Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * | CSR 7703-E                   |
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| Comcast Cable Communications,    | ) |                              |
| LLC                              | * |                              |
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| Petition for Determination of    |   |                              |
| Effective Competition in the     | * |                              |
| Franchise Area of Norwich, CT    | * |                              |
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MEMORANDUM OPINION AND ORDER

**Adopted: February 19, 2009 Released: February 23, 2009**

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

# I. introduction and Background

1.  Comcast Cable Communications, LLC , hereinafter referred to as
    "Petitioner," has filed with the Commission a petition pursuant to
    Sections 76.7, 76.905(b)(2) and 76.907 of the Commission's rules for
    a determination that Petitioner is subject to effective competition
    in those communities listed on Attachment A and hereinafter referred
    to as "Communities."[^1] Petitioner alleges that its cable system
    serving the Communities is subject to effective competition pursuant
    to Section 623(1)(1)(B) of the Communications Act of 1934, as
    amended ("Communications Act")[^2] and the Commission's implementing
    rules,[^3] and is 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"). The petition is 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 petition 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 the
    Communities.[^15] Petitioner sought to determine the competing
    provider penetration 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 five
    digit zip code basis.[^16]

7.  Based upon the aggregate DBS 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 petition for a determination
    of effective competition filed in the captioned proceeding by
    Comcast Cable Communications, LLC **IS 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 7703-E**

**COMMUNITIES SERVED BY COMCAST CABLE COMMUNICATIONS, LLC**

**2000 Estimated**

**Census DBS**

## Communities CUIDs CPR\* Household Subscribers 

##  

##  

**Bozrah CT 0043** \-\-- **883 260**

**Colchester CT0172 \-\-- 5,225 1,552**

**Franklin CT0041 \-\-- 687 191**

**Lisbon CT0040 \-\-- 1,525 528**

**Norwich CT0039 \-\-- 15,091 3,110**

**Preston CT0095 \-\-- 1,837 607**

**Sprague CT0042 \-\-- 1,111 244**

**TOTALS 26,359 6,492 = 24.63% (CPR)**

\*CPR = Percent of competitive DBS penetration rate.

[^1]: Comcast is seeking a determination of effective competition in the
    franchise area of Norwich, CT. Comcast states that pursuant to its
    franchise agreement issued by the Connecticut Department of Public
    Utility Control, the franchise territory is the area contained
    within the geographical boundaries of the towns of Bozrah
    \[CT0043\], Colchester \[CT0172\], Franklin \[CT0041\], Lisbon
    \[CT0040\], Norwich \[CT0039\], Preston \[CT0095\] and Sprague
    \[CT0042\]. Petition at 1 and Exhibit 1.

[^2]: *See* 47 U.S.C. § 543(a)(1).

[^3]: 47 C.F.R. § 76.905(b)(2).

[^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 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 (2006)*.*

[^11]: 47 C.F.R. § 76.905(e)(2).

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

[^13]: *See* Petition at 4 and Exhibit 2.

[^14]: *See* Petition at 2-3.

[^15]: *Id.* at 5 and Declaration of Peter H. Feinberg, Associate
    General Counsel for Comcast Cable Communications, LLC.

[^16]: Petition at 5-7.

[^17]: Petition at 7 and Exhibit 6.

[^18]: 47 C.F.R. § 0.283.