*Pages 1--3 from  Microsoft Word - 5449.doc*
 Federal  Communications  Commission  DA  00-  2775 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of: 
 TESS  COMMUNICATIONS,  INC. 
 Certification  to  Operate  an 
 Open  Video  System 


 ) 
 ) 
 ) 
 ) 
 ) 
 ) 
 ) 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  December  7,  2000  Released:  December  8,  2000 
 By  the  Chief,  Consumer  Protection  and  Competition  Division,  Cable  Services  Bureau: 
 I.  INTRODUCTION 
 1.  On  November  28,  2000,  TESS  Communications,  Inc.  ("  TESS")  filed  an  application  for 
 certification  to  operate  an  open  video  system  pursuant  to  Section  653(  a)(  1)  of  the  Communications  Act  of 
 1934  ("  Communications  Act")  and  the  Commission's  rules.  1  TESS  seeks  to  operate  an  open  video  system  in 
 various  communities  in  Arizona  and  Colorado  (the  Service  Areas).  2  In  accordance  with  our  procedures,  3 
 the  Commission  published  notice  of  receipt  of  the  TESS  certification  application  4  and  posted  the  application 
 on  the  Internet.  5  No  comments  were  received. 


 2.  Pursuant  to  Section  653(  a)(  1)  of  the  Communications  Act,  any  entity  meeting  the 
 requirements  may  obtain  certification  to  operate  an  open  video  system.  6  In  light  of  the  brief  period  (ten 
 days)  for  Commission  review  of  certification  filings,  the  Commission  concluded  that  Congress  intended 
 there  to  be  a  streamlined  certification  process.  7  Open  video  system  operators  may  apply  for  certification  at 


 1  47  U.  S.  C.    573(  a)(  1);  47  C.  F.  R.    76.1502. 


 2  The  Service  Areas  for  which  TESS  seeks  certification  are:  Broomfield,  Colorado;  Castle  Rock,  Colorado;  Adams 
 County,  Colorado;  Litchfield  Park,  Arizona;  and  Marana,  Arizona. 
 3  See  Implementation  of  Section  302  of  the  Telecommunications  Act  of  1996,  Open  Video  Systems,  Second  Report  and 


 Order,  11  FCC  Rcd  18223,  18247  (1996)  ("  Second  Report  and  Order"). 


 4  See  Public  Notice,  "TESS  Communications,  Inc.  Files  An  Application  For  Open  Video  System  Certification,"  DA 
 00-  2705  (CSB,  rel.  November  30,  2000). 


 5  The  TESS  application  is  available  via  the  Internet  at  http://  www.  fcc.  gov/  csb/  ovs/  csovscer.  html. 


 6  See  47  U.  S.  C.    573(  a)(  1);  47  C.  F.  R.    76.  1501.  However,  an  operator  of  a  cable  system  generally  may  not  obtain 
 such  certification  within  its  service  area  unless  it  is  subject  to  "effective  competition"  as  defined  in  Section  623(  1)(  l)  of 
 the  Communications  Act,  47  U.  S.  C.    543(  l)(  l). 


 7  Second  Report  and  Order,  11  FCC  Rcd  at  18243. 
1
 Federal  Communications  Commission  DA  00-  2775 
 2 
 any  point  prior  to  the  commencement  of  service.  Open  video  system  operators  must  obtain  certification 
 prior  to  the  commencement  of  service,  allowing  sufficient  time  to  comply  with  the  Commission's 
 requirements  regarding  notifications  that  applicants  must  provide  to  potential  programming  providers.  8 


 3.  As  part  of  the  certification  process,  the  applicant  must  acknowledge  and  accept  the 
 obligations  associated  with  operation  of  an  open  video  system  and  must  provide  certain  information 
 regarding  its  proposed  system.  9  To  obtain  certification,  an  applicant  must  file  FCC  Form  1275,  which 
 requires,  among  other  things:  (a)  a  statement  of  ownership,  including  a  list  of  all  affiliated  entities;  10  (b)  a 
 representation  that  the  applicant  will  comply  with  the  Commission's  regulations  under  Section  653(  b)  of  the 
 Communications  Act;  11  (c)  a  list  of  the  names  of  the  communities  the  applicant  intends  to  serve;  (d)  a 
 statement  of  the  anticipated  type  and  amount  of  capacity  that  the  system  will  provide;  and  (e)  a  statement  as 
 to  whether  the  applicant  is  a  cable  operator  applying  for  certification  within  its  cable  franchise  area. 


 II.  DISCUSSION 
 4.  TESS  has  submitted  an  application  on  FCC  Form  1275  for  certification  to  operate  an  open 
 video  system  in  the  Service  Areas.  We  have  reviewed  the  information  contained  in  TESS  application.  As 
 required  by  Form  1275,  the  TESS  application  provides  the  following:  company  information  and  a  separate 
 statement  of  ownership  listing  affiliated  entities;  eligibility  and  compliance  representations;  and  system 
 information  and  verification  statements.  TESS  also  confirmed  that  it  served  its  application  upon  the 
 designated  telecommunications  officials  in  each  of  the  communities  involved. 


 5.  We  find  that  TESS  has  provided  the  requisite  facts  and  representations  concerning  the  open 
 video  system  it  intends  to  operate  and  has  certified  that  it  "agrees  to  comply  and  remain  in  compliance  with 
 each  of  the  Commission's  regulations"  under  Section  653(  b)  of  the  Communications  Act.  We  note  that  if 
 any  representation  in  the  TESS  certification  filing  proves  to  be  materially  false  or  materially  inaccurate,  the 
 Commission  retains  the  authority  to  revoke  TESS  certification  or  impose  such  other  penalties  it  deems 
 appropriate,  including  forfeiture. 


 8  Id.  at  18247;  47  C.  F.  R.    76.  1502(  a).  See  also  Implementation  of  Section  302  of  the  Telecommunications  Act  of 
 1996:  Open  Video  Systems,  Order  on  Remand,  14  FCC  Rcd  19700,  19705  (1999)(  deleting  the  pre-  construction 
 certification  requirement  from  Section  76.  1502(  a)  of  our  rules). 


 9  Second  Report  and  Order,  11  FCC  Rcd  at  18245-  46. 


 10  We  note  that  for  purposes  of  determining  whether  a  party  is  an  affiliate,  we  have  adopted  the  definitions  contained 
 in  the  notes  to  Section  76.501  of  our  rules,  47  C.  F.  R.    76.501,  with  certain  modifications.  47  C.  F.  R.    1500(  g). 
 Generally,  we  will  consider  an  entity  to  be  an  open  video  system  operator's  "affiliate"  if  the  open  video  system  operator 
 holds  5%  or  more  of  the  entity's  stock,  whether  voting  or  non-  voting.  Implementation  of  Section  302  of  the 
 Telecommunications  Act  of  1996,  Open  Video  Systems,  Third  Report  and  Order  and  Second  Order  on  Reconsideration, 
 11  FCC  Rcd  20227,  20235  (1996)  ("  Third  Report  and  Order");  47  C.  F.  R.    1500(  g). 


 11  47  U.  S.  C.    573(  b).  This  provision  sets  forth  the  Commission's  requirements  regarding  non-  discriminatory  carriage; 
 just  and  reasonable  rates,  terms  and  conditions;  a  one-  third  capacity  limit  on  the  amount  of  activated  channel  capacity 
 on  which  an  open  video  system  operator  may  distribute  programming  when  demand  for  carriage  exceeds  system 
 capacity;  channel  sharing;  sports  exclusivity,  network  non-  duplication  and  syndicated  exclusivity;  and  non-discriminatory 
 treatment  in  presenting  information  to  subscribers.  See  also  47  C.  F.  R.    1502(  a). 
2
 Federal  Communications  Commission  DA  00-  2775 
 3 
 III.  ORDERING  CLAUSES 
 6.  Accordingly,  IT  IS  ORDERED,  that  the  application  of  TESS  Communications,  Inc.  for 
 certification  to  operate  an  open  video  system  in  the  Service  Areas  12  IS  GRANTED. 


 7.  This  action  is  taken  by  the  Chief,  Consumer  Protection  and  Competition  Division,  Cable 
 Services  Bureau,  pursuant  to  the  authority  delegated  by  Section  0.321  of  the  Commission's  Rules.  13 


 FEDERAL  COMMUNICATIONS  COMMISSION 
 Deborah  Klein,  Chief 
 Consumer  Protection  and  Competition  Division 
 Cable  Services  Bureau 


 12  See  supra  n.  2  listing  the  communities  contained  within  the  Service  Areas. 
 13  47  C.  F.  R.    0.321. 
3