Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * | CSR 7118-E                   |
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| Subsidiaries of Cablevision      | ) | CSR 7119-E                   |
| Systems Corporation              | * |                              |
|                                  | * | CSR 7197-E                   |
| Petitions for Determination of   |   |                              |
| Effective Competition in 101     | * | CSR 7198-E                   |
| Communities in New Jersey        | * |                              |
|                                  | ) | CSR 7597-E                   |
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|                                  | * | CSR 7598-E                   |
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|                                  | * | CSR 7599-E                   |
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|                                  | ) | CSR 7604-E                   |
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|                                  | * | CSR 7605-E                   |
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|                                  | ) | CSR 7607-E                   |
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|                                  | * | CSR 7608-E                   |
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|                                  | * | CSR 7609-E                   |
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|                                  | ) | CSR 7979-E                   |
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+----------------------------------+---+------------------------------+

MEMORANDUM OPINION AND ORDER

**Adopted: October 1, 2008 Released: October 2, 2008**

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

# introduction and background

1.  Subsidiaries of Cablevision Systems Corporation, hereinafter
    referred to as "Petitioner," have filed with the Commission
    petitions pursuant to Sections 76.7, 76.905(b)(2 and 4) 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 the "Attachment A
    Communities." Petitioner alleges that its cable systems serving the
    Attachment A 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 local cable
    rate regulation because of the competing service provided by two
    direct broadcast satellite ("DBS") providers, DIRECTV, Inc.
    ("DIRECTV") and Dish Network ("Dish")' (collectively, the "DBS
    providers") and, in two Attachment A Communities, competing service
    provided by another provider of video service, US Cable. Petitioner
    also claims that its cable systems serving the Communities listed on
    Attachment B, hereinafter referred to as the "Attachment B
    Communities," are subject to effective competition because of the
    competing service provided by Verizon New Jersey, Inc., hereinafter
    referred to as "Competitor." All the petitions are opposed in
    "Comments" filed by the Division of Rate Counsel (the "DRC") of the
    New Jersey Board of Public Utilities (the "BPU"); two petitions are
    also opposed by three local governments; and Petitioner filed a
    "Reply" to each of the DRC's Comments and local oppositions.

2.  In the absence of a demonstration to the contrary, cable systems are
    presumed not to be subject to effective competition,[^3] as that
    term is defined by Section 623(l) of the Communications Act and
    Section 76.905 of the Commission's rules.[^4] 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 or Community.[^5] 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 Attachments A and B.

# DISCUSSION

## The Competing Provider Test

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;[^6] 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.[^7]

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.[^8]
    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.[^9] We further find that Petitioner has
    provided sufficient evidence of DBS advertising in local, regional,
    and national media that serve the Communities to support its
    assertion that potential customers in the Communities are reasonably
    aware that they may purchase the service of these MVPD
    providers.[^10] 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[^11] and is supported in this petition with copies of
    channel lineups for both DIRECTV and Dish.[^12] 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.[^13] 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.[^14] 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.[^15]

7.  The aggregate DBS subscriber penetration levels that were calculated
    using Census 2000 household data,[^16] as reflected in Attachment A,
    indicate 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. This evidence, if substantiated, satisfies the
    second prong of the competing provider test for each of the
    Communities.

8.  The DRC, however, makes many objections to Petitioner's
    calculations. Some objections apply to how Petitioner calculated the
    numerators of its ratios, and others to their denominators. Some
    apply to all the Attachment A Communities, and others only to
    individual ones.

##### [General Objections of the DRC]{.underline} {#general-objections-of-the-drc .unnumbered}

9.  [Timeliness of Data.]{.underline} The DRC objects that Petitioner's
    calculations use DBS subscribership data from 2006 or 2007 and
    household data from 2000. The DRC argues that 2000 Census data is
    stale and requests that we require that subscribership and household
    data be contemporaneous with each other and the date on which the
    Petition that contains it is filed.[^17]

10. The DRC cites several decisions that it mistakenly claims support
    its position.[^18] The DRC refers to our 1994 *Order* in *Cable
    Operators' Petitions for Reconsideration & Revocation of Franchising
    Authorities' Certifications to Regulate Basic Cable Service
    Rates*.[^19] There, we required relatively recent data about
    subscribership to competing MVPDs and specifically permitted
    household numbers to be taken from the 1990 Census. We noted that,
    although the 1990 Census was already several years old, it
    "represents the most recent data available" about "households,"
    which is the statutory measure of competing provider effective
    competition.[^20] Such data is very similar to the data Petitioner
    produced in these proceedings. Nothing in our 1994 *Order* prohibits
    or finds unpersuasive the kinds of data that Petitioner submitted in
    these proceedings.

11. The DRC characterizes *Falcon Cable Systems Co.* *II*[^21] as a
    rejection of stale data that should lead us here to reject
    Petitioner's several year old Census data.[^22] In that case, the
    petitioner originally submitted 1990 Census data about households.
    The petitioner submitted 2000 Census data later when it became
    available. *Falcon Cable Systems Co. II* establishes that, in the
    absence of more recent and reliable data, data from the most recent
    Census may be used for the number of households in a community.
    Petitioner's household data from the 2000 Census complies with the
    standard of *Falcon Cable Systems Co. II.*

12. The DRC also characterizes the 1999 decision in *Mountain Cable
    Co.*[^23] as indicating that effective competition decisions should
    be based on the best available current information, which in that
    case was Census data with updates.[^24] *Mountain Cable Co.* is
    distinguishable from the present proceedings, however, because there
    the petitioner generally agreed with the updates submitted by the
    franchise authority. Similarly, in the 2001 decision in *Texas Cable
    Partners*, the petitioner submitted 1990 Census data and updated it
    without objection by the franchise authority.[^25] In those two
    cases, there was no dispute about the reliability of the post-Census
    household data. In this case, however, few updates to the most
    recent Census data have been proposed; those that have been proposed
    (all by the DRC) are disputed by Petitioner; and, we find them less
    reliable than Census data.

13. More important, the Census data that Petitioner submitted herein was
    more recent than that submitted in all of the cases cited by the
    DRC. In those cases, the Census data in the petitioners' original
    filings was roughly a decade old. All the cases cited by the DRC
    are, in fact, consistent with our case law holding that the most
    recent available Census data may be used to show the number of
    households in a community, but can be improved by more recent data
    that is shown to be as reliable. Petitioner followed that guidance
    and did not contradict the decisions that the DRC has cited. In sum,
    none of the decisions to which the DRC directs our attention cast
    doubt on the validity of the data in the Petitions.

14. We decline the DRC's request that we require, starting in this
    Memorandum Opinion and Order, that household and subscribership data
    be contemporaneous with each other and the date on which the
    Petition that contains them is filed. We do not wish, in these
    adjudicatory proceedings, to adopt a new rule that would be
    applicable to all future competing provider effective competition
    filings.[^26] Nor do we see a need for such a requirement in the
    present proceedings. In many cases, including prior decisions
    involving the State of New Jersey, we have found competing provider
    effective competition to exist based on household and DBS
    subscribership data that are several years apart in time.[^27]
    Accordingly, we find that the DRC's general allegations about the
    timeliness of the data submitted by Petitioner reveal no flaw in the
    petitions.

15. [Cancellations.]{.underline} The DRC objects that Petitioner's
    estimates of DBS subscribership do not account for cancellations of
    DBS service after the date on which SBCA estimated
    subscribership.[^28] We find no merit in this objection. The DRC has
    not alleged, much less proved, that an unusual number of such
    cancellations have occurred in the Attachment A Communities, which
    might be the factual basis for requiring updated estimates. Nor is
    it apparent that a post-filing update would help the DRC's position
    in these proceedings. An update, if it were to reflect all material
    recent events, would need to include new subscriptions to DBS
    service as well as cancellations. The available evidence shows that
    DBS subscribership, as a percentage of subscription to all MVPD
    services, generally has increased over time (that is, new
    subscriptions have outnumbered cancellations).[^29] Indeed, in one
    recent effective competition decision, we noted that DBS
    subscribership had risen even after three hurricanes stuck the
    community in question.[^30] Accordingly, we decline the DRC's
    request that we fault Petitioner for not making post-filing updates
    of cancellations of DBS service.

16. [Commercial and Test Accounts.]{.underline} In several proceedings,
    the DRC objects that Petitioner has not shown that SBCA\'s numbers
    of DBS subscribers in various zip codes exclude commercial accounts
    and test accounts.[^31] In fact, however, Petitioner\'s Replies
    include SBCA's subscribership reports, which specifically state that
    they are of "residential subscriber totals" and that "commercial and
    test accounts are not included."[^32] We see no reason to doubt
    these statements. Accordingly, Petitioner's estimates of DBS
    subscribership are not inflated by commercial and test accounts and
    there is no justification for the 10 percent reduction in them that
    the DRC proposes.[^33]

17. ["Dual Subscriber" Households.]{.underline} The DRC appears to
    object that Petitioner's data may count as two households a single
    household with more than one subscription to MVPD service, and that
    this artificially inflates DBS subscribership.[^34] Such a household
    could subscribe to both DIRECTV and Dish, or to one of them and to
    cable service. We do not understand how Petitioner's count of
    households can inflate its estimate of DBS subscribership, because
    Petitioner's numbers of households come from the Census Bureau,
    which counts a household as one household without regard to its
    number of MVPD subscriptions.[^35] More broadly, in estimating DBS
    subscribership, we see no error in counting a dual subscriber
    household twice, as a subscriber to two forms of MVPD service and in
    some cases two forms of DBS service. Such a household is aware of
    alternatives to cable service and has subscribed to at least one of
    them, which goes to "the very essence of MVPD competition that
    Section \[623\] of the Communications Act addresses."[^36] Finally,
    the DRC has not shown that the number of dual subscriber households
    in any Attachment A Community is more than *de minimis* or enough to
    lower competing provider effective competition below the statutory
    minimum. We find no merit in the DRC's objection to Petitioner's
    treatment of dual subscriber households.

18. [Omitted Dates of DBS Subscriber Numbers.]{.underline} The DRC
    objects in some proceedings that SBCA's estimates of DBS
    subscribership[^37] omit the date of its DBS subscriber
    numbers.[^38] Petitioner's reply provides the pertinent dates[^39]
    to remedy any original omission by Petitioner. The stated dates
    raise no doubt about the timeliness or validity of its DBS
    subscriber numbers.

19. [Requests for Greater Supporting Documentation.]{.underline} The DRC
    makes two general objections that Petitioner's filings were
    insufficiently supported by appropriate documentation. First, the
    DRC objects that the petitions did not include Petitioner's
    supporting analysis and work papers.[^40] In fact, Petitioner filed
    all the numbers of DBS subscribers and households with which the
    competing provider competition was estimated, included documentation
    from the sources of its subscriber numbers -- Media Business
    Corporation ("MBC") and SBCA, and explained in sufficient detail how
    all the numbers were derived. These showings are the same as others
    that have been accepted by the Commission in scores of competing
    provider effective competition decisions. As noted in paragraph 23
    below, Petitioner also filed additional information in some
    proceedings. The DRC reveals no flaw in the numbers and calculations
    made with them, and gives no indication of what petitioner's
    additional supporting analysis and work papers, assuming that there
    are any, would add to the record before us.

20. Second and more specifically, the DRC objects that the petitions do
    not give a sufficiently detailed explanation of Petitioner's method
    of estimating DBS subscribership.[^41] We disagree. Petitioner has
    filed a page-long, single-spaced description written by MBC that
    sets forth in detail the latter company's method, especially its use
    of block groups to estimate DBS subscribership in the relevant parts
    of partial zip codes (zip codes that lie partly inside a franchise
    area and partly outside it). This is the same description we have
    accepted in numerous other decisions concerning competing provider
    effective competition. The DRC has not shown that there is anything
    suspicious or analytically unsound in MBC's method, that MBC's
    description of it omits or misstates specific important matters, or
    that MBC's execution of its method was flawed. The DRC's wish that
    MBC's description had been more detailed does not mean that the
    description was erroneous or incomplete. Requiring a more detailed
    description would add complexity and delay to these proceedings
    without any likelihood on the present record that an error would be
    revealed or a sounder result would occur. Accordingly, we find MBC's
    description of the latter's method for estimating DBS subscribership
    to be sufficient in these proceedings; and we dismiss the DRC's
    request that we fault the petitions for not providing additional
    supporting documentation.

21. ["Complete When Filed" Requirement for Petitions.]{.underline} The
    DRC requests that we require that petitions seeking findings of
    effective competition be 'complete when filed,' which would require
    the commencement of new proceedings if we found that any petition
    has an evidentiary flaw or omission.[^42] We decline this request
    for several reasons. First, as noted in paragraph 14 above, an
    adjudicatory proceeding such as the present one is not the proper
    forum to adopt such a general rule. Second, in paragraphs 23-24
    below, we do note that Petitioner filed certain useful information
    after it filed its petitions. The DRC was not prejudiced by any of
    the later filings, however. In all instances where Petitioner filed
    additional information after its petitions, either the DRC had the
    opportunity to comment on it or the information was of secondary
    importance. None of the information in question would have changed
    the outcome of these proceedings.

22. Third, the DRC relies on past instances where we have adopted
    'complete when filed' rules that are not similar to effective
    competition proceedings. The DRC correctly notes that in some
    proceedings about whether to grant a specific radio license, we may
    treat a major amendment to an application as effectively beginning a
    new proceeding.[^43] Such amendments, however, propose to move a
    radio transmitter or use new frequencies, which can create major new
    technical interference. Such amendments alter the applicant's
    proposed operation in a major way. They have no similarity to the
    circumstances in these proceedings, where Petitioner simply added
    background data or filled in minor omissions, and the proposal for
    deregulation itself remains unchanged. The DRC also points to the
    'complete when filed' requirement we imposed in proceedings to allow
    Bell companies to re-enter certain markets.[^44] Those proceedings
    were highly complex,[^45] however, and were required by statute to
    be decided within 90 days.[^46] In these proceedings, there is no
    need for such an emphasis on initial exhaustive completeness.
    Accordingly, we decline to adopt the DRC's 'complete when filed'
    proposal, both in general and in these proceedings. We find no fault
    with the Petitions to the extent, if any, that they were not
    complete when filed.

##### [Specific Objections of the DRC]{.underline} {#specific-objections-of-the-drc .unnumbered}

23. [Petitioner's Additional Data.]{.underline} On February 23, 2007,
    the Commission sent a letter to Petitioner directing it to send its
    franchising authorities -- in these proceedings, the BPU --
    additional data about the zip codes in the communities involved in
    each petition.[^47] Petitioner furnished that data (for the zip
    codes involved in CSR 7118-E and 7119-E) to the BPU in time for the
    DRC to address the data in its Comments.[^48] The DRC objects that
    Petitioner's filing of the additional data shows that the petitions
    in those proceedings were not complete when filed.[^49] This
    objection is without merit. Because the DRC received the data in
    time to address in its Comments (and did address it, see following
    paragraph), the DRC was not prejudiced in any way.

24. [Specific Alleged Omissions of Data.]{.underline} The DRC claims
    that there are several omissions in the additional data that
    Petitioner filed in CSR 7118-E. The first is the absence of any
    information about zip code 07939 from Petitioner's data about the
    Community of Bridgewater, New Jersey.[^50] Petitioner answers that
    07939 is a "non-spatial" zip code and which is contained entirely
    within zip code 07920. Petitioner subsequently furnished data about
    the latter zip code that included the numbers of DBS subscribers in
    both zip codes.[^51] Second, the DRC points to Petitioner's failure
    to provide data about several zip codes that the DRC believes are in
    Petitioner's New Brunswick franchise area.[^52] These, too, appear
    to be non-spatial zip codes. Third, the DRC complains that
    Petitioner's list of New Brunswick zip codes omits two zip codes
    (08902 and 08904) that are in it.[^53] Petitioner answers that those
    two zip codes border its New Brunswick Franchise area but correspond
    with other franchise areas.[^54] Petitioner's answers give
    satisfactory explanations for its treatment of the zip codes in
    question and the DRC filed no supplemental pleading disputing them.
    We conclude that the DRC has not proven any error in Petitioner's
    filings in CSR 7118-E.

25. In CSR 7197-E, the DRC faults Petitioner's zip code data for the
    City of Paterson, New Jersey for not mentioning four zip codes
    (07506, 07508, 07510, and 07512) that the U.S. Postal Service
    includes in the City.[^55] Petitioner answers that one of these zip
    codes (07510) is included within another zip code that it does
    address and that the other three correspond to franchise areas other
    than Paterson.[^56] Again, we find this answer satisfactory.

26. Also, broadly concerning all of Petitioner's alleged omissions of
    zip codes, if Petitioner erroneously omitted a zip code from its
    calculation of DBS subscribership in a Community, the result would
    be to reduce the number of DBS subscribers and would weaken
    Petitioner's showing of competing provider effective competition.
    Petitioner has no incentive to weaken its own case, and it does not
    appear to have done so with the zip codes in question. If it did,
    however, the DRC would not be prejudiced; indeed, only Petitioner's
    showing would suffer. Accordingly, we find no merit in these
    objections by the DRC.

27. [The DRC's Proposed Substitutes for Petitioner's Data.]{.underline}
    In CSR 7198-E, the DRC alleges that Petitioner understates the
    number of households in the Attachment A Community of Hamilton
    Township, New Jersey. Petitioner cites the 2000 Census number of
    33,523 households.[^57] The DRC advocates using 35,469,[^58] which
    it obtained from Claritas, Inc., to lower the DBS subscribership
    slightly below the statutory minimum of 'in excess of 15
    percent.'[^59] It appears that Claritas starts with Census numbers
    and then makes projections or estimates based on a variety of
    sources to reflect post-Census changes.[^60] The speculative
    projections and estimates made by Claritas make its resulting number
    less useful in this instance than the precise, actual count of
    households in the 2000 Census data that Petitioner submitted. For
    this reason, we decline to use Claritas's number of households in
    Hamilton Township instead of the Census Bureau's.[^61]

28. The DRC, asserting another argument to raise the number of
    households in Hamilton Township above the 2000 Census number,
    mentions unspecified "\[r\]esidential occupied housing data" from
    the Township's local government.[^62] It may be that Attachments B,
    C, and D to the DRC's Comments in CSRs 7197-E and 7198-E are the
    data to which the DRC refers, but that is not clear. Attachment B is
    a short list of what appear to be land values, with no title and no
    explanation of what its numbers mean. Attachments C and D appear to
    be a list of apartment buildings in Hamilton Township. Nowhere,
    however, does the DRC explain what the Attachments show relative to
    the number of households in the Township. We have stated that we
    would accept household data that is more recent than, and as
    reliable as, the most recent Census data.[^63] The DRC has not
    presented us with such data concerning Hamilton Township.
    Accordingly, we accept the 2000 Census's number of households in
    Hamilton Township for purposes of finding competing provider
    effective competition in Hamilton Township.[^64]

29. Finally, the DRC objects that Petitioner counts DBS subscribers in
    one zip code (08650) in Hamilton Township although it consists only
    of a Post Office Box. Such boxes, the DRC argues, show only where
    people pick up their mail and not necessarily where they
    reside.[^65] In this instance, we find the DRC's objection to the
    inclusion of Post Office boxes insignificant. Because the number of
    P.O. Boxes in communities is generally not significant, we have
    accepted estimates of DBS subscribership that include subscribers
    identified by P.O. Boxes.[^66] Equally important, the zip code in
    question in this instance contains only three DBS subscribers.[^67]
    Their exclusion would not lower DBS penetration in Hamilton Township
    below the statutory minimum. In sum, the DRC has failed to undermine
    the numbers proposed by Petitioner for either DBS subscribers or
    households in Hamilton Township, New Jersey.

30. In CSR 7604-E, Petitioner cites from the 2000 Census to find that
    the City of Clifton, New Jersey contains 30,244 households.[^68] The
    DRC proposes instead a 35,520 number of households, which was
    developed by the City's Economic Development Department. The DRC's
    number appears to be, according to that Department, the number of
    private and public owned buildings in the City from 2000 though late
    2007.[^69] The statutory test for competing provider effective
    competition, however, requires measurement of "households,"[^70]
    which means only occupied housing units.[^71] There is no indication
    that the DRC's proposed number excludes non-housing buildings and
    unoccupied housing units, although it should if we were to use it as
    evidence of the number of households. The DRC's proposed number may
    be more recent than the 2000 Census, but is not as reliable a
    measure of households as Petitioner's number from the 2000 Census.
    Accordingly, we reject the DRC's proposed number as our measure of
    households in Clifton.

31. Also in CSR 7604-E, the Petitioner cites from the 2000 Census for
    the number of households in the Boroughs of North Haledon and
    Riverdale.[^72] The DRC proposes instead higher household numbers
    developed by Claritas. For the reasons stated in paragraph 27 above,
    we decline to use Claritas' numbers.

32. In CSRs 7608-E and 7609-E, the DRC proposes two sets of numbers for
    households in two Communities (the Boroughs of Seaside Park and
    Neptune City) and alleges that those numbers are more recent and
    reliable than the 2000 Census numbers used by Petitioner.[^73] One
    set of numbers is from Claritas, which we decline to use for the
    reasons stated in paragraph 27 above. The second set cites to
    numbers of households as stated by officials of the local government
    of each Community.[^74] The Code Enforcement Office of Seaside Park
    provides a number for "residential units,"[^75] which does not
    expressly exclude *unoccupied* housing units. The statutory test for
    competing provider effective competition, however, requires
    measurement of "households,"[^76] which means only occupied housing
    units.[^77] "Households" for effective competition purposes also
    excludes seasonal dwellings,[^78] which appear to be atypically
    numerous in Seaside Park.[^79] They are apparently included in the
    DRC's proposed number although they should not be.[^80] Therefore,
    although the Borough's number is more recent than the 2000 Census,
    it is not a more reliable measure of households there, and we reject
    it.

33. The Deputy Municipal Clerk and Registrar of Vital Statistics for
    Neptune City cites to the number of "current households, i.e.,
    current occupied housing units,"[^81] which is precisely what the
    statutory test for effective competition requires. We do not,
    however, accept the Clerk's asserted number of households. There is
    no indication from the Clerk's statement of how that number was
    calculated ---whether, for example, it excluded seasonal and other
    temporary housing units as the Census does[^82] and, more important,
    whether it was composed with the thoroughness and reliability of the
    U.S. Census Bureau's numbers. Accordingly, we accept Petitioner's
    evidence of the number of households in Neptune City.[^83].

34. [Use of Five-Digit Zip Codes.]{.underline} In CSR 7604-E, the DRC
    objects that Petitioner, instead of using the data and calculations
    from MBC and SBCA and an established method to allocate DBS
    subscribers in partial five-digit zip codes, should have used
    nine-digit, "zip+4" data, which obviates the need for
    allocation.[^84] This objection is unconvincing. Although the
    Commission accepts showings of DBS subscribership that use uses
    zip+4 data, we do not require them in all cases. Five-digit zip code
    data and a satisfactory allocation method are an acceptable means to
    calculate DBS subscribership in the Communities in CSR 7604-E.[^85]

##### [Conclusion]{.underline} {#conclusion .unnumbered}

35. Based upon the subscription levels for the DBS providers (and, in
    two Attachment A Communities, another MVPD) that are 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 Attachment A Communities. Therefore, the second
    prong of the competing provider test is satisfied for each of the
    Attachment A Communities. Accordingly, we conclude that Petitioner
    has submitted sufficient evidence demonstrating that both prongs of
    the competing provider test are satisfied in the Communities listed
    on Attachment A and that Petitioner is subject to effective
    competition there.

## The LEC Test

36. Section 623(l)(1)(D) of the Communications Act provides that a cable
    operator is subject to effective competition if a local exchange
    carrier ("LEC"), or its affiliate, offers video programming services
    directly to subscribers by any means (other than direct-to-home
    satellite services) in the franchise area of an unaffiliated cable
    operator which is providing cable service in that franchise area,
    but only if the video programming services offered in that area are
    comparable to the video programming services provided by the
    competing unaffiliated cable operator;[^86] this test is otherwise
    referred to as the "LEC" test.

37. The Commission has stated that the incumbent cable operator must
    show that the LEC intends to build-out its cable system, in an area
    that substantially overlaps the incumbent cable operator's, within a
    reasonable period of time if it has not completed its build-out;
    that no regulatory, technical or other impediments to household
    service exist; that the LEC is marketing its services so that
    potential customers are aware that the LEC's services may be
    purchased; that the LEC has actually begun to provide services; the
    extent of such services; the ease with which service may be
    expanded; and the expected date for completion of construction in
    the franchise area.[^87] It is undisputed that these Communities are
    served by both Petitioner and Competitor, a local exchange carrier,
    and that these two MVPD providers are unaffiliated. 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[^88] and is supported in
    this petition with copies of channel lineups for Competitor.[^89]
    Finally, Petitioner has demonstrated that the Competitor has
    commenced providing video programming service within the Communities
    pursuant to its "system-wide" franchise,[^90] has marketed its
    services in a manner that makes potential subscribers reasonably
    aware of its services, and otherwise satisfied the LEC effective
    competition test consistent with the evidentiary requirements set
    forth in the *Cable Reform Order*.[^91]

38. Based on the foregoing, we conclude that Petitioner has also
    submitted sufficient evidence demonstrating that its cable system
    serving the Communities listed on Attachment B has met the LEC test
    and is subject to effective competition.

    **[Objections of the DRC]{.underline}**

39. The DRC makes three main objections to Petitioner's showings of LEC
    effective competition. The first objections are legal. The DRC
    objects that system-wide franchises were not contemplated when
    Congress enacted the statutory provision for LEC effective
    competition,[^92] and therefore no system-wide franchise may
    lawfully be the basis for a finding of LEC effective
    competition.[^93] The DRC also bases it objection on our decision in
    *Service Electric Cable TV of New Jersey,*[^94] where the Commission
    refused to allow a cable operator to aggregate franchise areas,
    making it inconsistent to allow Petitioner to rely on Verizon's
    system-wide franchise here.[^95] Finally, the DRC objects that,
    given the novelty of system-wide franchises, the Bureau may not
    lawfully rule on them as a basis for LEC effective competition
    findings until the Commission has ruled on them.[^96]

40. Petitioner's objections lack merit. First, even if we assume that
    the applicable statute was enacted before system-wide franchises,
    that would not disable the statute from applying to such franchises.
    The DRC has given us neither legislative history nor reasoning
    indicating that LEC competition may be found only with reference to
    types of franchises that existed at the statute's enactment. In
    fact, we have found LEC effective competition in previous cases
    based on a statewide franchise.[^97] Our decision in *Service
    Electric Cable TV of New Jersey*, relied on by the DRC, is not to
    the contrary. That decision, which ruled on a competing provider
    test of effective competition rather than a LEC test, prohibited a
    cable operator from combining DBS subscribership data for many
    franchise areas in a single sum, attempting to thereby show
    subscribership in excess of 15 percent in all the franchise areas
    combined. We required that the cable operator document
    subscribership counts based on a franchise by franchise basis.[^98]
    *Service Electric Cable TV of New Jersey* is not applicable in this
    case since it does not concern the LEC test, which we are addressing
    here. Furthermore, issues of subscribership data do not even arise
    under the LEC test. Rather, the elements of LEC effective
    competition are those stated in paragraphs 36 and 37 above.

41. The DRC's second objection to Petitioner's showing of LEC effective
    competition is that Competitor does not offer video programming that
    is "comparable" to Petitioner's because Competitor's programming
    does not yet include "public, government, and educational" or PEG
    channels.[^99] The DRC misunderstands our standard for what
    constitutes comparable programming for purposes of effective
    competition. 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[^100] and is supported in this petition with citations
    to the channel lineups for Competitor.[^101] There is no doubt that
    the petitions satisfy that standard. Whether Competitor's service is
    comparable for effective competition purposes does not depend on
    whether it includes PEG channels.[^102]

42. The DRC's final objections to Petitioner's showing of LEC effective
    competition focus on whether Competitor is marketing its service
    widely and aggressively enough that potential customers in all the
    Attachment B Communities are aware of it. For example, the DRC
    objects that Petitioner has not shown that Competitor has any
    subscribers for its video service.[^103] In the same vein, the DRC
    objects that Petitioner has not shown advertising by Competitor
    directed at consumers specifically in each Attachment B Community,
    or Community-specific evidence of subscribership,[^104] and that
    Competitor is not required to build out within a reasonable period
    of time.[^105] Echoing these objections, local counsel for three
    Attachment B Communities object to Petitioner's showing of LEC
    effective competition on the grounds that "there is no discussion or
    documentation establishing that . . . services have in fact been
    provided" by Competitor in the Communities in question or that there
    are "enough actual subscribers" to Competitor's service in each of
    those Communities.[^106]

43. The objections overstate the evidence that is required to show LEC
    effective competition. The statutory description of LEC effective
    competition[^107] contains no requirement that a LEC's service reach
    a certain level of subscribership.[^108] Nor do we require
    community-specific advertising; indeed, some small franchise areas
    may have no media specifically focused on them.[^109] In adopting
    the LEC competition test, Congress believed that a LEC would be a
    formidable competitor to an incumbent cable operator from its
    commencement of service in part of a community.[^110] Therefore, we
    have consistently required that a petitioner show only that a LEC
    has actually begun to provide service in areas that substantially
    overlap Cablevision's (which none of the objecting parties denies),
    that the LEC is marketing its services so that potential customers
    are aware of it, and that it intends to build out its cable system
    within a reasonable period of time.[^111] Petitioner has shown that
    Competitor has done all these things, thus sustaining its burden of
    proof. The DRC has not successfully rebutted any of Petitioner's
    evidence.

44. Based on the foregoing, we conclude that Petitioner has submitted
    sufficient evidence demonstrating that its cable systems serving the
    Communities listed on Attachment B have met the LEC test and are
    subject to effective competition.

# MISCELLANEOUS matters

45. In its Comments in several proceedings, the DRC observes that the
    Commission has rules requiring the payment of fees in connection
    with the petition and the listing of franchise areas in the
    petition.[^112] Because the DRC does not allege, much less
    substantiate, any specific violation of those rules by Petitioner,
    we find no significance in its observations.

46. The DRC's one specific allegation about fees is that Petitioner
    erred in paying only three filing fees with its Petition in CSR
    7979-E, 7980-E, and 7981-E.[^113] That Petition involved three cable
    systems that serve a total of five Communities. In support of its
    allegation, the DRC cites a Commission rule that does not
    exist.[^114] The DRC does not state the amount of fees Cablevision
    should have paid, although apparently it believes that one fee was
    due for each of five Communities. Petitioner filed the correct
    amount of fees, which is one per cable system regardless of how many
    Communities are involved. The DRC's allegation is without
    merit.[^115]

47. In CSR 7979-E, the Borough of Chatham claims that, because
    Petitioner and the Borough made their franchise agreement when
    Petitioner's rates were regulated, granting deregulation to
    Petitioner would "materially affect" the terms of that
    agreement.[^116] The Borough of Chatham does not state why this
    claim, if valid, should affect our decision in these proceedings. We
    also note that the possibility that federal government action will
    affect local regulation of rates for cable service has been known
    since the Cable Communications Policy Act of 1984[^117] at least,
    and should come as no surprise to any municipal government.
    Accordingly, we find the Borough's claim to have no relevance in
    these proceedings

48. Finally, Petitioner notes that the DRC's Comments are not
    accompanied by affidavits.[^118] Our rules provide that "Comments .
    . . shall contain a detailed full showing, supported by affidavit,
    of any facts and considerations relied on."[^119] Although most of
    the DRC's Comments consisted of legal and policy arguments, the
    Comments also made factual allegations (for example, about the
    number of households in several municipalities). The absence of
    affidavits weakens the DRC's claims.

# ordering clauses 

49. Accordingly, **IT IS ORDERED** that the petitions for a
    determination of effective competition filed in the captioned
    proceedings by subsidiaries of Cablevision Systems Corporation **ARE
    GRANTED**.

50. **IT IS FURTHER ORDERED** that the certification to regulate basic
    cable service rates granted to any of the Communities set forth on
    Attachment A and Attachment B **IS REVOKED**.

51. This action is taken pursuant to delegated authority pursuant to
    Section 0.283 of the Commission's rules.[^120]

    FEDERAL COMMUNICATIONS COMMISSION

Steven A. Broeckaert

Senior Deputy Chief, Policy Division, Media Bureau

**ATTACHMENT A**

**CSR 7118-E, CSR 7197-E, CSR 7198-E, CSR 7597-E, CSR 7598-E, CSR
7599-E, CSR 7604-E, CSR 7605-E, CSR 7606-E, CSR 7607-E, CSR 7608-E, CSR
7609-E**

**COMMUNITIES SERVED BY SUBSIDIARIES OF CABLEVISION SYSTEMS
CORPORATION**

**2000 Estimated**

**Census DBS**

## Communities CUID(S) CPR\* Households Subscribers  {#communities-cuids-cpr-households-subscribers .unnumbered}

##   {#section .unnumbered}

**CSR 7118-E**

Bridgewater NJ0330 17.03% 15561 2650

Dunellen NJ0237 20.52% 2451 503

Edison NJ0239 18.00% 35136 6324

Keansburg NJ0399 21.13% 3872 818

Keyport NJ0408 19.88% 3264 649

Matawan NJ0731 17.36% 3531 613

Middlesex NJ0233 16.70% 5048 843

Milltown NJ0377 16.48% 2627 433

New Brunswick NJ0348 23.40% 13057 3055

North Brunswick NJ0376 17.76% 13635 2422

Piscataway NJ0289 19.26% 16500 3178

Somerville NJ0292 17.94% 4743 851

South Amboy NJ0370 18.00% 2967 534

**CSR 7197-E**

Paterson NJ0566 23.06% 44710 10311

**CSR 7198-E**

Hamilton NJ0459 15.24% 33523 5110

**CSR 7597-E**

Allentown NJ0561 24.29% 708 172

**CSR 7598-E**

Newark NJ0476 19.30% 91382 17634

**CSR 7599-E**

Dover NJ0133 20.29% 5436 1103

Stanhope NJ0137 18.86% 1384 261

Victory Gardens NJ0154 19.50% 564 110

**CSR 7604-E**

Alpine NJ0529 22.88% 708 162

Clifton NJ0219 16.64% 30244 5034

North Haledon NJ0215 15.88% 2626 417

Passaic NJ0359 20.55% 19458 3999

Riverdale NJ0184 15.13% 919 139

Totowa NJ0197 15.29% 3539 541

\*CPR = Percent of competitive DBS penetration rate.

**2000 Estimated**

**Census DBS**

**Communities CUID(S) CPR\* Households Subscribers**

**CSR 7605-E**

North Bergen NJ0083 17.03% 21236 3617

West New York NJ0365 22.06% 16719 3688

## CSR 7606-E {#csr-7606-e .unnumbered}

Hillsdale NJ0373 37.89%(1) 3502 322

Paramus NJ0311 53.39%(2) 8082 1732

\(1\) includes 1005 US Cable subscribers

\(2\) includes 2583 US Cable subscribers

**CSR 7607-E**

Bayonne NJ0381 16.88% 25545 4313

**CSR 7608-E**

Farmingdale NJ0483 16.96% 625 106

Neptune City NJ0282 15.40% 2221 342

**CSR 7609-E**

Lavalette NJ0128 22.10% 1208 267

Seaside Heights NJ0127 17.83% 1408 251

Seaside Park NJ0129 17.21% 1127 194

##   {#section-1 .unnumbered}

\*CPR = Percent of competitive DBS penetration rate.

**ATTACHMENT B**

**CSR 7118-E, CSR 7119-E, CSR 7599-E, CSR 7604-E, CSR 7605-E, CSR
7606-E, CSR 7608-E, CSR 7979-E, CSR 7980-E, CSR 7981-E**

**COMMUNITIES SERVED BY SUBSIDIARIES OF CABLEVISION SYSTEMS
CORPORATION**

## Communities CUID(S)  {#communities-cuids .unnumbered}

##  {#section-2 .unnumbered}

**CSR 7118-E**

Bernards NJ0486

Bridgewater NJ0330

Middlesex NJ0233

North Brunswick NJ0376

Piscataway NJ0289

Somerville NJ0292

**CSR 7119-E**

Mahwah NJ0421

**CSR 7599-E**

Boonton (Town) NJ0242

Denville NJ0159

Dover NJ0133

East Hanover NJ0148

Florham Park NJ0151

Hanover NJ0170

Jefferson NJ0243

Mine Hill NJ0134

Montville NJ0317

Morris NJ0150

Morris Plains NJ0149

Morristown NJ0125

Mount Olive NJ0123

Mountain Lakes NJ0121

Parsippany Troy Hills NJ0120

Randolph NJ0270

Rockaway (Borough) NJ0175

Rockaway (Town) NJ0135

Roxbury NJ0136

Wharton NJ0139

**CSR 7604-E**

Allendale NJ0409

Cedar Grove NJ0176

Clifton NJ0219

Elmwood Park NJ0341

Glen Rock NJ0227

Hackensack NJ0228

Hasbrouck Heights NJ0331

Ho-ho-kus NJ0406

Little Falls NJ0183

Lodi NJ0342

Maywood NJ0244

Midland Park NJ0477

**Communities CUID(S)**

**CSR 7604-E (continued)**

Nutley NJ0224

Oakland NJ0034

Park Ridge NJ0432

Passaic NJ0359

Ramsey NJ0313

Ridgewood NJ0195

River Edge NJ0264

Saddle Brook NJ0265

Teaneck NJ0204

Waldwick NJ0349

Washington NJ0271

Wayne NJ0036

Westwood NJ0266

Wyckoff NJ0403

**CSR 7605-E**

Hoboken NJ0111

**CSR 7606-E**

Bergenfield NJ0145

Demarest NJ0293

Dumont NJ0211

Emerson NJ0375

Fair Lawn NJ0687

Harrington Park NJ0448

Haworth NJ0451

Hillsdale NJ0373

New Milford NJ0207

Northvale NJ0450

Norwood NJ0449

Oradell NJ0260

Paramus NJ0311

**CSR 7608-E**

Asbury Park NJ0069

Belmar NJ0278

Bradley Beach NJ0279

Farmingdale NJ0483

Lake Como NJ0286

Neptune City NJ0282

Spring Lake Heights NJ0287

**CSR 7979-E**

Chatham NJ0147

Madison NJ0169

**CSR 7980-E**

Union City NJ0366

Weehawken NJ0345

**CSR 7981-E**

Lakewood NJ05073

[^1]: *See* 47 U.S.C. § 543(l).

[^2]: 47 C.F.R. § 76.905(b)(2, 4).

[^3]: 47 C.F.R. § 76.906.

[^4]: *See* 47 U.S.C. § 543(l); 47 C.F.R. § 76.905.

[^5]: *See* 47 C.F.R. §§ 76.906 & 907.

[^6]: 47 U.S.C. § 543(1)(1)(B); *see* also 47 C.F.R. § 76.905(b)(2).

[^7]: 47 C.F.R. § 76.905(b)(2)(i).

[^8]: *See, e.g.,* Petition in CSR 7118-E & 7119-E at 3-4; Petition in
    CSR 7597-E at 2; Petition in CSR 7608-E & 7609-E at 3-4.

[^9]: *Mediacom Illinois LLC,* [21 FCC Rcd
    1175](http://commreg.pf.com/showSingleDoc.asp?iName=caseIndex&docID=DA-06-278A1&section=1)
    (2006)*.*

[^10]: 47 C.F.R. § 76.905(e)(2).

[^11]: *See* 47 C.F.R. § 76.905(g); *see also, e.g.,* Petition in CSR
    7197-E & 7198-E at 4; Petition in CSR 7597-E at 4-5; Petition in CSR
    7608-E & 7609-E at 8.

[^12]: *See, e.g.,* Petition in CSR 7597-E at Exh. 5; Petition in CSR
    7606-E & 7607-E at Exh. 5; Petition in CSR 7608-E & 7609-E at Exh.
    5.

[^13]: *See* Petition in CSR 6704-E at 4-5.

[^14]: Petition in CSR 7118-E & 7119-E at 6; Petition in CSR 7197-E &
    7198-E at 5; Petition in CSR 7597-E at 5; Petition in CSR 7598-E at
    5; Petition in CSR 7599-E at 7; Petition in CSR 7604-E at 7;
    Petition in CSR 7605-E at 6; Petition in CSR 7606-E & 7607-E at 7;
    Petition in CSR-E 7608-E & 7609-E at 7.

[^15]: *See, e.g.,* Petition in CSR 7118-E & 7119-E at 6-8 & nn.24-25;
    *id.*, Exh. 7; Petition in CSR 7197-E & 7198-E at Exh. 7; Petition
    in CSR 7608-E & 7609-E at 7-8 & n.30; *id.*, Exhs. 7, 11.

[^16]: *See, e.g.,* Petition in CSR 7118-E & 7119-E at 6; Petition in
    CSR 7197-E & 7198-E at 5-6; Petition in CSR 7608-E & 7609-E at 7.

[^17]: *See, e.g.,* Comments in CSR 7598-E at 5; Comments in CSR 7599-E
    at 5-6; Comments in CSR 7604-E at 5-6; Comments in CSR 7605-E at 5;
    Comments in CSR 7606-E at 4-6; Comments in CSR 7607-E at 4; Comments
    in CSR 7608-E & 7609-E at 6.

[^18]: *See, e.g.,* Comments in CSR 7118-E & 7119-E at 8-9; Comments in
    CSR 7197-E & 7198-E at 6-8.

[^19]: *Cable Operators' Petitions for Reconsideration & Revocation of
    Franchising Authorities' Certifications to Regulate Basic Cable
    Service Rates,* 9 FCC Rcd 3656, ¶ 3 (1994).

[^20]: *Id.* ("With respect to household data, we realize that in many
    cases 1990 census data represents the most recent data available.
    Accordingly, we believe that 1990 census data is an appropriate
    measure of households.").

[^21]: *Falcon Cable Systems Co. II*, 17 FCC Rcd 4648, 4650, ¶ 5 (2002).

[^22]: *See, e.g.,* Comments in CSR 7118-E & 7119-E at 8.

[^23]: *Mountain Cable Co.,* 14 FCC Rcd 13994, 13998-400, ¶¶ 9-11,
    14001, ¶ 16 (1999).

[^24]: *See, e.g.,* Comments in CSR 7118-E & 7119-E at 8.

[^25]: *Texas Cable Partners, L.P.,* 16 FCC Rcd 4886, 4888, ¶ 5 (2001).
    Petitioner also cites *Texas Cable Partners, L.P.*, 16 FCC Rcd 4718,
    4720-22, ¶¶ 5-8 (2001). There the cable operator submitted
    presumptively reliable household data and no better data was offered
    in opposition; we accepted the cable operator's data, as we do here.

[^26]: *See, e.g., Cablevision of Rockland/Ramapo, Inc.*
    ("*Rockland/Ramapo*")*,* 22 FCC Rcd 11487, 11496-97, ¶ 24 (2007),
    *application for review pending*; *Comcast Cable Commun. LLC*, 20
    FCC Rcd 20438, 20440, ¶ 5 (2005); *Adelphia Commun. Corp.,* 12 FCC
    Rcd 6344, 6354, ¶ 24 (1997).

[^27]: *Time Warner Cable Inc.,* Memorandum Opinion & Order DA 08-1917
    at ¶ 15 (rel. Aug. 15, 2008) (accepting 2000 Census data and 2007
    DBS subscribership data), available at 2008 WL 3823069;
    *Rockland/Ramapo Inc.,* 22 FCC Rcd at 11493, ¶ 16 ("The Commission
    has relied upon Census data in effective competition cases where the
    differential between the dat\[e\] of the Census information and the
    date of the petition was greater than five years"); *Cablevision of
    Raritan Valley, Inc.,* 19 FCC Rcd 6966, 6968, ¶ 6 (2004) ("We find
    that the Ratepayer Advocate\'s arguments are without merit. The
    Commission has held that 2000 Census data is sufficiently reliable
    for effective competition determinations"); *Mediacom Minnesota
    LLC*, 18 FCC Rcd 12768, 12770-71, ¶ 8 (2003); *Jones Intercable,
    Inc.*, 15 FCC Rcd 7254, 7256, n.12, ¶ 5 (2000) (using 1990 Census
    despite the fact that it was nearly a decade old); *Tel-Com, Inc.*,
    11 FCC Rcd 9153, 9158-59, n.36, ¶ 11 (1996) (1996 decision using
    1990 Census data).

[^28]: *See, e.g.,* Comments in CSR 7197-E & 7198-E at 9; Comments in
    CSR 7604-E at 8-9; Comments in CSR 7608-E & 7609-E at 9.

[^29]: *Annual Assessment of the Status of Competition in the Market for
    the Delivery of Video Programming*, Twelfth Annual Report, 21 FCC
    Rcd 2503, 2617 (2006) (showing annual growth in the percent of MVPD
    subscribers receiving DBS service, rising to 28% in the most recent
    reported year).

[^30]: *Bright House Networks, LLC,* 22 FCC Rcd 4378, 4380-81, ¶¶ 5-7
    (2007).

[^31]: *See, e.g.,* Comments in CSR 7604-E at 7; Comments in CSR 7608-E
    & 7609-E at 7.

[^32]: *See, e.g.,* Reply in CSR 7604-E at Exh. 2; Reply in CSR 7608-E &
    7609-E at Exh. 2.

[^33]: *See, e.g.,* Comments in CSR 7604-E at 7; Comments in CSR 7608-E
    & 7609-E at 7.

[^34]: *See, e.g.,* Comments in CSR 7118-E & 7119-E at 10; Comments in
    CSR 7604-E at 9; Comments at CSR 7608-E & 7609-E at 9.

[^35]: *Mediacom Southeast LLC,* 22 FCC Rcd 13208, 13211 n.35, ¶ 9
    (2007); *Atlantic Broadband (Penn) LLC,* 22 FCC Rcd 4668, 4678, ¶ 23
    (2007), quoting with approval *Mediacom Minnesota LLC*, 20 FCC Rcd
    4984, 4988, ¶ 13 (2005) (adjusting for dual subscribers "would
    permit an absurd finding of no effective competition where 85
    percent of households were dual cable/DBS subscribers, as long as
    less than 15 percent of households subscribed only to DBS").

[^36]: *Mediacom Minnesota LLC*, 20 FCC Rcd at 4988, ¶ 13.

[^37]: *See, e.g.,* Petition in CSR 7118-E & 7119-E at Exh. 7; Petition
    in CSR 7197-E & 7198-E at Exh. 7.

[^38]: Comments in CSR 7118-E & 7119-E at 7, 9; Comments in CSR 7197-E &
    7198-E at 2, 9.

[^39]: Reply in CSR 7118-E & 7119-E at Exh. 2 (Declaration of Pinna
    Gallant, MBC Senior Vice President for Product Marketing ("Gallant
    Declaration"), at ¶ 4, dated May 31, 2007); Reply in CSR 7197-E &
    7198-E at Exh. 2 (Declaration of Pinna Gallant, MBC Senior Vice
    President for Product Marketing, at ¶ 4, dated May 31, 2007).

[^40]: *See, e.g.,* Comments in CSR 7597-E at 6; Comments in CSR 7598-E
    at 6; Comments in CSR 7599-E at 6-7; Comments in CSR 7604-E at 9.

[^41]: Comments in CSR 7197-E & 7198-E at 12-13.

[^42]: *See, e.g.,* Comments in CSR 7118-E & 7119-E at 10-11; Comments
    in CSR 7597-E at 5; Comments in CSR 7598-E at 5; Comments in CSR
    7604-E at 10.

[^43]: *See, e.g.,* 47 C.F.R. § 101.45(f). The DRC's Comments cite to
    identical provisions in the now-repealed 47 C.F.R. § 21.31(e).
    Comments in CSR 7197-E & 7198-E at 10.

[^44]: Comments in CSR 7197-E & 7198-E at 10; *Application of BellSouth
    Corp. Pursuant to Section 271 to Provide In-Region, InterLATA
    Services in South Carolina*, 13 FCC Rcd 539, 561, ¶ 38 (1997).

[^45]: *See* 47 U.S.C. § 271(c).

[^46]: *See* 47 U.S.C. § 271(d)(3).

[^47]: Letter from Steven A. Broeckaert, Deputy Chief, Policy Division,
    Media Bureau, FCC, to Bruce J. Gluckman, Vice President, Legal
    Regulatory Affairs, Mediacom Commun. Corp., *et al.,* dated Feb. 23,
    2007.

[^48]: Supplement to Petition for Determination of Effective Competition
    in CSR 7118-E & 7119-E, dated April 3, 2007.

[^49]: Comments in CSR 7118-E & 7119-E at 16.

[^50]: *Id*.

[^51]: Reply in CSR 7118-E & 7119-E at 11-12; *id.*, Gallant Declaration
    at ¶ 8. A "non-spatial" zip code may be assigned, for example, to a
    post office box, a large building, or a large organization. It has
    no significant two-dimensional territory of is own; and is contained
    within a spatial zip code. Gallant Declaration at ¶ 7.

[^52]: Comments in CSR 7118-E & 7119-E at 16-17.

[^53]: *Id.* at 17.

[^54]: Reply in CSR 7118-E & 7119-E at 12; *id.*, Gallant Declaration at
    ¶ 9.

[^55]: Comments in CSR 7197-E & 7198-E at 11.

[^56]: Reply in CSR 7197-E & 7198-E at 17-18. Zip code 07510 appears to
    be a non-spatial zip code.

[^57]: Petition in CSR 7197-E & 7198-E at 5.

[^58]: Comments in CSR 7197-E & 7198-E at 8 & Att. A at 1.

[^59]: 47 U.S.C. § 543(l)(1)(B)(ii).

[^60]: Comments in CSR 7197-E & 7198-E at Att. A ("Claritas Demographic
    Update Methodology") *passim.* Petitioner states that Claritas'
    website indicates that it relies on information supplied by the
    National Planning Data Corporation, Donnelly Marketing Information
    Services, and the National Decision Systems, all demographic data
    firms. Petitioner also states that Claritas's estimates are based on
    Claritas's own data and on an undefined term called "Market
    Statistics." Reply in CSR 7197-E & 7198-E at 14. From these
    statements it appears that Claritas reaches its estimates from other
    sources, which themselves may make estimates the objectivity of
    which has not been shown to equal the Census's.

[^61]: *Accord*, *Rockland/Ramapo*, 22 FCC Rcd at 11494, ¶ 18.

[^62]: Comments in CSR 7197-E & 7198-E at 8.

[^63]: *See, e.g., Comcast Cable Commun., LLC,* Memorandum Opinion &
    Order DA 08-1658 at ¶ 12 (rel. July 15, 2008), available at 2008 WL
    2743906; *Comcast Cable Commun., LLC*, 23 FCC Rcd 8564, 8567 ¶ 10
    (2008); *Adelphia Cable Commun.,* 22 FCC Rcd 4458, 4462, ¶ 14
    (2007).

[^64]: Cablevision notes the Census Bureau's estimate that in 2005
    Hamilton Township had 33,810 households. Reply in CSR 7197-E &
    7198-E at 15. Using MBC's estimate of 5,110 DBS subscribers in the
    Township (Petition in CSR 7197-E & 7198-E at Exh. 7), DBS
    penetration would be 15.11%, above the statutory minimum.

[^65]: Comments in CSR 7197-E & 7198-E at 11.

[^66]: *Cable One, Inc.*, 18 FCC Rcd 12792, 12793-95, ¶¶ 6-9 (2003).

[^67]: Reply in CSR 7197-E & 7198--E at Exh. 6.

[^68]: Petition in CSR 7604-E at Exh. 7 at 2.

[^69]: Comments in CSR 7604-E at Att. RC-1 at 2.

[^70]: 47 U.S.C. § 543(l)(1)(B)(ii).

[^71]: *Comcast Cable Commun., LLC,* 23 FCC Rcd 8564, 8567, ¶ 10 (2008);
    *Bright House Networks, LLC,* [22 FCC Rcd 4161, 4165, ¶ 11
    (2007)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.08&serialnum=2011591231&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=2016221137&db=4493&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Communications);
    [*MCC Iowa LLC,* 20 FCC Rcd at 15270 ¶
    7;](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.08&referencepositiontype=S&serialnum=2007410805&fn=_top&sv=Split&referenceposition=15270&findtype=Y&tc=-1&ordoc=2016221137&db=4493&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Communications)
    *Mediacom Minnesota LLC*, [18 FCC Rcd 12768, 12770-71 ¶ 8
    (2003)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.08&referencepositiontype=S&serialnum=2003455289&fn=_top&sv=Split&referenceposition=12770&findtype=Y&tc=-1&ordoc=2016221137&db=4493&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Communications).

    To the extent that the DRC's proposed Clifton number of households
    reflects the City's number of issued building permits, such a
    measure is clearly not a measure of households. *See, e.g., CoxCom,
    Inc.,* 22 FCC Rcd 4533, 4538-39, ¶ 13 & cases cited in n. 47 (2007);
    *see also Rockland/Ramapo,* 22 FCC Rcd at 11493-94, ¶ 22.

[^72]: Petition in CSR 7604-E at Exh. 7 at 3, 5.

[^73]: Comments in CSR 7608-E & 7609-E at 7-8.

[^74]: *Id.* at Att. RC-1.

[^75]: *Id.* at 3.

[^76]: 47 U.S.C. § 543(l)(1)(B)(ii).

[^77]: *See* cases cited *supra* note 72.

[^78]: 47 C.F.R. § 76.905(c) ("'households' shall not include those
    dwellings that are used solely for seasonal, occasional, or
    recreational use"). When we adopted this regulation, we addressed
    "dwelling units that are empty for a significant portion of the
    year" and observed that

    > "\[p\]eople who are not present cannot be presumed to be choosing
    > local competitive alternatives. We believe that the best and most
    > constant indicator of local viewers\' choices is represented by
    > the full-time residents of an area. Moreover, it is the full-time
    > residents who are most affected by the determination whether their
    > cable rates are subject to regulation."

    [*Implementation of Sections of the Cable Television Consumer
    Protection & Competition Act of 1992: Rate Regulation Buy-Through
    Prohibition*, 9 FCC Rcd 4316, 4324 ¶17
    (1994)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.08&referencepositiontype=S&serialnum=1994264245&fn=_top&sv=Split&referenceposition=4324&findtype=Y&tc=-1&ordoc=2011628545&db=4493&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Communications).

[^79]: Comments in CSR 7608-E & 7609-E at Exh. RC-1 at 3 (statement by
    the Zoning/Code Enforcement Officer of the Borough of Seaside Park
    that "we are a seasonal town").

[^80]: Reply in CSR 7608-E & 7609-E at 16.

[^81]: Comments in CSR 7608-E & 7609-E at Exh. RC-1 at 2.

[^82]: Neptune City is at or near the Atlantic shore of New Jersey, like
    Seaside Park, and may have a large number of seasonal housing units.
    *See supra* note 79.

[^83]: Petition in CSR 7608-E & 7609-E at 7.

[^84]: Comments in CSR 7604-E at 7.

[^85]: *Time Warner Entertainment Co. LP, d/b/a/ Time Warner Cable,* 22
    FCC Rcd 805, 807, ¶ 6 (2007); *Alert Cable TV of South Carolina,
    Inc.,* 21 FCC Rcd 269, 272-73, ¶ 9 (2006); [*Charter Commun., Inc.,*
    19 FCC Rcd 6878, 6881, ¶ 10
    (2004)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.08&referencepositiontype=S&serialnum=2004331900&fn=_top&sv=Split&referenceposition=6881&findtype=Y&tc=-1&ordoc=2011280687&db=4493&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Communications).

    We note that we are considering limiting the use of five-digit zip
    code data in some circumstances. *Commission Revises & Suspends
    Pending OMB Approval New Standards for Showings of Effective
    Competition for Cable Service*, Public Notice DA 08-2030 (rel. Sept.
    2, 2008), available at 2008 WL 4057098; *Commission Announces New
    Standards for Showings of Effective Competition for Cable Service*,
    Public Notice DA 08-1892 (rel. Aug. 13, 2008.

[^86]: *See* 47 U.S.C. § 543(l)(D).

[^87]: *See Implementation of Cable Act Reform Provisions of the
    Telecommunications Act of 1996*, 14 FCC Rcd 5296, 5305-06, ¶¶ 13-16
    (1999) ("*Cable Reform Order*").

[^88]: *See* 47 C.F.R. § 76.905(g). *See also* Petition in CSR 7604-E at
    17.

[^89]: *See, e.g.,* Petition in CSR 7604-E at Exh. 9; Petition in CSR
    7606-E & 7607-E at Exh. 9; Petition in CSR 7608-E & 7609-E at Exh.
    9.

[^90]: Under a New Jersey law enacted in 2006, a company may receive
    from the BPU "a system-wide franchise by constructing or operating a
    \[cable\] system at any location within the State in which the
    company, at the time of issuance of the system-wide franchise,
    either has plant or equipment in use for the provision of any
    consumer video, cable or telecommunications service, or has proposed
    to place such plant or equipment into use to provide such service."
    Evidently, Verizon's system-wide franchise has the scope of the
    territory in which it has provided telecommunications service. *See*
    The Assembly Telecommunications & Utilities Committee reports
    favorably Assembly Committee Substitute for Assembly Bill No. 804,
    No. 804-L.2006, c.83 (May 11, 2006), printed in N.J.S.A. 48:5A-2.

[^91]: *See Cable Reform Order*, 14 FCC Rcd at 5305-06, ¶¶ 13-16. *See
    also,* *e.g.,* Petition in CSR 7604-E at 13 & Exh. 8; Petition in
    CSR 7605-E at 12, 14-15 & Exh. 9; Petition in CSR 7606-E & 7607-E at
    16-17 & Exh. 8; Petition in CSR 7608-E & 7609-E at 13; Reply in CSR
    7604-E at 24-25.

[^92]: The provision, 47 U.S.C. § 543(l)(1)(D) was first enacted in
    1996. Telecommunications Act of 1996, [Pub. L. No. 104-104 §
    301(b)(3),](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.08&fn=_top&sv=Split&tc=-1&docname=UUID(I1B66F88393-AE454DAD819-2337A0CBA6A)&ordoc=1999286154&findtype=l&db=1077005&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw)
    110 Stat. 56, 115, approved Feb. 8, 1996.

[^93]: *See, e.g.,* Comments in CSR 7118-E & 7119-E at 12; Comments in
    CSR 7599-E at 3, 8-9; Comments in CSR 7604-E at 11-12.

[^94]: *Service Elec. Cable TV of New Jersey, Inc.* ("*Service
    Electric*")*,* 20 FCC Rcd 20532 (2005).

[^95]: *See, e.g.,* Comments in CSR 7606-E at 9; Comments in CSR 7608-E
    & 7609-E at 12; Comments in CSR 7979-E, 7980-E & 7981-E at 5-6.

[^96]: *See, e.g.,* Comments in CSR 7605-E at 8; Comments in CSR 7606-E
    at 8-9; Comments in CSR 7608-E & 7609-E at 12.

[^97]: *Cablevision Systems of Connecticut, L.P.,* 14 FCC Rcd 15883,
    15884, ¶ 4 (1999); *Cablevision Systems of Connecticut, L.P.,* 14
    FCC Rcd 15253, 15254, ¶ 3 (1999).

[^98]: *Service Electric,* 20 FCC Rcd at 20533, ¶ 6 ("the fact that
    Service Electric operates the 26 \[franchises\] as a single
    contiguous system is immaterial to our analysis. The statute
    requires Service Electric to demonstrate effective competition in
    each franchise area.") (internal quotations and footnote omitted).

[^99]: *See, e.g.,* Comments in CSR 7118-E & 7119-E at 14; Comments in
    CSR 7599-E at 10; Comments in CSR 7604-E at 13-14.

[^100]: [47 C.F.R. §
    76.905(g)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.08&referencepositiontype=T&referenceposition=SP%3B16f4000091d86&fn=_top&sv=Split&tc=-1&docname=47CFRS76.905&ordoc=2016772404&findtype=L&db=1000547&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw).

[^101]: *See, e.g.,* Petition in CSR 7604-E at Exh. 9; Petition in CSR
    7606-E & 7607-E at Exh. 9; Petition in CSR 7608-E & 7609-E at Exh.
    9.

[^102]: *CoxCom, Inc.,* 14 FCC Rcd 7134, 7142, ¶19 (1999) ("PEG
    programming is not one of the factors the Commission has indicated
    is germane in determining whether comparable programming is being
    offered by a competitor."), *reconsideration granted on other
    grounds,* 15 FCC Rcd 728 (2000).

[^103]: *See, e.g.,* Comments in CSR 7604-E at 14; Comments in CSR
    7606-E at 10; Comments in CSR 7608-E & 7609-E at 14.

[^104]: *See, e.g.,* Comments in CSR 7118-E & 7119-E at 15-16; Comments
    in CSR 7599-E at 10-11; Comments in CSR 7608-E & 7609-E at 14.

[^105]: Comments in CSR 7118-E & 7119-E at 14.

[^106]: Letter from Joseph J. Bell, Esq., Bell & Gage, counsel for the
    Township of East Hanover and the Borough of Florham Park, both in
    CSR 7599-E, at 1 (dated Nov. 24, 2007); Letter from Joseph J. Bell,
    Esq., Bell & Hassing, counsel for the Borough of Chatham in CSR
    7979-E ("Chatham Letter") at 1 (dated July 23, 2008).

    These letters also object to our finding that LEC effective
    competition exists without the prior consent of municipal
    governments. *Id.* at 2. The DRC, in contrast, objects to our
    relying on the BPU in our decisions herein. Comments in CSR 7599-E
    at 8; Comments in CSR 7605-E at 7-8. Both positions misunderstand
    our standards in LEC effective competition decisions. Our actions
    neither require the prior consent of local authorities nor blindly
    rely on their judgments. Rather, we apply the criteria of 47 U.S.C.
    § 543(l)(1)(B).

[^107]: *See* 47 U.S.C. § 543(l)(1)(D).

[^108]: *See Armstrong Commun., Inc.*, 16 FCC Rcd 1039, 1043-44, ¶ 9
    (2001) (LEC test does not specify any minimum amount of service to
    be offered by the LEC or include any penetration standards; it
    requires only that the offering be substantially more than *de
    minimis*); *CoxCom, Inc.,* 14 FCC Rcd 7134, 7143, ¶ 24 (1999)
    ("Congress did not include a pass or penetration test in the LEC
    effective competition standard and the Commission has not indicated
    that it would impose such a test"), *reconsideration granted on
    other grounds*, 15 FCC Rcd 728 (2000); *Cable Reform Order,* 14 FCC
    Rcd at 5303, ¶ 10 ("we reject arguments that we should adopt
    penetration standards").

    The DRC misstates our decision in *Marcus Cable Assocs., L.P.,* 13
    FCC Rcd 9326 (1998), *review denied*, 16 FCC Rcd 15612 (2001), as
    holding that LEC effective competition requires "direct evidence of
    subscribership." Comments in CSR 7599-E at 10-11; Comments in CSR
    7604-E at 14; Comments in CSR 7605-E at 10-11. Our *Marcus Cable*
    decision noted that the cable operator indeed showed that the LEC
    had 50 subscribers for its service, but that that and other evidence
    failed to show that most consumers were "reasonably aware" of its
    availability. *Marcus Cable Assocs., L.P.,* 13 FCC Rcd at 9331, ¶
    14.

[^109]: One franchise area involved in CSR 7599-E, for example, has
    fewer than 600 households in it. Petition in CSR 7599-E at 8.

[^110]: *Cable Reform Order*, 14 FCC Rcd at 5302, ¶ 9 ("The thrust of
    the 1996 Act is Congress\' expectation that LECs will be robust
    competitors of cable operators because of their financial and
    technical ability and . . . their ubiquitous presence in the
    market") (footnote omitted); *id.* at 5303, ¶ 11 (noting with
    approval that "the Cable Services Bureau has found that a LEC\'s
    presence can have a competitive impact on a cable operator before
    the LEC finishes installing its plant or rolling out its service");
    *id.* at 5304, ¶ 11 (noting "Congress\' intent that the Commission
    have the discretion to consider the likelihood and extent of
    impending competition when considering whether effective competition
    exists under the LEC test. Congress sought to restrain cable rates
    and stimulate quality cable services. Once the LEC\'s competitive
    presence is sufficient to achieve these goals, even if the LEC\'s
    buildout or roll out is not complete, the intent of the effective
    competition test has been met").

[^111]: *Cable Reform Order*, 14 FCC Rcd at 5303, ¶ 11, 5305, ¶ 13.

[^112]: *See*, *e.g.*, Comments in CSR 7599-E at 2 n.1; Comments in CSR
    7604-E at 2 n.1; Comments in CSR 7605-E at 1 n.1; Comments in CSR
    7606-E at 1 n.1; Comments in CSR 6708-E & 7609-E at 1 n.1.

[^113]: Comments in CSR 7979-E, 7980-E, & 7981-E at 2 n.4.

[^114]: *Id.*, citing "Section 1.104(8)(g) of the FCC rules." 47 C.F.R.
    § 1.104 of the Commission's rules concerns "Preserving the right of
    review; deferred consideration of application for review" and has no
    subsection numbered 8 or g.

[^115]: *Reminder as to Procedures for Filing Cable Television Effective
    Competition Petitions*, Public Notice DA 05-921, 20 FCC Rcd 7294
    ("Although for the convenience of the filing parties multiple
    communities and multiple cable physical systems ('PSIDs') may be
    combined in a single filing, each PSID must be separately identified
    and *a separate fee must be paid for each PSID*") (italics added);
    *see also* *Comcast Cable Commun., LLC, Memorandum Opinion & Order*
    DA 08-1908 at ¶ 6 n.14 (rel. Aug. 14, 2008) ("Two petitions were
    filed because some of the Communities with different CUIDs numbers
    are on a separate Comcast cable system and required the filing of a
    separate filing fee"); *CoxCom, Inc.,* 22 FC Rcd 4522, ¶ 1 n.1
    ("regulatory filing fees are assessed by cable system").

[^116]: Chatham Letter at 2.

[^117]: *Implementation of Sections of the Cable Television Consumer
    Protection & Competition Act of 1992: Rate Regulation*, 8 FCC Rcd
    510, 522, ¶ 44 (1992) ("the Cable Communications Policy Act of 1984
    effectively prohibited local rate regulation of most cable
    systems").

[^118]: *See, e.g.*, Reply in CSR 7118-E & 7119-E at 3 n.5; Reply in CSR
    7197-E & 7198-E at 2 n.3; Reply in CSR 7604-E at 4 n.8; Reply in CSR
    7608-E & 7609-E at 4 n.8.

[^119]: 47 C.F.R. § 76.7(b)(1).

[^120]: 47 C.F.R. § 0.283.