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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

TIME WARNER CABLE,              )
     Complainant                )
                                )
     v.                         )
                                )
RCN TELECOM SERVICES            )
  OF NEW YORK, INC.,            )
     Defendant                  )
                                )
Open Video System Complaint     )
                                 

                  MEMORANDUM OPINION AND ORDER

     Adopted:  December 29, 1998        Released:  December 30, 1998  

By the Chief, Cable Services Bureau:

I.   INTRODUCTION

     1.   Time Warner Cable ("Time Warner"), has filed a complaint alleging that RCN Telecom
Services of New York, Inc. ("RCN"), an open video system operator, violated Section 653 of the
Communications Act of 1934 and the Commission's regulations by refusing to provide it with information
pertaining to RCN's open video system as required by Section 76.1503(b)(2) of the Commission's rules.  Time
Warner requests that we order RCN to furnish it with the requested information and should Time Warner seek
carriage on RCN's open video system, that we order RCN to provide it with channel capacity in a non-
discriminatory manner.  RCN filed an answer opposing Time Warner's complaint, to which Time Warner filed
a reply.  In addition, RCN filed a supplemental notice pursuant to 47 C.F.R.  76.1513(d)(7), to which the
parties filed opposing pleadings.  After examining the record, we conclude that RCN improperly withheld
information to which Time Warner is entitled.

II.  BACKGROUND

     2.   In the Telecommunications Act of 1996 ("1996 Act"), Congress established four means by
which common carriers may enter the video programming marketplace:  (1) radio-based systems; (2) common
carriage of video traffic; (3) cable systems; and (4) open video systems.  The Conference Report for the 1996
Act "recognize[d] that telephone companies need to be able to choose from among multiple video entry options
to encourage entry, and so systems under this section [shall be] allowed to tailor services to meet the unique
competitive and consumer needs of individual markets."  In rulemakings implementing the open video system
regulations, the Commission concluded that Congress did not intend to restrict open video system service to
telephone companies alone, and permitted non-local exchange carriers and cable operators to operate, and to
obtain carriage on open video systems where "consistent with the public interest, convenience, and necessity.
. . ."  The Commission stated that the open video system model "can provide the competitive benefits that
Congress sought to achieve: market entry by new service providers, enhanced competition, streamlined
regulation, investment in infrastructure and technology, diversity of programming choices and increased
consumer choice."

     3.   Although subject to streamlined regulation as compared to their cable counterparts (e.g., no
requirement to obtain a franchise from local authorities), open video system operators are not without clearly
defined obligations and responsibilities, such as offering up to two-thirds of their channel capacity to
unaffiliated programmers.  Open video system operators are also required to provide certain information to
prospective programmers.  Open video system operators may not unreasonably nor unjustly discriminate
against unaffiliated programming providers, and must provide just and reasonable rates, terms, and conditions
for carriage to all eligible programming providers that seek carriage.  The Commission determined that "by
requiring open video system operators to provide carriage opportunities for video programming providers . .
. Congress sought to foster competition by encouraging multiple programming sources on open video
systems." 

      4.  Commission regulations provide for the adjudication of open video system complaints.  Prior
to filing a complaint with the Commission, an aggrieved party must notify the potential defendant of its intent
to file a complaint with the Commission, sufficiently detail the basis of its claim, and provide the potential
defendant with a minimum of ten days to respond to the allegations set forth in the notice.  After an open
video system complaint is filed, the Commission must render a decision within one hundred and eighty days
of the filing date of the complaint.  Upon completion of any adjudicatory proceeding, the Commission may,
as warranted, order carriage, award damages, or impose sanctions.

III. DISCUSSION

     5.   Time Warner asserts that it is entitled to open video system information and carriage as a
programming provider on RCN's open video system if it formally requests carriage.  We note that the issues
presented by Time Warner's complaint are similar in nature to those presented in Time Warner Cable v. RCN-
BeCoCom, L.L.C. ("Time Warner Cable"), relating to RCN's Boston-area open video system.  Accordingly,
we make reference to, and rely on, our decision therein to the extent appropriate.  
          A.   Time Warner's Video Programming Provider Status

     6.   Only those entities entitled to carriage on an open video system may request information
pursuant to Section 76.1503(b)(2).  We first address the issue of whether Time Warner is eligible to obtain
carriage on RCN's open video system.  RCN elected to pursue the open video system option and obtained
certification from the Commission.  Incumbent in RCN's decision are the benefits and responsibilities of open
video system operation as determined by Congress and the Commission.  For example, RCN is not required
to negotiate traditional cable franchises with the communities it serves.  As an open video system operator,
RCN accepted, and is subject to, the obligation to make available on a nondiscriminatory basis up to two-thirds
of its channel capacity to independent programming providers in accordance with the Commission's rules. 
Affording capacity to independent programmers is a fundamental precept of the open video system option. 
 

     7.   In its FCC Form 1275 (Certification For Open Video Systems) filing, RCN sought
certification to offer open video system service to New York City, which includes the five boroughs of the
Bronx, Brooklyn, Manhattan, Queens, and Staten Island.  At present, RCN offers open video system service
to approximately 40,000 subscribers in Manhattan.  According to RCN, it is close to completing negotiations
to expand its open video system service to the other boroughs.  Time Warner seeks carriage only on the Bronx
and Brooklyn portions of RCN's open video system.  Time Warner states that New York City has not
authorized Time Warner to provide cable service to these areas.

     8.   RCN argues that Time Warner, which services 1,138,000 cable subscribers in the New York
area, directly competes against its New York City open video system.  RCN asserts that this fact makes Time
Warner a competing, in-region cable operator and therefore ineligible to become a programmer on RCN's open
video system.  RCN asserts that New York City's boroughs are not separate and distinct legal entities, but
rather comprise one New York City service area.  In addition, RCN states that it is unaware of any
impediment that would prevent Time Warner from building out its cable system in the Bronx and portions of
Brooklyn.
 
     9.   Time Warner rejects RCN's interpretation of what constitutes an open video system service
area.  RCN, Time Warner notes, listed several New York City communities by Community Unit Identifier
("CUID") number in its FCC Form 1275, thus offering evidence of distinct franchise areas in New York City. 
Time Warner further argues that New York City is divided into separate cable franchise territories, and has
not authorized Time Warner to provide franchised cable service to the out-of-region communities where Time
Warner seeks carriage on RCN's open video system.  Citing a Commission signal carriage case for support,
Time Warner argues that divisible cable communities comprise RCN's New York City open video system
service area.  Time Warner reiterates that because it does not offer cable service to the Bronx and portions
of Brooklyn, it cannot be classified as a competing, in-region cable operator in those two communities.

     10.  In its supplemental notice and related pleading, RCN directs our attention to Cablevision of
Boston, Inc., et al., ("Cablevision"), where we found that, as a competing, in-region cable operator,
Cablevision was not entitled to carriage on RCN's Boston-area open video system.  Time Warner counters
that Cablevision is inapposite because Cablevision sought carriage on RCN's open video system in
communities where Cablevision held a cable franchise and provided cable service.

     11.  The Commission specifically considered cable operators' eligibility to seek carriage on open
video systems and adopted Section 76.1503(c)(2)(v)(B).  That Section states that ". . . a competing, in-region
cable operator or its affiliate(s) that offers cable service to subscribers located in the service area of an open
video system shall not be entitled to obtain capacity on such open video system. . . ."  The open video system
rules were intended to enhance competition, with the ultimate goal of providing subscribers with lower rates
and greater programming selections.  To that end, the Commission determined that different treatment of
competing, in-region cable operators better serves the public interest by encouraging competing, in-region cable
operators to develop and upgrade their own systems, rather than occupying capacity on a competing open video
system that could be used by another programming provider.  Should a competing, in-region cable operator
fail to satisfy Section 76.1503(c)(2)(v), it would not be entitled to carriage, and could not, by definition, be
classified as a programming provider entitled to open video system information.

     12.  We agree with Time Warner that it is not a competing, in-region cable operator in this
instance.  We believe that the situation in this proceeding is not materially distinguishable from that confronted
by the Cable Services Bureau ("Bureau") in Time Warner Cable, where we stated:
          
          The Commission generally excluded competing, in-region cable operators for the reason that
     such cable operators' incentive to upgrade and maintain their facilities would be reduced if
     given the opportunity to be a programming provider on an open video system serving its
     franchise area.  This premise is based on the assumption that the open video system operator
     is actually serving, or will soon serve, subscribers in the cable operator's franchise area. 
     Moreover, the Commission has repeatedly noted the importance of the accessibility by
     multiple programming providers, including certain classes of cable operators, to open video
     systems.  An incumbent cable operator is a competing, in-region cable operator where there
     is an actual overlap between a cable operator's franchise area and a specific community served
     by an open video system operator.

We recognize that an open video system operator's service area may be, in many instances, composed of
discrete communities.  The Commission's regulations permit an open video system applicant to file a single
FCC Form 1275 even though the applicant proposes to provide open video system service to more than one
community or area.  RCN has not disputed Time Warner's claim that New York City authorizes franchises
on a community-by-community basis.  The record in this proceeding demonstrates that RCN's proposed open
video system in the Bronx and portions of Brooklyn would not overlap with any area where Time Warner is
serving subscribers as a cable franchisee.  RCN asserts that it is close to completing negotiations to expand
its open video system to the other boroughs.  RCN provides no evidence regarding either the location or timing
of such system expansions.  We cannot deny Time Warner's reasonable request for information, based on
RCN's mere assertion that it may expand its open video system at an undisclosed time and place.  Accordingly,
we conclude that Time Warner is not a competing, in-region cable operator and therefore is entitled to request
carriage as a programming provider on RCN's system.

     13.  Finally, we find that RCN's reliance on the Bureau's Cablevision order is not appropriate. 
In Cablevision, the parties did not dispute that Cablevision was a competing, in-region cable operator offering
cable service to RCN's open video system service area.  Instead, the Cablevision decision concerned whether,
despite its status as a competing, in-region cable operator, Cablevision merited a waiver of Section 76.1503
of the Commission's rules to become a video programming provider on RCN's Boston-area open video
system.  Furthermore, the facts of Cablevision are distinguishable from those of Time Warner Cable and the
instant proceeding because there is no actual overlap of RCN's open video system service area and any of Time
Warner's Boston-area or New York-area cable franchises.  

          B.   Time Warner's Requested Information

     14.  In its orders implementing the open video system framework, the Commission determined that
prospective programming providers may request information pursuant to Section 76.1503(b)(2).  Implicit in
this statement is the Commission's determination that certain entities cannot reasonably be considered
"prospective" programming providers.  For example, a cable operator franchised in an area that an open video
system is serving subscribers and which an open video system operator refuses carriage cannot be considered
a prospective programming provider unless the Commission has determined that carriage of such cable
operator's programming will not impede facilities-based competition.  In addition, we believe that an open video
system operator is not required to respond to nuisance requests for information (i.e., repeated requests by
applicants that have been refused carriage as a result of creditworthiness or similar reasons).  

     15.  Section 76.1503(b)(2) directs an open video system operator to provide to a prospective
programming provider, within five business days of a written request, information relating to the open video
system operator's build-out schedule, estimated carriage rates, programming provider qualification
requirements, and technical interface specifications, unless already provided in the open video system operator's
Notice of Intent to establish an open video system.  The Commission recognized that "a prospective video
programming provider can reasonably be expected to need additional information concerning the system to
assess whether to seek carriage on the system."  Only information that the Commission believes is necessary
to make an "informed" enrollment decision need be provided to prospective programming providers.   

     16.  Time Warner's request for information in this case is identical to the request for information
discussed in Time Warner Cable.  Our determinations in that case are also dispositive here.  As part of its
request for information, Time Warner requested that RCN provide it with: (1) a route map showing the exact
location of any current RCN open video system facilities; (2) the number of potential subscribers passed by
existing RCN open video system facilities; (3) a route map showing all anticipated construction, with projected
dates for activation of each phase of construction; (4) potential subscribers to be passed in each phase of
construction; and (5) a list of programming which RCN intends to offer on the 110 channels it has reserved
for itself.  RCN contends that Time Warner did not comply with its procedures for completing its OVS
Information Request Form and challenges the scope of Time Warner's request.  For example, RCN asserts
that Time Warner did not file its information request during RCN's preliminary enrollment period, which
commenced on February 28, 1997, and concluded on April 30, 1997, and did not satisfy RCN's non-disclosure
requirement.  Time Warner responds that its information request complied with Commission requirements,
tracks Section 76.1503(b)(2), and is of the type contemplated by the Commission.  Time Warner dismisses
RCN's arguments pertaining to its failure to submit its information request on RCN's OVS Information Request
Form.  According to Time Warner, within the time frame RCN set for enrollment requests, it made a request
for information pertaining to RCN's New York City open video system by referring to the request that it had
made for the same information with respect to RCN's Boston-area open video system.  Time Warner further
states that it will abide by any reasonable, Commission-sanctioned confidentially requirements.

     17.  Section 76.1503(b) attempts to strike a balance between an open video system operator's need
to protect arguably proprietary information and a prospective programming provider's need to obtain
information necessary to make a carriage request.  The Commission recognized that "the competitive position
of an open video system operator should not be compromised by the required release of information
unnecessary to make an informed enrollment decision," and expressly rejected a proposal that open video
system operators disclose their construction plans.
  
     18.  As a prospective programming provider, Time Warner is entitled to know which areas within
a community RCN is serving and is projected to serve, if it is activating its open video system in stages, and
when it anticipates offering service to areas that fall under different activation stages.  Information regarding
actual and projected service areas and activation dates comports with Section 76.1503(b)(2), is not
commercially sensitive, and is necessary for a programming provider to decide whether to pursue carriage on
an open video system.  The record reveals that Time Warner timely made an information request regarding
RCN's New York City open video system, albeit not on RCN's OVS Information Request Form.  In this
regard, we find that RCN's preliminary enrollment period is inconsistent with the Commission's open video
system rules.  We reiterate that an enrollment period may not expire less than ninety days after the Commission
releases a Public Notice of an open video system operator's Notice of Intent.  An open video system operator
should provide prospective programming providers with a full ninety days to make enrollment requests.  We
note that ninety days is the minimum enrollment period.  Should it so desire, following a ninety day preliminary
enrollment period, RCN is free to choose an additional period for prospective video programming providers
to complete the enrollment process.  As in our previous Time Warner Cable decision, we think that a map
showing RCN's current and projected fiber paths, specific construction schedules (beyond mere open video
system stage activation), and lists of RCN open video programming fall outside of the purview of the categories
set forth in Section 76.1503(b)(2).  RCN is not obligated to provide this information to Time Warner or any
other prospective programming provider.

     19.  We direct RCN to provide the information discussed above to Time Warner as required by
the Commission's rules within five days of release of this order.  Release of the information is contingent upon
Time Warner agreeing to maintain the confidentiality of RCN's information.  We note that RCN's existing non-
disclosure statement requires an entity seeking open video system information to represent that it has "no formal
or informal affiliation . . . with any cable operator providing cable television services within RCN-NY's open
video system service area."  This provision is inconsistent with our open video system rules because it would
automatically disqualify eligible entities, such as Time Warner, from satisfying RCN's otherwise valid non-
disclosure requirements necessary to obtain open video system information applicable to those open video
system service areas in which the eligible entity is not a cable franchisee.  RCN is instructed to delete, or
amend, this provision in conformance with this order.  
     20.  Time Warner also seeks the number of potential subscribers within RCN's existing and
projected service area.  The number of potential subscribers that an open video system seeks to serve in the
future is commercially sensitive.  RCN is not obligated to provide information relating to potential subscribers
in existing and currently unserved areas.  Providing Time Warner with the actual and projected service areas
should suffice.  Time Warner, and other potential programming providers, are as capable as RCN of
calculating the number of potential subscribers in those areas.  To the extent that RCN has provided
information to any other prospective programming provider beyond that ordered herein, we direct RCN to
provide such information to Time Warner.

IV.  ORDERING CLAUSES

     21.  Accordingly, IT IS ORDERED that Time Warner Cable's Open Video System Complaint
against RCN Telecom Services of New York, Inc. IS GRANTED as described in this Memorandum Opinion
and Order, and in all other respects denied.

     22.  IT IS FURTHER ORDERED that RCN Telecom Services of New York, Inc. furnish to
Time Warner Cable the Section 76.1503(b)(2) open video system information as further described herein within
five days of the release of this Memorandum Opinion and Order.  Should it contest any aspect of this order,
RCN Telecom Services of New York, Inc. must, within the same five-day period, notify Time Warner and the
Commission that it intends to seek review of this order.
     
     23.  This action is taken pursuant to authority delegated under  0.321 of the Commission's rules,
as amended.

                         FEDERAL COMMUNICATIONS COMMISSION



                         Deborah A. Lathen
                         Chief, Cable Services Bureau