Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of:                | * | CSR-5592-E                   |
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| Constel Communications, L.P.     | ) |                              |
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| Petition for Determination of    | * |                              |
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| Competition in Pasco County,     | * |                              |
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| (CUID Nos. FL1175, FL1243)       | * |                              |
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MEMORANDUM OPINION AND ORDER

**Adopted: February 2, 2001 Released: February 8, 2001**

By the Deputy Chief, Cable Services Bureau:

# INTRODUCTION

1.  Constel Communications, L.P. ("Constel") has filed a petition,
    pursuant to Section 623(a)(1) of the Communications Act of 1934, as
    amended, ("Communications Act") and Sections 76.7(a)(1) and
    76.905(b)(1) of the Commission's rules, seeking a determination of
    effective competition regarding unincorporated areas of Pasco
    County, Florida (the "Community Units").[^1] Constel argues that its
    cable systems are subject to effective competition for all purposes,
    including but not limited to, exemption from the cable/SMATV
    cross-ownership prohibition as set forth in Section 613(a)(3) of the
    Communications Act and Section 76.501(f) of the Commission's
    rules.[^2] Constel claims that there is effective competition in the
    Pasco County Community Units because fewer than thirty percent of
    the households in the Community Units subscribe to the cable
    services of Constel's cable systems serving the Community Units. No
    opposition to the petition was filed.

# Background

2.  In the absence of a demonstration to the contrary, cable systems are
    presumed not to be subject to effective competition.[^3] The cable
    operator bears the burden of rebutting the presumption that
    effective competition as defined by Section 76.905 of the
    Commission's rules,[^4] is present within the relevant franchise
    area.[^5] Section 623(1)(1)(A) of the Communications Act provides
    that a cable operator is subject to low penetration effective
    competition if "fewer than 30 percent of the households in the
    franchise area subscribe to the cable service of a cable
    system."[^6] The low penetration effective competition test requires
    cable operators to prove the existence of effective competition
    using the most recent household and subscriber data for the
    authorized area in the franchise.[^7] With respect to household
    data, the Commission has stated that cable operators may rely upon
    data from the 1990 Census and, if they so choose, may submit more
    recent household data.[^8]

# DISCUSSION

3.  Constel submitted evidence regarding household and subscriber data
    that shows that its cable systems serve less than 30 percent of
    households in the Community Units at issue. Constel provided
    occupied household data based on 1990 Census data from the
    unincorporated portions of Pasco County, which it then used to
    calculate subscriber-to-occupied household penetration ratios.
    Constel provided data showing that it had a total of 774 subscribers
    in Community Unit FL1175 where there were 108,384 occupied
    households, thus yielding a penetration ratio of 0.7%.[^9] Constel
    also provided data showing that it had a total of 29 subscribers in
    Community Unit FL1243 where there were 108,384 occupied households,
    thus yielding a penetration ratio of 0.03%.[^10] Based on this
    record, we conclude that Constel has demonstrated that its cable
    systems meet the requirements of low penetration effective
    competition under our rules and we, therefore, grant its
    petition.[^11]

# ORDering Clauses

4.  Accordingly, **IT IS ORDERED** that the petition for a determination
    of effective competition filed by Constel Communications, L.P. **IS
    GRANTED.**

5.  This action is taken pursuant to authority delegated under Section
    0.321 of the Commission's rules.[^12]

    FEDERAL COMMUNICATIONS COMMISSION

William H. Johnson

Deputy Chief, Cable Services Bureau

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

[^2]: In pertinent part, Section 613(a)(3) states: It shall be unlawful
    for a cable operator to hold a license for multichannel multipoint
    distribution service, or to offer satellite master antenna
    television service separate and apart from any franchised cable
    service, in any portion of the franchise area served by that cable
    operator's cable system. The Commission \--

    \(3\) shall not apply the requirements of this subsection to any
    cable operator in any franchise area in which a cable operator is
    subject to effective competition as determined under section 623(1).
    47 U.S.C. § 533(a)(3); *see also* 47 C.F.R. § 76.501(f).

[^3]: 47 C.F.R. § 76.906.

[^4]: 47 C.F.R. § 76.905.

[^5]: 47 C.F.R. § 76.907(b).

[^6]: 47 U.S.C. § 543(1)(1)(A); 47 C.F.R. § 76.905(b)(1).

[^7]: *See Implementation of Sections of the Cable Television Consumer
    Protection and Competition Act of 1992*, First Report on
    Reconsideration, Second Report and Order, and Third Notice of
    Proposed Rulemaking, 9 FCC Rcd 1164, 1180 (1993).

[^8]: *See Cable Operators' Petitions for Reconsideration of Franchising
    Authorities' Certifications to Regulate Basic Cable Rates*, 9 FCC
    Rcd 3656 (1994).

[^9]: Petition at 4.

[^10]: *Id.* Even if we were to aggregate Constel's total subscribership
    for Pasco County (803 subscribers), Constel's penetration rate would
    still fall below the 30 percent threshold of the low penetration
    test (0.740%).

[^11]: Despite the fact that Constel's 1990 Census date is over a decade
    old, we nonetheless believe that any intervening population changes
    have not rendered our effective competition determination incorrect,
    considering that intervening household increases would only serve to
    lower Constel's penetration levels.

[^12]: 47 C.F.R. § 0.321.