Federal Communications Commission DA 09-72 
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Cablevision Systems Westchester Corp.
Petition for Determination of Effective 
Competition in Putnam Valley, New York (CUID 
NY1083)
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CSR 8095-E
MEMORANDUM OPINION AND ORDER
Adopted:  February 2, 2009 Released:  February 3, 2009
By the Senior Deputy Chief, Policy Division, Media Bureau:
I. INTRODUCTION AND BACKGROUND
1. Cablevision Systems Westchester Corp. (Petitioner) has filed with the Commission a 
petition pursuant to Sections 76.7, 76.905(b)(2) and 76.907 of the Commissions rules for a determination 
that Petitioner is subject to effective competition in the community listed on Attachment A and 
hereinafter referred to as the Community.  Petitioner alleges that its cable system serving the 
Community is subject to effective competition pursuant to Section 623(1)(1)(B) of the Communications 
Act of 1934, as amended (Communications Act),1 and the Commissions implementing rules,2 and is 
therefore exempt from cable rate regulation in the Community because of the competing service provided 
by two direct broadcast satellite (DBS) providers, DirecTV, Inc. (DirecTV), and Dish Network 
(Dish).  The Town of Putnam Valley (the Town) filed a letter opposing the petition,3 to which 
Petitioner filed a reply.4
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 623(l) of the Communications Act and 
Section 76.905 of the Commissions 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 For the reasons set forth below, we grant the petition based on our 
finding that Petitioner is subject to effective competition in the Community listed on Attachment A.  
  
1 See 47 U.S.C.  543(l)(1)(B).
2 47 C.F.R.  76.905(b)(2).
3 Letter from Maryann V. Arrien of the Community Media Department of the Town of Putnam Valley, to 
Commission Secretary, dated Dec. 26, 2008 (Opposition).
4 Reply Comments on Petition for Determination of Effective Competition (Reply), dated Jan. 12, 2009. 
5 47 C.F.R.  76.906.
6 See 47 U.S.C.  543(l)(1) and 47 C.F.R.  76.905(b).
7 See 47 C.F.R.  76.906 & 907.
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II. DISCUSSION
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 (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.8 This test is otherwise referred to as the competing provider test.
A. The First Prong of 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.9   
5. Turning to the first prong, it is undisputed that the Community is 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 MVPDs 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.10 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.11 We further find that Petitioner has 
provided sufficient evidence of DBS advertising in media that serve the Community to support their 
assertion that potential customers in the Community are reasonably aware that they may purchase the 
service of these MVPD providers.12 Petitioner also asserts without dispute that both DIRECTV and Dish 
offer service to at least 50 percent of the households in the Community because of their national 
satellite footprint.13  
1. Comparable Programming 
6. The comparable programming requirement is satisfied if a competing MVPD provider 
offers at least 12 channels of video programming, including at least one channel of nonbroadcast service 
programming.14 The petition includes copies of channel lineups for DIRECTV and Dish, both of which 
satisfy the requirement.15 The Town alleges, however, that it has several disputes with Petitioner about 
the Public, Educational, and Government (PEG) channels that are part of Petitioners cable service.16  
The Town appears to be pursuing these disputes at the New York Public Service Commission and in an 
  
8 47 U.S.C.  543(1)(1)(B); 47 C.F.R.  76.905(b)(2).
9 47 C.F.R.  76.905(b)(2)(i).
10 See Petition at 3.
11 Mediacom Illinois LLC, 21 FCC Rcd 1175, 1176,  3 (2006).
12 47 C.F.R.  76.905(e)(2).  See also Petition at Exh. 2.   
13 See Petition at 3-4.
14 See 47 C.F.R.  76.905(g).  See also Petition at 6.
15 See Petition at Exh. 4.
16 Opposition at 2-5.
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informal complaint with this Commission.17 It also appears that one of these disputes is similar to one 
between Comcast and the City of Dearborn, Michigan, that is currently under consideration by the 
Commission in the proceeding titled Petition for Declaratory Ruling Regarding Primary Jurisdiction 
Referral in City of Dearborn et al. v. Comcast of Michigan III, Inc., et al., filed December 9, 2008.  The 
Town asks that we defer ruling on the Petition until resolution of that proceeding.18
7. The Towns ongoing disputes with Petitioner about PEG channels are immaterial to this 
effective competition proceeding.  Here, the material issue is whether the DBS providers service has 
twelve channels, at least one channel of which is nonbroadcast.  There is no dispute that the DBS 
providers service exceeds those numerical minimums.  We have previously declined to complicate and 
slow effective competition proceedings with ongoing disputes about PEG channels,19 and we find that that 
is the best course of action in this proceeding.  Accordingly, we find that the DBS providers offer 
comparable programming for present purposes and that the first prong of the competing provider test is 
satisfied.  
B. The Second Prong of the Competing Provider Test 
8. 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, without objection from the Town, that it is the largest MVPD in the 
Community,20 and we see no reason to doubt that assertion.   
1. Petitioners Evidence
9. The second prong of the competing provider test requires the calculation of a ratio, in this 
case of the number of DBS subscribers in the Community (the numerator) over the number of households 
in the Community (the denominator).  Petitioner sought to determine the numerator by purchasing a 
subscriber tracking report from Media Business Corp. (MBC).  The report was based in part on nine-
digit-zip-code or zip+4 data about DBS subscriber numbers that Petitioner obtained from the Satellite 
Broadcasting and Communications Association.  MBCs report stated that the DBS providers had 555 
subscribers in the Community on September 30, 2008.21
10. Petitioner determined the denominator of the ratio called for by the competing provider 
test  the number of households in the Community  by reference to 2000 Census data, which stated that 
  
17 Id. at 3.
18 Id. at 5.
19 See, e.g., Cablevision Systems Corp., Memorandum Opinion & Order DA 08-2217 at  41 (rel. Oct. 2, 2008), 
available at 2008 WL 4449658, stay denied, Memorandum Opinion & Order DA 08-2545,  6 (rel. Nov. 20, 2008), 
available at 2008 WL 4964162, application for review pending (Cablevision); Adelphia Cable Commun., 22 FCC 
Rcd 4423, 4424-25,  4 (2007); Comcast Cable Commun., LLC, 22 FCC Rcd 694, 697-98,  8-9 (2007); CoxCom, 
Inc., 14 FCC Rcd 7134, 7141-42, 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).
20 Petition at 7.  It appears that Petitioner is not the only cable operator of long-standing in the Community, and that 
Comcast serves part of the Community.  It appears that each operator now serves a separate part of the Community 
although Petitioners franchised territory is the entire Community.  (It is not clear whether Comcasts franchised 
territory is the same or less.)  Opposition at 2; Reply at 2-3, 6-7.
21 Petition at 7-8 & Exhs. 6-7.  A zip+4 analysis allocates DBS subscribers to a franchise area using nine-digit zip 
code information, which generally reflects franchise area boundaries in a more accurate fashion than standard five-
digit zip code information.
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there were 3,676 households in the Community.22 555 subscribers in a community of 3,676 households 
yield a ratio of 15.1% as reflected in Attachment A.  This evidence of DBS subscribership in excess of 15 
percent, if unrefuted, satisfies the second prong of the competing provider test for the Community.
2. The Towns Objections
11. The Town attempts to refute Petitioners showing under the second prong of the 
competing provider test on several grounds.  
12. First, the Town appears to object to counting as DBS subscribers dual households, 
which are households that subscribe to both cable service and DBS service.23 This objection is 
insufficient because the Town does not present any evidence of how many such households there are in 
the Community.24 Also and more broadly, we have long counted dual households as subscribers to DBS 
service in competing provider effective competition cases.  They are aware of alternatives to the 
petitioners cable service and have subscribed to at least one of them.  This is strong evidence of the very 
competition among MVPDs that Section 623(l)(1) of the Communications Act wants to detect.25  
13. Second, the Town objects that Petitioners estimate of DBS subscribership may be 
inaccurate because a major highway slices through a portion of the Community and divides the 
households that are served by Petitioner from those that are served by another cable operator, Comcast. 26  
The Town thinks it possible that zip+4 data may not be refined and precise enough to measure DBS 
subscribership accurately and that, if Petitioners estimate is even slightly overstated, then competing 
provider effective competition does not exist in the Community.  The Town is mistaken.  Zip+4 data such 
as Petitioner has presented is the most fine-grained and commonly available way of which we are aware 
to count DBS subscribers in a community.27 Its does not create an automatic suspicion of inaccuracy.  
Nor has the Town identified a single zip+4 area that falls outside the Community or challenged the 
methodology of MBCs analysis.28 Also, even if a major highway separates the part of the Community 
that Petitioner serves from the part of the Community that Comcast serves, we do not see how that fact 
could lead MBC to overstate the number of DBS subscribers in the whole Community, which is the 
number that is material under Section 623(l)(1)(B)(ii).29 Finally, the facts that Comcast serves part of the 
Community and that its subscriber numbers are not included in the 555 subscribers asserted by Petitioner 
(see paragraph 9 above) indicates that Petitioner has understated the degree of competing provider 
effective competition herein by adding only the subscribers of the DBS providers and not those of 
Comcast.30
  
22 Petition at 7-8 & Exh. 5.
23 Opposition at 2.
24 Reply at 3.
25 See, e.g., Cablevision at  17 & cases cited in n.35. 
26 Opposition at 2.
27 See, e.g., Comcast Cable Commun., LLC, Memorandum Opinion & Order DA 08-2632 at  6 n.15 (rel. Dec. 3, 
2008), available at 2008 WL 5084245 (A zip code plus four analysis allocates DBS subscribers to a franchise area 
using zip code plus four information that generally reflects franchise area boundaries in a more accurate fashion than 
standard five digit zip code information).
28 Reply at 6.
29 County of New Hanover County, North Carolina, Memorandum Opinion & Order DA 08-2344 at  7-8 (rel. Oct. 
24, 2008), available at 2008 WL 4693164; Florida Cablevision Management, Corp., 11 FCC Rcd 6876, 6880-81,  
11 (1996); Valley Center Cablesystems, L.P., 10 FCC Rcd 11940, 11944-45,  10 (1995).
30 Reply at 3, 8.
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14. Third, the Town objects that the basis for Petitioners estimate of the number of 
households in the Community  the 2000 Census  is out of date because in 2000 much of the Town 
wasnt even wired for Cablevision.31 This objection is without merit.  We accept the most recent 
decennial Census data for household numbers unless a specific flaw in it is shown and/or more recent data 
is proffered that is at least as accurate as Census data.32 The City has made no such showing or proffer.33  
Also, we do not understand how the degree to which Cablevision had wired the Community on any given 
date would affect the material fact, which is the number of households in the Community. 
15. Fourth, the Town objects that because the Community is unusually hilly . . . with very 
tall trees, DBS service may not be available to many residents.34 This objection is invalid.  The statutory 
standards for competing provider effective competition are percentages of households with no 
qualification for households that may have special difficulties in receiving DBS service.  Also, the Town 
has given us only generalities about its hilliness and foliage, despite its presumably intimate knowledge of 
these matters.  The Town has presented no evidence of how many households are effectively blocked 
from receiving DBS service and has not shown that whatever blockage exists is so great that DBS service 
cannot be an effective discipline on the behavior of Petitioner in the Community as a whole.35  
16. Fifth, the Town objects that Petitioners showing of competing providers having only 
15.1% is so close to the statutory minimum (exceeds 15 percent) that it is unreliable.36 This is an 
objection we have rejected in the past.37 The statutory standard is DBS household penetration that 
exceeds 15 percent, no matter how slightly.38 In the same vein, we have granted or denied findings of 
effective competition when the evidence has showed subscribership even slightly above or below the 
statutory minimum.39
17. Therefore, despite the Towns several objections, the second prong of the competing 
provider test is satisfied for the Community.
  
31 Opposition at 1.
32 See, e.g., Cablevision at  9-14; Time Warner Cable, Inc., 23 FCC Rcd 12210, 12214,  15 (2008); Comcast 
Cable Commun., LLC (Comcast), 23 FCC Rcd 10939, 10942-43,  11-13. 
33 Reply at 4-5.
34 Opposition at 2.  The Town does not claim that DBS service is not offered to at least 50% of the households in the 
Community, which claim would be relevant under the first prong of the competing provider test.
35 See Adelphia Cable Commun., 20 FCC Rcd 20536, 20537-38,  4-8 (2005) (including in at least 50 percent of 
households those that faced directions that might make placement of DBS receiving dishes difficult or had similar 
difficulties), application for review pending; Adelphia Cable Communications, 20 FCC Rcd 4979, 4980-81,  4-6 
(2005) (same); Cablevision of Paterson, d/b/a/ Cablevision of Allamuchy, 17 FCC Rcd 17239, 17242,  6, nn.22, 25 
(2002) (dismissing, in n.22, franchise authoritys general and undocumented claims that some areas are hilly, 
heavily wooded, and mountainous and, in n.25, the possible existence of local rules restricting the placement of 
DBS antennas).
36 Opposition at 1.
37 MCC Missouri LLC, 20 FCC Rcd 17909, 17910-11,  5 (2005).
38 47 U.S.C.  543(l)(1)(B)(ii).
39 Time Warner Cable Inc., & Time Warner Entertainment-Advance/Newhouse Partnership, 23 FCC Rcd 12069, 
12073,  15 (2008) (DBS subscribership of exactly 15%, or 14.94%, inadequate); Comcast, 23 FCC Rcd at 10942,  
11 (dictum that 15.48% would be adequate and 13.48% would be inadequate); Texas Cable Partners, L.P., 16 FCC 
Rcd 4718, 4722,  8, n.33 (2001) (The statute . . . does not grant the Commission discretion in close cases.  If the 
aggregate MVPD penetration rate is above 15%, effective competition, as defined by the Communications Act, 
exists).
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C. Conclusion
18. Based on the foregoing, we conclude that Petitioner has submitted sufficient evidence 
demonstrating that both prongs of the competing provider test are satisfied and that Petitioner is subject to 
effective competition in the Community listed on Attachment A.
III. ORDERING CLAUSES 
19. Accordingly, IT IS ORDERED that the petition for a determination of effective 
competition filed in the captioned proceeding by Cablevision Systems Westchester Corp. IS GRANTED. 
20. IT IS FURTHER ORDERED that the certification to regulate basic cable service rates 
granted to the Community set forth on Attachment A IS REVOKED. 
21. This action is taken pursuant to delegated authority pursuant to Section 0.283 of the 
Commissions rules.40
FEDERAL COMMUNICATIONS COMMISSION
Steven A. Broeckaert
Senior Deputy Chief, Policy Division, Media Bureau
  
40 47 C.F.R.  0.283.
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ATTACHMENT A
CSR 8095-E
COMMUNITY SERVED BY CABLEVISION SYSTEMS WESTCHESTER CORP.
2000 Estimated 
 Census DBS
Community CUID  CPR* Households Subscribers
Putnam Valley NY1083        15.10% 3676 555
 
*CPR = Percent of competitive DBS penetration rate.