Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of:                | * | CSR 5306-E                   |
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| United Cable Television          | ) |                              |
| Corporation d/b/a TCI            | * |                              |
| Cablevision of Treasure Valley.  | * |                              |
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| Petition for Determination of    | * |                              |
| Effective                        | * |                              |
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| Competition in Ada County (CUID  | * |                              |
| ID0097), Canyon County (CUID     | * |                              |
| ID0098) and Meridian (CUID       |   |                              |
| ID0064), Idaho                   | * |                              |
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MEMORANDUM OPINION AND ORDER

**Adopted: October 19, 2000** **Released: October 25, 2000**

By the Deputy Chief, Cable Services Bureau:

# introduction

1.  United Cable Television Corporation d/b/a TCI Cablevision of
    Treasure Valley ("TCI") has filed with the Commission a petition
    pursuant to Sections 76.7 and 76.907 of the Commission\'s rules for
    a determination of effective competition in Meridian and the
    unincorporated portions of Ada and Canyon Counties, Idaho. TCI
    alleges that its cable systems serving these communities are subject
    to effective competition pursuant to Section 623(1) 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. More particularly, TCI claims the
    presence of effective competition in Meridian and the unincorporated
    portion of Ada County stems from the competing services provided by
    two direct broadcast satellite (\"DBS\") providers, DirecTV,
    Inc.[^3] and Dish Network,[^4] and by an unaffiliated wireless cable
    operator serving these two communities, Wireless Broadcasting
    Systems (\"WBS\"). TCI claims it is subject to effective competition
    in these communities under the "competing provider" effective
    competition test set forth in Section 623(1)(1)(B) of the
    Communications Act.[^5] TCI further claims that it is subject to
    effective competition in the unincorporated portion of Canyon County
    because fewer that 30 percent of the households in this community
    subscribe to TCI's cable services. TCI asserts that it is thus
    subject to effective competition in this community under the "low
    penetration" effective competition test set forth in Section
    623(1)(1)(A) of that act.[^6] No opposition to the petition was
    filed.

# discussion

2.  In the absence of a demonstration to the contrary, cable systems are
    presumed not to be subject to effective competition,[^7] as that
    term is defined by Section 623(1) of the Communications Act of 1934,
    as amended, and Section 76.905 of the Commission\'s rules.[^8] 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.[^9]
    Section 623(l) of the Communications Act provides that a cable
    operator is subject to effective competition, if either one of four
    tests for effective competition set forth therein is met.[^10] A
    finding of effective competition exempts a cable operator from rate
    regulation and certain other of the Commission's cable
    regulations[^11]

## Application of The "Competing Provider" Effective Competition Test In Ada County and Meridian, Idaho

3.  Section 623(l)(1)(B) of the Communications Act provides that a cable
    operator is subject to effective competition if its 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 fifteen percent (15%) of the households in the franchise
    area.[^12] Turning to the first prong of this test, we find that the
    programming of DBS providers, such as DirecTV and Dish Network,
    satisfy the Commission\'s programming comparability criterion. DBS
    service is presumed to be technically available due to its
    nationwide satellite footprint, and presumed to be actually
    available if households in a franchise area are made reasonably
    aware that the service is available.[^13] TCI has provided evidence
    of the advertising of DBS service in national media serving the
    franchise areas.[^14] With respect to the issue of program
    comparability, we find that the programming of the DBS providers
    satisfies the Commission\'s program comparability criterion because
    the DBS providers offer at least 12 channels of video programming,
    including at least one non-broadcast channel.[^15] We find that TCI
    has demonstrated that Meridian and the unincorporated portion of Ada
    County are served by at least two unaffiliated MVPDs, namely the two
    DBS providers, each of which offers comparable video programming to
    at least 50 percent of the households in the franchise area.
    Therefore, the first prong of the competing provider test is
    satisfied.

4.  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. TCI
    provided 1990 Census data showing 18,614 households in the
    unincorporated portions of Ada County and 3,612 households in
    Meridian. [^16] TCI also provided information showing that the MVPDs
    other than TCI, the largest MVPD (WBS, DBS and C-Band providers)
    provide service to 12,266 households in unincorporated Ada County
    (or 66% of the 18,614 Ada County households), and to 603 households
    in Meridian (or 16.7% of the 3,612 Meridian households).[^17] Based
    on this record, we find that TCI has demonstrated that the number of
    households subscribing to programming services offered by WBS, other
    than the largest MVPD (TCI), exceeds 15 percent of the households in
    the unincorporated portions of Ada County and in Meridian. TCI also
    demonstrated on this record that WBS is physically able to offer
    MVPD service to subscribers in these two communities, that there
    exists no regulatory, technical, or other impediments to households
    within these communities taking the services of WBS, and that
    potential subscribers in these communities have been made reasonably
    aware of the MVPD services of WBS.[^18] Therefore, the second prong
    of the competing provider test is also satisfied. Based on the
    foregoing, we conclude that TCI has submitted sufficient evidence
    demonstrating that its cable systems serving Meridian and the
    unincorporated portions of Ada County, Idaho, are subject to
    effective competition under the "competing provider" test.

## Application of the "Low Penetration" Effective Competition Test in Canyon County, Idaho

5.  Another test by which a cable system will be deemed subject to
    effective competition is if fewer than 30 percent of the households
    in the system\'s franchise area subscribes to the system\'s
    service.[^19] TCI has provided information showing that only 1,081,
    or 8.8% of the 12,314 households in its Canyon County franchise area
    subscribe to its cable services.[^20] Therefore, we find that TCI's
    cable system is subject to low penetration effective competition in
    this franchise area.

6.  Based on the foregoing, we conclude that TCI has submitted
    sufficient evidence demonstrating that its cable systems serving
    Meridian and the unincorporated portions of Ada and Canyon County,
    Idaho are subject to effective competition.

# ordering clauses

7.  Accordingly, **IT IS ORDERED** that the petition for a determination
    of effective competition filed by United Cable Television
    Corporation d/b/a TCI Cablevision of Treasure Valley **IS GRANTED**.

8.  This action is taken pursuant to authority delegated under Section
    0.321 of the Commission's rules.[^21]

    FEDERAL COMMUNICATIONS COMMISSION

    William H. Johnson

    Deputy Chief, Cable Services Bureau

[^1]: 47 U.S.C. § 543(1).

[^2]: 47 C.F.R. § 76.905(b)(4).

[^3]: DirectTV, Inc. has acquired PRIMESTAR and U.S Satellite
    Broadcasting., Inc.

[^4]: DISH Network is the registered trademark of EchoStar
    Communications Corporation.

[^5]: *See* 47 U.S.C. § 543(1)(1)(B), which sets forth the "competing
    provider" effective competition test.

[^6]: *See* 47 U.S.C. § 543(1)(1)(A), which sets forth the "low
    penetration" effective competition test.

[^7]: ^ ?^47 C.F.R. § 76.906.

[^8]: ^ ?^*See* 47 U.S.C. § 543(1) and 47 C.F.R. § 76.905.

[^9]: ^?^*See* 47 C.F.R. §§ 76.906 & 907.

[^10]: *See* 47 U.S.C. § 543(l)(1)(A)-(D).

[^11]: ^?^*See* 47 C.F.R. §76.905.

[^12]: 47 U.S.C. § 543(1)(1)(B); *see also* 47 C.F.R. § 76.905(b)(2).

[^13]: *See MediaOne of Georgia*, 12 FCC Rcd 19406 (1997).

[^14]: *See* TCI Petition at 5 and Exhibit C.

[^15]: *See* 47 C.F.R. s76.905(g). *See also* TCI Petition at 5-6 and
    Exhibit D. Exhibit D includes channel line ups for TCI's cable
    systems serving these communities as well as those of Direct TV,
    Dish TV and WBS.

[^16]: TCI Petition at 7-9 and Exhibits A & B. 1990 Census data
    satisfies effective competition decision requirements. *See Cable
    Operators\' Petitions for Reconsideration and Revocation of
    Franchising Authorities\' Certifications to Regulate Cable Service
    Rates*, 9 FCC Rcd 3656 (1994).

[^17]: The numbers of subscribers in Ada County are: WBS, 399; DBS and
    C-Band, 204; TCI, 4,598. The numbers of subscribers in Meridian are:
    WBS, 6260; DBS and C-Band, 6,006; TCI, 7,881. Petition at 7-9 and
    Exhibits A, B, G & H.

[^18]: TCI Petition at 8-9 and Exhibits G & H.

[^19]: The "low penetration" effective competition test.

[^20]: Petition at 9-10 and Exhibits A, B & G.

[^21]: ^?^47 C.F.R. §0.321.