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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of: ) ) COMCAST CABLEVISION OF ) City of Huntsville, Alabama HUNTSVILLE, INC. ) CUID No. AL0012 ) ) Complaint Regarding Cable ) Program Service Rates ) MEMORANDUM OPINION AND ORDER Adopted: November 20, 1997 Released: November 24, 1997 By the Chief, Cable Services Bureau: 1. Here we consider a complaint about the price Comcast Cablevision of Huntsville, Inc. ("Comcast") was charging for its cable programming service ("CPS") tier in the City of Huntsville, Alabama ("Huntsville"). Comcast filed a motion to dismiss the complaint arguing that it is subject to effective competition and thus its cable programming service rate is not subject to regulation by the Commission. Comcast also filed a supplement ("Supplement") to its motion to dismiss. Comcast did not provide evidence that its rate was justified under Commission rules. No oppositions were filed. 2. The Communications Act of 1934, as amended ("Communications Act"), and the Commission's rules provide that only the rates of cable systems that are not subject to effective competition may be regulated. One basis on which a cable system is deemed subject to effective competition is if the franchise area is: 1) served by at least two unaffiliated multichannel video programming distributors ("MVPD") each of which offers comparable programming to at least 50% of the households in the franchise area; and 2) the number of households subscribing to multichannel video programming other than the largest MVPD exceeds 15% of the households in the franchise area. 3. The complaint against Comcast's CPST rates was received by the Commission on March 23, 1994. In its Supplement, Comcast asserts that its cable system serving Huntsville was subject to competing provider effective competition, as of the date of the complaint, and is therefore not subject to rate regulation. Specifically, Comcast asserts that the Huntsville franchise area is also served by Cable America Corporation ("Cable America") an unaffiliated cable television system operator. According to 1990 U.S. Census data, the City of Huntsville has approximately 63,058 occupied households. Comcast states that, as of February 28, 1994, Cable America offered comparable video programming to approximately 48,834 households in the Huntsville franchise area with a total of 15,857 households in Huntsville subscribing to Cable America's service. Comcast contends that Cable America offered programming to approximately 77 percent of the households in Huntsville (48,834/63,058 = .77), with a total penetration rate of about 25% (15,857/63,058 = .25). Because Cable America offered service to at least 50 percent of the households in Comcast's franchise area, and more than 15 percent of the households in the franchise area subscribed to Cable America's service, Comcast concludes that it is subject to effective competition in Huntsville. Comcast provides 1990 Census data and a letter from the Vice President of Cable America relating passage, penetration and comparable programming information for Cable America's Huntsville franchise area as of February 28, 1994. Comcast did not provide passage, penetration or comparable programming regarding any other MVPD. 4. In the absence of a demonstration to the contrary, cable systems are presumed not to be subject to effective competition. The cable operator bears the burden of rebutting the presumption that effective competition does not exist with evidence that effective competition, as defined by Section 76.905 of the Commission's Rules, is present within its franchise area. We find that Comcast has met this burden. 5. The competing provider test requires that a cable operator demonstrate that its franchise area is served by at least two unaffiliated MVPDs each of which offers comparable programming to at least 50 percent of the households in the franchise area, and that the number of households subscribing to multichannel video programming other than the largest MVPD exceeds 15 percent of the households in the franchise area. Comcast submitted evidence showing that another MVPD, Cable America, provided comparable programming to at least 50 percent of the households in the franchise area, and that the number of households subscribing to Cable America exceeds 15 percent. Cable America provides video programming which is comparable to the video programming provided by Comcast. Therefore, we find that Comcast is subject to competing provider effective competition in the City of Huntsville, Alabama. Consequently, we will dismiss the above-referenced complaint. 6. Accordingly, IT IS ORDERED, pursuant to Section 0.321 of the Commission's Rules, that the motion of Comcast Cablevision of Huntsville, Inc. to dismiss the complaint against its cable programming service price charged in the City of Huntsville, Alabama (CUID No. AL0012) IS GRANTED. 7. IT IS FURTHER ORDERED that the complaint against the cable programming service price charged by Comcast Cablevision of Huntsville, Inc. in the City of Huntsville, Alabama (CUID No. AL0012) IS DISMISSED. FEDERAL COMMUNICATIONS COMMISSION Meredith J. Jones Chief, Cable Services Bureau