Before the

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+---+------------------------------+
| In the Matter of:                | * | CSR No. 5545-Z               |
|                                  | * |                              |
| Charter Communications, Inc.     | ) | CSR No. 5548-Z               |
|                                  | * |                              |
| AT&T Broadband, L.L.C.           | * | CSR No. 5558-Z               |
|                                  |   |                              |
| Insight Communications Company,  | * | CSR No. 5561-Z               |
| L.P.                             | * |                              |
|                                  | ) | CSR No. 5564-Z               |
| Cox Communications, Inc.         | * |                              |
|                                  | * | CSR No. 5566-Z               |
| GCI Cable, Inc.                  |   |                              |
|                                  | * | CSR No. 5567-Z               |
| Cablevision Systems Corp.        | * |                              |
|                                  | ) | CSR No. 5569-Z               |
| Adelphia Communications Corp.    | * |                              |
|                                  | * | CSR No. 5570-Z               |
| MediaCom Communications Corp.    |   |                              |
|                                  | * | CSR No. 5572-Z               |
| CableAmerica Corp.               | * |                              |
|                                  | ) |                              |
| Time Warner Cable                | * |                              |
|                                  | * |                              |
| Petition for Waiver of the       |   |                              |
| Requirement                      | * |                              |
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| To Provide Point of Deployment   | ) |                              |
| Modules                          | * |                              |
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| Contained in Section 76.1204 of  |   |                              |
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| Commission's Rules               | ) |                              |
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+----------------------------------+---+------------------------------+

MEMORANDUM OPINION AND ORDER

**Adopted: August 14, 2000** **Released: August 15, 2000**

By the Deputy Chief, Cable Services Bureau:

# introduction

1.  On June 11, 1998, the Commission adopted *Implementation of Section
    304 of the Telecommunications Act of 1996, Commercial Availability
    of Navigation Devices,* to implement the congressional mandate
    expressed in Section 629 of the Communications Act.[^1] Included in
    the rules adopted in the order is Section 76.1204 of the
    Commission's rules, which requires that multichannel video
    programming distributors ("MVPDs") make available modular security
    components, also called point of deployment modules ("PODs") by July
    1, 2000.[^2] The cable operators listed above request a waiver of
    Section 76.1204.

# background

2.  Section 629 requires the Commission to assure that navigation
    devices, or customer premises equipment are available for commercial
    retail purchase.[^3] The Commission concluded that the best means to
    foster a competitive market for navigation devices without
    jeopardizing system security was to require MVPDs to unbundle
    security from the other functions of the navigation device and by
    July 1, 2000, make available PODs to perform this function.[^4] This
    requirement is intended to enable an MVPD subscriber to obtain a
    set-top box without the security features (a "host device") from
    retailers. The subscriber remains reliant upon the MVPD to provide a
    POD for security functionality.[^5] Subsequently, on
    reconsideration, the Commission excluded from the POD requirement
    equipment that employs only an analog conditional access function.
    [^6] The Commission did not apply this exclusion to hybrid
    navigation devices (*i.e.*, equipment that performs conditional
    access for both analog and digital scrambled services).[^7]

3.  We have before us the above-captioned petitions filed by cable
    operators seeking a waiver of Section 76.1204 for some of their
    cable systems that utilize hybrid navigation devices. The
    petitioners indicate that they would be in violation of the
    Commission's rules for systems that require a hybrid set-top box in
    order to receive all the services provided unless the waiver is
    granted. The petitions were placed on public notice and a time frame
    was established for filing comments and reply comments.[^8]
    Petitioners were also given the opportunity to supplement their
    petitions. Initially, petitioners filed waivers for 228 separate
    cable systems. Subsequently, petitions for 95 systems were
    withdrawn. The Bureau issued an order forgoing enforcement of the
    Section 76.1204 requirements for 45 days with regard to the systems
    designated in the petition in order to have the opportunity to
    review the additional information that arrived after the July 1,
    2000 implementation date.[^9]

4.  *Waiver Standard*. In analyzing the petitions, we consider the
    well-established legal standard for waiver of the Commission\'s
    rules. The Commission will adhere strictly to its rules unless a
    party can demonstrate that \"in the public interest the rule should
    be waived.\"[^10] Furthermore, the Commission may only waive a
    provision of its rules for good cause.[^11] The Commission must take
    a \"hard look\" at applications for waiver[^12] and must consider
    all relevant factors when determining if good cause exists.[^13]

# discussion

5.  Although ten cable operators, with different attributes to their
    physical cable plants have filed waiver petitions, several common
    assertions run throughout the petitions. In the systems for which
    waivers are sought, the cable operator has launched, or is about to
    launch digital programming tiers in order to provide an immediate
    expansion of program service offerings.[^14] In these systems, the
    operator provides hybrid set-top boxes performing both analog and
    digital decoding to customers subscribing to both the scrambled
    analog channels and the optional digital tier. Petitioners seek a
    waiver of the requirement that it provide PODs that are capable of
    both analog and digital decoding.

6.  Petitioners claim that they considered various strategies for
    meeting Section 76.1204 in lieu of petitioning for a waiver, but
    none are viable. In most cases, petitioners claim that they would
    offer analog PODS, but there is no manufacturer serving this market
    and no analog PODs were available before the July 1, 2000 deadline
    or are likely to be available in the foreseeable future.[^15]
    Petitioners claim that the most reasonable solution to comply with
    Section 76.1204 is dual carriage of scrambled analog programming in
    the digital tier. Under this scenario, a consumer purchasing a
    digital set-top box at retail would be able to access all of a cable
    operator's service offerings via the digital tier. Petitioners claim
    that in most circumstances their systems currently lack capacity to
    duplicate, and therefore seek a waiver until system rebuilds are
    complete. Petitioners claim that once a system rebuild is complete,
    they will generally comply with the POD requirement in the systems
    covered by the waiver request by duplicating their scrambled analog
    video programming on a digital tier so that their customers will not
    need to utilize the analog descrambling capabilities of the hybrid
    converter.[^16]

7.  One means to free bandwidth to accommodate duplication is to drop
    carriage of video channels. Petitioners believe, however, that
    deleting existing services from a digital tier in order to create
    bandwidth space to duplicate scrambled analog programming would
    confuse and frustrate customers.[^17] Petitioners argue that
    allowing them to maintain new and diverse video and non-video
    services that they have already launched on their digital tiers is
    consistent with the waiver standard.[^18] Petitioners argue that
    dual carriage of the scrambled analog channels on the digital band
    of the non-rebuilt systems is technically feasible, but doing so
    would consume the bandwidth they are using now to provide new
    services.

8.  In other circumstances, petitioners contend that they are
    consolidating headends, and argue that a waiver would allow them
    avoid the purchase of superfluous equipment that will no longer be
    needed once a headend is eliminated. All petitioners assert that
    they are seeking a waiver for a small percentage of their
    subscribers, and that the grant of their waiver will have a minimal
    impact on the retail market.[^19]

9.  Commenters CEA and Circuit City oppose the waiver requests. CEA
    maintains that technology is available which would have allowed
    cable operators to make separable analog security modules available
    by July 1, 2000.[^20] Circuit City claims that the cable industry
    does not react to product availability, but in actuality controls
    it. Accordingly, argues Circuit City, petitioners should be held
    responsible for non-compliance with the Commission's rules.[^21]
    Circuit City and CEA further argue that petitioners fail to show
    that a waiver is appropriate.[^22] Circuit City argues that it is
    more vital that consumers receive the benefits of competition in the
    navigation device market than the new services that petitioners
    suggest the waiver should protect.[^23] CEA argues that, even
    assuming that analog PODS were not available by July 1, 2000
    petitioners acknowledge that alternatives exist to a waiver.[^24]
    CEA contends that petitioners should not be excused from complying
    with the Commission's rules simply because a waiver provides them
    with the easiest solution to a temporary problem that could be cured
    by exercising other alternatives.[^25] CEA recommends that if
    waivers are granted, their duration should be limited to one year
    and affect no more than one percent of an operator's total
    subscribership. Circuit City argues that granting the waivers as
    requested will require subscribers to wait as long as two years
    before they will be able to enjoy the benefits of a competitive
    navigation device marketplace.[^26]

10. We agree with petitioners that duplication of scrambled analog
    programming on the digital tier is a reasonable means to comply with
    the separate security requirement for those operators that offer
    hybrid boxes. Duplication allows a consumer purchasing a set-top box
    at retail and obtaining a POD performing digital descrambling from
    the cable operator to have access to the same video programming
    received by subscribers who use an operator-supplied hybrid box.
    There are other means by which a system can come into compliance
    with Section 76.1204. Descrambling analog channels and moving them
    to the basic service tier ("BST") may be a means to alleviate the
    need to provide analog PODs. We acknowledge, however, that such
    action could affect the rate structure of the cable system.
    Similarly, trapping signals permits compliance with Section 76.1204.
    We also acknowledge that trapping is labor intensive, degrades
    signals throughout the system, and is generally considered
    vulnerable to theft. We also agree with petitioners that in the
    majority of cases it would not be in the public interest for cable
    operators to drop a large number of video channels on full systems
    to duplicate scrambled analog channels in the digital tier. At the
    same time, we note that some operators, with full knowledge of the
    July 1, 2000 requirement and a possible need to duplicate channels,
    recently added some channels not offered on the analog tier.

11. The circumstances involved in each of the requested waivers have
    been individually reviewed and the actions taken with respect to
    each are set forth in Appendix A. We set forth below the
    considerations that individually or in combination persuade us that
    the actions set forth in Appendix A are warranted. We believe that
    by December 31, 2001 significant developments in the retail market
    will have taken place. Accordingly, we grant no waiver beyond
    December 31, 2001. Section 76.1204 was adopted in July of 1998 so
    that there should be adequate time to resolve compliance issues by
    December 31, 2001 except for unique systems. Nothing in the
    materials filed with these waiver requests demonstrates that the
    systems involved have unique problems that were not considered when
    the rules were adopted. We recognize that all of the systems
    involved will require some time to organize the technical changes
    needed to come into compliance. Except in the extraordinary case
    where major system reconstruction is involved or large numbers of
    channels must be converted for digital distribution, we believe
    these changes should be completed on the dates requested but no
    later than March 31, 2001.

12. The Bureau's engineering staff analyzed each system separately to
    determine whether the operator submitted sufficient evidence
    demonstrating that a particular system could not currently
    accommodate duplication of scrambled analog channels without
    significant service disruption. We also examined what events the
    operator suggested would occur during the waiver period to bring the
    system into compliance at the end. Because petitioners claimed that
    they were able to come into compliance with Section 76.1204 for most
    of their systems, we evaluated the specific information provided to
    determine why these systems are distinguishable from the rest of the
    cable industry.[^27] We applied the evaluation criteria consistently
    across systems. Due to the large number of systems seeking a waiver,
    the determination for each system is listed in Appendix A.

13. One factor in our analysis is whether the operator demonstrated that
    the current system lacks capacity to accommodate the channels
    requiring duplication. The potential for disruption to customers
    caused by duplication depends on the amount of bandwidth required
    for duplication, which in turn is dependent on the number of
    scrambled analog channels, as well as the amount of free bandwidth
    on a system. Generally, the smaller the bandwidth of the system, the
    more likely we are to grant a waiver because the system is at full
    capacity. Duplication would require cable operators to drop channels
    in order to free up capacity for duplication. As explained above, we
    do not believe that it would be in the public interest for
    subscribers to lose a significant number of channels at this time to
    accommodate duplicate programming. On the other hand, vacant
    channels or unactivated bandwidth were considered an indication that
    a system had capacity to add additional channels and comply with our
    rules. To calculate the amount of bandwidth needed to accommodate
    duplication, the scrambled analog channels on a system's lineup were
    counted. In many cases, several of the scrambled analog channels
    were already being carried on the digital tier, and were not
    included in the count. Systems that scrambled the cable programming
    service tier ("CPST") had a high number of channels requiring
    duplication and those systems' waiver petitions generally are
    granted, whereas systems with the same bandwidth but no scrambled
    CPST might be granted a limited time to come into compliance. The
    greater the capacity of a system, the greater the burden facing the
    operator to prove the difficulty of duplication, especially for
    systems with capacity of 750 MHz and above. Many operators sought
    waivers until the system is upgraded to 750 MHz in order to have
    capacity to duplicate.[^28] Thus, systems that already have such
    high capacity are not given as long as was requested to come into
    compliance unless other compelling reasons unrelated to capacity are
    demonstrated.

14. Another factor considered is whether the operator demonstrated that
    the system's channel lineup could not be easily reconfigured to
    accommodate duplication. Most petitioners use multiplexed digital
    satellite packages such as Headend in the Sky ("HITS") to provide
    digital programming.[^29] This technology allows cable operators to
    provide more channels without a physical upgrade to a system. Many
    of the analog channels that petitioners scramble such as HBO,
    Showtime, and Cinemax can be put on a cable system in digital form
    through these packages. In other cases, operators face a more
    difficult situation in duplicating because they offer scrambled
    analog programming that is not available in a format comparable with
    their digital tier. In these situations, an operator would be
    required to obtain a real time encoder and a headend multiplexer in
    order to convert its feed of an analog channel to digital and insert
    it into its digital lineup.

15. The staff compared the offerings of the digital program supplier
    used by a system with its scrambled analog and digital channels. In
    some instances, our evaluation of a system's channel lineup
    indicates that a cable operator could accommodate duplicates of all
    scrambled analog programming and add new digital channels under
    existing bandwidth if an alternative digital satellite programming
    package had been selected.[^30] Some channel lineups indicate
    operators are using equipment such as "cherry pickers"[^31] to
    insert or substitute channels into the digital packages.[^32] Having
    this equipment, which could be used to add the channels not
    available in digital, already located in the headend makes it more
    likely that a system is currently able to accommodate duplication.
    Given that there was a two-year period between the adoption of
    Section 76.1204 and the July 1, 2000 deadline, we are not
    sympathetic to operators that chose to develop a channel lineup in a
    manner that deliberately did not comply with the rules.

16. An additional factor considered was whether the operator
    demonstrated that allowing duplication at a later date would
    preclude the need to purchase unnecessary equipment. Some operators
    submitted detailed information regarding headends that are being
    consolidated. For those systems, only one suite of duplication
    equipment is need at the remaining headend. We note that avoidance
    of duplicative equipment is a different situation from one where
    operators asked for a waiver because they wanted to put off the
    purchase of equipment to a later date due to a small number of
    digital subscribers. We do not agree that delaying equipment
    purchases is a compelling justification for waiver if the physical
    system is not changing. In order to fulfill the mandate of Section
    629, an operator will have to come into compliance with Section
    76.1204 for all of its systems.

17. In their supplemental filings, most petitioners indicated that they
    had planned that the first digital channels offered would bring
    their system(s) into compliance with Section 76.1204. The waivers
    provided herein are expressly conditioned that the first digital
    channels added to any rebuilt or newly built sections of the
    petitioners' plant duplicate existing analog service offerings so as
    to bring those sections into compliance with Section 76.1204 as
    quickly as possible, but in no event later than the expiration of
    the waiver granted herein. As a cable operator rebuilds or expands a
    system, new channels are added to those areas, rather than adding
    new channels all at once at the completion of the entire system
    upgrade. We expect that the cable operator will plan and operate the
    new system with this condition in mind.

# ORDERING CLAUSES

18. Accordingly, IT IS ORDERED that the petitions for special relief by
    Charter Communications, Inc., AT&T Broadband, L.L.C., Insight
    Communications Company, L.P., Cox Communications, Inc., GCI Cable,
    Inc., Cablevision Systems Corp., Adelphia Communications Corp.,
    MediaCom Communications Corp., CableAmerica Corp., and Time Warner
    Cable ARE GRANTED to the extent discussed herein.

19. To the extent the petitioners have requested information be accorded
    confidential treatment, their request is hereby GRANTED.

20. This action is taken pursuant to authority delegated by Section
    0.321 of the Commission\'s rules.[^33]

> FEDERAL COMMUNICATIONS COMMISSION
>
> William H. Johnson
>
> Deputy Chief, Cable Services Bureau

**APPENDIX A**

**Granted**

+----------------+---------------------------------+------------------+
| **Operator**   | **System**                      | **Compliance     |
|                |                                 | Date**           |
+================+=================================+==================+
| Charter        | > Marksville, LA                | 6/1/01           |
+----------------+---------------------------------+------------------+
|                | > La Fourche, LA                | 6/1/01           |
+----------------+---------------------------------+------------------+
|                | > Clearfield, PA                | 1/1/01           |
+----------------+---------------------------------+------------------+
|                | > Pt. Pleasant, WV              | 4/1/01           |
+----------------+---------------------------------+------------------+
|                | > Maryville, IL                 | 3/1/01           |
+----------------+---------------------------------+------------------+
|                | > Middletown, DE                | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Clarksville, TN               | 12/31/00         |
+----------------+---------------------------------+------------------+
| AT&T           | > St. Charles, MO               | 10/31/00         |
+----------------+---------------------------------+------------------+
|                | > Centralia, WA                 | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Chehalis, WA                  | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Seattle, WA                   | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Denver, CO                    | 6/30/01          |
+----------------+---------------------------------+------------------+
|                | > The Colony, TX                | 9/1/00           |
+----------------+---------------------------------+------------------+
|                | > Foster City, CA               | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Los Banos, CA                 | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Merced, CA                    | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Sonora, CA                    | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Tuolumne, CA                  | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Vacaville, CA                 | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Patterson, CA                 | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Glenview, IL                  | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Daly City, CA                 | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Pacifica, CA                  | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Pinole, CA                    | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Chicago, IL (MDUs only)       | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Champaign, IL                 | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Hickory Hills, IL             | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Midlothian, IL                | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Walled Lake, IL               | 3/31/01          |
+----------------+---------------------------------+------------------+
| Insight        | > Jasper, IN                    | 9/30/00          |
+----------------+---------------------------------+------------------+
|                | > Lebanon, IN                   | 9/30/00          |
+----------------+---------------------------------+------------------+
|                | > Anderson, IN                  | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Martinsville, IN              | 7/1/01           |
+----------------+---------------------------------+------------------+
|                | > Monroe Co., IN                | 7/1/01           |
+----------------+---------------------------------+------------------+
| Cox            | > Abilene, TX                   | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Tye, TX                       | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Dyess AFB, TX                 | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Bossier City, LA              | 6/30/01          |
+----------------+---------------------------------+------------------+
|                | > Barksdale, AFB, LA            | 6/30/01          |
+----------------+---------------------------------+------------------+
|                | > Bossier Parish, LA            | 6/30/01          |
+----------------+---------------------------------+------------------+
|                | > Fillmore, LA                  | 6/30/01          |
+----------------+---------------------------------+------------------+
|                | > Haughton, LA                  | 6/30/01          |
+----------------+---------------------------------+------------------+
|                | > Princeton, LA                 | 6/30/01          |
+----------------+---------------------------------+------------------+
| Cablevision    | > Boston, MA                    | 7/1/01           |
+----------------+---------------------------------+------------------+
|                | > Braintree, MA                 | 7/1/01           |
+----------------+---------------------------------+------------------+
|                | > Fitchburg, MA                 | 7/1/01           |
+----------------+---------------------------------+------------------+
|                | > Framingham, MA                | 7/1/01           |
+----------------+---------------------------------+------------------+
|                | > Gardner, MA                   | 7/1/01           |
+----------------+---------------------------------+------------------+
|                | > Lexington, MA                 | 7/1/01           |
+----------------+---------------------------------+------------------+
|                | > Maynard, MA                   | 7/1/01           |
+----------------+---------------------------------+------------------+
|                | > Peabody, MA                   | 7/1/01           |
+----------------+---------------------------------+------------------+
|                | > Westford, MA                  | 7/1/01           |
+----------------+---------------------------------+------------------+
| Adelphia       | > North Adams, MA               | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Dover, NJ                     | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Amelia, OH                    | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Ashtabula, OH                 | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Collinsville, OH              | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Conneaut, OH                  | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Fairfield, OH                 | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Geneva-Madison, OH            | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Lake County, OH               | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Liberty, OH                   | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Morrow, OH                    | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Turtle Creek, OH              | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Harbor Creek, PA              | 12/1/00          |
+----------------+---------------------------------+------------------+
|                | > Radnor, PA                    | 12/1/00          |
+----------------+---------------------------------+------------------+
|                | > Plymouth, MA                  | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Lewiston, ME                  | 3/31/01          |
+----------------+---------------------------------+------------------+
| Mediacom       | > Okoboji (Spirit Lake), IA     | 10/1/00          |
+----------------+---------------------------------+------------------+
|                | > Huntsville, AL                | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Gulf Breeze, FL               | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Hendersonville, NC            | 3/31/01          |
+----------------+---------------------------------+------------------+
| CableAmerica   | > Waynesville, MO               | 12/31/01         |
+----------------+---------------------------------+------------------+
| Time Warner    | > Kingston, NY                  | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Rhinebeck, NY                 | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Poughkeepsie, NY              | 12/31/00         |
+----------------+---------------------------------+------------------+
|                | > Dayton, OH                    | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Houston, TX                   | 10/15/00         |
+----------------+---------------------------------+------------------+
|                | > Laredo, TX                    | 1/31/01          |
+----------------+---------------------------------+------------------+
|                | > Dallas, TX                    | 1/31/01          |
+----------------+---------------------------------+------------------+

Granted in Part, Denied in Part

+----------------+---------------------------------+------------------+
| **Operator**   | **System**                      | **Compliance     |
|                |                                 | Date**           |
+----------------+---------------------------------+------------------+
| Charter        | > St. Louis (Olivette), MO      | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Jefferson Co., MO             | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Park Hills, M0                | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Warrensburg, MO               | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Osage Beach, MO               | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Hesperia, CA                  | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Cape Girardeau, MO            | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Slidell, LA                   | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > St. Landry, LA                | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Parkersburg, WV               | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Grants Pass, OR               | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Camp Lejeune, NC              | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Ft. Worth, TX                 | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Alhambra, CA                  | 3/31/01          |
+----------------+---------------------------------+------------------+
| Insight        | > Henderson, KY                 | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Bowling Green, KY             | 3/31/01          |
+----------------+---------------------------------+------------------+
| Cox            | > San Angelo, TX                | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Goodfellow AFB, TX            | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Claremore, OK                 | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Tyler, TX                     | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Whitehouse, TX                | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Smith Co., TX                 | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Salina, KS                    | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Saline Co., KS                | 3/31/01          |
+----------------+---------------------------------+------------------+
| GCI            | > Anchorage, AK                 | 12/31/01         |
+----------------+---------------------------------+------------------+
| Cablevision    | > Haverhill, MA                 | 3/31/01          |
+----------------+---------------------------------+------------------+
| Adelphia       | > Redlands, CA                  | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Arcadia, CA                   | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Beaumont, CA                  | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Colton, CA                    | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > E. San Fernando Valley, CA    | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Glendora-Monrovia, CA         | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Hacienda Heights, CA          | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Moreno Valley, CA             | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Perris, CA                    | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Redondo Beach, CA             | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Rialto, CA                    | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > South Whittier, CA            | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Amesbury, MA                  | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Falmouth, MA                  | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Gloucester, MA                | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Marshfield/Duxbury, MA        | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Merrimack, NH                 | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Buffalo, NY                   | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Loudoun County, VA            | 3/31/01          |
+----------------+---------------------------------+------------------+
| Mediacom       | > Chillicothe, IL               | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Robinson, IL                  | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Kendallville, IN              | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Knox, IN                      | 3/31/01          |
+----------------+---------------------------------+------------------+
| CableAmerica   | > Mesa, AZ                      | 3/31/01          |
+----------------+---------------------------------+------------------+
| Time Warner    | > Racine, WI                    | 12/31/01         |
+----------------+---------------------------------+------------------+
|                | > Portland (Moody), ME          | 3/31/01          |
+----------------+---------------------------------+------------------+
|                | > Warren, OH                    | 3/31/01          |
+----------------+---------------------------------+------------------+

[^1]: *See Implementation of Section 304 of the Telecommunications Act
    of 1996, Commercial Availability of Navigation Devices*, Report and
    Order, 13 FCC Rcd 14775 (1998) ("*Navigation Devices Report and
    Order*").

[^2]: 47 C.F.R. § 76.1204.

[^3]: 47 U.S.C. § 549.

[^4]: *Navigation Devices Report and Order*, 13 FCC Rcd at 14793.

[^5]: The POD requirement is intended permit portability among set-top
    boxes, which will increase the market base and facilitate volume
    production and market costs. *Navigation Devices Report and Order*,
    13 FCC Rcd at ¶ 49.

[^6]: *Implementation of Section 304 of the Telecommunications Act of
    1996, Commercial Availability of Navigation Devices,* Order on
    Reconsideration, 14 FCC Rcd 7596 (1999).

[^7]: *Id.* at 7602*.*

[^8]: Comments in support of the petitions were filed by the National
    Cable Television Association ("NCTA"). Comments in opposition were
    filed by Circuit City Stores, Inc. ("Circuit City") and the Consumer
    Electronics Associaton ("CEA").

[^9]: *Charter Communications et al.*, Order, DA 00-1483 (Cable Service
    Bureau June 30, 2000).

[^10]: *FPC v. Texaco Inc*., 377 U.S. 33, 39 (1964).

[^11]: 47 C.F.R. § 1.3.

[^12]: *Pikes Peak Broadcasting v. FCC*, 422 F2d 671, 682 (D.C.Cir
    1969).

[^13]: *Citizens to Preserve Overton Park, Inc. v. Volpe*, 401 U.S. 402,
    416 (1971).

[^14]: *See e.g*., Charter Petition at 2

[^15]: In support of this contention, NCTA cites the responses to a
    CableLabs request for information to which no company indicated an
    intention to build analog PODs or host hybrid devices for analog
    PODs. NCTA Comments at 8.

[^16]: *See e.g*., AT&T Petition at 5; Adelphia Petition at 4; Cox
    Petition at 1.

[^17]: AT&T Petition at 8; Charter Petition at 2.

[^18]: *See e.g*., AT&T Petition at 9.

[^19]: For example, Adelphia claims only 1.6% of subscribers use hybrid
    equipment. Adelphia Petition at 5. Cox argues it is seeking a waiver
    for less than 1% of its subscribers. Cox Petition at 3.

[^20]: CEA cites the specification for a National Renewal Security
    System, developed by the Joint Engineering Committee, as a viable
    means for analog host and POD devices to satisfy the hybrid box
    separation requirement. CEA Comments at 4.

[^21]: Circuit City Comments at 4.

[^22]: CEA Comments at 6; Circuit City Comments at 7.

[^23]: Circuit City Comments at 9.

[^24]: CEA Comments at 5.

[^25]: *Id.* at 5.

[^26]: Circuit City Comments at 8. We note Circuit City's concern that
    the Commission's rules may not provide enough incentives for cable
    operators to meet regulatory requirements. This proceeding, however,
    is not the proper forum to change the rules implemented to achieve
    commercial availability of navigation devices. In the *Navigation
    Devices Report and Order*, we stated that we would monitor the
    progress of industry participants to ensure that satisfactory
    progress was being made toward the goals of this proceeding.
    *Navigation Devices Report and Order*, 13 FCC Rcd at 14781. To that
    end, the cable industry has been periodically reporting on the
    status of the OpenCable project, which is developing interface
    standards for security modules and host devices. Further, we stated
    our intent to evaluate the status of the market once PODS became
    available to assess whether our time frame for the phase-out of
    integrated boxes is appropriate. *Id.* at 14803. The efforts of the
    cable industry regarding its commitment to developing interface
    standards, as well as the commitment of manufacturers and retailers
    in offering host devices, will be part of that evaluation.

[^27]: For example, Mediacom claimed only 7 of its 420 systems could not
    comply with Section 76.1204. Mediacom Petition at 3.

[^28]: *See e.g*., Time Warner Petition, Cox Petition.

[^29]: For example HITS offers packages of digitally compressed video
    signals to allow as many as 12 video services into a 6 MHz analog
    channel \<[www.hits.com](http://www.hits.com/)\>. The HITS service
    is used by most of the waiver systems that currently offer a digital
    tier.

[^30]: For example, a system that needs to duplicate HBO, Showtime and
    Cinemax could get these channels and nine other as one package in a
    digital format from HITS Package 9. *See* HITS 5-17-00 Digital
    Programming Lineup.

[^31]: A "cherry picker" is a type of equipment used in the headend to
    insert or remove programming from a downlinked digital package of
    programming prior to distribution over the cable system.

[^32]: In some cases, operators were removing digital duplicates of
    scrambled analog channels and replacing them with other channels.

[^33]: 47 C.F.R. § 0.321.