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Comcast Cable Petitions For Effective Competition, Pennsylvania.

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Released: March 29, 2013

Federal Communications Commission

DA 13-572

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

MB Docket No. 12-148, CSR 8645-E
Comcast Cable Communications, LLC
)
MB Docket No. 12-149, CSR 8646-E
)
MB Docket No. 12-185, CSR 8673-E
Petitions for Determination of Effective
)
MB Docket No. 12-209, CSR 8687-E
Competition in 41 Communities in Pennsylvania
)
MB Docket No. 12-210, CSR 8688-E
)
MB Docket No. 12-211, CSR 8689-E
)
MB Docket No. 12-224, CSR 8696-E

MEMORANDUM OPINION AND ORDER

Adopted: March 29, 2013

Released: March 29, 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 several petitions1 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 those
communities listed on Attachment A and hereinafter referred to as the “Communities.” Petitioner alleges
that its cable system serving the Communities is subject to effective competition pursuant to Section
623(l)(1)(B) of the Communications Act of 1934, as amended (“Communications Act”),2 and the
Commission’s implementing rules,3 and is therefore exempt from cable rate regulation in the
Communities because of the competing service provided by two direct broadcast satellite (“DBS”)
providers, DIRECTV, Inc. (“DIRECTV”), and DISH Network (“DISH”). The petitions are unopposed.
2.
In the absence of a demonstration to the contrary, cable systems are presumed not to be
subject to effective competition,4 as that term is defined by Section 623(l) of the Communications Act and
Section 76.905 of the Commission’s rules.5 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.6 For the reasons set forth below, we grant the petitions based on our
finding that Petitioner is subject to effective competition in the Communities 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


1 When necessary to distinguish between the six petitions, they will be referenced herein according to the first
community listed.
2 See 47 U.S.C. § 543(l)(1)(B).
3 47 C.F.R. § 76.905(b)(2).
4 47 C.F.R. § 76.906.
5 See 47 U.S.C. § 543(l)(1); 47 C.F.R. § 76.905(b).
6 See 47 C.F.R. §§ 76.906-.907(b).

Federal Communications Commission

DA 13-572

percent of the households in the franchise area; and (b) the number of households subscribing to
programming services offered by MVPDs other than the largest MVPD exceeds 15 percent of the
households in the franchise area.7 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.8 It is undisputed that the Communities are “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.9 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.10 We further find that Petitioner has provided
sufficient evidence to support its assertion that potential customers in the Communities are reasonably
aware that they may purchase the service of these MVPD providers.11 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,12 and is supported in the petitions
with copies of channel lineups for both DIRECTV and DISH.13 Also undisputed is Petitioner’s assertion
that both DIRECTV and DISH offer service to at least “50 percent” of the households in the Communities
because of their national satellite footprint.14 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. Further, as Petitioner asserts, the Commission's rules provide that once the first prong of the
competing provider test is satisfied, as it is with the DBS offerings in this case, the subscribers of all
qualifying MVPDs count toward the 15 percent penetration figure necessary for a determination of
effective competition, even if they are not available themselves to more than 50 percent of households.15
Therefore, Petitioner notes that the competing provider penetration figures for the Communities of
Baldwin Borough, Baldwin Township, Bethel Park Borough, Brentwood Borough, Caln Township,
Castle Shannon Borough, Churchill Borough, Derry Township, Dormont Borough, Downingtown
Borough, Dublin Borough, East Brandywine Township, East Fallowfield Township, Edgmont Township,
Fox Chapel Borough, Kennett Township, McCandless Township, Mount Lebanon Township, New
Garden Township, New London Township, Peters Township, Pittsburgh City, Ross Township, Salford
Township, Sellersville Borough, Silverdale Borough, Upper Salford Township, Upper St. Clair


7 47 U.S.C. § 543(l)(1)(B); 47 C.F.R. § 76.905(b)(2).
8 47 U.S.C. § 543(l)(1)(B)(i); 47 C.F.R. § 76.905(b)(2)(i).
9 See Petitions at 3-4.
10 Mediacom Illinois LLC, 21 FCC Rcd 1175, 1176, ¶ 3 (2006).
11 47 C.F.R. § 76.905(e)(2).
12 See 47 C.F.R. § 76.905(g); see also Petitions at 5.
13 See Baldwin, Bedminster and Caln Petitions at Exhibit 2; Bethel Park, Churchill, Derry and Whitemarsh Petitions
at Exhibit 1.
14 See Petitions at 3.
15 See Petitions at 5-6; see also 47 C.F.R. § 76.905(f); Time Warner Entertainment Co., LP et al. v. FCC, 56 F.3d
151, 189 (D.C. Cir. 1995).
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Federal Communications Commission

DA 13-572

Township, Uwchlan Township, Valley Township, West Caln Township, Whitehall Borough, Whitemarsh
Township and Wilkins Township, include subscribers from Verizon Communications Inc. (“Verizon”) as
well as from the two DBS providers.16 Petitioner sought to determine the competing provider DBS
penetration in the Communities 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 Communities on a zip code plus four basis.17 With respect to the communities of
Baldwin Borough, Bedminster Township, Bethel Park, Brentwood, Castle Shannon, Derry, Dormont,
Downington, Dublin, East Fallowfield, East Hanover Township, Edgmont, Elizabeth Township, Fox
Chapel, Franklin, London Britain Township, McCandless, New Garden, New London, Peters, Pittsburgh,
Ross, Salford, Sellersville, Silverdale, Upper Salford, Valley, West Caln, West Nantmeal Township,
Whitehall and Wilkins, Petitioner asserts that it is the largest MVPD in those franchise areas.18 With
respect to the communities of Baldwin Township, Caln, Churchill, East Brandywine, Kennett, Mount
Lebanon, Upper St. Clair, Uwchian and Whitemarsh, Petitioner asserts that it serves in excess of 15
percent of the households in those communities, while competing providers serve an aggregate of more
than 54 percent,19 52 percent,20 57 percent,21 58 percent,22 53 percent,23 47 percent,24 55 percent25, 54
percent26 and 37 percent,27 respectively, of the communities.
6.
Based upon the aggregate DBS subscriber penetration levels that were calculated using
Census 2010 household data,28 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 communities Baldwin Borough, Bedminster, Bethel


16 See Petitions at 6. Petitioner has requested that we treat as confidential certain data that was supplied by its
competitor Verizon and that shows Verizon activity in some of the Communities. Baldwin, Bedminster and Caln
Petitions at 6 n.24, Exh. 5; Bethel Park, Churchill, Derry and Whitemarsh Petitions at 6 n.23, Exh. 4. Businesses
typically protect such data from disclosure, and no one has objected to confidential treatment. Accordingly, we
grant the Petitioner's request. We believe that by combining Verizon's subscriber figures in the relevant
Communities with the direct broadcast satellite figures provided by the Satellite Broadcasting and Communications
Association, we will sufficiently protect the confidentiality of Verizon's subscriber figures. See, e.g., CoxCom, Inc.,
22 FCC Rcd 4384 (MB 2007). We reserve the right, if another party requests access to the confidential data, to
engage in a more formal process for their evaluation, protection, and limited disclosure. See, e.g., Adelphia
Commun. Corp.
, 20 FCC Rcd 20073 (MB 2005); Sprint Petition for Pricing Flexibility for Special Access &
Dedicated Transport Services
, Protective Order, 20 FCC Rcd 19882 (WCB 2005).
17 Petitions at 6-8. 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.
18 See Baldwin, Bedminster, Bethel Park, Caln and Derry Petitions at 8; Churchill Petition at 7-8.
19 Baldwin Petition at 8, Exhibit 9.
20 Caln Petition at 8, Exhibit 9.
21 Churchill Petition at 8.
22 Caln Petition at 8, Exhibit 9.
23 Id.
24 Bethel Park Petition at 8.
25 Id.
26 Caln Petition at 8, Exhibit 9.
27 Whitemarsh Petition at 8.
28 Baldwin, Bedminster and Caln Petitions at Exhibits 8-9; Bethel Park, Churchill, Derry and Whitemarsh Petitions
at Exhibits 7-8.
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Federal Communications Commission

DA 13-572

Park, Brentwood, Castle Shannon, Derry, Dormont, Downington, Dublin, East Fallowfield, East Hanover,
Edgmont, Elizabeth, Fox Chapel, Franklin, London Britain, McCandless, New Garden, New London,
Peters, Pittsburgh, Ross, Salford, Sellersville, Silverdale, Upper Salford, Valley, West Caln, West
Nantmeal, Whitehall and Wilkins. With regard to the communities of Baldwin Township, Churchill,
Mount Lebanon, Upper St. Clair and Whitemarsh, we are able to conclude that this portion of the test is
met by analyzing the data submitted for both the Petitioner and its MVPD competitors. If the subscriber
penetration for both the Petitioner and the aggregate competing MVPD information each exceed 15
percent in the franchise area, the second prong of the competing provider test is satisfied.29 In Baldwin
Township, the Petitioner’s penetration rate is in excess of 15 percent and the combined competing MVPD
provider penetration rate is 54 percent,30 while in Caln, the Petitioner’s penetration rate is in excess of 15
percent and the combined competing MVPD provider penetration rate is 52.04 percent.31 In Churchill,
the Petitioner’s penetration rate is in excess of 15 percent and the combined competing MVPD provider
penetration rate is 57 percent,32 while in East Brandywine, the Petitioner’s penetration rate is in excess of
15 percent and the combined competing MVPD provider penetration rate is 58.25 percent.33 In Kennett,
the Petitioner’s penetration rate is in excess of 15 percent and the combined competing MVPD provider
penetration rate is 53.85 percent,34 while in Mount Lebanon, the Petitioner’s penetration rate is in excess
of 15 percent and the combined competing MVPD provider penetration rate is 47.95 percent, 35 In Upper
St. Clair, the Petitioner’s penetration rate is in excess of 15 percent and the combined competing MVPD
provider penetration rate is 55.13 percent,36 while in Uwchlan, the Petitioner’s penetration rate is in
excess of 15 percent and the combined competing MVPD provider penetration rate is 54.28 percent.37
Finally, in Whitemarsh, the Petitioner’s penetration rate is in excess of 15 percent and the combined
competing MVPD provider penetration rate is 37 percent.38 Therefore, the second prong of the competing
provider test is satisfied for each of the Communities. 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 Communities listed on Attachment A.


29 Charter Communications, 21 FCC Rcd 1208, 1210 (MB 2006); Time Warner Entertainment Advance/Newhouse
Partnership
, 17 FCC Rcd 23587, 23589 (MB 2002).
30 Baldwin Petition at 8, Exhibit 9.
31 Caln Petition at 8, Exhibit 9.
32 Churchill Petition at 8.
33 Caln Petition at 8, Exhibit 9.
34 Id.
35 Bethel Park Petition at 8.
36 Id.
37 Caln Petition at 8, Exhibit 9.
38 Whitemarsh Petition at 8.
4

Federal Communications Commission

DA 13-572

III.

ORDERING CLAUSES

7.
Accordingly,

IT IS ORDERED

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

ARE
GRANTED

.
8.

IT IS FURTHER ORDERED

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

IS REVOKED

.
9.
This action is taken pursuant to delegated authority pursuant to Section 0.283 of the
Commission’s rules.39
FEDERAL COMMUNICATIONS COMMISSION
Steven A. Broeckaert
Senior Deputy Chief, Policy Division, Media Bureau


39 47 C.F.R. § 0.283.
5

Federal Communications Commission

DA 13-572

ATTACHMENT A

MB Docket No. 12-148, CSR 8645-E; MB Docket No. 12-149, CSR 8646-E;

MB Docket No. 12-185, CSR 8673-E; MB Docket No. 12-209, CSR 8687-E;

MB Docket No. 12-210, CSR 8688-E; MB Docket No. 12-211, CSR 8689-E;

MB Docket 12-224, CSR 8696-E

COMMUNITIES SERVED BY COMCAST CABLE COMMUNICATIONS LLC

2010 Census

Estimated Non-

Communities

CUID

CPR*

Households

Comcast MVPD

Subscribers

Baldwin Borough
PA0693
17.60%
8,669
1,526
Baldwin Township
PA1105
54.18%
849
460
Bedminster Township
PA2712
17.10%
2,403
411**
Bethel Park Borough
PA1231
30.88%
13,659
4,218
Brentwood Borough
PA1215
43.75%
4,379
1,916
Caln Township
PA0179
52.04%
5,259
2,737
Castle Shannon Borough
PA0698
34.26%
3,902
1,337
Churchill Borough
PA0580
57.67%
1,363
786
Derry Township
PA0582
36.29%
9,637
3,497
Dormont Borough
PA1106
40.66%
4,051
1,647
Downingtown Borough
PA1045
41.27%
3,286
1,356
Dublin Borough
PA2711
45.23%
902
408
Edgmont Township
PA2518
31.48%
1,655
521
East Brandywine Township
PA1907
58.25%
2,369
1,380
East Fallowfield Township
PA1384
53.45%
2,640
1,411
East Hanover Township
PA2279
27.81%
2,226
619**
(Dauphin County)
East Hanover Township
PA2275
29.27%
1,025
300**
(Lebanon County)
Elizabeth Township
PA0525
16.64%
5,578
928**
Fox Chapel Borough
PA1228
33.69%
2,063
695
Franklin Township
PA2929
26.17%
1,433
375**
Kennett Township
PA1941
53.85%
2,986
1,608
London Britain Township
PA2931
24.91%
1,092
272**
McCandless Township
PA0709
36.51%
11,659
4,257
Mount Lebanon Township
PA1344
47.95%
14,196
6,807
New Garden Township
PA1939
46.26%
3,694
1,709
New London Township
PA2928
40.77%
1,739
709
Peters Township
PA1519
51.39%
7,292
3,747
Pittsburgh City
PA1855
24.15%
136,217
32,890
Ross Township
PA0714
35.99%
14,125
5,084
Salford Township
PA2387
47.97%
888
426
6

Federal Communications Commission

DA 13-572

Sellersville Borough
PA1383
40.27%
1,721
693
Silverdale Borough
PA2710
43.75%
320
140
Upper Salford Township
PA2388
45.58%
1,154
526
Upper St. Clair Township
PA1459
55.13%
6,976
3,846
Uwchlan Township
PA1582
54.28%
6,610
3,588
Valley Township
PA0182
50.53%
2,656
1,342
West Caln Township
PA2494
41.01%
3,260
1,337
West Nantmeal Township
PA3058
21.10%
820
173**
Whitehall Borough
PA0889
37.96%
6,156
2,337
Whitemarsh Township
PA1990
37.10%
6,744
2,502
Wilkins Township
PA0598
51.84%
3,148
1,632

*CPR = Percent of competitive penetration rate of both DBS and, where applicable, Verizon.
** = only includes DBS subscribers
7

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