Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of:                | ) |                              |
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| TESS COMMUNICATIONS, INC.        | ) |                              |
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| Certification to Operate an      | ) |                              |
|                                  |   |                              |
| Open Video System                | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
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|                                  | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
+----------------------------------+---+------------------------------+

MEMORANDUM OPINION AND ORDER

**Adopted: December 7, 2000** **Released: December 8, 2000**

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

# INTRODUCTION

1\. On November 28, 2000, TESS Communications, Inc. (\"TESS\") 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] TESS seeks to operate an open
video system in various communities in Arizona and Colorado (the
"Service Areas").[^2] In accordance with our procedures,[^3] the
Commission published notice of receipt of the TESS 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\. TESS 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 TESS' application. As required by Form
1275, the TESS 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. TESS also confirmed that it served its
application upon the designated telecommunications officials in each of
the communities involved.

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

**III. ORDERING CLAUSES**

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

7\. 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.[^13]

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 TESS seeks certification are:
    Broomfield, Colorado; Castle Rock, Colorado; Adams County, Colorado;
    Litchfield Park, Arizona; and Marana, Arizona.

[^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*, \"TESS Communications, Inc. Files An
    Application For Open Video System Certification,\" DA 00-2705 (CSB,
    rel. November 30, 2000).

[^5]: ^    ?^The TESS 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.