Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

Time Warner Cable Inc., Effective Competition, New York

Download Options

Released: July 11, 2013

Federal Communications Commission

DA 13-1563

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

MB Docket No. 12-335, CSR 8741-E
Time Warner Cable Inc.
)
MB Docket No. 12-367, CSR 8755-E
)
MB Docket No. 12-368, CSR 8756-E
Petitions for Determination of Effective
)
MB Docket No. 13-28, CSR 8765-E
Competition in Communities in New York
)

MEMORANDUM OPINION AND ORDER

Adopted: July 11, 2013

Released: July 11, 2013

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

I.

INTRODUCTION AND BACKGROUND

1.
Time Warner Cable Inc., 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 the "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 Id. 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 13-1563

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 multichannel 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
these petitions with citations to the 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, exceed 15 percent of the households in a franchise
area. Petitioner asserts that it is the largest MVPD in the Attachment A Communities.16 Petitioner sought
to determine the competing provider penetration there 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 Communities on a zip code plus four basis.17


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 Petitions at 3.
11 Mediacom Illinois LLC, 21 FCC Rcd 1175, 1176, 3 (2006).
12 47 C.F.R. 76.905(e)(2); see Petitions at 4-5.
13 See 47 C.F.R. 76.905(g). See also Petitions at 5.
14 See Petitions at 5-6.
15 See id. at 6.
16 Petition in CSR 8741-E at 7; Petition in CSR 8755-E & 8756-E at 6; Petition in CSR 8765-E at 6.
17 See Petitions at 7 and Exh. C.
2

Federal Communications Commission

DA 13-1563

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
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 than 30 percent of
the households in the Attachment B Communities.20
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 Time Warner Cable Inc.

ARE GRANTED

for the
Attachment A and B Communities.
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.21
FEDERAL COMMUNICATIONS COMMISSION
Steven A. Broeckaert
Senior Deputy Chief, Policy Division, Media Bureau


18 Id. at 7 and Exhs. B, C.
19 47 U.S.C. 543(l)(1)(A).
20 See Petition in CSR 8755-E & 8756-E at 8. See also Petition in CSR 8765-E at 8; Letter from Craig A. Gilley,
Counsel for Time Warner Cable Inc., to Marlene H. Dortch, Secretary, FCC, at 1 (Mar. 6, 2013) (deleting the Town of
Marcy (NY0077) from consideration under the low penetration test).
21 47 C.F.R. 0.283.
3

Federal Communications Commission

DA 13-1563

ATTACHMENT A

COMMUNITIES SERVED BY TIME WARNER CABLE INC.

MB Docket No. 12-335, CSR 8741-E

2010 Census

Estimated DBS

Communities

CUIDs

CPR*

Households

Subscribers

Town of Barker
NY1592
31.05
1,021
317
Town of Binghamton
NY0132
16.26
1,894
308
Village of Marathon
NY0829
15.68
389
61
Town of Nanticoke
NY0983
24.79
601
149
Town of Newark Valley
NY1650
22.51
1,537
346

MB Docket No. 12-367, CSR 8755-E

2010 Census

Estimated DBS

Communities

CUIDs

CPR*

Households

Subscribers

Town of Laurens
NY0207
40.57
1,050
426
Town of Milford
NY0056
31.01
1,290
400
Town of Norwich
NY0554
25.10
1,546
388

MB Docket No. 12-368, CSR 8756-E

2010 Census

Estimated DBS

Communities

CUIDs

CPR*

Households

Subscribers

Town of Caroline
NY0088
26.16
1,403
367
Town of Danby
NY0310
23.82
1,373
327
Town of Dryden
NY0090
19.98
6,016
1,202

MB Docket No. 13-28, CSR 8765-E

2010 Census

Estimated DBS

Communities

CUIDs

CPR*

Households

Subscribers

Town of Deerfield
NY0075
19.40
1,644
319
Town of Inlet
NY1692
18.74
886
166
Village of Poland
NY0965
15.10
192
29
Town of Schuyler
NY0082
20.01
1,469
294
Town of Webb
NY1693
29.23
3,294
963
Town of Westmoreland
NY0614
15.35
2,372
364
*CPR = Percent of competitive DBS penetration rate.
4

Federal Communications Commission

DA 13-1563

ATTACHMENT B

COMMUNITIES SERVED BY TIME WARNER CABLE INC.

MB Docket No. 12-367, CSR 8755-E

Franchise Area

Cable

Penetration

Communities

CUIDs

Households

Subscribers

Percentage

Town of Columbus
NY1711
364
1
0.27
Town of Decatur
NY1885
152
1
0.66
Town of Hamden
NY1987
569
1
0.18
Town of Jefferson
NY1548
584
78
13.36
Town of Summit
NY1517
493
81
16.43

MB Docket No. 12-368, CSR 8756-E

Franchise Area

Cable

Penetration

Communities

CUIDs

Households

Subscribers

Percentage

Town of Groton
NY0578
2,322
343
14.77
5

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.