Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of:                | * | CSR 5413-E                   |
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| MediaOne of Colorado, Inc.       | ) |                              |
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MEMORANDUM OPINION AND ORDER

**Adopted: July 21, 2000** **Released: July 28, 2000**

By the Deputy Chief, Cable Services Bureau:

# introduction

1.  MediaOne of Colorado, Inc. (MediaOne) has filed with the Commission
    a petition[^1] pursuant to Sections 76.7 and 76.907 of the
    Commission\'s rules for a determination of effective competition in
    the City of Atlanta, Georgia, and certain surrounding cable service
    franchise areas (the "Communities").[^2] MediaOne alleges that its
    cable systems serving the Communities are subject to effective
    competition pursuant to Section 623(a)(2) of the Communications Act
    of 1934, as amended (\"Communications Act\"),[^3] and the
    Commission\'s implementing rules,[^4] and are therefore exempt from
    cable rate regulation. MediaOne claims the presence of effective
    competition in the Communities stems from the competing services
    provided by BellSouth Entertainment, Inc. ("BSE"), a multi-channel
    multi-point distribution service (MMDS) operator affiliated with a
    local exchange carrier ("LEC"). MediaOne also filed a Supplement to
    Petition for Relief. No opposition to the petition or supplement was
    filed.

2.  In the absence of a demonstration to the contrary, cable systems are
    presumed not to be subject to effective competition,[^5] as that
    term is defined by Section 76.905 of the Commission\'s rules.[^6]
    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.[^7] Section 623(l)(1)(D) of the Communications Act provides
    that a cable operator is subject to effective competition, and
    therefore exempt from cable rate regulation, if a 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, provided the video programming
    services thus offered are comparable to the video programming
    services provided by the unaffiliated cable operator in that
    area.[^8]

3.  The Commission has stated that an incumbent cable operator could
    satisfy the "LEC" effective competition test by showing that the LEC
    is technically and actually able to provide services that
    substantially overlap the incumbent operator's service in the
    franchise area.[^9] The incumbent also must show that the LEC
    intends to build-out its cable system within a reasonable period of
    time if it has not already done so, 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.[^10]

# discussion

4.  MediaOne holds franchises issued by the Communities and is
    authorized to provide and provides cable services within the
    Communities' territorial boundaries.[^11] As such, MediaOne
    qualifies as the incumbent cable operator within the Communities for
    purposes of the "LEC" effective competition test at issue in this
    proceeding. On the other hand, BSE provides "wireless cable" service
    within the Communities by means of digital MMDS technology from four
    MMDS transmitter sites located in and around Atlanta.[^12] BSE is a
    wholly-owned subsidiary of BellSouth Corporation, a holding company
    which wholly owns BellSouth Telecommunications, Inc., a provider of
    telecommunications services, systems and products. We have found
    previously that BSE is a wholly-owned subsidiary of BellSouth, and
    that BellSouth Telecommunications, Inc. is unquestionably a
    LEC.[^13] We further find here that MediaOne is unaffiliated with
    BellSouth Corporation, BellSouth Telecommunications, Inc., or BSE.
    Therefore, BellSouth Telecommunications, Inc. qualifies as a "LEC,"
    and BSE qualifies as an affiliate of a "LEC" for purposes of the
    "LEC" effective competition test.[^14]

5.  MediaOne presented information establishing that a viewable signal
    form BSE's MMDS transmitters can be received in an area that
    overlaps MediaOne's franchised service area. This information
    consists of overlay maps depicting the 35 mile predicted service
    contours and shadow plot maps of BSE's four MMDS transmitter sites.
    These maps show that all 56 of MediaOne's franchise areas listed on
    Attachment A hereto lie within the interference-free contours of
    BSE's MMDS transmitters. Most importantly, these maps also show that
    there are no terrain or other obstacles to line of sight service and
    that BSE stations' signal strength is adequate throughout the
    area[^15] BSE has distributed marketing materials within the
    Communities pointing out that Communities' residents need only call
    BSE for installation and commencement of services.[^16] BSE's
    marketing materials show that its MMDS service offers 160 channels
    of digital video programming that includes non-broadcast programming
    services such as Fox Sports South, CNN, ESPN, Discovery, BET, and
    Turner South, as well as a complement of local television broadcast
    stations.[^17] Therefore, BSE provides comparable programming as
    required by the "LEC" effective competition test. MediaOne's
    petition also provides substantial evidence that there are no
    regulatory, technical or other impediments to BSE's provision of
    service within the Communities. MediaOne has also shown that BSE has
    commenced providing service not only within the Communities but also
    within several other nearby communities within the greater Atlanta
    area,[^18] is marketing its services in a manner that makes
    potential subscribers reasonably aware of those services, and
    otherwise satisfies the "LEC" effective competition test consistent
    with evidentiary requirements set forth in the *Cable Reform
    Order*.[^19]

6.  Based on the foregoing, we conclude that MediaOne has submitted
    sufficient evidence demonstrating that its cable systems serving
    Atlanta, Georgia and the communities listed in Appendix A are
    subject to effective competition.

# ordering clauses

7.  Accordingly, **IT IS ORDERED** that the petition for a determination
    of effective competition filed by MediaOne of Colorado, Inc. **IS
    GRANTED**.

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

    FEDERAL COMMUNICATIONS COMMISSION

    William H. Johnson

    Deputy Chief, Cable Service Bureau

    **APPENDIX A**

    **MediaOne Atlanta Area Cable Communities**

    **Communities CUID Nos.**

    Acworth GA0280

    Apphretta GA0411

    Atlanta GA0018

    Austell GA0128

    Avondale Estates GA0081

    Bartow County GA0475

    Berkeley Lake GA0262

    Brooks GA0842

    Clarkston GA0080

    Clayton County GA0143

    Cobb County GA0169, GA0236, GA0246

    College Park GA0349

    Conyers GA0269

    Coweta County GA0731

    Decatur GA0079

    DeKalb County GA0078

    Dobbins AFB GA0530

    Douglas County GA0781, GA0121, GA0386

    Douglasville GA0168

    Duluth GA0920

    East Point GA0350

    Fairfield Plantation GA0780

    Fayette County GA0389

    **Communities CUID Nos.**

    Fayeteville GA0470

    Forest Park GA0238

    Ft. Gillem GA0567

    Ft. McPherson GA0556

    Fulton County (N) GA0819, GA0700

    Fulton County (S) GA0633

    Fulton County (W) GA0889

    Grayson GA0260

    Gwinnett County GA0222

    Hapeville GA0356

    Henry County GA0534

    Jonesboro GA0259

    Kennesaw GA0235

    Lake City GA0258

    Lilburn GA0227

    Lithia Springs GA0965

    Lithonia GA0440

    Loganville GA0960

    Lovejoy GA0259

    Marietta GA0156

    Morrow GA0248

    Newtown GA0309

    Norcross GA0261

    **APPENDIX A (Cont'd)**

    **MediaOne Atlanta Area Cable Communities (Cont'd)**

    **Communities CUID Nos.**

    Peachtree City GA0847

    Pine Lake GA0106

    Powder Springs GA0655

    Riverdale GA0247

    Rockdale GA0308

    **Communities CUID Nos.**

    Roswell GA0919

    Snellsville GA0221

    Stone Mountain GA0077

    Tyrone GA0388

    Woolsey GA0841

[^1]: ^?^*See* Public Notice, Cable Services Bureau Registrations;
    Special Relief and Show Cause Petitions, Report No. 1237, dated July
    13, 1999.

[^2]: ^?^The communities subject to this petition are listed on Appendix
    A.

[^3]: ^?^47 U.S.C. § 543(a)(2).

[^4]: ^    ?^47 C.F.R. § 76.905(b)(4).

[^5]: ^    ?^47 C.F.R. § 76.906.

[^6]: ^    ?^47 C.F.R. § 76.905.

[^7]: ^?^*See* 47 C.F.R. §§ 76.906 & 907.

[^8]: ^    ?^Communications Act, § 623(1)(1)(D), 47 U.S.C. §
    543(1)(1)(D); *see also* 47 C.F.R. § 76.905(b)(4). This fourth
    statutory effective competition test within Section 632(l) may be
    referred to as the "LEC" effective competition test.

[^9]: ^?^*See Implementation of Cable Act Reform Provisions of the
    Telecommunications Act of 1996*, 14 FCC Rcd 5296, 5305 (1999)
    ("*Cable Reform Order*"). No showing of meeting a penetration
    standard is required under the "LEC" effective competition test.
    *Id*. at 5303.

[^10]: ^?^*Id*. at 5305.

[^11]: ^?^Petition, Exhibit 2.

[^12]: ^?^Petition at 7-8 and Exhibit 5.

[^13]: ^?^*In the Matter of CoxCom, Inc.*, 14 FCC Rcd 7134 (CSB 1999).

[^14]: ^?^*See* 47 U.S.C. § 543(1)(1)(D); 47 U.S.C § 153(a)(1).

[^15]: ^?^Petition at 8-9 and Exhibits 6 & 7. *See Cable Reform Order*
    at 5305-06. *See also* Supplement to Petition at 2 & Attachment 1.

[^16]: ^?^Petition 10 and Exhibits 13, 14, & 15. *See also* Supplement
    to Petition at 2 & Attachment 3

[^17]: ^?^*Id*. at 7-9 and Exhibit 17. *See also* Supplement to Petition
    at 2 & Attachment 2.

[^18]: ^?^MediaOne presented data showing that as of February 1999 BES
    provided service to approximately 18500 subscribers within Chamblee,
    Duluth, Lawrencville, and Woodstock, Georgia, and in unincorporated
    portions of Cherokee, DeKalb, Gwinnett and Cobb Counties of Georgia.
    *See* Supplement to Petition at 2 & Attachment 1. *See also Time
    Warner Cable (Atlanta, GA)*, DA 00-1347 (Cable Serv. Bur., released
    June 20, 2000) (2000 WL 780337 (FCC)).

[^19]: ^?^14 FCC Rcd at 5305. The Commission found Time Warner to be
    subject to effective competition from HTC in the unincorporated
    portions of Horry County, South Carolina, under the "LEC" effective
    competition test in *Time Warner Entertainment-Advance/Newhouse
    Partnership, d/b/a Time Warner Company*, 12 FCC Rcd 18166 (CSB
    1997).

[^20]: ^?^47 C.F.R. §0.321.