Before the

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | CSR 7156-E                   |
|                                  | * |                              |
| Comcast Cable Communications,    | ) |                              |
| LLC                              | * |                              |
|                                  | * |                              |
| Petition for Determination of    |   |                              |
| Effective Competition in 9       | * |                              |
| Washington Franchise Areas       | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

MEMORANDUM OPINION AND ORDER

**Adopted: April 18, 2008 Released: April 21, 2008**

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

# I. introduction and Background

1.  Comcast Cable Communications, LLC, hereinafter referred to as
    "Petitioner," has filed with the Commission a petition pursuant to
    Sections 76.7, 76.905(b)(2), 76.905(b)(1) 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." Petitioner alleges
    that its cable system serving the Communities listed on Attachment B
    is subject to effective competition pursuant to Section 623(1) 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 two direct broadcast
    satellite ("DBS") providers, DirecTV, Inc. ("DirecTV") and Dish
    Network ("Dish"). Petitioner alternatively claims to be exempt from
    cable rate regulation in the Communities listed on Attachment C
    because the Petitioner serves fewer than 30 percent of the
    households in the franchise area. 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 (B and C).

# 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 ("MVPD") 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 otherwise 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 these
    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 of DBS advertising in local, regional,
    and national media that serve the Communities to support their
    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
    programming[^11] and is supported in this petition with copies of
    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 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
    Communities.[^14] Petitioner sought to determine the competing
    provider penetration in the 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 Communities on a zip
    code plus four basis.[^15]

7.  Based upon the aggregate DBS subscriber penetration levels that were
    calculated using Census 2000 household data,[^16] as reflected in
    Attachment B, 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 Communities. Therefore, the second prong of the
    competing provider test is satisfied for each of the 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 B.

    **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 otherwise 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
    Lewis County and Mason County, Washington franchise areas.

10. Based upon the subscriber penetration level calculated by
    Petitioner, as reflected in Attachment C, 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 C. Therefore, the low penetration
    test is also satisfied as to the Communities.

# III. ordering clauses 

11. Accordingly, **IT IS ORDERED** that the petition for a determination
    of effective competition filed in the captioned proceeding by
    Comcast Cable Communications, LLC **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
    Attachment A **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

ATTACHMENT A

**CSR 7156-E**

**COMMUNITIES SERVED BY COMCAST CABLE COMMUNICATIONS, LLC**

**Communities CUIDS**

Chehalis WA0147

Lewis County WA0263

Mason County WA0335

Rainier WA0404

Shelton WA0240

Tenino WA0201

Thurston County WA0007

WA0297

WA0407

WA0451

WA0513

Yelm WA0405

ATTACHMENT B

**CSR 7156-E**

**COMMUNITIES SERVED BY COMCAST CABLE COMMUNICATIONS, LLC**

**2000 Estimated**

**Census DBS**

## Communities CUIDS CPR\* Household Subscribers 

##  

## Centralia, WA WA 0146 28.69% 5943 1705

## Chehalis, WA WA 0147 54.95% 2671 1468

## Rainier, WA WA 0404 61.95% 530 328

## Shelton, WA WA 0240 44.87% 3191 1432

## Tenino, WA WA 0201 45.73% 575 263

## Thurston County, WA WA 0007 25.04% 42297 10591\*\*

WA 0297

WA 0407

WA 0451

WA 0513

Yelm, WA WA 0405 56.16% 1216 683

##  

\*CPR = Percent of competitive DBS penetration rate.

\*\*Comcast operates 5 cable systems in Thurston County and therefore
each has its own CUID number. The systems operate pursuant to one
franchise, however, and therefore Comcast reports a common set of
numbers for these systems.

ATTACHMENT C

**CSR 7156-E**

**COMMUNITIES SERVED BY COMCAST CABLE COMMUNICATIONS, LLC**

##  Franchise Area Cable Penetration 

## Communities CUIDS Households Subscribers Percentage 

##  

## Lewis County WA 0263 15483 1724 11.13%\*

##  WA 0556

## Mason County WA 0335 15721 2527 16.07%

\*Comcast operates 2 cable systems in Lewis County and therefore each
has its own CUID number. The systems operate pursuant to one franchise,
however, and therefore Comcast reports a common set of numbers for these
systems.

[^1]: *See* 47 U.S.C. § 543(a)(1).

[^2]: 47 C.F.R. § 76.905(b)(2) and 47 C.F.R. § 76.905(b)(1).

[^3]: 47 C.F.R. § 76.906.

[^4]: *See* 47 U.S.C. § 543(l) and 47 C.F.R. § 76.905.

[^5]: *See* 47 C.F.R. §§ 76.906 & 907.

[^6]: 47 U.S.C. § 543(1)(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 (paragraph number/s and Exhibit reference as may
    be appropriate).*

[^9]: Mediacom Illinois LLC et al., Eleven Petitions for Determination
    of Effective Competition in Twenty-Two Local Franchise Areas in
    Illinois and Michigan*,* [21 FCC Rcd
    1175](http://commreg.pf.com/showSingleDoc.asp?iName=caseIndex&docID=DA-06-278A1&section=1)
    (2006)*.*

[^10]: 47 C.F.R. § 76.905(e)(2).

[^11]: *See* 47 C.F.R. § 76.905(g). *See also* Petition at 4-5.

[^12]: *See* Petition at Exhibit 2.

[^13]: *See* Petition at 3.

[^14]: *See* Petition at 5.

[^15]: *Id.*

[^16]: Petition at 7.

[^17]: 47 U.S.C. § 543(l)(1)(A).

[^18]: 47 C.F.R. § 0.283.