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Coxcom, Inc. d/b/a Cox Communications Omaha and Cox Communications Sun Valley

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Released: February 19, 2010

Federal Communications Commission

DA 10-286

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Coxcom, Inc. d/b/a Cox Communications Omaha
)
CSR 8057-E and 8058-E
and Cox Communications Sun Valley
)
)

Petition for Determination of Effective
)
Competition in various Nebraska, Idaho, and Iowa )
Communities
)

MEMORANDUM OPINION AND ORDER

Adopted: February 19, 2010

Released: February 19, 2010

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

I.

INTRODUCTION AND BACKGROUND

1.
Coxcom, Inc, d/b/a Cox Communications Omaha and Cox Communications Sun Valley,
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 those communities listed on Attachment A and hereinafter referred to as
“Communities.” Petitioner alleges that its cable system serving the Communities is subject to effective
competition pursuant to Section 623(1)(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 Communities because of the competing service provided by two direct broadcast
satellite (“DBS”) providers, DirecTV, Inc. (“DirecTV”) and Dish Network (“Dish”).3 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 petition based on our
finding that Petitioner is subject to effective competition in the Communities listed on Attachment A.


1See 47 U.S.C. § 543(a)(1).
247 C.F.R. § 76.905(b)(2).
3Cox additionally relies on the subscriber count of Qwest Broadband Services, Inc. (“Qwest”), which provides cable
service in Douglas County and Sarpy County, Nebraska.
447 C.F.R. § 76.906.
5See 47 U.S.C. § 543(l) and 47 C.F.R. § 76.905.
6See 47 C.F.R. §§ 76.906 & 907.

Federal Communications Commission

DA 10-286

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 (“MVPD”), 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.7 This test is otherwise 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
5.
Turning to the first prong of this test, it is undisputed that these 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 of DBS advertising in local, regional, and national media that serve the
Communities to support their 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 programming12 and is supported in this petition 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.
6.
The second prong of the competing provider test requires that the number of households
subscribing to MVPDs, other than the largest MVPD, exceed 15 percent of the households in a franchise
area. Petitioner asserts that it is the largest MVPD in the Communities.15 Petitioner sought to determine
the competing provider penetration in the Communities by purchasing a subscriber tracking report from
the Satellite Broadcasting and Communications Association (“SBCA”) that identified the number of
subscribers attributable to the DBS providers within the Communities on a zip code and zip code plus


747 U.S.C. § 543(1)(1)(B); see also 47 C.F.R. § 76.905(b)(2).
847 C.F.R. § 76.905(b)(2)(i).
9See Petition at 5.
10Mediacom Illinois LLC et al., Eleven Petitions for Determination of Effective Competition in Twenty-Two Local
Franchise Areas in Illinois and Michigan, 21 FCC Rcd 1175 (2006).
1147 C.F.R. § 76.905(e)(2).
12See 47 C.F.R. § 76.905(g). See also Petition at 4.
13See Petition at 4 and Exhibit 2.
14See Petition at 4.
15Id. at 7.
2

Federal Communications Commission

DA 10-286

four basis where necessary.16
7.
Based upon the aggregate DBS subscriber penetration levels that were calculated using
Census 2000 household data,17 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.18 Therefore, the second prong of the
competing provider test is satisfied for each of the Communities.
8.
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.

III.

ORDERING CLAUSES

9.
Accordingly,

IT IS ORDERED

that the petitions for a determination of effective
competition filed in the captioned proceeding by Coxcom, Inc. d/b/a Cox Communications Omaha and
Cox Communications Sun Valley

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 Attachment A

IS REVOKED

.
11.
This action is taken pursuant to delegated authority pursuant to Section 0.283 of the
Commission’s rules.19
FEDERAL COMMUNICATIONS COMMISSION
Steven A. Broeckaert
Senior Deputy Chief, Policy Division, Media Bureau


16Petition at 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.
17Petition at 8.
18Cox’s data combines subscriber count information for DBS providers and MVPD operator Qwest.
1947 C.F.R. § 0.283.
3

Federal Communications Commission

DA 10-286

ATTACHMENT A

CSR(s) 8057-E, and 8058-E

COMMUNITIES SERVED BY COXCOM, INC. D/B/A COX COMMUNICATIONS OMAHA

AND COX COMMUNICATIONS SUN VALLEY

2000

Estimated


Census

DBS & Other MVPD

Communities CUID(s) CPR*

Household

Subscribers

CSR 8057-E
Douglas County

NE0068

19.03%
19,636
3,737*

NE0083
NE0112

Sarpy County

NE0080

20.91%
12,858
2,689*

NE0436
NE0439

Elkhorn

NE0469

28.24%
2,000
565

Papillion

NE0067

16.34%
5,505
900

Pottawattamie County

IA0287

23.65%
6,214
1,470

Crescent

IA0972

39.46%
192
76

CSR 8058-E
Blaine County

ID0067

40.99%
2,370
972

Hailey

ID0076

39.55%
2,389
945

Ketchum

ID0055

26.67%
1,582
422

Sun Valley

ID0007

26.59%
594
158

*CPR = Percent of competitive DBS penetration rate.
*Douglas County- includes 2,034 DBS subscribers and 1,703 Qwest subscribers.
*Sarpy County- includes 1,978 DBS subscribers and 711 Qwest subscribers.
4

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