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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of: ) ) RCN-BETG, LLC ) Certification to Operate an ) Open Video System ) MEMORANDUM OPINION AND ORDER Adopted: February 27, 1997 Released: February 27, 1997 By the Deputy Chief, Cable Services Bureau: I. INTRODUCTION AND BACKGROUND 1. On February 18, 1997, RCN-BETG, LLC ("RCN-BETG") filed an application for certification to operate an open video system pursuant to Section 653(a)(1) of the Communications Act of 1934, as amended, and the Commission's Rules. RCN-BETG seeks to operate an open video system in Boston, Massachusetts and the surrounding suburban communities. As provided in its rules, the Commission published notice of receipt of the certification application and posted the application on the Internet. Comments on the certification application were timely filed by the City of Boston ("Boston") and the Towns of Ashland, Brookline, Burlington, Holliston, and Lexington. 2. Pursuant to Section 653(a)(1) of the Communications Act, any person may obtain certification to operate an open video system. In light of the brief period (ten days) for Commission review of certification filings, the Commission concluded that Congress intended a streamlined certification process. Open video system operators may apply for certification at any point prior to the commencement of service, subject to two conditions. If construction of a new physical plant is required, the applicant must obtain Commission approval of its certification prior to the commencement of construction. If no new construction is required, certification must be obtained prior to the commencement of service, allowing sufficient time to comply with the Commission's notification requirements to programming providers. 3. Despite its streamlined nature, the Commission intended the certification process to provide purposeful representations regarding the responsibilities of the open video system operator, by requiring, inter alia, the submission of specified information and that certifications be verified. To obtain certification, a party must file FCC Form 1275 which requires, among other things: (a) a statement of ownership, including a list of all affiliated entities; (b) a representation that the applicant will comply with the Commission's regulations under Section 653(b); (c) a general description of the anticipated communities or areas to be served; and (d) a statement of the anticipated type and amount of capacity that the system will provide. 4. RCN-BETG is a joint venture undertaken by Residential Communications Network of Massachusetts, Inc. ("RCN-MA") and Boston Energy Technology Group ("BETG"). BETG is a wholly-owned subsidiary of the Boston Edison Company, a publicly owned utility company. RCN-MA is a wholly-owned subsidiary of RCN Telecom Services, Inc., which in turn is a wholly- owned subsidiary of C-TEC Corporation. II. POSITIONS OF THE PARTIES 5. Boston urges the Commission to deny RCN-BETG's open video system certification until the Massachusetts Department of Public Utilities resolves the issue of the joint venture's authority to do business as an open video system operator. According to Boston, there is no evidence in the record that the Massachusetts Department of Public Utilities has given Boston Edison, the parent company of BETG, the authority to use any of its plant in the distribution of television signals or telephone traffic. Boston asserts that neither the Purposes Clause nor the Powers Clause of the Articles of Organization of BETG authorizes the telecommunications activities contemplated by RCN-BETG's open video system certification application. 6. The Towns of Brookline, Burlington, Holliston, and Lexington request that the Commission grant an extension of time to allow the Towns to review the filings and obtain information regarding the joint venture of RCN-MA and BETG. 7. The Towns of Ashland, Brookline, Burlington, and Holliston uniformly oppose the certification based on the lack of information about the applicant contained in the certification application and the length of time given to the Towns to review and comment on the application. The Town of Ashland also notes that RCN-BETG has not acknowledged or taken into account the standards and requirements contained in the Town's regulations for "MultiChannel Service Providers." Finally, the Town of Ashland complains that RCN-BETG has not indicated that it will provide substantially similar public, educational, government ("PEG") channels and leased access channels, as the current cable operator provides the Town. III. DISCUSSION 8. As an initial matter, we deny the requests made by the Towns of Brookline, Burlington, Holliston, and Lexington for an extension of time to file comments regarding the open video system application filed by RCN/BETG. Congress intended that the open video system certification process be a streamlined review process and mandated that the Commission review and act on open video system applications within 10 calendar days from the date of Commission receipt, or the application would be deemed approved by the Commission. Accordingly, the Commission is statutorily barred from extending the review process as requested by the Towns of Brookline, Burlington, Holliston, and Lexington. 9. The scope of the certification process concerns the adequacy and accuracy of the information the applicant is required to provide under our rules. The concerns stated by the Towns of Ashland, Brookline, Burlington, Holliston, and Lexington regarding their lack of sufficient information about, and familiarity with the applicant, do not constitute grounds for denial under our rules. Similarly, we find that the Town of Ashland's other concerns are beyond the scope of the certification process. 10. In summary, RCN-BETG has provided the requisite facts and representations concerning the open video systems it intends to operate and has certified that it "agrees to comply and remain in compliance with each of the Commission's regulations" under Section 653(b). We reiterate that if the representations contained in the certification filing prove to be materially false or materially inaccurate, the Commission retains the authority to revoke an open video system operator's certification or to impose such other penalties it deems appropriate, including forfeiture. IV. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED that the certification of RCN-BETG, LLC to operate an open video system is GRANTED. 12. This action is taken by the Deputy Chief, Cable Services Bureau, pursuant to the authority delegated by Section 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION John E. Logan Deputy Chief, Cable Services Bureau