Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * | CSR 7420-E, 7488-E, 7498-E,  |
|                                  | * | 7545-E                       |
| Comcast Cable Communications,    | ) |                              |
| LLC                              | * |                              |
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| Petition for Determination of    |   |                              |
| Effective Competition in various | * |                              |
| Michigan Communities             | * |                              |
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+----------------------------------+---+------------------------------+

MEMORANDUM OPINION AND ORDER

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

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), 76.905(b)(1) 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." Petitioner alleges
    that its cable system serving the communities listed on Attachment B
    and hereinafter referred to as Group B Communities is 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 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").[^3]
    Petitioner additionally claims to be exempt from cable rate
    regulation in the Communities listed on Attachment C and hereinafter
    referred to as Group C Communities because the Petitioner serves
    fewer than 30 percent of the households in the franchise area. The
    petitions are 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 petitions based on our finding that
    Petitioner is subject to effective competition in the Communities
    listed on Attachment A.

# II. DISCUSSION

**A. 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;[^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
    Group B 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 Group B Communities to
    support their assertion that potential customers in the Group B
    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
    Group B 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 Group B
    Communities.[^15] Petitioner sought to determine the competing
    provider penetration in the Group B 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 Group B
    Communities on a zip code and zip code plus four basis where
    necessary.[^16]

7.  Based upon the aggregate DBS subscriber penetration levels that were
    calculated using Census 2000 household data,[^17] as reflected in
    Attachment B, 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 Group B Communities. Therefore, the second prong
    of the competing provider test is satisfied for each of the Group B
    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 Group B Communities.

    **B. The Low Penetration Test**

9.  Section 623(l)(1)(A) of the Communications Act provides that a cable
    operator is subject to effective competition if the Petitioner
    serves fewer than 30 percent of the households in the franchise
    area; this test is otherwise referred to as the "low penetration"
    test.[^18] Petitioner alleges that it is subject to effective
    competition under the low penetration effective competition test
    because it serves less that 30 percent of the households in the
    franchise area.

10. Based upon the subscriber penetration level calculated by
    Petitioner, as reflected in Attachment C, we find that Petitioner
    has demonstrated the percentage of households subscribing to its
    cable service is less than 30 percent of the households in the Group
    C Communities. Therefore, the low penetration test is also satisfied
    as to the Group C Communities.

# III. ordering clauses 

11. Accordingly, **IT IS ORDERED** that the petitions for a
    determination of effective competition filed in the captioned
    proceeding by Comcast Cable Communications, LLC **ARE GRANTED**.

12. **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**.

13. This action is taken pursuant to delegated authority pursuant to
    Section 0.283 of the Commission's rules.[^19]

    FEDERAL COMMUNICATIONS COMMISSION

Steven A. Broeckaert

Senior Deputy Chief, Policy Division, Media Bureau

ATTACHMENT A

**CSR(s) 7420-E, 7488-E, 7498-E, 7545-E**

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

## Communities CUID(S) 

##  

## [CSR 7420-E]{.underline}

**Auburn Hills MI0833**

**Berkley City MI0827**

**Ferndale MI0829**

**Oakland MI0831**

**Pleasant Ridge MI0832**

**Rochester MI0834**

**Rochester Hills MI0826**

**[CSR 7488-E]{.underline}**

**Brady MI1277**

**Calvin MI1528**

**Centerville MI1278**

**Constantine Village MI0161**

**Constantine Township MI1284**

**Fabius MI1279**

**Flowerfield MI1591**

**Lockport MI1280**

**Marcellus MI1894**

**Mendon MI1281**

**Mottville MI1285**

**Newberg MI1529**

**Nottawa MI1385**

**Park MI1282**

**Pavillion MI1283**

**Penn MI1526**

**Porter MI1525**

**MI1002**

**Prairie Ronde MI1939**

**Schoolcraft Village MI0360**

**Schoolcraft Township MI0361**

**Sherman MI1386**

**Three Rivers MI0246**

**Vandalia MI1527**

**Vicksburg MI0362**

**Volinia MI1895**

**White Pigeon Township MI0160**

**White Pigeon Village MI1286**

**[CSR 7498-E]{.underline}**

**Brooks MI1533**

**Cedar Creek MI1260**

**Dalton MI0511**

**Dayton MI1491**

**Egelston MI0506**

**Fremont MI0510**

**Communities CUID(S)**

**Fruitland MI1261**

**Fruitport MI0271**

**Garfield MI1489**

**Holton MI1488**

**Laketon MI0270**

**Muskegon MI0056**

**Muskegon Township MI0025**

**Muskegon Heights MI0158**

**North Muskegon MI0057**

**Norton Shores MI0193**

**Sheridan MI0644**

**Sherman MI1490**

**Spring Lake MI1262**

**Sullivan MI0775**

**[CSR 7545-E]{.underline}**

**Blackman MI0037**

**Brooklyn MI0694**

**Cambridge MI1391**

**Cement City MI1390**

**Columbia MI0695**

**Franklin MI1388**

**Jackson MI0038**

**Leoni MI0068**

**Liberty MI1468**

**Napoleon MI0563**

**Norvell MI1138**

**Onsted MI1389**

**Rives MI1978**

**Sandstone MI1552**

**Somerset MI1392**

**Spring Arbor MI0240**

**Summit MI0069**

##  

ATTACHMENT B

**CSR(s) 7420-E, 7488-E, 7498-E, 7545-E**

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

**2000 Estimated**

**Census DBS & Other MVPD**

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

##  

## [CSR 7420-E]{.underline}

## Auburn Hills MI0833 18.47% 8,064 1,490

## 

## Berkley City MI0827 48.65% 6,678 3,249\*

## 

## Ferndale MI0829 44.47% 9,872 4,390\*

## 

## Oakland MI0831 25.73% 4,341 1,117

## 

## Pleasant Ridge MI0832 47.66% 1,110 529\*

## 

## Rochester City MI0834 41.00% 4,667 1,913\*

## 

## Rochester Hills MI0826 42.58% 26,315 11,206\*

**[CSR 7488-E]{.underline}**

**Brady MI1277 36.94% 1,554 574**

**Centerville Village MI1278 44.89% 490 220**

**Constantine Village MI0161 41.02% 763 313**

**Fabius MI1279 35.04% 1,304 457**

**Lockport MI1280 35.21% 1,451 511**

**Mottville MI1285 41.23% 570 235**

**Nottawa MI1385 27.55% 1,325 365**

**Park MI1282 36.74% 996 366**

**Pavilion MI1283 40.50% 2,114 856**

**Porter MI1525 41.76% 1,523 636**

**MI1002**

**Schoolcraft Township MI0361 23.05% 2,781 641**

**Schoolcraft Village MI0360 51.86% 615 319**

**Three Rivers City MI0246 34.84% 2,910 1,014**

**Vandalia MI1527 36.22% 127 46**

**2000 Estimated**

**Census DBS & Other MVPD**

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

##  

**Vicksburg MI0362 44.20% 908 401**

**White Pigeon Township MI0160 23.98% 1,505 361**

**White Pigeon Village MI1286 42.03% 602 253**

**[CSR 7498-E]{.underline}**

**Cedar Creek MI1260 40.76% 1,180 481**

**Dalton MI0511 29.12% 2,871 836**

**Dayton MI1491 39.01% 687 268**

**Egelston MI0506 18.91% 3,458 654**

**Fremont MI0510 38.37% 1,788 686**

**Fruitland MI1261 26.30% 1,859 489**

**Fruitport MI0271 18.33% 4,446 815**

**Garfield MI1489 45.37% 844 383**

**Holton MI1488 48.50% 903 438**

**Laketon MI0270 24.90% 2,682 668**

**Muskegon MI0056 15.60% 14,569 2,273**

**Muskegon Heights MI0158 16.26% 4,507 733**

**Muskegon Township MI0025 20.30% 6,581 1,336**

**North Muskegon MI0057 25.03% 1,610 403**

**Norton Shores MI0193 15.05% 8,996 1,354**

**Sheridan MI0644 38.36% 842 323**

**Sherman MI1490 43.00% 749 322**

**Sullivan MI0775 36.30% 887 322**

**[CSR 7545-E]{.underline}**

**Blackman MI0037 20.72% 6,658 1,380**

**Brooklyn MI0694 37.86% 507 192**

**Cambridge MI1391 40.50% 1,996 808**

**Cement City MI1390 32.71% 162 53**

**2000 Estimated**

**Census DBS & Other MVPD**

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

**Columbia MI0695 34.24% 2,894 991**

**Franklin MI1388 51.91% 1,071 556**

**Jackson MI0038 16.96% 14,210 2,411**

**Leoni MI0068 26.03% 5,240 1,364**

**Liberty MI1468 42.96% 1,073 461**

**Napoleon MI0563 28.82% 2,592 747**

**Norvell MI1138 43.08% 1,135 489**

**Onsted MI1389 46.10% 321 148**

**Sandstone MI1552 34.44% 1,321 455**

**Somerset MI1392 41.55% 1,687 701**

**Spring Arbor MI0240 30.62% 2,570 787**

**Summit MI0069 17.03% 8,690 1,480**

\*CPR = Percent of competitive DBS penetration rate.

\*Berkley City- includes 497 DBS subscribers and 2,752 WOW subscribers.

\*Ferndale- includes 853 DBS subscribers and 3,537 WOW subscribers.

\*Pleasant Ridge- includes 75 DBS subscribers and 454 WOW subscribers.

\*Rochester- includes 616 DBS subscribers and 1,297 WOW subscribers.

\*Rochester Hills- includes 3,896 DBS subscribers and 7,310 subscribers.

ATTACHMENT C

**CSR(s) 7488-E, 7498-E, 7545-E**

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

##  Franchise Area Cable Penetration 

## Communities CUID(S) Households Subscribers Percentage 

##  

## CS[R 7488-E]{.underline}

**Brady MI1277 1,554 456 29.34%**

**Calvin MI1528 784 23 2.93%**

**Constantine Township MI1284 1,560 141 9.04**

**Flowerfield MI1591 571 58 10.16%**

**Marcellus MI1894 1,021 28 2.74**

**Mendon MI1281 1,062 132 12.43%**

**Mottville MI1285 570 137 24.04%**

**Newberg MI1529 648 65 10.03%**

**Nottawa MI1385 1,325 218 16.45%**

**Pavillion MI1283 2,114 486 22.99%**

**Penn MI1526 747 161 21.55%**

**Prairie Ronde MI1939 707 55 7.78%**

**Schoolcraft Township MI0361 2,781 692 24.88%**

**Sherman MI1386 1,175 109 9.28%**

**Vandalia MI1527 127 36 28.35%**

**Volinia MI1895 426 36 8.45%**

**White Pigeon MI1286 1,505 164 10.90%**

##  

**[CSR 7498-E]{.underline}**

**Brooks MI1533 1,441 26 1.80%**

**Dayton MI1491 687 168 24.45%**

**Fruitland MI1261 1,859 522 28.08%**

**Garfield MI1489 844 167 19.79%**

**Sheridan MI0644 842 220 26.13%**

##  Franchise Area Cable Penetration 

**Communities CUID(S) Households Subscribers Percentage**

**Sherman MI1490 749 197 26.30%**

**Spring Lake MI1262 5,237 27 0.52%**

**[CSR 7545-E]{.underline}**

**Liberty MI1468 1,073 312 29.08%**

**Rives MI1978 1,677 82 4.89%**

**Sandstone MI1552 1,321 226 17.11%**

[^1]: *See* 47 U.S.C. § 543(a)(1).

[^2]: 47 C.F.R. § 76.905(b)(2) and 47 C.F.R. § 76.905(b)(1).

[^3]: Comcast additionally relies on the subscriber count of cable
    operator Wide Open West ("WOW") in the Berkley City, Ferndale,
    Pleasant Ridge, Rochester, and Rochester Hills Communities.

[^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](http://commreg.pf.com/showSingleDoc.asp?iName=caseIndex&docID=DA-06-278A1&section=1)
    (2006)*.*

[^11]: 47 C.F.R. § 76.905(e)(2).

[^12]: *See* 47 C.F.R. § 76.905(g). *See also* Petition at 4-5.

[^13]: *See* Petition at 5.

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

[^15]: *Id.* at 5-6. In the Communities of Berkley City, Ferndale,
    Pleasant Ridge (CSR 7420-E), Brady, Mottville, Nottawa, Park,
    Pavilion, Porter, Vandalia (CSR 7488-E), Dayton, Garfield, Holton,
    Sheridan, Sherman (CSR 7498-E), Franklin, Liberty, and Sandstone
    (CSR 7545-E) both the Comcast penetration figure and the aggregate
    DBS penetration figure clearly exceed 15 percent. Comcast argues
    that it is subject to effective competition because in addition to
    DBS penetration exceeding 15 percent of the occupied households, the
    number of Comcast subscribers also exceed 15 percent and the
    Commission has recognized that in such cases the second prong of the
    competing provider test is satisfied.

[^16]: Petition at 6-7.

[^17]: Petition at 8.

[^18]: 47 U.S.C. § 543(l)(1)(A).

[^19]: 47 C.F.R. § 0.283.