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Time Warner Petition For Effective Competition, Wisconsin

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Released: May 10, 2013

Federal Communications Commission

DA 13-1024

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Time Warner Cable Inc.
)
MB Docket No. 12-213, CSR 8691-E
)
Petition for Determination of Effective
)
Competition in 18 Wisconsin Franchise Areas
)

MEMORANDUM OPINION AND ORDER

Adopted: May 7, 2013

Released: May 10, 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 a petition pursuant to Sections 76.7, 76.905(b)(4) 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)(D) 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 AT&T Wisconsin, hereinafter referred to as “Competitor.” The
petition is unopposed.
2.
In the absence of a demonstration to the contrary, cable systems are presumed not to be
subject to effective competition,3 as that term is defined by Section 623(l) of the Communications Act and
Section 76.905 of the Commission’s rules.4 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.5 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.

II.

DISCUSSION

3.
Section 623(l)(1)(D) of the Communications Act provides that a cable operator is subject
to effective competition if a local exchange carrier (“LEC”), or its affiliate, offers video programming
services directly to subscribers by any means (other than direct-to-home satellite services) in the franchise
area of an unaffiliated cable operator which is providing cable service in that franchise area, but only if
the video programming services offered in that area are comparable to the video programming services
provided by the competing unaffiliated cable operator.6 This test is referred to as the “LEC” test.


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

Federal Communications Commission

DA 13-1024

4.
The Commission has stated that the incumbent cable operator must show that the LEC
intends to build out its cable system within a reasonable period of time if it has not completed its build
out; that no regulatory, technical, or other impediments to household service exist; that the LEC is
marketing its services so that potential customers are aware that the LEC’s services may be purchased;
that the LEC has actually begun to provide services; the extent of such services; the ease with which
service may be expanded; and the expected date for completion of construction in the franchise area.7 It
is undisputed that these Communities are served by both Petitioner and Competitor, a local exchange
carrier, and that these two MVPD providers are unaffiliated. 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 programming8 and is supported in this petition with copies of
channel lineups for Competitor.9
Finally, Petitioner has demonstrated that the Competitor has
commenced providing video programming service within the Communities, has marketed its services in a
manner that makes potential subscribers reasonably aware of its services, and otherwise satisfied the LEC
effective competition test consistent with the evidentiary requirements set forth in the Cable Reform
Order
.10
5.
Based on the foregoing, we conclude that Petitioner has submitted sufficient evidence
demonstrating that its cable system serving the Communities has met the LEC test and is subject to
effective competition.

III.

ORDERING CLAUSES

6.
Accordingly,

IT IS ORDERED

that the petition for a determination of effective
competition filed in the captioned proceeding by Time Warner Cable Inc.

IS GRANTED

.
7.

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

.
8.
This action is taken pursuant to delegated authority pursuant to Section 0.283 of the
Commission’s rules.11
FEDERAL COMMUNICATIONS COMMISSION
Steven A. Broeckaert
Senior Deputy Chief, Policy Division, Media Bureau


7 See Implementation of Cable Act Reform Provisions of the Telecommunications Act of 1996, 14 FCC Rcd 5296,
5305-06, ¶¶ 13-15 (1999) (“Cable Reform Order”).
8 See 47 C.F.R. § 76.905(g). See also Petition at 7-8.
9 See also Petition at 7, Exhibit A.
10 See Cable Reform Order, 14 FCC Rcd at 5305-06, ¶¶ 13-15. See also Petition at 2-7.
11 47 C.F.R. § 0.283.
2

Federal Communications Commission

DA 13-1024

ATTACHMENT A

MB Docket No. 12-213, CSR 8691-E

COMMUNITIES SERVED BY TIME WARNER CABLE INC.


Communities

CUIDs

Bayside
WI0334; WI0335
Brown Deer
WI0331
Cudahy
WI0319
Fox Point
WI0333
Franklin
WI0321
Glendale
WI0337
Greendale
WI0322
Greenfield
WI0323
Hales Corners
WI0420
Oak Creek
WI0401
River Hills
WI0336
Shorewood
WI0332
South Milwaukee
WI0320
St. Francis
WI0105
Wauwatosa
WI0131
West Allis
WI0265
West Milwaukee
WI0357
Whitefish Bay
WI0330
3

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