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Comcast Cable Petition For Effective Competition, Danville, Va

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Released: November 15, 2013

Federal Communications Commission

DA 13-2195

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Comcast Cable Communications, LLC
)
MB Docket No. 12-279, CSR-8715-E
)
Petition for Determination of Effective
)
Competition in Danville, VA
)

MEMORANDUM OPINION AND ORDER

Adopted: November 15, 2013

Released: November 15, 2013

By the Senior Deputy Chief, Policy Division, Media Bureau:

I.

INTRODUCTION AND BACKGROUND

1.
Comcast Cable Communications, LLC, hereinafter referred to as “Petitioner,” has filed
with the Commission a petition pursuant to Sections 76.7, 76.905(b)(2) and 76.907 of the Commission’s
rules for a determination that Petitioner is subject to effective competition in the community listed on
Attachment A and hereinafter referred to as the “Community.” Petitioner alleges that its cable system
serving the Community is subject to effective competition pursuant to Section 623(l)(1)(B) of the
Communications Act of 1934, as amended (“Communications Act”),1 and the Commission’s
implementing rules,2 and is therefore exempt from cable rate regulation in the Community because of the
competing service provided by two direct broadcast satellite (“DBS”) providers, DIRECTV, Inc.
(“DIRECTV”), and DISH Network (“DISH”). An Opposition to the petition was filed by the City of
Danville (the “City”)3 to which Petitioner filed a Reply.4
2.
In the absence of a demonstration to the contrary, cable systems are presumed not to be
subject to effective competition,5 as that term is defined by Section 623(l) of the Communications Act and
Section 76.905 of the Commission’s rules.6 The cable operator bears the burden of rebutting the
presumption that effective competition does not exist with evidence that effective competition is present
within the relevant franchise area.7 For the reasons set forth below, we grant the petition based on our
finding that Petitioner is subject to effective competition in the Community listed on Attachment A.

II.

DISCUSSION

3.
Section 623(l)(1)(B) of the Communications Act provides that a cable operator is subject
to effective competition if the franchise area is (a) served by at least two unaffiliated multi-channel video
programming distributors (“MVPDs”), each of which offers comparable video programming to at least 50
percent of the households in the franchise area; and (b) the number of households subscribing to


1 See 47 U.S.C. § 543(l)(1)(B).
2 47 C.F.R. § 76.905(b)(2).
3 Opposition to Petition For Determination of Effective Competition (“Opposition”), dated October 17, 2012.
4 Reply to Opposition (“Reply”), dated October 31, 2012.
5 47 C.F.R. § 76.906.
6 See 47 U.S.C. § 543(l)(1); 47 C.F.R. § 76.905(b).
7 See 47 C.F.R. §§ 76.906-.907(b).

Federal Communications Commission

DA 13-2195

programming services offered by MVPDs other than the largest MVPD exceeds 15 percent of the
households in the franchise area.8 This test is referred to as the “competing provider” test.
4.
The first prong of this test has three elements: the franchise area must be “served by” at
least two unaffiliated MVPDs who offer “comparable programming” to at least “50 percent” of the
households in the franchise area.9 It is undisputed that the Community is “served by” both DBS
providers, DIRECTV and DISH, and that these two MVPD providers are unaffiliated with Petitioner or
with each other. A franchise area is considered “served by” an MVPD if that MVPD’s service is both
technically and actually available in the franchise area. DBS service is presumed to be technically
available due to its nationwide satellite footprint, and presumed to be actually available if households in
the franchise area are made reasonably aware of the service’s availability.10 The Commission has held
that a party may use evidence of penetration rates in the franchise area (the second prong of the
competing provider test discussed below) coupled with the ubiquity of DBS services to show that
consumers are reasonably aware of the availability of DBS service.11 We further find that Petitioner has
provided sufficient evidence to support its assertion that potential customers in the Community are
reasonably aware that they may purchase the service of these MVPD providers.12 The “comparable
programming” element is met if a competing MVPD provider offers at least 12 channels of video
programming, including at least one channel of nonbroadcast service programming,13 and is supported in
this petition with copies of channel lineups for both DIRECTV and DISH.14
Also undisputed is
Petitioner’s assertion that both DIRECTV and DISH offer service to at least “50 percent” of the
households in the Community because of their national satellite footprint.15 Accordingly, we find that the
first prong of the competing provider test is satisfied.
5.
The second prong of the competing provider test requires that the number of households
subscribing to MVPDs, other than the largest MVPD, exceeds 15 percent of the households in a franchise
area. Petitioner sought to determine the competing provider penetration in the Community by purchasing
a subscriber tracking report from the Satellite Broadcasting and Communications Association that
identified the number of subscribers attributable to the DBS providers within the Community on a zip
code plus four basis.16 Petitioner asserts that it is the largest MVPD in the Community.17
6.
Based upon the aggregate DBS subscriber penetration levels that were calculated using
Census 2010 household data,18 as reflected in Attachment A, we find that Petitioner has demonstrated that
the number of households subscribing to programming services offered by MVPDs, other than the largest
MVPD, exceeds 15 percent of the households in the Attachment A Communities. Therefore, the second


8 47 U.S.C. § 543(l)(1)(B); 47 C.F.R. § 76.905(b)(2).
9 47 U.S.C. § 543(l)(1)(B)(i); 47 C.F.R. § 76.905(b)(2)(i).
10 See Petition at 3-5.
11 See, e.g., Mediacom Illinois LLC, 21 FCC Rcd 1175, 1176, ¶ 3 (2006).
12 47 C.F.R. § 76.905(e)(2).
13 See 47 C.F.R. § 76.905(g); see also Petition at 5.
14 See Petition at Exhibit 1.
15 See Petition at 3-5.
16 Petition at 6-7. A zip code plus four analysis allocates DBS subscribers to a franchise area using zip code plus
four information that generally reflects franchise area boundaries in a more accurate fashion than standard five digit
zip code information.
17 See Petition at 7.
18 Petition at Exhibits 5-6.
2

Federal Communications Commission

DA 13-2195

prong of the competing provider test is satisfied for each of the Communities.
7.
The City makes three objections in its Opposition, none of which merit denial of the
Petition. First, the City claims that Petitioner has not provided sufficient evidence that the DBS providers
provide “comparable programming” to the Petitioner. The City complains that the channel lineups
provided in the Petition do not reflect the actual lineups available to subscribers in the Community, and in
any event, the DBS providers’ programming cannot be comparable to that of the Petitioner because the
DBS providers do not provide Public, Educational, and Government Access (“PEG”) programming as
Petitioner is required to do pursuant to its Franchise Agreement with the City.19 The City misunderstands
our standard for what constitutes comparable programming for purposes of effective competition. The
comparable programming element is met if a competing MVPD provider offers at least 12 channels of
video programming, including at least one channel of non-broadcast service programming,20 and is
supported in this petition with citations to the channel lineups to DIRECTV and DISH.21 There is no
doubt that the Petition satisfies that standard. We have repeatedly held that determining whether
competing service is comparable for effective competition purposes does not depend on whether it
includes PEG channels.22
8.
Second, the City claims Comcast “may not have met its burden of demonstrating that the
number of DBS subscribers within the City limits of Danville exceeds 15 percent of the households in the
Comcast franchise area for the City.”23 The City fails to present any evidence to substantiate this claim
and we dismiss it accordingly. As discussed above, Petitioner has submitted evidence demonstrating that
more than15 percent of households in Danville subscribe to DBS providers.
9.
Finally, the City claims that Petitioner has presented no evidence to support its assertion
that it is the largest MVPD in the Community. We disagree. Petitioner has submitted a declaration under
penalty of perjury, which states that “Comcast is the largest multichannel video program provider in the
Danville Franchise Area.”24 The City presents no evidence to suggest this statement is inaccurate and
thus we accept Petitioner’s statement that it is the largest MVPD in the Community.
10.
Based on the foregoing, we conclude that Petitioner has submitted sufficient evidence
demonstrating that both prongs of the competing provider test are satisfied and Petitioner is subject to
effective competition in the Community listed on Attachment A.


19 Opposition at 2.
20 47 C.F.R. § 76.905(g).
21 See Petition Exhibit 1; see also Reply at Attachment 1 (providing channel lineups that include specific references
to the local programming offered in Danville, VA).
22 See, e.g., Comcast Cable Communications, LLC, 24 FCC Rcd 1780 at ¶35 n.83 (MB 2009) (citing CoxCom, Inc.,
14 FCC Rcd 7134, ¶ 19 (1999) (“PEG programming is not one of the factors the Commission has indicated is
germane in determining whether comparable programming is being offered by a competitor.”)); see also Comcast
Cable Communications Petition for Determination of Effective Competition in Six Michigan Communities
, 26 FCC
Rcd 3993, ¶ 5 (MB 2011) (“The rule does not mention PEG channels, and we have repeatedly held that the absence
of PEG channels from competing service does not disqualify its programming from being ‘comparable to cable
operators’ for purposes of determining effective completion.”).
23 Opposition at 3.
24 Petition at attached Declaration of Warren Fitting, Senior Director of Regulatory Accounting for Comcast Cable
Communications, LLC (August 20, 2012).
3

Federal Communications Commission

DA 13-2195

III.

ORDERING CLAUSES

11.
Accordingly,

IT IS ORDERED

that the petition for a determination of effective
competition filed in the captioned proceeding by Comcast Cable Communications, LLC

IS GRANTED

.
12.

IT IS FURTHER ORDERED

that the certification to regulate basic cable service rates
granted to any of the Community set forth on Attachment A

IS REVOKED

.
13.
This action is taken pursuant to delegated authority pursuant to Section 0.283 of the
Commission’s rules.25
FEDERAL COMMUNICATIONS COMMISSION
Steven A. Broeckaert
Senior Deputy Chief, Policy Division, Media Bureau


25 47 C.F.R. § 0.283.
4

Federal Communications Commission

DA 13-2195

ATTACHMENT A

MB Docket No. 12-279; CSR 8715-E

COMMUNITY SERVED BY COMCAST CABLE COMMUICATIONS, LLC

2010 Census

Estimated DBS

Community

CUIDs

CPR*

Households

Subscribers

Danville, VA
VA0029
21.71%
18,831
4,089

*CPR = Percent of competitive DBS penetration rate.
5

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