Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of:                | * |                              |
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| Falcon Broadband, Inc.           | ) |                              |
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| Certification to Operate an      | * |                              |
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MEMORANDUM OPINION AND ORDER

**Adopted: August 19, 2005** **Released: August 22,** **2005**

By the Deputy Chief, Policy Division, Media Bureau:

# INTRODUCTION

1\. On August 5, 2005 Falcon Broadband, Inc. ("Falcon") 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] Falcon seeks to operate an open
video system for Pueblo, Colorado (the \"Service Area\").[^2] In
accordance with our procedures,[^3] the Commission posted the
application on the Internet.[^4] No comments regarding this application
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.[^5] 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.[^6] 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.[^7]

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.[^8] 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;[^9] (b) a representation
that the applicant will comply with the Commission\'s regulations under
Section 653(b) of the Communications Act;[^10] (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\. Falcon has submitted an application on FCC Form 1275 for
certification to operate an open video system in the Service Area. We
have reviewed the information contained in Falcon's application. As
required by Form 1275, the Falcon 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. Falcon also confirmed
that it served its application upon the designated telecommunications
officials in the City of Pueblo and Pueblo County, Colorado.

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

**III. ORDERING CLAUSES**

6\. Accordingly, **IT IS ORDERED**, that the application of Falcon
Broadband, Inc. for certification to operate an open video system in the
Service Area **IS** **GRANTED**.

7\. This action is taken by the Deputy Chief, Policy Division, Media
Bureau, pursuant to the authority delegated by Section 0.283 of the
Commission\'s Rules.[^11]

FEDERAL COMMUNICATIONS COMMISSION

Steven A. Broeckaert

Deputy Chief, Policy Division

Media Bureau

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

[^2]: The Service Area for which Falcon seeks certification is the City
    of Pueblo and Pueblo County, Colorado.

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

[^4]: The Falcon application is available via the Internet at
    <http://www.fcc.gov/mb/ovs/csovscer.html>. We note that the
    designated telecommunications officials for the service area were
    served on August 2, 2005 a copy of Falcon's certification
    application and informed how to timely oppose or comment on the
    application. Section 653(a)(1) of the Communications Act provides
    that the Commission shall approve or disapprove any such
    certification application within 10 days after receipt of such
    certification. Consequently, by operation of statute, as of August
    15, 2005 Falcon's application was deemed approved.

[^5]: *See* 47 U.S.C. § 573(a)(1); 47 C.F.R. § 76.1501. An operator of a
    cable system however, 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). The effective competition requirement
    does not apply to a local exchange carrier that is also a cable
    operator that seeks open video system certification within its cable
    service area.

[^6]: *Second Report and Order*, 11 FCC Rcd at 18243.

[^7]: ^  ?^ *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*, 14 FCC Rcd 19700, 19705 (1999) (deleting
    the pre-construction certification requirement from Section
    76.1502(a) of our rules).

[^8]: *Second Report and Order*, 11 FCC Rcd at 18245-46.

[^9]: 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. § 76.1500(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*, 11 FCC Rcd
    20227, 20235 (1996) (\"*Third Report and Order*\"); 47 C.F.R.
    § 76.1500(g).

[^10]: 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. § 76.1502(a).

[^11]: 47 C.F.R. § 0.283.