**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | CSR-6537-E                   |
|                                  | *) |                              |
| Cablevision of Rockland/Ramapo   | ** | CSR-6670-E                   |
| Inc.                             |    |                              |
|                                  | *  | CSR-6671-E                   |
| Montvale, New Jersey             | *) |                              |
|                                  | ** |                              |
| CSC TKR, Inc. d/b/a Cablevision  |    |                              |
| of                               | *  |                              |
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| Elizabeth                        | ** |                              |
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| Elizabeth, New Jersey            | *  |                              |
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| Cablevision of Warwick LLC       | ** |                              |
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| West Milford, New Jersey         | *  |                              |
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| Petitions for Determination of   | ** |                              |
| Effective Competition            |    |                              |
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+----------------------------------+----+------------------------------+

> **MEMORANDUM OPINION AND ORDER**

**Adopted: June 22, 2007 Released: June 26, 2007**

By the Deputy Chief, Policy Division, Media Bureau:

# Introduction

1.  Cablevision of Rockland/Ramapo Inc., CSC TKR, Inc. d/b/a Cablevision
    of Elizabeth, and Cablevision of Warwick LLC (collectively
    "Cablevision") have filed with the Commission petitions pursuant to
    Sections 76.7, 76.905 and 76.907 of the Commission's rules for a
    determination that Cablevision's cable systems serving Montvale,
    Elizabeth and West Milford, New Jersey (the "Communities") are
    subject to effective competition pursuant to Section 623(a)(1) of
    the Communications Act of 1934, as amended ("Communications Act")
    and are therefore exempt from cable rate regulation.[^1]
    Specifically, Cablevision asserts that the competing provider test
    is met in Montvale, Elizabeth and West Milford.[^2] In addition,
    Cablevision alternatively asserts that the Local Exchange Carrier
    ("LEC") test is met in West Milford.[^3] The New Jersey Board of
    Public Utilities ("BPU"), the certified local franchise authority in
    New Jersey, and the New Jersey Division of the Ratepayer Advocate
    ("Ratepayer Advocate") filed oppositions against the petitions and
    Cablevision filed a reply.[^4] In addition, the Ratepayer Advocate
    filed a Motion for Discovery as well as additional comments in
    response to a later issued Public Notice involving the communities
    of Elizabeth and West Milford.[^5] Cablevision filed a reply to
    those comments.[^6] We grant the petitions finding that the
    Cablevision cable systems are subject to effective competition in
    the noted Communities.

2.  In the absence of a demonstration to the contrary, cable systems are
    presumed not to be subject to effective competition,[^7] as that
    term is defined by Section 623(1) of the Communications Act, and
    Section 76.905 of the Commission\'s rules.[^8] 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.[^9]

# DISCUSSION

3.  Section 623(l)(1)(B) of the Communications Act provides that a cable
    operator is subject to effective competition if its franchise area
    is (a) served by at least two unaffiliated multi-channel video
    programming distributors (\"MVPDs\"), 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.[^10] Turning to the first prong of this test, the DBS service
    of DirecTV, Inc. ("DirecTV") and DISH Network ("DISH") is presumed
    to be technically available due to its nationwide satellite
    footprint, and presumed to be actually available if households in a
    franchise area are made reasonably aware that the service is
    available.[^11] The two DBS providers' subscriber growth reached
    approximately 26.1 million as of June, 2005, comprising
    approximately 27.7 percent of all MVPD subscribers nationwide;
    DirecTV was the second largest, and DISH the third largest, MVPD
    provider during that period.[^12] In view of this DBS growth data,
    and the data discussed below showing that more than 15 percent of
    the households in the Communities at issue are DBS subscribers, we
    conclude that the population of the Communities at issue here may be
    deemed reasonably aware of the availability of DBS services for
    purposes of the first prong of the competing provider test. With
    respect to the issue of program comparability, we find that the
    programming of the DBS providers satisfies the Commission\'s program
    comparability criterion because the DBS providers offer
    substantially more than 12 channels of video programming, including
    more than one non-broadcast channel.[^13] We further find that the
    Cablevision cable systems have demonstrated that the Communities are
    served by at least two unaffiliated MVPDs, namely the two DBS
    providers, each of which offers comparable video programming to at
    least 50 percent of the households in the franchise area.[^14]
    Cablevision has also demonstrated that the two DBS providers are
    physically able to offer MVPD service to subscribers in the
    Communities; that there exists no regulatory, technical, or other
    impediments to households within the Communities taking the services
    of DBS providers; and that potential subscribers in the Communities
    have been made reasonably aware of the MVPD services of DirecTV and
    DISH.[^15] Therefore, the first prong of the competing provider test
    is satisfied.

4.  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.
    Cablevision sought to determine the competing provider penetration
    in the Communities by using 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 Zip+4 basis.[^16] Cablevision
    asserts that it is the largest MVPD in the Communities because its
    subscribership exceeds the aggregate DBS subscribership for those
    franchise areas.[^17] Cablevision asserts that the subscriber base
    for the DBS providers in Montvale is 15.34 percent; Elizabeth 17.39
    percent; and in West Milford 15.69 percent.[^18]

5.  In opposition regarding the second prong of the test, BPU alleges
    that Cablevision has not met its burden of demonstrating that the
    number of households subscribing to DBS providers exceeds 15 percent
    of the households in the Communities.[^19] BPU argues that
    Cablevision cannot meet its burden because it uses data that is not
    "contemporaneous with a nexus in time" and does not allow for a true
    analysis of the competitive nature of the franchise areas.[^20] BPU
    asserts that there is a mismatch of data because Cablevision, in
    order to show satellite penetration, uses 2000 Census data coupled
    with SBCA Zip code subscriber information based on data current
    through November 30, 2004.[^21] BPU maintains that it does not
    question whether 2000 Census data can be used as a starting point to
    determine the number of households in the franchise areas, but
    rather whether a cable operator should be required to provide the
    actual number of households in the affected areas at the time of
    filing a petition.[^22] BPU argues that the use of 2000 Census data
    in conjunction with DBS subscriber information that is nearly five
    years older cannot be used to make an appropriate determination of
    effective competition.[^23] BPU argues that the Commission should
    apply a "complete when filed" rule and dismiss the petitions; or
    alternatively, provide an opportunity for discovery and hearing in
    this matter.[^24]

6.  The Ratepayer Advocate also argues that Cablevision's 2000 Census
    household data is deficient because it is not the most recent data
    available and, therefore, the competing provider test cannot be
    satisfied in this case.[^25] The Ratepayer Advocate asserts that the
    number of households in the municipalities has increased and states
    that its data is based on information obtained from the
    municipalities and from information from an independent third party
    demographic entity, Claritas, Inc.[^26] The Ratepayer Advocate
    asserts that the data provided by Claritas, Inc., described as a
    source of marketing information about American consumers and
    businesses, confirms growth in the Communities thereby requiring an
    upward adjustment to the 2000 Census figures.[^27]

7.  In the Township of West Milford, the Ratepayer Advocate states that
    the number of new households since 2000 is 519, resulting in a total
    of 9,709 households in 2004.[^28] Accordingly, the Ratepayer
    Advocate asserts that with this household adjustment, competing
    provider subscribership drops to 14.85 percent.[^29] The Ratepayer
    Advocate also states that the Borough of Montvale reports that there
    are 2,643 households located there and; therefore, the competing
    provider subscribership stands at 14.56 percent.[^30]

8.  With regard to the City of Elizabeth, the Ratepayer Advocate states
    that it has received information from the City regarding current
    households as well as satellite penetration. The Ratepayer Advocate
    asserts that between 2000 and 2004, Elizabeth households increased
    by a total of 1,721 new households.[^31] In addition, the Ratepayer
    Advocate states that the City conducted a visual survey of three
    Census tracts deemed to be representative of the City as a whole and
    determined that the overall satellite penetration for these tracts
    was 9 percent.[^32] The Ratepayer Advocate asserts that there are
    many homes with more satellite dishes than there are households at
    the same location.[^33] The Ratepayer Advocate states that
    approximately 53 homes should be added to what it calls the
    denominator of the competitive provider test for the tracts surveyed
    in Elizabeth.[^34] The Ratepayer Advocate asserts more information
    from DBS providers is needed to permit analysis of the DBS
    penetration rate because many households have more than one
    dish.[^35]

9.  The Ratepayer Advocate, along with the BPU, requests that the
    Commission apply a "complete when filed" rule and dismiss the
    petition.[^36] In the event that the Commission does not dismiss the
    petition, the Ratepayer Advocate requests that the Commission grant
    its Motion for Discovery and requests that a new pleading cycle be
    established.[^37]

10. In reply, Cablevision argues that the Commission's rules support its
    reliance upon the most recent Census data in order to measure homes
    passed in the Communities.[^38] Cablevision also argues that the
    Ratepayer Advocate and the BPU have offered no evidence to rebut its
    showing that the Communities are subject to effective
    competition.[^39] Contrary to the Ratepayer Advocate's claim,
    Cablevision asserts that there is no basis for concluding that the
    homes passed tests proffered by the Ratepayer Advocate would be more
    accurate than Census data.[^40] Cablevision argues that these tests
    based on estimates, projections, and tax assessments do not provide
    an accurate and reliable determination of the number of households
    in the Communities.[^41]

11. Cablevision also argues that there is no requirement that a single
    family home with more than one dish be counted as an additional
    household.[^42] Cablevision points out that the Commission has
    stated that it has presumed that Congress did not intend
    "households" to have a different meaning than in the 1990
    Census.[^43] Cablevision notes that there could be many reasons why
    a single-family household would have more than one dish and these
    reasons would not require an adjustment of the Census household
    data. Cablevision states that in the early days of DBS, a separate
    dish was required in order for a household to watch different
    programming because the presence of a separate receiver was not
    enough.[^44] Cablevision also asserts that once a dish is placed on
    a rooftop or secured to the side of a house, some subscribers may be
    reluctant to remove the old dish when they change providers or
    upgrade to a new dish because they don't want to damage their roof
    or other property.[^45]

12. Cablevision also argues that even if the Commission were to give
    credence to the household numbers as suggested by the Ratepayer
    Advocate, Cablevision would still be subject to effective
    competition.[^46] Cablevision submits that its original household
    numbers for the Communities did not exclude seasonal households as
    provided for under the Commission's rules.[^47] Further, Cablevision
    argues, that at a minimum, its submitted Census household figures
    also should reflect the vacancy rate for the Communities and those
    households that may have been demolished since 2000.[^48] Therefore
    with household adjustments based on the vacancy rate and the removal
    of seasonal and demolished homes, Cablevision argues that it would
    still be subject to effective competition in the Communities.[^49]

13. In addition, Cablevision argues that there is no basis for adjusting
    the DBS subscriber data provided by SBCA based on the information
    offered by the Ratepayer Advocate.[^50] Cablevision argues that the
    visual inspection of satellite dishes conducted by the Ratepayer
    Advocate should be rejected because it is not a reliable way to
    measure DBS subscribership.[^51] Cablevision contends that many dish
    owners seek to hide their dishes from plain view for aesthetic and
    property value reasons.[^52] In addition, Cablevision argues that
    the visual inspection is only based on three Census tracts of land
    in Elizabeth, yet there are more than 24 Census tracts in
    Elizabeth.[^53] Moreover, Cablevision argues that while the
    Ratepayer Advocate asserts that these three tracts are
    representative of the entire Community, there is no evidence to
    suggest that this 12 percent figure is an appropriate sampling of
    DBS subscribership in Elizabeth.[^54]

14. In its additional comments,[^55] the Ratepayer Advocate disputes the
    household numbers submitted by Cablevision in its reply arguing that
    the Commission's rules do not allow for factoring in vacancy rates
    or demolished homes.[^56] The Ratepayer Advocate also argues that
    its prior submissions are corroborated because data contained in The
    New Jersey Construction Reporter shows that housing growth in the
    Communities far exceeds the number of demolitions in every year
    since 2000.[^57]

15. Cablevision disputes the Ratepayer Advocate's assertion that there
    is no provision in the Commission's rules to factor in a vacancy
    rate to the household data submitted by the Ratepayer Advocate.[^58]
    Cablevision argues that the Commission has clearly stated that
    households for purposes of effective competition determinations
    reflect only occupied housing units.[^59] Cablevision argues that
    any attempt by the Ratepayer Advocate to extrapolate household data
    from the number of new structures constructed or the number of
    building permits issued does not demonstrate that the building is
    occupied full time and would qualify as a household.[^60]
    Cablevision asserts that its examination of The New Jersey
    Construction Reporter shows that none of the household definitions
    meets the Commission's requirements.[^61]

16. With regard to Cablevision's reliance on 2000 Census data, we find
    that the arguments of both the BPU and the Ratepayer Advocate are
    without merit. The Commission has held consistently that 2000 Census
    data is a sufficiently reliable means for making effective
    competition determinations.[^62] The Commission previously rejected
    arguments similar to those made by the Ratepayer Advocate and the
    BPU that the use of 2000 Census household data to determine the
    aggregate DBS penetration within a Community is inappropriate
    because an area is rapidly growing and 2000 Census data is not
    reflective of the most current data.[^63] In that instance, the
    Commission affirmed that for effective competition purposes it is
    appropriate to utilize the U.S. Census Bureau's data.[^64] We also
    reject the assertions of the Ratepayer Advocate and the BPU that
    there is a mismatch between the Census household data and the DBS
    penetration data. The Commission has relied upon Census data in
    effective competition cases where the differential between the data
    of the Census information and the date of the petition was greater
    than five years.[^65] We disagree with the Ratepayer Advocate's
    interpretation of prior effective competition cases as standing for
    the proposition that the Commission has rejected the use of what the
    Ratepayer Advocate terms as stale data in making effective
    competition determinations.[^66]

17. The Ratepayer Advocate also has provided no basis for relying upon
    its alternative household numbers based upon Certificate of
    Occupancy ("CO") and tax assessment data. The Commission has
    rejected similar arguments presented by the Ratepayer Advocate that
    COs are a reliable indicator of an increase in the number of
    households in a community.[^67] In this case, the Ratepayer Advocate
    has not made clear that the COs issued in the Communities represent
    the addition of new households. In fact, the issuance of a CO may
    indicate a net decrease in the number of households within a
    community. In that regard, a CO may be issued after an older
    multiple dwelling unit has been torn down and replaced with a newer
    building, thereby representing no net household increase. Likewise,
    no net household increase is reflected when COs are issued after an
    addition or improvement to a property has been made, when title to
    property is transferred, or when a CO is issued in order for a
    homeowner to secure refinancing on a property. As for tax
    assessments, there is no correlation between the number of
    properties located in a community for tax purposes and the number of
    households in the community. As the Commission has noted, the term
    households for effective competition purposes reflects only occupied
    housing units.[^68] Tax assessments take all property into account
    and are not limited to occupied housing units. As we have stated, we
    regard the use of the number of taxable residential properties in a
    franchise area to be unreliable data for effective competition
    purposes because a property is taxed whether or not it is
    occupied.[^69]

18. We also find that the Ratepayer Advocate has not provided any
    evidence to convince us that the data compiled by Claritas, Inc. is
    more reliable than the Census data normally utilized by the
    Commission. This data appears to be based on projections or
    estimates from Census data that utilizes a variety of sources to
    indicate changes following the Census.[^70] The Ratepayer Advocate
    does not provide a sufficient explanation of the sources used or the
    methodology employed in calculating submitted data.[^71] We
    acknowledge that the household update estimates obtained from
    Claritas may serve as more accurate household figures for
    determining effective competition in the communities at issue.
    However, the record does not adequately reflect a complete and
    thorough explanation of the methodology that Claritas used to arrive
    at these estimates. We cannot blindly assume that such estimates are
    superior to the 2000 Census information submitted by Cablevision.
    Without more, we cannot conclude that there is any basis for
    determining that those estimates should be substituted for the most
    recent Census data.

19. We do not agree that the SBCA subscribership data submitted by
    Cablevision warrants adjustment based on Ratepayer Advocate
    submissions. We agree with Cablevision that visual observation of
    DBS dishes is not a reliable method of measuring DBS subscribership
    because of dish owners' desires to conceal dish visibility for
    aesthetic and property value reasons. There is also no basis to
    accept as reliable Ratepayer Advocate's visual inspection of dishes
    on only three out of more than 24 Census tracts in Elizabeth.[^72]
    Aside from its own assertions, the Ratepayer Advocate provides no
    evidence to prove that these three tracts are representative of the
    entire Community. The Commission has consistently relied upon DBS
    subscribership information provided by organizations such as
    SkyTrends, Media Business Corporation, and SBCA.[^73] Moreover, the
    Commission has specifically stated that it has discerned no
    rationale that leads it to conclude that anecdotal visual
    observations of DBS dishes are inherently more reliable than
    commercially available DBS subscribership reports compiled from data
    obtained directly from the DBS providers.[^74]

20. We note, however, that the Media Bureau did request additional
    information from Cablevision regarding its SBCA submission.[^75] The
    Bureau requested that Cablevision supplement its petitions to
    provide the list of zip codes used by the SBCA to determine the
    number of DBS subscribers in Montvale, Elizabeth and West
    Milford.[^76] Cablevision filed a Supplement containing that
    information.[^77] The New Jersey Division of Rate Counsel ("Rate
    Counsel") filed a response to Cablevision's Supplement.[^78]
    Cablevision filed a response to Rate Counsel's filing.[^79]

21. Rate Counsel argues that the additional SBCA information submitted
    by Cablevision is unreliable. As an example, Rate Counsel asserts
    that Cablevision serves the entire City of Elizabeth which,
    according to the United States Postal Service, spans four zip codes
    -- 07210, 07202, 07206 and 07208 (a fifth zip code, 07207, pertains
    to P.O. Box addresses).[^80] However, according to Rate Counsel,
    Cablevision's Supplement does not include any information relative
    to 07206 or 07208 and provides no explanation regarding the absence
    of that information.[^81] In addition, Rate Counsel asserts that
    Saddle River Borough has a zip code of 07458 and is listed as a zip
    code under Montvale.[^82] Rate Counsel contends, however, that
    Montvale is in the Cablevision Rockland/Ramapo system and Saddle
    River is not.[^83] Moreover, Rate Counsel argues that the listing
    for West Milford includes zip code 07403 and according to the Postal
    Service is assigned to Bloomingdale.[^84] According to Rate Counsel,
    however, Bloomingdale falls under the Cablevision of Oakland system
    and not Cablevision of Warwick. [^85]

22. Cablevision responds that it inadvertently excluded the Zip+4 codes
    for 07206 and 07208 in Elizabeth and submits a corrected
    exhibit.[^86] Cablevision asserts that the only difference between
    the corrected exhibit and the one submitted with its Supplement is
    the Zip+4 codes associated with 07206 and 07208, and these are zip
    codes that Rate Counsel acknowledges should be included in computing
    DBS subscribership counts for Elizabeth. Cablevision further asserts
    that the exclusion or the inclusion of these zip codes has no effect
    on the household count for Elizabeth because that number is based on
    2000 Census data. [^87] Cablevision also counters that it did not
    wrongly include 07458 in the listing of zip codes for Montvale.
    Cablevision submits a map demonstrating that the two Zip+4 listings
    provided for 07458 are contained within the Montvale franchise
    area.[^88] Likewise, Cablevision also submits a map demonstrating
    that the Zip+4 listing questioned by Rate Counsel in the West
    Milford franchise area was properly included.[^89] We therefore find
    no basis for disputing the penetration figures computed by
    Cablevision in its petitions.

23. In view of the foregoing, we are satisfied that the 2000 Census data
    and the SBCA information submitted by Cablevision is sufficiently
    reliable for making the necessary effective competition
    determinations in these proceedings. The Census data reflects
    occupied housing units as required.[^90] In that regard, we find it
    unnecessary to rely upon Cablevision's revised submissions based on
    the Ratepayer Advocate's revised household counts and adjusted by
    Cablevision based on vacancy rates, seasonal housing and demolished
    housing. Additionally, we find none of the supplemental data
    submitted by the Ratepayer Advocate to be persuasive or reliable in
    altering our findings. Accordingly, based upon the aggregate DBS
    subscriber penetration levels as reflected in the Communities at
    issue, calculated using 2000 Census household data, we find that
    Cablevision 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 those noted
    Communities. Based on the foregoing, we conclude that Cablevision
    has submitted sufficient evidence demonstrating that their cable
    systems serving those Communities are subject to competing provider
    effective competition.[^91]

24. Accordingly, we deny requests for discovery in this matter. The
    Commission is entitled to rely on the presumptive accuracy of Census
    data and the DBS penetration data obtained from independent sources
    as previously discussed. Cablevision satisfied its evidentiary
    burden in these cases and neither the Ratepayer Advocate nor the BPU
    adequately refuted the submitted evidence. We find no reason to
    conduct further proceedings in this matter in order to resolve the
    alleged factual discrepancies argued by the opposing parties. We
    also reject any arguments calling for a "complete when filed" rule.
    Cablevision's petitions were complete when filed as they
    incorporated complete and accurate information as discussed above
    and affirmed by our previous decisions. We disagree with Rate
    Counsel that the filing of Cablevision's Supplement containing
    further zip code information, pursuant to the Commission's request,
    is clear evidence that the petitions were not complete when
    filed.[^92] Because Rate Counsel was given the opportunity to
    comment on Cablevision's Supplement, Rate Counsel was not prejudiced
    in any way by the filing of the Supplement. We also believe that the
    adjudication of a specific effective competition case is an
    inappropriate forum to impose such a rule that has broad
    implications for all effective competition cases.[^93]

# ORDERING CLAUSES

25. Accordingly, **IT IS ORDERED** that the petitions filed by
    Cablevision of Rockland/Ramapo, Inc., CSC TKR, Inc. d/b/a
    Cablevision of Elizabeth, and Cablevision of Warwick LLC for a
    determination of effective competition in Montvale, Elizabeth and
    West Milford, New Jersey **ARE GRANTED.**

26. **IT IS FURTHER ORDERED** that the certifications to regulate basic
    cable service rates granted to any of the local franchising
    authorities overseeing Cablevision of Rockland/Ramapo, Inc., CSC
    TKR, Inc. d/b/a Cablevision of Elizabeth, and Cablevision of Warwick
    LLC in the affected Communities **ARE REVOKED.**

27. This action is taken pursuant to delegated authority pursuant to
    Section 0.283 of the Commission's rules.[^94]

FEDERAL COMMUNICATIONS COMMISSION

Steven A. Broeckaert

Deputy Chief, Policy Division

Media Bureau

[^1]: 47 C.F.R. §§ 76.7, 76.905, 76.907; 47 U.S.C. § 543(a)(1).

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

[^3]: *Id.*; *see also* 47 U.S.C. § 543(1)(1)(D); 47 C.F.R. §
    76.905(b)(4).

[^4]: The BPU and the Ratepayer Advocate requested extensions of time
    for the filing of comments or oppositions in this matter. The BPU
    and the Ratepayer Advocate state that Cablevision consented to these
    requests. Cablevision also filed a request for an extension of time
    to file its reply. Cablevision states that both the BPU and the
    Ratepayer Advocate consented to its request. The requests for
    extensions of time are granted.

[^5]: Due to filing fee issues, the Commission issued an additional
    Public Notice in this case assigning two additional CSR numbers --
    CSR-6670-E for Elizabeth and CSR-6671-E for West Milford. Filings
    for each community required separate petitions and separate filing
    fees because each of the cable systems involved are not physically
    integrated systems. The original CSR number assigned to the case --
    CSR-6537-E -- now only applies to Montvale. The Ratepayer Advocate
    states that it did not completely understand the reason for the
    issuance of a new Public Notice, yet believed it necessary to file
    additional comments. *See* Comments of the New Jersey Division of
    the Ratepayer Advocate in Opposition to the Petitions for a
    Declaration of Effective Competition at 1 ("Ratepayer Advocate
    Comments").

[^6]: Cablevision filed its reply comments arguing that the Ratepayer
    Advocate's Comments should be rejected as procedurally defective.
    Cablevision also responded substantively to the Comments. Because
    petitions for effective competition are not placed on Public Notice
    unless all regulatory fees have been paid and because of the
    confusion surrounding the issuance of two Public Notices in the
    proceeding, we will consider the additional Ratepayer Advocate
    Comments and Cablevision's reply pleading filed in this proceeding
    in the interest of compiling a complete record in this matter.

[^7]: ^ ?^47 C.F.R. § 76.906.

[^8]: ^ ?^ 47 C.F.R. § 76.905.

[^9]: ^?^*See* 47 C.F.R. §§ 76.906 & 907.

[^10]: 47 U.S.C. § 543(1)(1)(B); *see also* 47 C.F.R. § 76.905(b)(2).

[^11]: *See MediaOne of Georgia*, 12 FCC Rcd 19406 (1997).

[^12]: *Twelfth Annual Assessment of the Status of Competition in the
    Market for the Delivery of Video Programming*, FCC 06-11 at ¶¶ 6,
    13, 72-73 (rel. March 3, 2006).

[^13]: *See* 47 C.F.R. § 76.905(g).

[^14]: Cablevision Petition at 4, 13 and Exhibits 4 & 5.

[^15]: *Id.* at 4, 12 and Exhibits 1 & 2.

[^16]: *Id.* at 6, 14 and Exhibits 7 & 8.

[^17]: *Id.* at 5, 14 and Exhibit 1. Cablevision provides the
    Declaration of Elizabeth Losinski, Vice President of Cable Policy
    for Cablevision Systems Corporation at ¶ 5 stating that Cablevision
    is the largest MVPD in the Montvale, Elizabeth and West Milford
    communities (January 31, 2005).

[^18]: *Id.* at 6 (Table I) and 15 (Table II); *see also* Exhibit 6
    (U.S. Census Bureau information) and Exhibit 7 (SBCA's Effective
    Competition Tracking Report); for Montvale 385 DBS subscribers ÷
    2,509 Montvale 2000 Census Households = 15.34%; for Elizabeth 7,040
    DBS subscribers ÷ 40,482 Elizabeth 2000 Census Households = 17.39%;
    for West Milford 1,255 DBS subscribers (+ 187 Local Exchange Carrier
    ("LEC") Hometown Online subscribers) (Total 1,442) ÷ 9,190 West
    Milford 2000 Census Households = 15.69%.

[^19]: BPU Opposition at 4.

[^20]: *Id.* at 3.

[^21]: *Id.*

[^22]: *Id.* at 4.

[^23]: *Id.*

[^24]: *Id.* at 2.

[^25]: Ratepayer Advocate Opposition at 4.

[^26]: *Id.* at 4-6 and Certification in Support of Comments on Behalf
    of The New Jersey Division of The Ratepayer Advocate by Jose
    Rivera-Benitez, Esq., Assistant Deputy Ratepayer Advocate
    ("Rivera-Benitez Certification").

[^27]: Ratepayer Advocate Opposition at 12 and Exhibit E.

[^28]: Ratepayer Advocate Opposition at 6.

[^29]: *Id*. and Rivera-Benitez Certification at ¶ 3. In support, the
    Certification refers to Exhibit A (March 11, 2005 Letter from Gale
    Barth, C.T.A., Deputy Tax Assessor to Jose Rivera-Benitez regarding
    new homes constructed in West Milford since 2000). In order to reach
    its figure, the Ratepayer Advocate combined the West Milford DBS
    subs. (1,255) with the LEC Subs. (187) for a total of 1,442 ÷ 9,709
    = 14.85%.

[^30]: *Id.* and Rivera-Benitez Certification at ¶ 4. In support, the
    Certification refers to Exhibit B (March 9, 2005 Letter from Michael
    Leposky, Montvale Assessor to Jose Rivera-Benitez estimating the
    number of households in the Borough). Thus, given 385 DBS subs. ÷
    2,643 estimated Montvale households = 14.56 %

[^31]: *Id.* and Rivera-Benitez Certification at ¶ 5. Exhibit C contains
    a March 10, 2005 Letter from Rocco DiPaola, Second Assistant City
    Attorney, City of Elizabeth to Henry Ogden, Ratepayer Advocate with
    a list compiled by the Construction Bureau of the City of Elizabeth
    of new residential Certificate of Occupancies issued from 2000-2004.

[^32]: *Id.* and Rivera-Benitez Certification at ¶ 5. Exhibit D contains
    a March 24, 2005 Letter from Oscar Ocasio, Planning & Community
    Development for the City of Elizabeth to Jose Rivera Benitez
    regarding the results of the visual survey performed.

[^33]: *Id.* at 6. As an example, the Ratepayer Advocate states that the
    count for Tract 314 shows that there are three single family homes
    with more than one dish, one two-family home with more than two
    dishes and two three-family homes with more than three dishes. *See
    also* Rivera-Benitez Certification at ¶ 6.

[^34]: Rivera-Benitez Certification at ¶ 6.

[^35]: Ratepayer Advocate Opposition at 6 and Rivera-Benitez
    Certification at ¶ 6.

[^36]: Ratepayer Advocate Opposition at 11.

[^37]: *Id.* at 14.

[^38]: Cablevision Reply at 5.

[^39]: *Id.* at 9.

[^40]: *Id.*

[^41]: *Id.*

[^42]: *Id.* at 13.

[^43]: *Id.*, citing *Implementation of Sections of the Cable Television
    Consumer Protection and Competition Act of 1992; Rate Regulation
    Buy-Through Prohibition*, 9 FCC Rcd 4316 (1994). Accordingly, a
    "household" for both Census and effective competition purposes is an
    occupied housing unit. A housing unit is a house, an apartment, a
    mobile home, a group of rooms, or a single room occupied (or if
    vacant, is intended for occupancy) as separate living quarters.
    Separate living quarters are those in which the occupants live and
    eat separately from any other persons in the building and which have
    direct access from the outside of the building or through a common
    hall. *See* U.S. Bureau of the Census, Definition of Household, 2000
    Census of Population.

[^44]: Cablevision Reply at 14.

[^45]: *Id.*

[^46]: *Id.* at 16.

[^47]: *Id.*; *see also* 47 C.F.R. § 76.905(c).

[^48]: *Id.* at 16-17. Cablevision notes that the 2000 Census data
    provides a vacancy rate for each of the communities. *See* Petition
    at Exhibit 6. Cablevision also states that its data regarding
    demolished homes was obtained from the New Jersey Department of
    Community Affairs. *See* Cablevision Reply at n.55, Exhibit 4.

[^49]: *Id.* at 17-18. Making those adjustments, Cablevision asserts
    that DBS penetration in Montvale would be 15.18%; in Elizabeth 17%;
    and, in West Milford 15.59%. *Id.* at 18.

[^50]: *Id.* at 18.

[^51]: *Id.* at 19.

[^52]: *Id.*

[^53]: *Id.* and Exhibit 5.

[^54]: Cablevision Reply at 19.

[^55]: *See* *supra* nn.5-6.

[^56]: Ratepayer Advocate Comments at 3.

[^57]: *Id.* and Exhibit A.

[^58]: Cablevision Reply to Ratepayer Advocate Comments at 4.

[^59]: *Id.*, citing *Tel-Com, Inc. Petition for Revocation of the
    Certification of the West Virginia Cable Television Advisory Board
    to Regulate Basic Cable Rates*, 11 FCC Rcd 9153, n.17 (1996).

[^60]: Cablevision Reply to Ratepayer Advocate Comments at 4.

[^61]: *Id.*

[^62]: *See*, *e.g.,* *Cablevision of Raritan Valley, Inc. et al.,* 19
    FCC Rcd 6966 (2004); *Texas Cable Partners*, 17 FCC Rcd 6373 (2002);
    *Falcon Cable Systems*, 17 FCC Rcd 4648 (2002).

[^63]: *See* *Mediacom Minnesota LLC*, 18 FCC Rcd 12768, 12770 (2003).

[^64]: *Id.* at 12771.

[^65]: *See, e.g., Jones Intercable, Inc.*, 15 FCC 7254, 7256 at n.12
    (2000); *Tel-Com, Inc. Petition for Revocation of the West Virginia
    Cable Television Advisory Board to Regulate Basic Cable Rates*, 11
    FCC Rcd 9153, 9159 at n.36.

[^66]: In the *Charter Communications* case cited by the Ratepayer
    Advocate, the Commission only required Charter to submit updated
    household information because it found that Charter relied on 1990
    Census data when 2000 data was available. Because Charter later
    submitted the most recent Census data available, *Charter
    Communications* does not support the Ratepayer Advocate's arguments
    in this case. *See Falcon Cable Systems Company II, a California
    Limited Partnership, d/b/a Charter Communications*, 17 FCC Rcd 4648,
    4650 (2002) ("*Charter Communications*"). We also disagree that
    either *Texas Partners* or *Texas Cable* applies here. In those
    cases, the Commission allowed for incorporation of a growth factor
    to the Census data to establish current household numbers, but did
    not require the submission of that information. Only when the cable
    operator filed data different than the most recent Census data did
    the Commission require the operator to demonstrate the accuracy and
    reliability of that data. *See* *Texas Cable Partners (City of Alvin
    et al.)*, 16 FCC Rcd 4718, 4721 at n.29 (2001) ("*Texas Partners*");
    *Texas Cable Partners* *(in Certain Texas Communities)*, 16 FCC Rcd
    4886, 4888 (2001) (*"Texas Cable"*).

[^67]: *Cablevision of Raritan Valley, Inc. et al.*, 19 FCC Rcd 6966,
    6968 (2004). In that case, the Commission noted that COs do not
    automatically indicate that a residence is occupied; that a CO may
    actually be a re-issuance of a lost certificate; and, the issuance
    of a CO may indicate a diminution of the number of households in a
    franchise area -- such as when a small apartment building is
    demolished and replaced with a single family home. *Id.* at 6968;
    s*ee also Marcus Cable Associates. LLC d/b/a Charter Communications
    (Order on Reconsideration)*, 18 FCC Rcd 9649, 9652 (2003). In that
    case, the Commission stated that with respect to residences recently
    granted certificates of occupancy, it did not believe that local
    inspections and permits indicating that a building was ready for
    occupancy demonstrated that the building was in fact occupied full
    time such that it would qualify as a household under the Census
    definition. *Id.* at 9652.

[^68]: *See* *supra* n.59.

[^69]: *See* *Cablevision of Raritan Valley, Inc.*, 19 FCC Rcd at 6968.

[^70]: Ratepayer Advocate Opposition at Exhibit E.

[^71]: Cablevision submits that while the Ratepayer Advocate does not
    provide detail on the sources of estimates used or the methodology
    employed to garner them, its review of the Claritas' website
    indicates that it relies upon information supplied by the National
    Planning Data Corporation, Donnelly Marketing Information Services,
    and the National Decision Systems, all demographic data firms.
    Cablevision further states that estimates are based on Claritas own
    data and on an undefined term called "Market Statistics." *See*
    Cablevision Reply at 15 and Exhibit 3. Based on this information, it
    appears that Claritas primarily uses data from other demographic
    firms or sources in order to arrive at its own estimates. There is
    nothing to discount that the information from these firms or sources
    may then, in turn, be based on estimates from other sources. We
    therefore cannot conclude that Claritas data is more reliable or
    accurate than the most recent Census data.

[^72]: *See* Cablevision Reply, Exhibit 5 (Census Tract Outline Map --
    Census 2000).

[^73]: *See Texas Partners*, 16 FCC Rcd 4718, 4721 (2001) (SkyTrends
    data); *Adelphia Cable Communications*, 20 FCC Rcd 4979, 4981 (2005)
    (Media Business Corporation); *BeamSpeed, LLC*, 19 FCC Rcd 12836,
    12837 (2004) (SBCA).

[^74]: *See Cablevision of Paterson d/b/a Cablevision of Allamuchy, N.J.
    et al.*, 17 FCC Rcd 17239, 17243 (2002).

[^75]: *See* Letter to Christopher J. Harvie, Esq. *et al.* from Steven
    A. Broeckaert, Deputy Chief, Policy Division, Media Bureau (February
    23, 2007).

[^76]: *Id.*

[^77]: See Supplement to Petition for Determination of Effective
    Competition filed March 22, 2007. Cablevision provided ZIP+4 records
    for each of the communities on separate exhibits that identified the
    applicable franchise area, the CUID number, and the CSR number
    assigned by the Commission.

[^78]: *See* Response on Behalf of the The New Jersey Division of Rate
    Counsel to the Evidentiary Supplement by Cablevision filed May 21,
    2007. Rate Counsel filed an Opposition against the Petitions under
    the title of the New Jersey Division of the Ratepayer Advocate.

[^79]: *See* Letter to Marlene H. Dortch, Secretary, FCC from
    Christopher J. Harvie, Esq. and Angela F. Collins, Esq. filed June
    6, 2007 ("Cablevision June 6, 2007 Letter").

[^80]: Rate Counsel Response at 3 and attached USPS zip code matches for
    Elizabeth, NJ.

[^81]: Rate Counsel Response at 3.

[^82]: *Id.*

[^83]: *Id.*

[^84]: *Id.*

[^85]: *Id.*

[^86]: Cablevision June 6, 2007 Letter at 2.

[^87]: *Id.* at n.6.

[^88]: *Id.* at 2 and Exhibit 1 (Declaration of Pinna Gallant, Media
    Business Corp., ¶ 4 ("Gallant Declaration") and Attachment A (map of
    Montvale).

[^89]: *Id.* at 2 and Gallant Declaration ¶ 5 and Attachment B (map of
    West Milford).

[^90]: *See supra nn.* 43 and 59.

[^91]: Because we find that Cablevision is subject to competing provider
    effective competition in its West Milford franchise area, we need
    not address its alternative argument with regard to the LEC
    effective competition test.

[^92]: *See* Rate Counsel Response at 2-3.

[^93]: We agree with Cablevision that it is inappropriate to change
    procedural filing requirements in these cases at this point in time.
    Cablevision Reply at n.23. *See e.g., Joint Application by SBC
    Communications Inc., Southwestern Bell Telephone Company, and
    Southwestern Bell Communications Services, Inc. d/b/a Southwestern
    Bell Long Distance for Provision of In-Region, InterLATA Services in
    Kansas and Oklahoma,* 16 FCC Rcd 6237, 6246 (2001) (noting that
    "narrowly focused adjudications are often inappropriate forums for
    the considered resolution of industry-wide questions of general
    applicability").

[^94]: 47 C.F.R. § 0.283.