Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * | CSR 7772-E                   |
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| Comcast Cable Communications,    | ) | 7774-E                       |
| LLC, on behalf of its            | * |                              |
| subsidiaries and affiliates      | * | 7807-E                       |
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| Petition for Determination of    | * | 7808-E                       |
| Effective Competition in Various | * |                              |
| California Communities           | ) | 7810-E                       |
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|                                  | * | 7811-E                       |
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+----------------------------------+---+------------------------------+

MEMORANDUM OPINION AND ORDER

**Adopted: April 30, 2008 Released: May 1, 2008**

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

# I. introduction and Background

1.  Comcast Cable Communications, LLC, on behalf of its subsidiaries and
    affiliates, hereinafter referred to as "Petitioner," has filed with
    the Commission petitions pursuant to Sections 76.7, 76.905(b)(2) and
    76.907 of the Commission's rules for determinations 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 systems serving the Communities
    are subject to effective competition pursuant to Section
    623(1)(1)(B) of the Communications Act of 1934, as amended
    ("Communications Act")[^1] and the Commission's implementing
    rules,[^2] and are 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") and, in some Communities,
    other providers.[^3] The petitions are unopposed.

2.  In the absence of a demonstration to the contrary, cable systems are
    presumed not to be subject to effective competition,[^4] as that
    term is defined by Section 623(l) of the Communications Act and
    Section 76.905 of the Commission's rules.[^5] 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.[^6] For the reasons
    set forth below, we grant the petitions based on our finding that
    Petitioner is subject to effective competition in the Communities
    listed on Attachment A.

# II. DISCUSSION

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.[^7] 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.[^8]

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.[^9]
    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.[^10] 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.[^11] 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[^12] and is supported in this petition with copies of
    channel lineups for both DIRECTV and Dish.[^13] 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.[^14] 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 all but one of the
    Communities.[^15] Petitioner sought to determine the penetration of
    DIRECTV and Dish 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 and zip code plus four basis where necessary.[^16]

7.  Based upon the aggregate DBS and other competitor subscriber
    penetration levels that were calculated using Census 2000 household
    data,[^17] as reflected in Attachment A, 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 A.

# III. ordering clauses 

9.  Accordingly, **IT IS ORDERED** that the petitions for a
    determination of effective competition filed in the captioned
    proceeding by Comcast Cable Communications, LLC, on behalf of its
    subsidiaries and affiliates **ARE GRANTED**.

10. **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**.

11. 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 7772-E, 7774-E, 7807-E, 7808-E, 7810-E, 7811-E**

**COMMUNITIES SERVED BY SUBSIDIARIES AND AFFILIATES OF**

**COMCAST CABLE COMMUNICATIONS, LLC**

**2000 Estimated**

**Census Competitors**

## Communities CUID(s) CPR\* Household Subscribers 

## 

## CSR 7772-E 

## Brisbane CA0440 16.23% 1620 263

## Broadmoor CA0575 15.67% 1275 200

Dale City CA0280 20.37% 30075 6269

CA1337

Pacifica CA0197 19.17% 13994 2683

South San CA0282 27.73% 19677 5456

Francisco

**CSR 7774-E**

Belmont CA0007 16.26% 10418 1694

CA1370

Millbrae CA0578 16.47% 7956 1310

Redwood City CA0205 26.56% 28060 7452

CA1569

San Carlos CA0207 20.08% 11455 2300

CA1470

San Mateo City CA0206 26.59% 37338 9926

CA1374

San Mateo County CA0074 26.17% 20562 5381

CA0925

CA0967

CA1501

CA0573

## CSR 7807-E

Gustine CA0624 49.89% 1683 840

**2000 Estimated**

**Census Competitors**

**Communities CUID(s) CPR\* Household Subscribers**

**CSR 7808-E**

Newman CA0657 74.90% 2079 1557

CA1655

**CSR 7810-E and 7811-E**

Alameda CA1616 42.29% 30226 12782\*\*

CA1684

##  

\*CPR = Percent of competitors' penetration rate.

\*\* Comcast operates two cable systems in Alameda County California and
therefore each has its own CSR number herein, 7810-E and 7811-E. The two
systems operate pursuant to one franchise, however, and therefore
Comcast reports a common set of numbers for both of them.

[^1]: *See* 47 U.S.C. § 543(a)(1).

[^2]: 47 C.F.R. § 76.905(b)(2).

[^3]: The other providers are, in CSR 7772-E and 7774-E, Astound
    Broadband, LLC; and, in CSR 7810-E and 7811-E, Alameda Power &
    Telecom. *See, e.g.,* Petition in CSR 7772-E at 2 n.7, 7, & Exhs.
    5-6; Petition in CSR 7810-E at 2 n.6, 7, & Exhs. 4-5.

[^4]: 47 C.F.R. § 76.906.

[^5]: *See* 47 U.S.C. § 543(l) and 47 C.F.R. § 76.905.

[^6]: *See* 47 C.F.R. §§ 76.906 & 907.

[^7]: 47 U.S.C. § 543(1)(1)(B); *see* also 47 C.F.R. § 76.905(b)(2).

[^8]: 47 C.F.R. § 76.905(b)(2)(i).

[^9]: *See* Petition in CSR 7772-E at 3*.*

[^10]: 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)*.*

[^11]: 47 C.F.R. § 76.905(e)(2).

[^12]: *See* 47 C.F.R. § 76.905(g). *See also* Petition in CSR 7774-E at
    4.

[^13]: *See* Petition in CSR 7807-E at Exh. 1.

[^14]: *See* Petition in CSR 7808-E at 2-3.

[^15]: In circumstances where the largest MVPD is unable to be
    identified (Petition in CSR 7808-E at 5), the Commission is able to
    determine that the second prong is met by making dual assumptions.
    First, we assume that Petitioner is the largest MVPD provider in the
    Community and determine that the combined DBS subscribership is
    greater than 15 percent; we then assume that one of the DBS
    providers is the largest MVPD in the Community and determine that
    Petitioner's subscribership is greater than 15 percent. When both
    determinations can be made, then the second prong of the competing
    provider test is met. *See* Attachment A.

[^16]: Petition in CSR 7810-E at 5-6. A zip code plus four analysis
    allocates DBS subscribers to a franchise area using zip code plus
    four information that generally reflects franchise area boundaries
    in a more accurate fashion than standard five digit zip code
    information.

[^17]: Petition in CSR 7811-E at 7.

[^18]: 47 C.F.R. § 0.283.