Federal Communications Commission DA 00-63
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of:CoxCom, Inc.
Petition for Determination of
Effective Competition / )
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) / CSR 5207-E
Jefferson Parish (East) LA0098
ORDER ON RECONSIDERATION
Adopted: January 12, 2000 Released: January 14, 2000
By the Deputy Chief, Cable Services Bureau:
I.INTRODUCTION
1.CoxCom, Inc. ("Cox") filed a petition for reconsideration, pursuant to Section 1.106 of the Commission's rules,[1] of the Cable Services Bureau's Memorandum Opinion and Order ("Order") in the above-captioned proceeding.[2] Cox contends that the Bureau erroneously denied Cox's petition asserting that it is subject to local exchange carrier ("LEC")[3] effective competition in Jefferson Parish, Louisiana from BellSouth Entertainment, Inc. ("BSE"). No opposition was filed in response to Cox's petition. For the reasons discussed below, Cox's petition for reconsideration is granted.
II.BACKGROUND
2.Section 623(a)(4) of the Communications Act of 1934, as amended ("Communications Act") allows franchising authorities to become certified to regulate basic cable service rates of cable operators which are not subject to effective competition.[4] For purposes of the initial request for certification, local franchising authorities may rely on a presumption that cable operators within their jurisdiction are not subject to effective competition unless they have actual knowledge to the contrary.[5] Certification becomes effective 30 days from the date of filing unless the Commission finds that the authority does not meet the statutory certification requirements.[6] In Implementation of Cable Act Reform Provisions of the Telecommunications Act of 1996 ("Cable Act Reform Order"),[7] the Commission instructed cable operators believing themselves subject to local exchange carrier ("LEC") effective competition under Section 623(l)(1)(D) of the Communications Act to file a petition for determination of effective competition pursuant to Section 76.7 of the Commission's rules.[8] Section 623(l)(1)(D) of the Communications Act provides that a cable operator is subject to effective competition where:
a local exchange carrier or its affiliate (or any multichannel video programming distributor using the facilities of such carrier or its affiliate) offers video programming services directly to subscribers by any means (other than direct-to-home satellite services) in the franchise area of an unaffiliated cable operator which is providing cable service in that franchise area, but only if the video programming services so offered in that area are comparable to the video programming services provided by the unaffiliated cable operator in that area.[9]
According to Section 76.905(e) of the Commission’s rules, service of a multichannel video programming distributor (“MVPD”) will be deemed offered when the MVPD is able to deliver service to potential subscribers with the addition of no or only minimal investment by the distributor in order for an individual subscriber to receive service, when no regulatory, technical or other impediments to households taking service exist, and when potential subscribers in the franchise area are reasonably aware that they may purchase the services of the MVPD.[10] In addition, the Commission has determined that to satisfy the LEC test for effective competition, the LEC’s service must substantially overlap the incumbent cable operator’s service in the franchise area.[11]
3.In its initial Petition, Cox stated that it provides cable service to New Orleans and other southern Louisiana franchise areas. Cox argued that it is subject to LEC effective competition in these communities from BSE, a digital multichannel multipoint distribution service ("MMDS" or "wireless cable") operator serving those same areas.[12] Cox asserted that BellSouth, a local exchange carrier serving telephone customers in Louisiana and other parts of the southern United States, wholly owns BSE.[13]
4.The LEC effective competition test requires that competitive service be offered directly to subscribers in the franchise area of an unaffiliated cable operator which is providing cable service in that franchise area. The Order found that BSE was offering service and providing effective competition in some, but not all, of the franchise areas subject to Cox's petition. In those franchise areas in which effective competition was not present, the Order found that significant portions of those franchise areas were beyond the range of BSE's transmitter, finding that Cox did not prove that residents of those franchise areas were able to receive BSE's digital MMDS service.[14]
III.DISCUSSION
5.Cox argues that its petition relating to Jefferson Parish should not have been denied.[15] Cox asserts that the Bureau incorrectly concluded two communities, Barataria and Lafitte, which lie in the unincorporated areas of Jefferson County are not served by BSE. Cox believes that this conclusion was based upon an erroneous map in the record submitted by Jefferson Parish that assumed only a 20-mile BSE service radius.[16] Cox maintains that the Bureau found that the 35-mile protected contour radius is a reasonable indicator of BSE's service area, and that reliable maps clearly show that both Barataria and Lafitte are, in fact, well within 35 miles of BSE's transmitter, as is Cox's entire service area within the Parish.[17] Cox argues that Barataria and Lafitte are respectively 27 and 28 miles from New Orleans.[18] In addition, Cox believes that the Bureau's finding of effective competition in the incorporated community of Jean Lafitte compels a conclusion that effective competition also exists in the neighboring unincorporated community of Lafitte because the closely-linked communities are commonly regarded as a single community.[19] Cox contends a different conclusion regarding these two communities should not be made when the only distinguishing factor between them is that one is incorporated and the other is not.
6.Cox further asserts the Bureau's decision essentially requires a LEC-affiliated competitor to offer service to an entire franchise area, including remote and sparsely populated unserved areas, before the Bureau will issue a finding of effective competition. Cox argues that it has demonstrated that BSE's service area covers 99% of the population of Jefferson Parish. Cox believes that requiring 100% coverage is inconsistent with the definition of effective competition in the Communications Act and the Commission's rules.[20]
7.On reconsideration, we are persuaded that Cox is subject to LEC effective competition in Jefferson Parish. Cox demonstrates that based upon a 35 mile transmission radius its entire service area in the Jefferson Parish franchise area, including the towns of Barataria and Lafitte, is clearly located within the service area of BSE's MMDS facility. In the Order, we noted that a line-of-sight/shadow plot map is a better evidentiary tool to determine MMDS availability, but in southern Louisiana such a map is relatively congruent to the 35 mile protected service contour because the terrain is relatively flat.[21] We believe the coverage of Cox's entire service area in the Jefferson Parish franchise area by BSE's MMDS facility establishes the presence of a LEC competitor. As was noted in the Order, BSE is a wholly owned subsidiary of BellSouth offering programming comparable to that of Cox.[22] In the Order, we found that the evidence submitted by Cox demonstrates that BSE sufficiently informs potential subscribers about the availability of its service.[23] Further, consistent with our findings regarding other communities receiving BSE's service, we conclude that there are no regulatory, technical or other impediments preventing potential subscribers from receiving BSE's service in Jefferson Parish.
IV.ORDERING CLAUSES
8.Accordingly, IT IS ORDERED that pursuant to Section 1.106 of the Commission's Rules,[24] the Petition for Reconsideration filed by CoxCom Inc. IS GRANTED. The certification of the Parish of Jefferson to regulate rates IS REVOKED.
9.This action is taken pursuant to delegated authority under Section 0.321 of the Commission's rules, as amended.[25]
FEDERAL COMMUNICATIONS COMMISSION
William H. Johnson
Deputy Chief, Cable Services Bureau
[1] 47 C.F.R. § 1.106.
[2] CoxCom, Inc., 14 FCC Rcd 7134 (1999).
[3] The Communications Act defines the term "local exchange carrier" as:
any person that is engaged in the provision of telephone exchange service or exchange access. Such term does not include a person insofar as such person is engaged in the provision of a commercial mobile service under Section 332(c), except to the extent that the Commission finds that such service should be included in the definition of such term.
Communications Act § 3(26), 47 U.S.C. § 153(26).
[4] Communications Act § 623(a)(4), 47 U.S.C. § 543(a)(4).
[5] 47 C.F.R. §§ 76.906, 76.910(b)(4).
[6] 47 C.F.R. § 76.910(e); 47 C.F.R. § 76.910(b). See also Communications Act § 623(a)(4), 47 U.S.C. § 543(a)(4).
[7] 11 FCC Rcd 5937, 5944 (1996).
[8] 47 C.F.R. § 76.7.
[9] Communications Act § 623(l)(1)(D), 47 U.S.C. § 543(l)(1)(D). See also 47 C.F.R. §76.905(b)(4).
[10] 47 C.F.R. § 76.905(e).
[11] See Implementation of Cable Act Reform Provisions of the Telecommunications Act of 1996, Report and Order, 14 FCC Rcd 5296, 5303 (1999).
[12] The franchise areas subject to Cox's initial petition, each located in the State of Louisiana, were: (1) Gretna (LA0133); (2) Harahan (LA0075); (3) Jean Lafitte (LA0448); (4) Jefferson Parish (East) (LA0098); (5) Kenner (LA0076); (6) LaFourche Parish (LA0438); (7) Orleans Parish (LA0286); (8) Plaquemines Parish (LA0449); (9) St. Bernard Parish (LA0172); (10) St. Charles Parish (East) (LA0191); (11) St. Charles Parish (West) (LA0320); and (12) Westwego (LA0171).
[13] Order at 7136.
[14] Id. at 7143. The franchise areas of Jefferson Parish, LaFourche Parish, Plaquemines Parish, St. Charles Parish (East) and St. Charles Parish (West). Id.
[15] Cox does not seek reconsideration of the Bureau’s Order denying the existence of effective competition in LaFourche Parish, Plaquemines Parish, St. Charles Parish (East) and St. Charles Parish (West).
[16] Petition at 5, citing Jefferson Parish Opposition at 6.
[17] Petition at 5. Cox concedes it has not built cable plant throughout its entire Jefferson Parish franchise area, especially in the sparsely populated southern portion of the Parish. Id. at 2.
[18] Id. at Exhibit B.
[19] Id. at 6.
[20] Id. at 7. See also 47 U.S.C. § 623(l)(1)(D); 47 C.F.R. § 76.905(b)(4).
[21] Order at 7142.
[22] Id. at 7141.
[23] Id.
[24] 47 C.F.R § 1.106.
[25] 47 C.F.R § 0.321.