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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: ) ) Starpower Communications, LLC ) ) ) Certification to Operate an ) Open Video System ) ) ) MEMORANDUM OPINION AND ORDER Adopted: January 26, 1998 Released: January 26, 1998 By the Chief, Cable Services Bureau: I. INTRODUCTION 1. On January 16, 1998, Starpower Communications, LLC ("Starpower") 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. Starpower seeks to operate an open video system in the following communities: Washington, D.C.; portions of Montgomery County, Maryland including Chevy Chase, Chevy Chase Section III, Chevy Chase Section V, Chevy Chase Village, Chevy Chase View, Friendship Heights, Gaithersburg, Garrett Park, Glen Echo, Kensington, Martin's Additions, North Chevy Chase, Oakmont, Rockville, Somerset, Takoma Park, and Washington Grove; portions of Prince George's County, Maryland including Berwyn Heights, Bladensburg, Brentwood, College Park, Colmar Manor, Cottage City, Edmonston, Fairmont Heights, Glenarden, Hyattsville, Landover Hills, Laurel, Mount Rainier, New Carrollton, North Brentwood, Riverdale, Takoma Park, University Park; portions of Howard County, Maryland; portions of Arlington County, Virginia; and portions of Fairfax County, Virginia; and the Cities of Alexandria and Falls Church, Virginia. In accordance with our procedures, the Commission published notice of receipt of Starpower's certification application and posted the application on the Internet. Comments were filed by the following: The City of College Park, Maryland ("College Park"); the Town of Cottage City, Maryland ("Cottage City"); the Town of University Park, Maryland ("University Park"); Prince George's County, Maryland ("Prince George's County"); Fairfax County, Virginia ("Fairfax County"); and a consortium of local communities ("Communities"). 2. Pursuant to Section 653(a)(1) of the Communications Act, any person may obtain certification to operate an open video system. In light of the brief period (ten days) for Commission review of certification filings, the Commission concluded that Congress intended a streamlined certification process. Open video system operators may apply for certification at any point prior to the commencement of service, subject to two conditions. If construction of new physical plant is required, the applicant must obtain Commission approval of its certification prior to the commencement of construction. If no new construction is required, the applicant must obtain certification prior to the commencement of service, allowing itself sufficient time to comply with the Commission's requirements regarding notifications that must be provided to potential programming providers. 3. Despite the streamlined nature of the certification process, the Commission intended it to provide purposeful representations regarding the responsibilities of the open video system operator by requiring that applicants verify their certifications and provide specified information. 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; (b) a representation that the applicant will comply with the Commission's regulations under Section 653(b); (c) a list of the names of the communities the applicant anticipates it will serve; (d) a statement of the anticipated type and amount of capacity that the system will provide; and (e) a representation as to whether the applicant is a cable operator applying for certification within its cable franchise area. II. COMMENTS 4. College Park states that it is not opposed to the certification application filed by Starpower but expects Starpower to comply with the same regulations imposed on cable television franchisees including the payment of a percentage of gross revenues and the provision of public, educational, and governmental ("PEG") services to the City. College Park further states that Starpower is subject to its rules governing public rights-of-way and is responsible for compensating the City for all expenses incurred in providing rights-of-way for Starpower's operations as an open video system provider. 5. Cottage City maintains that, given the limited time within which to file comments, it has not had an opportunity to review Starpower's certification application thoroughly. Cottage City asserts however that the Commission should require Starpower to obtain all necessary authorizations for use of public rights-of-way and to comply with the City's rules and regulations pertaining to rights-of-way. 6. University Park states that while it supports competition in cable services in general, Starpower's certification application should be contingent upon Starpower's willingness to obtain the necessary authorizations from University Park for use of its rights-of-way. University Park requests that the Commission retain "revisory powers" over Starpower's certification in order to ensure that renewal negotiations with its cable services provider are not adversely affected by Starpower's application. University Park asserts that it will retain its right to object to Starpower's certification in the event that Starpower fails to comply with certain "programming restrictions" which University Park believes are imposed on open video system operators by the Commission's rules. University Park does not explain its reference to open video system programming restrictions or cite a specific Commission rule or regulation. University Park supports the comments filed by other local jurisdictions affected by Starpower's certification application. 7. Prince George's County states that it does not oppose Starpower's certification application but urges the Commission to make clear that Starpower is required to obtain authorization from Prince George's County for use of the public rights-of-way and to compensate the County for expenses related to providing rights-of-way. Prince George's County further states that it expects Starpower to comply with all Commission rules governing open video systems including the payment of a percentage of gross revenues and the provision of PEG services. Prince George's County questions whether Starpower's selection of service areas involves racial or economic redlining and requests that the Commission consider this issue in its review of Starpower's certification application. 8. Fairfax County states that it does not oppose Starpower's certification but objects to the federal government's failure to provide local authorities with procedural due process in open video system certification proceedings. Fairfax County maintains that the short time period for comments and the cursory nature of the information required by open video system certification applicants has deprived it of a meaningful opportunity to be heard as required by the Constitution. Fairfax County bases its objections on the limited time within which comments may be filed as well as the limited information required to be provided by open video system certification applicants. With regard to the information contained in Starpower's application, Fairfax County states that while such information complies with the Commission's rules governing certification, it does not satisfy the County's need for more detailed information. Fairfax County seeks to reserve all rights it may have under federal and state law which are applicable to Starpower's open video system. 9. The Communities state that they do not oppose Starpower's certification application but that Starpower's application raises certain issues which should be addressed by the Commission. The Communities state that, in reviewing Starpower's application, the Commission should be concerned that: 1) the boundaries of Starpower's proposed service area are not precisely defined and may involve racial or economic redlining; 2) Starpower's certification application should not be permitted to undermine the cable franchise renewal process currently underway in many of the communities; and 3) approval of Starpower's application should not be construed as permission for Starpower to use the public rights-of- way. The Communities assert that Starpower may not rely on any connection with the Potomac Electric Power Company ("PEPCO") for access to public rights-of-way and must seek approval for all necessary rights-of-way authorizations from each community involved. III. DISCUSSION 10. We have reviewed the information contained in Starpower's FCC Form 1275. Starpower has applied to become a certified open video system operator in communities of the District of Columbia, Maryland, and Virginia. As required by Form 1275, Starpower's certification application provides: company information and a separate statement of ownership, including all affiliated entities; eligibility and compliance representations; and system information, system capacity and verification statements. Starpower indicates that it has served officials of communities affected by its application in the District of Columbia, Maryland, and Virginia which are the designated telecommunications officials of those respective communities. 11. We have also reviewed the comments filed in response to Starpower's Form 1275. As an initial matter, with regard to timing, we note that Congress has required the Commission to approve or disapprove any open video system certification application within ten days of receipt. The Commission has required comments and oppositions to be filed within five days of the applicant's filing. The Commission's rules provide for the most efficient review of open video system certification applications and related pleadings within the statutory time frame. 12. Each commenter has raised the issue of the local authorities' right to manage its public rights-of-way. Most commenters have also raised the issue of compensation for the use of the public rights-of-way by open video system operators. The Commission has stated its belief that "Congress did not intend to infringe upon local communities' prerogative to manage their rights-of-way in order to protect the public health and safety." In addition, the Commission has stated that open video system operators are subject to the payment of a percentage of gross revenues for the provision of open video system service which is in lieu of franchise fees paid by cable system operators. Thus the Commission has made clear that the open video system certification process does not usurp the authority of local governments to manage their communities or preempt their right to be justly compensated for use of the public rights-of-way. 13. Prince George's County and the Communities each raise the issue of racial and economic redlining. This issue is not a subject that is within the scope of review in open video system certification proceedings. 14. The commenters were also concerned about the potential disruptive effect that Starpower's certification may have on their renewal negotiations with extant cable service providers. The Communities point out that the Commission has been "hesitant to act" in open video system certification proceedings where a local franchise process is pending. In Wedgewood, the open video system certification applicant was involved in a dispute as to whether it was also a cable service operator within the franchise area at issue. We stated that the open video system certification process should not be intertwined with ongoing local franchise negotiations and we denied the certification application. In the instant case, no allegation has been made or evidence introduced which indicates that Starpower is a cable service provider in any of the communities affected by its open video system certification application. We believe therefore that Starpower's application does not present a situation which would adversely affect the franchise negotiations between the local franchising authorities and their cable service providers. 15. Fairfax County asserts that it has been denied procedural due process because of the short time it has had to review the application. Fairfax County presents no specific information within the context of the certification process that challenges Starpower's representations. We have addressed this issue in the Commission's orders implementing Open Video Systems. The ten-day period is mandated by law. As we have stated, we believe that while the certification process is by necessity streamlined, adequate opportunity is afforded interested parties through the Commission's procedures, particularly its complaint process, to seek a remedy of violations of the law and regulations. 16. We find that Starpower 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 Starpower's certification filing proves to be materially false or materially inaccurate, the Commission retains the authority to revoke Starpower's certification or impose such other penalties it deems appropriate, including forfeiture. We further find that the commenters do not oppose and have not raised issues which warrant denial of Starpower's certification application. IV. ORDERING CLAUSES 17. Accordingly, IT IS ORDERED, that the certification application of Starpower Communications, LLC to operate an open video system in the communities of: Washington, D.C.; portions of Montgomery County, Maryland including Chevy Chase, Chevy Chase Sec. III, Chevy Chase Sec. V, Chevy Chase Village, Chevy Chase View, Friendship Heights, Gaithersburg, Garrett Park, Glen Echo, Kensington, Martin's Additions, North Chevy Chase, Oakmont, Rockville, Somerset, Takoma Park, and Washington Grove; portions of Prince George's County, Maryland including Berwyn Heights, Bladensburg, Brentwood, College Park, Colmar Manor, Cottage City, Edmonston, Fairmont Heights, Glenarden, Hyattsville, Landover Hills, Laurel, Mount Rainier, New Carrollton, North Brentwood, Riverdale, Takoma Park, University Park; portions of Howard County, Maryland; portions of Arlington County, Virginia; portions of Fairfax County, Virginia; and the Cities of Alexandria and Falls Church, Virginia IS APPROVED. 18. This action is taken by the Chief, Cable Services Bureau, pursuant to the authority delegated by Section 0.321 of the Commission's Rules, 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION Meredith J. Jones Chief, Cable Services Bureau