**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of: )

)

TIME WARNER CABLE, )

Complainant, )

)

v\. )

)

RCN TELECOM SERVICES )

OF NEW YORK, INC., )

Defendant; )

)

)

TIME WARNER CABLE, )

Complainant, )

)

v\. )

)

RCN-BECOCOM, L.L.C., )

Defendant. )

)

)

)

Application for Review and Petitions for )

Reconsideration of Orders of the Cable )

Services Bureau Granting in Part and Denying )

in Part Open Video System Complaints )

**MEMORANDUM OPINION AND ORDER**

**Adopted: January 5, 2000 Released: January 11, 2000**

By the Commission:

**I. INTRODUCTION**

1\. By this *Order*, we consolidate the above-captioned proceedings
involving Time Warner Cable (\"Time Warner\"), RCN Telecom Services of
New York, Inc. (\"RCN-NY\"), and RCN-BeCoCom, L.L.C.
(\"RCN-BeCoCom\").[^1] In each proceeding, Time Warner filed a complaint
with the Cable Services Bureau (the \"Bureau\") alleging that RCN, an
open video system operator, violated Section 653 of the Communications
Act of 1934 and the Commission\'s regulations by refusing to provide
Time Warner with certain information regarding RCN\'s open video systems
as required by Section 76.1503(b)(2) of the Commission\'s rules.[^2] The
Bureau granted in part and denied in part the relief requested by Time
Warner.[^3]

2\. In *Time Warner-New York* and *Time Warner-Boston*, the Bureau ruled
that Time Warner is eligible to obtain carriage on portions of RCN\'s
open video systems in New York and the Boston-area and that it is
entitled to the information RCN must provide to eligible programming
providers under the Commission\'s rules.[^4] The Bureau denied Time
Warner\'s requests that RCN provide it with a map of the system
facilities involved, the number of potential subscribers in the service
areas, and a list of RCN\'s programming. Time Warner filed an
application for review of the Bureau\'s decision in *Time Warner-New
York* in which it contends that the Bureau\'s failure to require RCN to
provide the foregoing information constitutes reversible error.[^5] RCN
filed petitions for reconsideration of the *Time Warner-New York* and
*Time Warner-Boston* decisions, in which it argues that the Bureau erred
in finding that Time Warner is eligible for carriage on portions of
RCN\'s open video systems and entitled to obtain system information
pursuant to Section 76.1503(b)(2).[^6]

3\. Section 1.106 of the Commission\'s rules provides, in part, that
\"\[p\]etitions requesting reconsideration of other final actions taken
pursuant to delegated authority will be acted on by the designated
authority or referred by such authority to the Commission.\"[^7] Because
the Commission is required to review Time Warner\'s related Application
for Review and because each petition for reconsideration presents
important open video system issues, the Chief, Cable Services Bureau has
referred RCN\'s Petitions for Reconsideration to the Commission. After
examining the record, we grant in part and deny in part Time Warner\'s
Application for Review and grant reconsideration in both proceedings to
the extent discussed herein.

**II. BACKGROUND**

4\. In the Telecommunications Act of 1996 (\"1996 Act\"), Congress set
forth four means by which common carriers may enter the video
programming marketplace: (1) radio-based systems; (2) common carriage of
video traffic; (3) cable systems; and (4) open video systems.[^8] In
rulemakings implementing open video system regulations,[^9] the
Commission concluded that Congress did not intend to restrict open video
system service to telephone companies alone, and permitted non-local
exchange carriers and cable operators to operate open video systems and
to obtain carriage on such systems where \"consistent with the public
interest, convenience, and necessity. . . .\"[^10] The Commission stated
that the open video system model \"can provide the competitive benefits
that Congress sought to achieve: market entry by new service providers,
enhanced competition, streamlined regulation, investment in
infrastructure and technology, diversity of programming choices and
increased consumer choice.\"[^11] The United States Court of Appeals for
the Fifth Circuit considered consolidated appeals of the Commission\'s
open video system rules \-- affirming in part, reversing in part, and
remanding in part those rules.[^12]

5\. Although generally enjoying more streamlined regulation than
operators of cable systems, open video system operators are subject to
clearly defined obligations. At the heart of the open video system
concept is the requirement that system operators offer up to two-thirds
of their channel capacity to unaffiliated programmers.[^13] In doing so,
the operators may not unreasonably nor unjustly discriminate against
unaffiliated programming providers, and must provide just and reasonable
rates, terms, and conditions for carriage to all eligible programming
providers that seek carriage.[^14] Open video system operators also are
required to provide certain system information to prospective
programmers to assist them in deciding whether to seek carriage.[^15]
The Commission determined that \"by requiring open video system
operators to provide carriage opportunities for video programming
providers . . . Congress sought to foster competition by encouraging
multiple programming sources on open video systems.\"[^16]

**III. THE BUREAU\'S ORDERS**

6\. In *Time Warner-Boston*, RCN denied Time Warner\'s request for open
video system information pertaining to RCN\'s Boston-area system. RCN
alleged that Time Warner was not entitled to the information because it
qualified as a competing, in-region cable operator by offering cable
service to several communities within the certificated area of RCN\'s
open video system.[^17] Time Warner responded that it was not a
competing, in-region cable operator with respect to the communities for
which it sought open video system information because it did not offer
cable service to those communities, even though it offered cable service
to other communities within the certificated area of RCN\'s open video
system as yet unserved by RCN.[^18] The Bureau held that Time Warner was
not a competing, in-region cable operator in communities where Time
Warner did not offer cable service even if these communities are located
within the area in which RCN is certified to operate its open video
system.[^19]

7\. In addition to the primary issue of eligibility for carriage, RCN
challenged the scope of Time Warner\'s information request regarding
RCN\'s Boston-area system. Time Warner requested that RCN provide it
with: (1) a route map showing the exact location of any current RCN open
video system facilities; (2) the number of potential subscribers passed
by existing RCN open video system facilities; (3) a route map showing
all anticipated construction, with projected dates for activation of
each phase of construction; (4) potential subscribers to be passed in
each phase of construction; and (5) a list of programming which RCN
intended to offer on the channels it reserved for itself.[^20] The
Bureau ruled that Time Warner is entitled to know which areas within a
community RCN is serving and is projected to serve, if it is activating
its open video system in stages, and when it anticipates offering
service to areas that fall under different activation stages.[^21] The
Bureau held that a map showing RCN\'s current and projected fiber paths,
specific construction schedules (beyond mere open video system stage
activation), and lists of RCN\'s programming are beyond the scope of
Section 76.1503(b)(2).[^22]

8\. In *Time Warner-New York*, RCN denied Time Warner\'s request for
information pertaining to RCN\'s New York open video system on grounds
virtually identical to those it relied upon in *Time Warner-Boston*. RCN
maintained that Time Warner was not entitled to system information
because it must be considered a competing, in-region cable operator due
to the fact that it offers cable service in certain communities within
the certificated area of RCN\'s open video system in New York.[^23] RCN
argued that New York\'s five boroughs constitute one service area and
that Time Warner\'s operations in the borough of Manhattan rendered it
an in-region operator *vis-a-vis* the entire system.[^24] Time Warner
responded that it did not offer cable service in the communities for
which it sought open video system information and therefore was not a
competing, in-region cable operator with respect to these communities,
regardless of whether it offered cable service elsewhere in the
certificated area of RCN\'s open video system.[^25] Relying upon its
decision in *Time Warner-Boston*, the Bureau held that Time Warner was
not a competing, in-region cable operator in those communities within
RCN\'s certificated open video system area in which Time Warner did not
offer cable service.[^26] In the New York proceeding, RCN again
challenged the scope of Time Warner\'s information request made pursuant
to Section 76.1503(b)(2). Time Warner\'s request was identical to its
request regarding RCN\'s Boston-area system and the Bureau issued an
identical ruling on the scope of information to which Time Warner was
entitled.[^27]

**IV. DISCUSSION**

9\. As stated above, RCN argues in its Petitions for Reconsideration
that the Bureau erred in finding that Time Warner is eligible for
carriage on portions of RCN\'s open video systems and entitled to obtain
system information pursuant to Section 76.1503(b)(2). Because the
arguments contained in RCN\'s Petitions for Reconsideration are
essentially the same, we will address them together. In its Application
for Review, Time Warner asserts that pursuant to Section 76.1503(b)(2),
RCN must provide it with a route map, information regarding the number
of potential subscribers in the service areas involved, and a list of
RCN\'s programming. We address these arguments below.

**A. Time Warner\'s Status as a Video Programming Provider Entitled To
Obtain**

**System Information Pursuant to Section 76.1503(b)(2)**

10\. Only those entities entitled to carriage on an open video system
may obtain system information pursuant to Section 76.1503(b)(2). In
Section 76.1503(c)(2)(v) of its rules, the Commission specifically
addressed the eligibility of cable operators to seek carriage on open
video systems. This rule provides that \"a competing, in-region cable
operator or its affiliate(s) that offers cable service to subscribers
located in the *service area* of an open video system shall not be
entitled to obtain capacity on such open video system. . . .\"[^28] In
promulgating Section 76.1503(c)(2)(v), the Commission sought to
encourage competing, in-region cable operators to develop and upgrade
their own systems, rather than occupy capacity on a competing open video
system that could be used by another programming provider, and thereby
to promote facilities-based competition.[^29]

11\. In its complaints in the proceedings below, Time Warner asserted a
right to carriage on portions of RCN\'s open video systems in New York
and the Boston-area and sought to obtain information regarding these
systems through Section 76.1503(b)(2). RCN argued that Time Warner is a
competing, in-region cable operator with regard to the entirety of both
its New York and Boston-area open video systems and that as such it is
not eligible for carriage on any part of these systems or to obtain any
system information pursuant to Section 76.1503(b)(2).

12\. RCN-NY is certified to offer open video system service to the five
boroughs of New York City: the Bronx, Brooklyn, Manhattan, Queens, and
Staten Island. RCN-NY currently offers open video system service only in
Manhattan and portions of the Bronx.[^30] At the time of the Bureau\'s
ruling in *Time Warner-New York*, RCN stated that it was close to
completing negotiations to expand its system to the other boroughs.[^31]
In its complaint, Time Warner sought system information only for the
Bronx and part of the Brooklyn portions of RCN\'s proposed New York open
video system. Time Warner provides franchised cable service in
Manhattan, Queens, Staten Island and a portion of Brooklyn.[^32] Time
Warner is not authorized to provide cable service in the Bronx or the
portion of Brooklyn for which it seeks system information.

13\. RCN-BeCoCom was certified by the Commission to offer open video
system service in the City of Boston, Massachusetts and forty‑six
surrounding Massachusetts communities.[^33] At the time of the Bureau\'s
ruling in *Time Warner-Boston*, RCN-BeCoCom offered open video system
service only within the City of Boston.[^34] Time Warner offers
franchised cable service in twelve of the communities surrounding Boston
in which RCN-BeCoCom is certified to offer open video system
service.[^35] Time Warner is not authorized to provide cable service in
the remaining outlying communities or the City of Boston. In its request
for information regarding RCN\'s Boston-area system, Time Warner did not
request carriage on or information applicable to the twelve communities
in RCN\'s certificated area in which Time Warner offers franchised
service.[^36]

14\. In its Petitions for Reconsideration, RCN argues that Time Warner
is a \"competing, in-region cable operator\" with regard to the entirety
of both RCN\'s New York and Boston-area open video system service areas
and therefore is not eligible for carriage on these systems under
Section 76.1503(c)(2)(v) or to obtain system information pursuant to
Section 76.1503(b)(2). RCN maintains that \"the \'service area\' of an
OVS should encompass the area for which the OVS operator has been
certificated, so long as the certificated entity genuinely and
reasonably plans to serve the certificated area.\"[^37] RCN asserts that
\"in determining whether an operator \-- franchisee or OVS \-- should be
construed to be operating in an area, its designated service area should
be controlling, not the happenstance of where it is operating when an
issue under 47 C.F.R. § 76.1503 arises.\"[^38] According to RCN, a cable
operator franchised anywhere in the certificated area of an open video
system is barred by Section 76.1503(c)(2)(v) from obtaining carriage on
the entire system without consideration of the cable operator\'s
operational status in discrete communities within the greater
certificated area.[^39] RCN asserts that Section 76.1503(c)(2)(v) \"does
not speak of boroughs, areas, precincts or districts; rather the rule
speaks only of \'the service area of an open video system.\'\"[^40]

15\. Based upon the foregoing analytical structure, RCN argues that Time
Warner is a competing, in-region operator with regard to its entire
Boston-area system due to the fact that Time Warner provides service in
twelve communities that are part of RCN\'s certificated area in and
around Boston.[^41] RCN asserts that Time Warner cannot obtain carriage
on any portion of the Boston-area system or obtain information regarding
any portion of the system pursuant to Section 76.1503(b)(2). Similarly,
RCN argues that the service area of its New York system constitutes the
five boroughs of New York City. Because Time Warner provides service in
certain of these boroughs, RCN maintains that it is a competing,
in-region operator *vis-a-vis* the entire system and cannot obtain
carriage on or information regarding any portion of the New York
system.[^42] RCN further argues that, in *Time Warner-New York*, the
Bureau ignored the fact that Time Warner and RCN compete head-to-head in
Manhattan and that this fact further compels a finding that Time Warner
is a competing, in-region operator *vis-a-vis* the entire New York-area
system.[^43]

16\. RCN contends that the Bureau\'s narrower application of Section
76.1503(c)(2)(v) will \"chill OVS entry or development by making it
practically certain that existing cable operators will be able to obtain
the most commercially sensitive data on their prospective
competitors.\"[^44] RCN asserts that the disclosure to a competitor of
the \"proprietary and commercially sensitive data\" that will result
from the Bureau\'s ruling is contrary to accepted commercial
standards.[^45]

17\. Time Warner argues that the Bureau correctly applied Section
76.1503(c)(2)(v) and rejects RCN\'s interpretation of what constitutes
an open video system service area. Time Warner maintains that the
analysis under Section 76.1503(c)(2)(v) must begin with the discrete
community served by a franchised operator. Time Warner argues that if a
cable operator is serving a community that is located within an OVS
operator\'s certificated service area, and the OVS operator is serving
or will soon serve that community, then the cable operator is a
\"competing, in-region\" operator with regard to that specific
community.[^46] Time Warner asserts that a cable operator cannot be
considered to be a competing, in-region operator in other portions of
the OVS operator\'s certificated area where the cable operator is not
providing service.[^47]

18\. With regard to RCN\'s New York system, Time Warner argues that it
does not offer cable service to the Bronx or the portions of Brooklyn
for which it seeks system information and that it therefore cannot be
classified as a competing, in-region cable operator in these
communities.[^48] Similarly, Time Warner argues that since it does not
offer cable service in Boston or the surrounding communities for which
it seeks system information, it cannot be classified as a competing
operator in these communities regardless of the fact that it offers
service in other discrete communities within RCN\'s certificated area in
and around Boston.[^49]

19\. In *Time Warner-New York* and *Time Warner-Boston*, the Bureau held
that \"an incumbent cable operator is a competing, in-region cable
operator where there is an actual overlap between a cable operator\'s
franchise area and a specific community served by an open video system
operator.\"[^50] In both cases, Time Warner\'s franchise areas do not
overlap at any point with the portions of RCN\'s systems on which Time
Warner seeks carriage. RCN\'s proposed open video system in the Bronx
and portions of Brooklyn does not overlap with any of Time Warner\'s
franchise areas in Manhattan, Queens, Staten Island or Brooklyn.
Similarly, RCN\'s proposed system in the communities surrounding Boston
for which Time Warner sought system information does not overlap with
any of Time Warner\'s franchise areas in the Boston-area. Applying the
foregoing standard to these facts, the Bureau ruled that Time Warner is
not a competing, in-region cable operator in the communities for which
it sought system information and that it therefore is entitled to such
information pursuant to the terms of Section 76.1503(b)(2). We disagree
with the Bureau\'s approach in applying Section 76.1503(c)(2)(v) and
grant reconsideration to the extent discussed below.

20\. At the outset of our discussion, we agree with the Bureau that:

RCN elected to pursue the open video system option and obtained
certification from the Commission. Incumbent in RCN\'s decision are the
benefits and responsibilities of open video system operation as
determined by Congress and the Commission. . . . As an open video system
operator, RCN accepted, and is subject to, the obligation to make
available on a nondiscriminatory basis up to two-thirds of its channel
capacity to independent programming providers in accordance with the
Commission\'s rules. Affording capacity to independent programmers is a
fundamental precept of the open video system option.[^51]

However, in implementing the open video system rules, the Commission
limited the non-discriminatory access requirement as it applied to
certain cable operators. Section 76.1503(c)(2)(v) provides that a cable
operator offering cable service to subscribers located in the service
area of an open video system is barred from carriage on that system. As
the Bureau recognized, the Commission enacted Section 76.1503(c)(2)(v)
in order to preserve the incentive of such cable operators to upgrade
and maintain their franchised systems and to promote facilities-based
competition.[^52] If such an operator were permitted to become a
programming provider on an open video system serving its franchise
areas, it would have less incentive to invest in its own facilities and
strengthen its position as a facilities-based competitor in these areas.

21\. Reasoning that a competing, in-region cable operator must compete
head-to-head with an open video system operator, the Bureau in *Time
Warner-New York* and *Time Warner-Boston* required that the area
actually served by an open video system operator and the cable
operator\'s franchise area must overlap in order for the carriage
prohibition contained in Section 76.1503(c)(2)(v) to apply. In requiring
an actual overlap of activated service areas, we believe the Bureau
interpreted Section 76.1503(c)(2)(v) too narrowly in the context of
these decisions. The technically integrated service area of the open
video system is a more appropriate basis for the application of Section
76.1503(c)(2)(v). This approach is consistent with the plain language of
Section 76.1503(c)(2)(v) which provides that a competing cable operator
may not obtain carriage on an open video system if it provides cable
service within the \"service area\" of the open video system. The scope
of an open video system\'s service area was not expressly defined in the
open video system implementing regulations. In the open video system
context, we will apply a definition of \"service area\" similar to the
definition adopted by the Commission in the implementation of rate
regulation for small cable systems.[^53] Section 76.901(c) of the
Commission\'s rules provides that the service area of a small cable
system \"shall be determined by the number of subscribers that are
served by the system\'s principal headend, including any other headends
or microwave receive sites that are technically integrated to the
principal headend.\"[^54] We will apply a similar definition in the
context of our open video system rules. Accordingly, the term \"service
area\" as used in Section 76.1503(c)(2)(v) shall mean the area that is
or will be served by the open video system\'s principal headend or other
originating point of its signal as well as any technically integrated
secondary distribution points such as ancillary headends or microwave
receive sites.[^55] While an open video system operator may be certified
to provide service in multiple communities pursuant to a single
certification, the operator may have multiple service areas within the
single certificated area depending upon the degree of integration of its
operations in that area. If a cable operator does not provide cable
service to subscribers located within the service area of a specific
open video system, it may seek carriage on that system if it is
otherwise qualified. A cable operator is not barred from doing so under
Section 76.1503(c)(2)(v) if it provides cable service to subscribers
located elsewhere in the open video system operator\'s greater
certificated area.

22\. In addition, we observe that an open video system operator
voluntarily may choose to provide carriage on a less-than-system-wide
basis to certain programmers, not including must-carry and PEG channels
which the operator must provide on a community-by-community basis as a
matter of law.[^56] In such circumstances, the non-discrimination
requirement of Section 76.1503(a) would require the operator to make
carriage available to all potential programmers on a similar basis. For
example, if RCN operates a technically integrated system throughout the
five boroughs of New York City, but voluntarily provides carriage to a
certain programmer only in Queens (again excluding must-carry and PEG
channels), it would be required to offer similar Queens-only carriage to
all potential programmers. We note that under this scenario, a strict
application of the Section 76.1503(c)(2)(v) carriage prohibition would
prevent a cable operator that competes in any of the other boroughs but
not in Queens from obtaining Queens-only carriage. However, we would
consider permitting carriage of such an operator pursuant to Section
76.1503(c)(2)(v)(B) as an exception to the general carriage prohibition.

23\. We cannot determine the proper application of Section
76.1503(c)(2)(v) in these proceedings based upon the Notices of Intent
RCN filed for its New York and Boston-area open video systems. Section
76.1503(b)(1) of the rules sets forth the specific information that an
open video system operator must include in a Notice of Intent. In the
Notices of Intent for its New York and Boston-area open video systems,
RCN simply listed the multiple communities comprising the entire
certificated areas for these respective systems. RCN did not provide
information describing the actual service area or areas within these
greater certificated areas according to the parameters discussed above.
For example, it is unclear whether RCN provides service in Manhattan and
the Bronx from the same headend, multiple integrated headends, or
multiple non-integrated headends. We direct RCN within 30 days of the
release of this Order to provide a description of the service area or
areas of its New York and Boston-area open video systems based upon the
foregoing delineation of an open video system\'s service area.[^57] Only
after evaluating this information can the Bureau determine whether the
carriage prohibition contained in Section 76.1503(c)(2)(v) applies to
Time Warner. In describing its service areas, RCN should include planned
expansions of its systems which it reasonably expects to complete. Once
RCN provides this information, we direct the Bureau to resolve the
petitions for reconsideration consistent with our decision herein.

24\. Finally, in its Boston complaint Time Warner urged the Bureau to
revoke RCN\'s open video system certification. Time Warner argued that
RCN does not intend to build-out the expansive open video system
described in its certification application and is simply using its
certification as leverage to obtain cable franchises or inhibit
competition. The Bureau did not revoke RCN\'s certification, stating
that the record in the proceedings below was not sufficiently developed
on this point to enable it to consider revocation.[^58] In their current
pleadings regarding the Boston dispute, the parties again raise issues
concerning RCN\'s commitment to the construction of its open video
system as certified and the possible revocation of RCN\'s
certification.[^59] The factual development of these issues remains
inadequate and we therefore decline to consider revocation of RCN\'s
certification in this context.

**B. System Information Requested By Time Warner**

25\. Section 76.1503(b)(1) requires an open video system operator to
include in its Notice of Intent to establish an open video system,
information describing the system\'s projected service area and channel
capacity as well as other information required by potential programming
providers.[^60] In addition, the Commission recognized that \"a
prospective video programming provider can reasonably be expected to
need additional information concerning the system to assess whether to
seek carriage on the system.\"[^61] Therefore, Section 76.1503(b)(2)
directs an open video system operator to provide to a prospective
programming provider, within five business days of a written request,
information relating to the operator\'s build-out schedule, estimated
carriage rates, programming provider qualification requirements, and
technical interface specifications, unless already provided in the
operator\'s Notice of Intent.[^62]

26\. In its New York complaint, Time Warner requested information
regarding RCN\'s proposed open video system in the Bronx and portions of
Brooklyn.[^63] Time Warner in part sought information regarding RCN\'s
actual and projected service areas and activation dates. The Bureau held
that such information is within the scope of Section 76.1503(b)(2), is
not commercially sensitive, and is necessary for a programming provider
to decide whether to pursue carriage on an open video system.[^64] The
Bureau therefore directed RCN to provide this information to Time Warner
as required by the Commission\'s rules.[^65]

27\. Time Warner also requested that RCN provide: (1) a route map
indicating the location of existing and proposed open video system
facilities in the covered service areas with specific schedules for
future construction; (2) the number of potential subscribers passed by
existing RCN open video system facilities; (3) and a list of the
programming which RCN intends to offer on its system.[^66] The Bureau
held that this information falls outside the parameters of Section
76.1503(b)(2) and that RCN is not obligated to provide this information
to Time Warner or any other prospective programming provider.[^67] With
regard to the route map, the Bureau noted that the Commission expressly
rejected a proposal that open video system operators disclose their
construction plans.[^68] The Bureau held that the number of potential
subscribers to an open video system is commercially sensitive
information and that potential programming providers can generate such
data on their own.[^69] In its Application for Review, Time Warner
argues that the Bureau\'s failure to require disclosure of this
information constitutes reversible error. Although the issue of Time
Warner\'s eligibility for carriage on RCN\'s New York system is
unresolved, we will consider Time Warner's Application for Review
regarding the scope of the disclosure requirements. This will expedite
resolution of the case if Time Warner ultimately is deemed eligible for
carriage. Having considered Time Warner\'s arguments regarding the
disclosure requirements, we grant in part and deny in part its
Application for Review.

28\. Time Warner points to the fact that Section 76.1503(b)(2)(i) of the
Commission\'s rules requires an open video system operator to
\"describe\" the stages of activation of its system if it is to be
activated in stages, and that Section 76.1503(b)(2)(iv) requires the
operator to provide \"technical information\" reasonably necessary to a
prospective programming provider in determining whether to seek
carriage. Referencing these provisions, Time Warner argues that a route
map is the best way to describe the activation stages as required and
that such a map falls within the technical information that is necessary
for a programming provider to make a carriage decision.[^70] Time Warner
disagrees with the Bureau\'s position that Time Warner is as capable as
RCN of calculating the number of potential subscribers passed by RCN\'s
system. Time Warner argues that a prospective programming provider does
not know with specificity which dwellings the open video system will
pass, especially if the operator is not required to provide a route map,
and therefore cannot generate a reliable figure for the number of
potential subscribers.[^71] Given the importance of such information in
revenue calculations and carriage decisions, Time Warner argues that the
OVS operator must provide the number of potential subscribers to
prospective programmers.[^72] Finally, Time Warner maintains that
information regarding RCN\'s programming line-up is \"reasonably
necessary\" for it to make a carriage decision. Time Warner reasons that
a prospective programmer must know the extent of program duplication and
whether channels will be shared.[^73]

29\. RCN responds that a route map is not referenced in Section
76.1503(b)(2) and that a detailed map of this nature could be used for
anti-competitive purposes.[^74] With regard to its programming line-up,
RCN again argues that this information is not referenced in the
Commission\'s rules.[^75] RCN further maintains that Section
76.1503(b)(2)(iv) is directed at strictly \"technical information\" that
is reasonably necessary for carriage decisions and that information
regarding an operator\'s programming is not of a technical nature.[^76]
Finally, RCN argues that potential subscribership figures are
commercially sensitive and again not of a technical nature as would be
covered by Section 76.1503(b)(2)(iv).[^77]

30\. As stated above, the Bureau held that route maps, potential
subscribership figures, and programming lists are beyond the scope of an
open video system operator\'s disclosure obligations under the
Commission\'s rules. With regard to route maps and programming lists, we
believe the Bureau\'s ruling is consistent with Section 76.1503(b) and
strikes an appropriate balance between an open video system operator\'s
need to protect arguably proprietary information and a prospective
programming provider\'s need to obtain information necessary to make a
carriage request. We clarify that a prospective video programming
provider is entitled to information providing the precise boundaries of
an open video system operator\'s existing and planned service areas,
which must be provided in the Notice of Intent.[^78] In this regard,
prospective video programming providers also are entitled to realistic
dates upon which open video system stages will be activated.[^79] This
information is essential to a prospective video programming provider\'s
decision whether to seek carriage. A route map designating the location
of an open video system\'s facilities is proprietary and not essential
to this decision. Similarly, an open video system operator\'s
prospective programming line-up is clearly proprietary information and
is not subject to Section 76.1503(b)(2) of the Commission\'s rules. The
Commission\'s rules make provision for the sharing of channels offered
by more than one video programming provider.[^80] Time Warner\'s request
for RCN\'s programming line-up is no more appropriate than would be a
demand by RCN that prospective video programming providers submit their
proposed programming line-ups as part of a request for carriage.

31\. Although the number of potential subscribers to an open video
system is not specifically enumerated in Section 76.1503(b)(2), we find
merit in Time Warner\'s arguments regarding the difficulty in
calculating such data given that operators often only build-out selected
portions of their designated service area or target only certain types
of properties such as multiple dwelling units. As discussed above, an
open video system operator must provide the precise boundaries of its
existing and planned service area in its Notice of Intent. If the
operator intends to construct a system that will serve the general
population within the designated service area or activation stage
thereof and so states in its Notice of Intent, we agree with the
Bureau\'s reasoning and find that the operator is not obligated to
provide the number of potential subscribers to the system as part of its
system description under Section 76.1503(b)(1)(iii). Supplied with the
precise boundaries of the service area and possessing the knowledge that
the system will serve the general population within that area, a
prospective video programming provider has an equal ability to estimate
the system\'s potential subscribership. However, if the open video
system operator intends to construct a system that will serve
significantly less than the general population in the service area, we
find that it must include in its Notice of Intent a reasonable estimate
of the number of potential subscribers to the system as part of its
system description, although it need not specify which subsegments of
the population its system will reach. This information is necessary to
enable a prospective video programming provider to make an informed
decision regarding whether or not to seek carriage on the open video
system. If Time Warner ultimately is found eligible for carriage, we
direct the Bureau to require RCN to amend the Notice of Intent for its
New York system to comply with this Order. We therefore grant in part
and deny in part Time Warner\'s Application for Review.

**V. ORDERING CLAUSES**

32\. Accordingly, **IT IS ORDERED** that Time Warner Cable\'s
Application for Review of the Cable Services Bureau\'s *Time Warner-New
York* *Order* granting in part and denying in part the relief requested
by Time Warner Cable in its Open Video System Complaint against RCN
Telecom Services of New York, Inc. **IS GRANTED IN PART AND DENIED IN
PART**.

33\. **IT IS FURTHER ORDERED** that RCN Telecom Services of New York,
Inc. and RCN-BeCoCom, L.L.C.\'s Petitions for Reconsideration of the
Cable Services Bureau\'s *Time Warner-New York* and *Time Warner-Boston
Orders* granting in part and denying in part the relief requested by
Time Warner Cable in its Open Video System Complaints against RCN
Telecom Services of New York, Inc. and RCN-BeCoCom, L.L.C. **ARE GRANTED
TO THE EXTENT DISCUSSED HEREIN**.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: ^?^We refer to RCN-NY and RCN-BeCoCom collectively as \"RCN.\"

[^2]: ^?^*See* 47 U.S.C. § 573(b)(1)(A); 47 C.F.R. § 76.1503(a); 47
    C.F.R. § 76.1503(b)(2).

[^3]: ^?^*Time Warner Cable* *v. RCN Telecom Services of New York,
    Inc.*, DA 98-2641 (CSB rel. December 30, 1998) (\"*Time Warner*-*New
    York*\"); *Time Warner Cable v. RCN-BeCoCom, L.L.C*, 13 FCC Rcd.
    8613 (CSB 1998) *(*\"*Time Warner*-*Boston*\"*).*

[^4]: ^?^*Time Warner*-*New York*, DA 98-2641 at ¶ 12; *Time
    Warner*-*Boston*, 13 FCC Rcd. at 8618.

[^5]: ^?^RCN-NY filed an opposition to Time Warner\'s Application for
    Review to which Time Warner filed a reply.

[^6]: ^?^Time Warner filed oppositions to RCN\'s Petitions for
    Reconsideration to which RCN filed replies.

[^7]: ^?^47 C.F.R. §1.106(a)(1). Section 1.429 of the Commission\'s
    rules similarly empowers a designated authority to refer a petition
    for reconsideration to the Commission. 47 C.F.R. §1.429(a).

[^8]: ^?^Telecommunications Act of 1996, Pub. L. No. 104-104, § 651, 110
    Stat. 118-19 (1996); Communications Act § 651, 47 U.S.C. § 571. An
    open video system is defined as \"\[a\] facility consisting of a set
    of transmission paths and associated signal generation, reception,
    and control equipment that is designed to provide cable service
    which includes video programming and which is provided to multiple
    subscribers within a community, provided that the Commission has
    certified that such system complies with this part.\" 47 C.F.R. §
    76.1500(a).

[^9]: ^?^*Implementation of Section 302 of the Telecommunications Act of
    1996: Open Video Systems*, Report and Order and Notice of Proposed
    Rulemaking, FCC 96-99, 11 FCC Rcd. 14639 (1996); *Implementation of
    Section 302 of the Telecommunications Act of 1996: Open Video
    Systems*, Second Report and Order, FCC 96-249, 11 FCC Rcd. 18223
    (1996) (\"Second Report and Order\"); *Implementation of Section 302
    of the Telecommunications Act of 1996: Open Video Systems*, Order,
    FCC 96-256, 11 FCC Rcd. 6776 (1996); *Implementation of Section 302
    of the Telecommunications Act of 1996: Open Video Systems*, First
    Order on Reconsideration, FCC 96-312, 11 FCC Rcd. 19081 (1996);
    *Implementation of Section 302 of the Telecommunications Act of
    1996: Open Video Systems*, Third Report and Order and Second Order
    on Reconsideration, FCC 96-334, 11 FCC Rcd. 20227 (1996);
    *Implementation of Section 302 of the Telecommunications Act of
    1996: Open Video Systems*, Third Order on Reconsideration, FCC
    97-129, 12 FCC Rcd. 6258 (1997); *Implementation of Section 302 of
    the Telecommunications Act of 1996: Open Video Systems*, Fourth
    Report and Order, FCC 97-130, 12 FCC Rcd. 7545 (1997);
    *Implementation of Section 302 of the Telecommunications Act of
    1996: Open Video Systems*, Order on Reconsideration, FCC 98-172, 13
    FCC Rcd. 14553 (1998).

[^10]: ^?^Second Report and Order, 11 FCC Rcd. at 18232-42, 18257-60.

[^11]: ^?^*Id*. at 18227.

[^12]: ^?^*City of Dallas, Texas v. FCC*, 165 F.3d 341 (5th Cir. 1999),
    *reh\'g denied*, Nos. 96-60502, 96-60581 and 96-60844 (5th Cir. May
    28, 1999) (\"*City of Dallas*\"). In *City of Dallas*, the Fifth
    Circuit affirmed the Commission\'s rules: (i) relating to open video
    system fees paid to local franchise authorities (\"LFAs\"); (ii)
    prohibiting LFAs from requiring institutional networks; and (iii)
    limiting the ability of non-local exchange carrier cable operators
    and expired cable franchisees to become open video system operators.
    165 F.3d at 360. The Fifth Circuit reversed the Commission\'s rules:
    (i) prohibiting LFAs from requiring open video system operators to
    obtain franchises; (ii) requiring open video system operators to
    obtain certification prior to constructing new facilities; and (iii)
    prohibiting local exchange carriers who are also cable operators
    from providing open video system service in the absence of effective
    competition. *Id.* The Fifth Circuit remanded to the Commission for
    further consideration its rules granting discretion to open video
    system operators to permit competing, in-region cable operators to
    become open video system programming providers. *Id.* The Commission
    filed for rehearing before the Fifth Circuit contesting the court\'s
    decision on the issue of LFA ability to require that open video
    systems obtain franchises. The Fifth Circuit denied all rehearing
    requests. The Commission resolved the reversed and remanded issues
    in a separate proceeding. *See Implementation of Section 302 of the
    Telecommunications Act of 1996: Open Video Systems*, Order on
    Remand, FCC 99-341 (rel. November 19, 1999).

[^13]: ^?^47 U.S.C. § 651; Second Report and Order, 11 FCC Rcd. at
    18230-31. An open video system operator is defined as \"\[a\]ny
    person or group of persons who provides cable service over an open
    video system and directly or through one or more affiliates owns a
    significant interest in such open video system, or otherwise
    controls or is responsible for the management and operation of such
    an open video system.\" 47 C.F.R. § 76.1500(b); *see* 47 C.F.R. §
    76.5 (ff) (definition of \"cable service\"); 47 C.F.R. § 76.501
    notes (parameters for determining affiliation status); 47 C.F.R. §
    76.1500(g) (reference to \"affiliate\").

[^14]: ^?^47 U.S.C. § 573; 47 C.F.R. § 76.1502-04; Second Report and
    Order, 11 FCC Rcd. at 18230, 18285-93. The Commission\'s rules
    provide that:

    an operator of an open video system shall not discriminate among
    video programming providers with regard to carriage on its open
    video system, and its rates, terms and conditions for carriage shall
    be just and reasonable and not unjustly or unreasonably
    discriminatory.

    47 C.F.R. § 76.1503(a).

[^15]: ^?^An open video system operator must provide the following
    information to a prospective programming provider:

    \(i\) The projected activation date of the open video system. If a
    system is to be activated in stages, the operator should describe
    the respective stages and the projected dates on which each stage
    will be activated;

    \(ii\) A preliminary carriage rate estimate;

    \(iii\) The information a video programming provider will be
    required to provide to qualify as a video programming provider,
    e.g., creditworthiness;

    \(iv\) Technical information that is reasonable necessary for
    potential video programming providers to assess whether to seek
    capacity on the open video system, including what type of customer
    premises equipment subscribers will need to receive service;

    \(v\) Any transmission or reception equipment needed by a video
    programming provider to interface successfully with the open video
    system \[e.g., scrambling, signal and audio quality, processing or
    security\]; and

    \(vi\) The equipment available to facilitate the carriage of
    unaffiliated video programming and the electronic form(s) that will
    be accepted for processing and subsequent transmission through the
    system.

    47 C.F.R. § 76.1503(b)(2); *see* Second Report and Order, 11 FCC
    Rcd. at 18255.

[^16]: ^?^Second Report and Order, 11 FCC Rcd. at 18227.

[^17]: ^?^*Time Warner-Boston*, 13 FCC Rcd. at 8617.

[^18]: ^?^*Id.*

[^19]: ^?^*Id.* at 8618-19.

[^20]: ^?^Time Warner Complaint (Boston), Exhibit D.

[^21]: ^?^*Time Warner-Boston*, 13 FCC Rcd. at 8621-22.

[^22]: ^?^*Id.* at 8622.

[^23]: ^?^*Time Warner-New York*, DA 98-2641 at ¶ 8.

[^24]: ^?^*Id.*

[^25]: ^?^*Id.* at ¶ 9.

[^26]: ^?^*Id.* at ¶ 12.

[^27]: ^?^*Id. at ¶¶ 18-20.*

[^28]: ^?^47 C.F.R. § 76.1503(c)(2)(v) (emphasis added). Section
    76.1503(c)(2)(v) provides two exceptions to the general prohibition
    regarding carriage of a competing, in-region cable operator\'s
    programming:

    \(A\) Where the operator of an open video system determines that
    granting access to the competing, in-region cable operator is in its
    interests; or

    \(B\) Where a showing is made that facilities-based competition will
    not be significantly impeded.

    *Id.* § 76.1503(c)(2)(v)(A)&(B). As discussed in n. 13 *supra*, the
    Fifth Circuit invalidated the provision granting open video system
    operators the discretion to carry the programming of an in-region
    cable operator and remanded this issue to the Commission for further
    consideration. *City of Dallas*, 165 F.3d at 358. The Commission\'s
    rules provide that facilities-based competition would not be impeded
    where:

    \(1\) The competing, in-region cable operator and affiliated systems
    offer service to less than 20% of the households passed by the open
    video system; and

    \(2\) The competing, in-region cable operator and affiliated systems
    provide cable service to a total of less than 17,000 subscribers
    within the open video system\'s service area.

    47 C.F.R. § 76.1503(c)(2)(v)(note).

[^29]: ^?^Second Report and Order*,* 11 FCC Rcd. at 18258.

[^30]: ^?^*Time Warner*-*New York*, DA 98-2641 at ¶ 7; RCN Answer to
    Open Video System Complaint (New York) at 8.

[^31]: ^?^*Time Warner*-*New York*, DA 98-2641 at ¶ 7.

[^32]: ^?^Time Warner Complaint (New York) at 2.

[^33]: ^?^RCN initially was certified to operate in Boston, Brookline,
    Burlington, Dedham, Framingham, Lexington, Norwood, Quincy,
    Somerville, and Wakefield, Massachusetts but later received cable
    franchises from these communities and requested withdrawal of its
    open video system certification for these areas. *Public Notice*,
    \"RCN-BeCoCom, LLC Files Open Video System Certification
    Modification,\" 12 FCC Rcd. 22041 (CSB 1997); *Public Notice*,
    \"RCN-BeCoCom, LLC Files Open Video System Certification
    Modification,\" 13 FCC Rcd. 10353 (CSB 1998); *Public Notice*,
    \"RCN-BeCoCom, LLC Files A Modification To The Service Area Of Its
    Open Video System,\" DA 99-2318 (CSB rel. October 27, 1999).

[^34]: ^?^*Id.* at 8617.

[^35]: ^?^The overlapping communities are Ashland, Bellingham, Canton,
    Chelsea, Dover, Holliston, Medfield, Medway, Norfolk, Sharon,
    Stoneham, and Walpole, Massachusetts. *Id.* at 8617, n.20.

[^36]: ^?^*Id.*

[^37]: ^?^RCN Petition (New York) at 14.

[^38]: ^?^RCN Petition (Boston) at 11.

[^39]: ^?^RCN Petition (New York) at 14.

[^40]: ^?^*Id.* at 12.

[^41]: ^?^RCN Petition (Boston) at 8,19.

[^42]: ^?^RCN Petition (New York) at 12-13.

[^43]: ^?^*Id.* at 13. In its petitions, RCN also argues that Time
    Warner is an affiliate of Cablevision and MediaOne and that their
    subscribers must be attributed to Time Warner in performing the
    Section 76.1503(c)(2)(v) analysis. *Id.* at 20; RCN Petition
    (Boston) at 12. RCN raises this argument with regard to Cablevision
    for the first time in its New York petition. Section 1.106 of the
    Commission\'s rules provides in part that the Commission will not
    entertain a petition for reconsideration which relies upon
    newly-presented facts which existed at the time the underlying
    action was initiated, unless the petitioner could not have
    discovered the facts through ordinary diligence or unless the public
    interest would be served by consideration of the untimely argument.
    47 C.F.R. § 1.106(b)(2), (c); *see In re Daniels Cablevision, Inc.*,
    12 FCC Rcd. 17410, 17416 (CSB 1997). Because the relevant facts
    regarding Cablevision\'s ownership existed at the time RCN responded
    to Time Warner\'s complaint, we will not consider RCN\'s affiliation
    argument based upon these facts. With regard to MediaOne, RCN simply
    reiterates in abbreviated form arguments that it raised below which
    the Bureau deemed insufficiently developed at that time. We
    therefore will not revisit the MediaOne-Time Warner relationship on
    the present record. In any event, under Section 76.1503(c)(2)(v),
    Time Warner could not obtain or continue carriage on any portion of
    an open video system located within either one of its own franchise
    areas or within the franchise area of an affiliated entity.

[^44]: ^?^RCN Petition (Boston) at 8; RCN Petition (New York) at 11.

[^45]: ^?^RCN Petition (Boston) at 13-14; RCN Petition (New York) at 21.

[^46]: ^?^Time Warner Opposition (Boston) at 10-11; Time Warner
    Opposition (New York) at 9.

[^47]: ^?^*Id.*

[^48]: ^?^Time Warner Opposition (New York) at 7-8.

[^49]: ^?^Time Warner Opposition (Boston) at 10-11. In its opposition to
    RCN\'s Boston petition, Time Warner requested that the Bureau
    reconsider its ruling that RCN is not obligated to provide Time
    Warner with a route map pursuant to Section 76.1503(b)(2). *Id.* at
    6. We deny reconsideration and address the merits of this issue in
    our disposition of Time Warner\'s Application for Review in which it
    seeks the same relief.

[^50]: ^?^*Time Warner*-*New York*, DA 98-2641 at ¶ 7 (citing *Time
    Warner*-*Boston*); *Time Warner*-*Boston*, 13 FCC Rcd. at 8618-19.

[^51]: ^?^*Time Warner*-*New York*, DA 98-2641 at ¶ 6 (footnote
    omitted); *see also* *Time Warner*-*Boston*, 13 FCC Rcd. at 8616
    (footnote omitted).

[^52]: ^?^Second Report and Order, 11 FCC Rcd. at 18258.

[^53]: ^?^*Implementation of Sections of the Cable Television Consumer
    Protection and Competition Act of 1992: Rate Regulation*, Report and
    Order and Further Notice of Proposed Rulemaking, FCC 93-177, 8 FCC
    Rcd. 5631, 5923 (1993).

[^54]: ^?^47 C.F.R. § 76.901(c).

[^55]: ^?^In applying this definition, the boundaries of an open video
    system\'s service area shall be determined based upon current
    equipment and transmission capabilities. A secondary distribution
    point in an open video system such as an ancillary headend or
    microwave receive site, will be considered to be technically
    integrated if 75% or more of the video channels are received from
    the principal headend or other originating point of the system's
    signal. *See* 47 C.F.R. § 76.5(kk).

[^56]: ^?^*See* Section 653(c)(1)(B) of the Communications Act of 1934.

[^57]: ^?^To the extent RCN has filed Notices of Intent for other
    certificated areas that do not comply with the requirements
    discussed herein, we direct RCN to file supplemental Notices of
    Intent within 60 days of the release of this Order.

[^58]: ^?^*Time Warner*-*Boston*, 13 FCC Rcd. at 8623.

[^59]: ^?^RCN Petition (Boston) at 15-18; Time Warner Opposition
    (Boston) at 16-22.

[^60]: ^?^47 C.F.R. § 76.1503(b)(1).

[^61]: ^?^Second Report and Order, 11 FCC Rcd. at 18255.

[^62]: ^?^*See supra* n.15, discussing the information an open video
    system operator must provide directly to prospective programming
    providers.

[^63]: ^?^Time Warner made identical information requests in its Boston
    complaint. However, Time Warner does not challenge the Bureau\'s
    decision in *Time Warner-Boston* in its Application for Review.

[^64]: ^?^*Time Warner*-*New York*, DA 98-2641 at ¶ 18.

[^65]: ^?^The Bureau also ordered that if RCN has provided any
    information to other prospective programming providers beyond that
    covered in the order, it also must provide such information to Time
    Warner. *Id.* at ¶ 20. To the extent that any such information
    relates solely to portions of RCN\'s system on which Time Warner is
    not entitled to carriage, RCN may redact that portion of the data.

[^66]: ^?^*Time Warner*-*New York*, DA 98-2641 at ¶ 16.

[^67]: ^?^*Id.* at ¶¶ 18, 20.

[^68]: ^?^Second Report and Order at 18255, n.130 (\"We believe this
    \[disclosure of construction plans\] could unnecessarily risk the
    disclosure of confidential business plans and that the projected
    activation date should be sufficient for the purposes of video
    programming providers.\").

[^69]: ^?^*Time Warner*-*New York*, DA 98-2641 at ¶ 20.

[^70]: ^?^Time Warner Application for Review at 5.

[^71]: ^?^*Id.* at 7.

[^72]: ^?^*Id.* at 8.

[^73]: ^?^*Id.* at 8-9.

[^74]: ^?^RCN Opposition at 18, 20.

[^75]: ^?^*Id.* at 21.

[^76]: ^?^*Id.* at 22.

[^77]: ^?^*Id.* at 23.

[^78]: ^?^47 C.F.R. § 76.1503(b)(1)(iii).

[^79]: ^?^47 C.F.R. § 76.1503(b)(2)(i).

[^80]: ^?^47 C.F.R. § 76.1503(c)(2)(iii).