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Comcast Petition For Effective Competition, Pennsylvania

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Released: June 12, 2013

Federal Communications Commission

DA 13-1357

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Comcast Cable Communications, LLC
)
MB Docket No. 12-85, CSR 8606-E
)
MB Docket No. 12-86, CSR 8607-E
Petitions for Determination of Effective
)
Competition in 22 Pennsylvania Communities
)

MEMORANDUM OPINION AND ORDER

Adopted: June 7, 2013

Released: June 12, 2013

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

I.

INTRODUCTION AND BACKGROUND

1.
Comcast Cable Communications, LLC, on behalf of its subsidiaries and affiliates,
hereinafter referred to as "Petitioner," has filed with the Commission petitions 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
"Attachment A Communities." Petitioner alleges that its cable system serving the Attachment A
Communities 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 those Communities because of the competing service
provided by two direct broadcast satellite ("DBS") providers, DIRECTV, Inc. ("DIRECTV"), and DISH
Network ("DISH"). Petitioner additionally claims to be exempt from cable rate regulation in the
communities listed on Attachment B and hereinafter referred to as Attachment B Communities, pursuant
to Section 623(l)(1)(A) of the Communications Act3 and Section 76.905(b)(1) of the Commission's
rules,4 because the Petitioner serves fewer than 30 percent of the households in the franchise area. 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,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 petitions based on our
finding that Petitioner is subject to effective competition in the Communities listed on Attachments A and
B.


1 See 47 U.S.C. 543(l)(1)(B).
2 47 C.F.R. 76.905(b)(2).
3 See 47 U.S.C. 543(l)(1)(A).
4 47 C.F.R. 76.905(b)(1).
5 47 C.F.R. 76.906.
6 See 47 U.S.C. 543(l); 47 C.F.R. 76.905.
7 See 47 C.F.R. 76.906-.907(b).

Federal Communications Commission

DA 13-1357

II.

DISCUSSION

A.

The Competing Provider Test

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
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 Attachment A 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.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 those Communities
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
the petitions 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 Attachment A Communities 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 asserts that it is the largest MVPD in all of the Attachment A Communities.16 Petitioner
sought to determine the competing provider penetration in the Attachment A 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 Attachment A


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, e.g., Petition in CSR 8606-E at 3-4.
11 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, e.g., Petition in CSR 8607-E at 5.
14 See, e.g., Petition in CSR 8606-E at Ex. 2.
15 See, e.g., Petition in CSR 8607-E at 3.
16 See, e.g., Petition in CSR 8606-E at 7.
2

Federal Communications Commission

DA 13-1357

Communities on a zip code plus four basis.17
6.
Based upon the aggregate DBS subscriber penetration levels that were calculated using
2010 Census 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
prong of the competing provider test is satisfied for each of the Attachment A 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
Attachment A Communities.

B.

The Low Penetration Test

7.
Section 623(l)(1)(A) of the Communications Act provides that a cable operator is subject
to effective competition if the Petitioner serves fewer than 30 percent of the households in the franchise
area. This test is referred to as the "low penetration" test.19 Petitioner alleges that it is subject to effective
competition under the low penetration effective competition test because it serves less that 30 percent of
the households in the Attachment B Communities.
8.
Based upon the subscriber penetration level calculated by Petitioner, as reflected in
Attachment B, we find that Petitioner has demonstrated that the percentage of households subscribing to
its cable service is less than 30 percent of the households in the Attachment B Communities. Therefore,
the low penetration test is satisfied as to the Attachment B Communities.

III.

ORDERING CLAUSES

9.
Accordingly,

IT IS ORDERED

that the petitions for a determination of effective
competition filed in the captioned proceeding by Comcast Cable Communications, LLC, on behalf of its
subsidiaries and affiliates

ARE GRANTED

.
10.

IT IS FURTHER ORDERED

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

IS REVOKED

.
11.
This action is taken pursuant to delegated authority pursuant to Section 0.283 of the
Commission's rules.20
FEDERAL COMMUNICATIONS COMMISSION
Steven A. Broeckaert
Senior Deputy Chief, Policy Division, Media Bureau


17 See, e.g., Petition in CSR 8607-E at 5-7.
18 See, e.g., Petition in CSR 8606-E at Ex. 6.
19 47 U.S.C. 543(l)(1)(A).
20 47 C.F.R. 0.283.
3

Federal Communications Commission

DA 13-1357

ATTACHMENT A

MB Docket No. 12-85, CSR 8606-E
MB Docket No. 12-86, CSR 8607-E

COMMUNITIES SERVED BY SUBSIDIARIES AND AFFILIATES OF

COMCAST CABLE COMMUNICATIONS, LLC


2010 Census Estimated DBS

Communities

CUIDs

CPR*

Households

Subscribers

MB Docket No. 12-85, CSR 8606-E

Clarks Green Borough
PA1123
19.60
597
117
Clarks Summit Borough
PA0826
20.13
2,216
446
Dallas Borough
PA0882
30.87
1,137
351
Dalton Borough
PA1124
26.10
502
131
Exeter Borough
PA0684
25.90
2,463
638
Factoryville Borough
PA1095
23.75
341
81
Hughestown Borough
PA1127
39.31
608
239
Kingston Township
PA0885
36.34
2,815
1,023
Laflin Borough
PA1149
29.28
625
183
Moosic Borough
PA1187
24.04
2,363
568
Moscow Borough
PA1508
30.09
751
226
Old Forge Borough
PA1190
30.18
3,734
1,127
Pittston Township
PA1152
27.89
1,341
374
South Abington Township
PA1121
23.19
3,346
780

MB Docket No. 12-86, CSR 8607-E

Benner Township
PA0135
21.96
1,612
354
Halfmoon Township
PA2758
26.83
913
245
Howard Township
PA1474
33.24
370
123
Osceola Mills Township
PA0395
31.02
461
143
Port Matilda Borough
PA1729
17.94
262
47
Tyrone Borough
PA0031
22.33
2,275
508

*CPR = Percent of competitive DBS penetration rate.
4

Federal Communications Commission

DA 13-1357

ATTACHMENT B

MB Docket No. 12-85, CSR 8606-E
MB Docket No. 12-86, CSR 8607-E

COMMUNITIES SERVED BY SUBSIDIARIES AND AFFILIATES OF

COMCAST CABLE COMMUNICATIONS, LLC

Franchise Area

Cable

Penetration

Communities

CUIDs

Households

Subscribers Percentage

MB Docket No. 12-85, CSR 8606-E

Clinton Township
PA2010
902
127
14.08

MB Docket No. 12-86, CSR 8607-E

Beccaria Township
PA2093
732
59
8.06
5

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