires us to confine our review to issues
concerning BroadbandConnect's FCC Form 1275 and its related
attachments.[^16] The purpose of the open video system certification
process is to determine whether BroadbandConnect's application complies
with Congress' mandate and our regulations.[^17] By submitting a
completed Form 1275, BroadbandConnect has certified that it will comply
with all of the Commission's rules for open video systems. With regard
to the use and management of public rights-of-way, this issue relates to
matters beyond the adequacy and accuracy of BroadbandConnect's
application. Nevertheless, we note that the Commission has stated that
"\[m\]anagement of the rights-of-way is a traditional local government
function. Local governments should be able to manage the rights-of-way
in their usual fashions without the imposition of unique requirements
for open video systems."[^18]

7\. We find that BroadbandConnect has provided the requisite facts and
representations concerning the open video system it intends to operate
and has certified that it \"agrees to comply and remain in compliance
with each of the Commission\'s regulations\" under Section 653(b) of the
Communications Act. We note that if any representation in the
BroadbandConnect certification filing proves to be materially false or
materially inaccurate, the Commission retains the authority to revoke
BroadbandConnect's certification or impose such other penalties it deems
appropriate, including forfeiture.

**IV. ORDERING CLAUSES**

8\. Accordingly, **IT IS ORDERED**, that the application of
BroadbandConnect, Inc. for certification to operate an open video system
in the Service Areas[^19] **IS** **GRANTED**.

9\. This action is taken by the Chief, Consumer Protection and
Competition Division, Cable Services Bureau, pursuant to the authority
delegated by Section 0.321 of the Commission\'s Rules.[^20]

FEDERAL COMMUNICATIONS COMMISSION

Deborah Klein, Chief

Consumer Protection and Competition Division

Cable Services Bureau

[^1]: ^    ^ ^?^47 U.S.C. § 573(a)(1); 47 C.F.R. § 76.1502.

[^2]: ^?^The Service Areas for which BroadbandConnect seeks
    certification in Maryland are: Baltimore (CUID 0064 and 0269);
    Randallstown (CUID 0080); Catonsville (CUID 0081); Pikesville (CUID
    0082); Woodlawn (CUID 0083); Arbutus (CUID 0084); Lansdowne (CUID
    0085); Edgemere (CUID 0086); Baltimore West (CUID 0087); Lutherville
    Timonium (CUID 0088); Reisterstown (CUID 0089); Baltimore North
    (CUID 0090); Overlea (CUID 0091); Owings Mills (CUID 0092); Towson
    (CUID 0093); Parkville (CUID 0094); Perry Hall (CUID 0095); Middle
    River (CUID 0096); Rosedale (CUID 0097); Essex (CUID 0098); Dundalk
    (CUID 0099); Baltimore East (CUID 0100); Baltimore Inner Harbor
    (CUID 0384).

[^3]: ^    ^ ^?^*See* *Implementation of Section 302 of the
    Telecommunications Act of 1996, Open Video Systems, Second Report
    and Order*, 11 FCC Rcd 18223, 18247 (1996) (\"*Second Report and
    Order*\").

[^4]: ^    ^ ^?^*See Public Notice*, \"BroadbandConnect, Inc. Files An
    Application For Open Video System Certification,\" DA 01-749 (CSB,
    rel. March 23, 2001).

[^5]: ^ ^ ^?^The BroadbandConnect application is available *via* the
    Internet at http://www.fcc.gov/csb/ovs/csovscer.html.

[^6]: ^?^*See* 47 U.S.C. § 573(a)(1); 47 C.F.R. § 76.1501. However, an
    operator of a cable system generally may not obtain such
    certification within its service area unless it is subject to
    \"effective competition\" as defined in Section 623(1)(l) of the
    Communications Act, 47 U.S.C. § 543(l)(l).

[^7]: ^?^*Second Report and Order*, 11 FCC Rcd at 18243.

[^8]: ^  ^ ^?^*Id.* at 18247; 47 C.F.R. § 76.1502(a). *See also*
    *Implementation of Section 302 of the Telecommunications Act of
    1996: Open Video Systems*, Order on Remand, 14 FCC Rcd 19700, 19705
    (1999)(deleting the pre-construction certification requirement from
    Section 76.1502(a) of our rules).

[^9]: ^?^*Second Report and Order*, 11 FCC Rcd at 18245-46.

[^10]: ^    ^ ^?^We note that for purposes of determining whether a
    party is an affiliate, we have adopted the definitions contained in
    the notes to Section 76.501 of our rules, 47 C.F.R. § 76.501, with
    certain modifications. 47 C.F.R. § 1500(g). Generally, we will
    consider an entity to be an open video system operator\'s
    \"affiliate\" if the open video system operator holds 5% or more of
    the entity\'s stock, whether voting or non-voting. *Implementation
    of Section 302 of the Telecommunications Act of 1996, Open Video
    Systems*, *Third Report and Order and Second Order on
    Reconsideration*, 11 FCC Rcd 20227, 20235 (1996) (\"*Third Report
    and Order*\"); 47 C.F.R. § 1500(g).

[^11]: ^    ^ ^?^47 U.S.C. § 573(b). This provision sets forth the
    Commission\'s requirements regarding non-discriminatory carriage;
    just and reasonable rates, terms and conditions; a one-third
    capacity limit on the amount of activated channel capacity on which
    an open video system operator may distribute programming when demand
    for carriage exceeds system capacity; channel sharing; sports
    exclusivity, network non-duplication and syndicated exclusivity; and
    non-discriminatory treatment in presenting information to
    subscribers. *See* *also* 47 C.F.R. § 1502(a).

[^12]: ^?^Baltimore County Comments at 1-3.

[^13]: ^?^*Id.* at 1-2.

[^14]: ^?^*Id.*

[^15]: ^?^*Id.* 2-3

[^16]: ^?^*See RCN Telecom Services of California, Inc. d/b/a RCN of
    California,* 13 FCC Rcd 12009 (1998).

[^17]: ^?^*Id.*

[^18]: ^?^*Third Report and Order,* 11 FCC Rcd at 20311.

[^19]: ^    ^ ^?^*See supra* n. 2, listing the communities contained
    within the Service Areas.

[^20]: ^    ^ ^?^47 C.F.R. § 0.321.