Before the

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+---+------------------------------+
| In the Matter of:                | * |                              |
|                                  | * |                              |
| INFINITY BROADBAND INC.          | ) |                              |
|                                  | * |                              |
| Certification to Operate an      | * |                              |
|                                  |   |                              |
| Open Video System                | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

MEMORANDUM OPINION AND ORDER

**Adopted: July 5, 2000** **Released: July 6, 2000**

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

# INTRODUCTION

1\. On June 26, 2000, Infinity Broadband Inc. (\"Infinity\") 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] Infinity seeks to operate an
open video system in various communities in Florida (the "Service
Areas\").[^2] In accordance with our procedures,[^3] the Commission
published notice of receipt of Infinity's certification application[^4]
and posted the application on the Internet.[^5] No comments were
received.

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. DISCUSSION**

4\. Infinity 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 Infinity's application. As
required by Form 1275, the Infinity 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. Infinity also confirmed
that it served its application upon the designated telecommunications
officials in each of the communities involved.

5\. We find that Infinity 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 Infinity
certification filing proves to be materially false or materially
inaccurate, the Commission retains the authority to revoke Infinity's
certification or impose such other penalties it deems appropriate,
including forfeiture.

**III. ORDERING CLAUSES**

6\. Accordingly, **IT IS ORDERED**, that the application of Infinity
Broadband Inc. for certification to operate an open video system in the
Service Areas[^12] **IS** **GRANTED**.

7\. This action is taken by the Acting Chief, Consumer Protection and
Competition Division, Cable Services Bureau, pursuant to the authority
delegated by Section 0.321 of the Commission\'s Rules.[^13]

FEDERAL COMMUNICATIONS COMMISSION

Steven A. Broeckaert

Acting 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 Infinity seeks certification are:
    Broward County, Fort Lauderdale, Sunrise, Davie, Plantation, Dania
    Beach, Hallandale, Hollywood, Miramar, Pembroke Pines, Pompano
    Beach, Lauderhill, Tamarac, Lauderdale Lakes, North Lauderdale,
    Margate, Coconut Creek, Coral Springs, Deerfield Beach, Cooper City,
    Light House Point, Oakland Park, Parkland, Pembroke Park, Sea Ranch
    Lakes, Wilton Manors, Miami/Dade County, Coral Gables, Kendall,
    Hialeah, Miami Beach, North Miami Beach, North Miami, Miami Lakes,
    Opa Locka, Aventura, Biscayne Park, El Portal, Florida City, Key
    Biscayne, Hialeah Gardens, Homestead, Indian Creek Village, Medley,
    Miami, Miami Shores Village, Miami Springs, Pinecrest, Sweetwater,
    Virginia Gardens, West Miami, Palm Beach County, Boca Raton, Delray
    Beach, Boynton Beach, Lake Worth, West Palm Beach, Palm Beach,
    Riviera Beach, North Palm Beach, Palm Beach Gardens, Juno Beach,
    Jupiter, Atlantis, Belle Glade, Briny Breezes, Cloud Lake, Glen
    Ridge, Golf, Greenacres, Gulf Stream, Haverhill, Highland Beach,
    Jupiter Inlet, Lake Clarke Shores, Lake Park, Lantana, Manalapan,
    Mangonia Park, Ocean Ridge, Pahokee, Palm Beach Shores, Palm
    Springs, Royal Palm Beach, South Bay, South Palm Beach, Tequesta,
    Duval County, Atlantic Beach, Baldwin, Jacksonville, Jacksonville
    Beach, Neptune Beach, Hillsborough County, Bears Plaza, Brandon,
    Carrollwood, Mango, Northdale, Sydney, Tampa, Valrico, Lee County,
    Alva, Boca Grande, Bokeelia, Bonita Springs, Cape Coral, Estero,
    Fort Myers, Fort Myers Beach, Lehigh, Lehigh Acres, Matlacha, North
    Fort Myers, Pineland, Saint James City, Survey Creek, Tice, Orange
    County, Alafaya, Aloma, Apopka, Azalea Park, Clarcona, Eatonville,
    Edgewood, Fairvilla, Gotha, Hiawassee, Hunt Club, Killarney, Lake
    Buena Vista, Lockart, Oakland, Ocoee, Orlando, Orlo Vista, Pine
    Castle, Pine Hills, Plymouth, Sand Lake, South Creek, Tangerine,
    Union Park, Ventura, Windermere, Winter Park, Osceola County, Buena
    Ventura Lakes, Celebration, Intercession City, Kissimmee, Saint
    Cloud, Pinellas County, Bay Pines, Belleair, Belleair Beach,
    Belleair Bluffs, Clearwater, Crystal Beach, Dunedin, Gulfport,
    Indian Shores, Kenneth City, Largo, Madeira Beach, North Redington
    Beach, Oldsmar, Ozona, Palm Harbor, Pinellas Park, Redington Beach,
    Safety Harbor, Saint Pete Beach, Saint Petersburg, Seminole, Sunset
    Point, Tarpon Springs, Treasure Island, Sarasota County, Crescent
    Beach, Forest Lakes, Fruitville, North Port, Pinecraft, Sarasota,
    Siesta Key, Seminole County, Casselberry, Fern Park, Goldenrod,
    Heathrow, Lake Mary, Longwood, Oviedo, Sanford, Springs Plaza,
    Tuskawilla, and Winter Springs.

[^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*, \"Infinity Broadband Inc. Files An
    Application For Open Video System Certification,\" DA 00-1442 (CSB,
    rel. June 28, 2000).

[^5]: ^    ?^The Infinity 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]: ^    ?^*See supra* n. 2 listing the communities contained within
    the Service Areas.

[^13]: ^    ?^47 C.F.R. § 0.321.