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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 DIGITAL BROADCASTING OVS ) Certification to Operate ) Open Video System ) ) ) ) Application For Review of Order of) the Cable Services Bureau Decision ) Granting Certification To Operate an ) Open Video System To Digital ) Broadcasting OVS, Inc. ) ORDER ON REVIEW Adopted: September 2, 1997 Released: September 23, 1997 By the Commission: I. INTRODUCTION AND BACKGROUND 1. The California Cable Television Association ("CCTA") filed an Application for Review of the decision by the Cable Services Bureau (the "Bureau") granting the certification application of Digital Broadcasting OVS, Inc. ("DBOVS") to become an open video system operator. DBOVS filed an opposition. For the reasons stated below, we deny CCTA's Application for Review. 2. On September 30, 1996, DBOVS applied to the Commission for a certificate to become an open video system operator. On October 7, 1996, CCTA filed an opposition to the DBOVS certification application in that proceeding. CCTA argued that DBOVS failed to provide certain information in its certification application that is not specifically required by FCC Form 1275; questioned the adequacy of the ownership information provided by DBOVS; challenged DBOVS' technical qualifications based upon DBOVS' statement of anticipated channel capacity; and raised concerns about DBOVS' ability to operate an open video system because DBOVS was not an established local exchange operator or video service provider. On October 10, 1996, the Bureau issued its DBOVS Order granting DBOVS' application to become a certified open video system operator. The DBOVS Order concluded that the applicant had provided the required information and further found that CCTA's arguments were outside the scope of the certification process and did not constitute grounds for dismissal of DBOVS' application. In addressing the certification process in the DBOVS Order, the Bureau explained that the Commission intended open video system certification to be a streamlined process which required no pre-certification submissions or approvals. II. POSITIONS OF THE PARTIES 3. In its Application, CCTA argues that the Bureau's DBOVS Order is inconsistent with the open video system framework established by the Commission. First, CCTA argues that the DBOVS Order failed to establish DBOVS' ability or intent to deploy a facilities-based open video system. Second, CCTA argues that the DBOVS Order ignored DBOVS' intentions with regard to channel capacity as stated in its certification application. Third, CCTA argues that by failing to require DBOVS to provide additional information in its certification application, the DBOVS Order created an erroneous and unlawful precedent with regard to the requirements which must be met in order to become a certified open video system operator. CCTA states that the Bureau's actions warrant full Commission review pursuant to Section 1.115(a). 4. CCTA claims that the Telecommunications Act of 1996 requires open video systems to be facilities-based. CCTA asserts that the Commission has elsewhere defined "facilities-based" competition to mean "competition between at least two wire-line service providers." CCTA states that Congress established the open video system framework for the express purpose of advancing competition among facilities-based service providers in a nondiscriminatory manner. CCTA argues that the DBOVS Order improperly failed to address the issue of DBOVS' lack of facilities over which to provide its open video service. 5. With regard to information contained in DBOVS' application concerning channel capacity, CCTA asserts that DBOVS' statement that it intends to provide 500 six MHz channels is technically infeasible and that that statement demonstrates DBOVS' lack of technical qualifications sufficient to operate an open video system. CCTA argues that the channel capacity anticipated by DBOVS would require approximately three GHz of bandwidth, a feat that is not technically feasible. CCTA argues that the Bureau's acceptance of DBOVS' statement concerning channel capacity constitutes a material error. 6. CCTA states that the Bureau's failure to require DBOVS to provide additional information in its certification application encourages prospective open video system applicants to "stockpile" open video system certifications without the need to provide basic information regarding compliance with the Commission's rules governing open video system operations. Specifically, CCTA argues that DBOVS' certification application is deficient in that it did not provide sufficient information concerning its technical qualifications and network capabilities, corporate structure and financing, intention to provide affiliated and nonaffiliated programming, compliance with existing legal obligations, and any approvals obtained from local communities. To guard against the acquisition of multiple certifications by prospective open video system operators, CCTA suggests that the certification application be modified to require the certification applicant to supply additional information. 7. In response to CCTA's Application for Review, DBOVS states that CCTA's arguments are without merit. DBOVS asserts that CCTA's position in opposing DBOVS' certification as an open video system operator is contrary to the goal of promoting competition within the cable industry, as embodied in the Telecommunications Act of 1996. DBOVS further asserts that the information contained in its certification application shows that, with regard to technical requirements to operate an open video system, it is well-qualified and that it satisfies all other requirements of the Commission's rules governing open video systems. Finally, DBOVS pledges to stand by the representations made in its application for certification on FCC Form 1275. III. DISCUSSION 8. Under Section 1.115(b)(2), any person aggrieved by an action taken pursuant to delegated authority may seek Commission review if the action complained of is in conflict with statute, regulation, case precedent, or established Commission policy. Under Section 1.115(b)(2)(iv), any aggrieved person may apply for Commission review if the action complained of is an erroneous finding based on an important or material question of fact. 9. CCTA argues that the Bureau's decision to grant DBOVS' application warrants review because the action is inconsistent with Congress' intent to establish the open video system framework for facilities-based service providers. Section 76.1501 of the Commission's rules describes the qualifications for certification and states, in relevant part, that any person may obtain a certification to operate an open video system. Further, Section 76.1502 prescribes the specific information which must be provided and the representations that must be made by an applicant for open video system certification. Nothing in our rules governing the certification process requires an applicant to demonstrate or to make a representation that it is currently a facilities-based service provider. CCTA's objection to DBOVS's lack of facilities does not constitute grounds for review. 10. Next, CCTA argues that the Bureau's decision warrants review because DBOVS' statement of anticipated channel capacity, given current technology, is not feasible and therefore constitutes a material error under Section 1.115(b)(2)(iv). We do not agree. The 10-day statutory review period for such filings requires the Commission to confine its review to the FCC Form 1275. In establishing the open video system certification requirements, we determined that requiring a certification applicant to make certain limited representations on FCC Form 1275 would serve the twin goals of maintaining a streamlined certification process while ensuring that the prospective open video system operator acknowledged its responsibilities under Commission rules. FCC Form 1275 requires open video system certification applicants to state their anticipated channel capacity. Nothing in the Telecommunications Act of 1996 or in the Commission's rules requires the Bureau to determine the technical accuracy of an applicant's statement of anticipated channel capacity. The DBOVS Order states that the Commission retains the authority to revoke an open video system operator's certification or impose such other penalties it deems appropriate, including forfeiture, should any representations made in its certification application prove to be materially false or materially inaccurate. We find that the Bureau's acceptance of DBOVS' representation with regard to its anticipated channel capacity does not constitute material error subject to review. 11. Finally, CCTA argues that the Bureau erred by failing to require DBOVS to provide certain information in addition to the information currently required on FCC Form 1275. The Bureau correctly determined that DBOVS provided the required information and could not be denied certification on the grounds that it did not voluntarily provide information not required by the Commission's rules. CCTA's position appears to reflect its overall views concerning the Commission's implementation of the open video system provisions of the 1996 Telecommunications Act. CCTA states that it "has consistently held [the] position that the Commission's [Second Report and Order and Third Report and Order] violate the 1996 [Telecommunications] Act in a number of respects." The Commission's application for review process is not intended to revisit issues resolved in its rulemaking decisions. 12. CCTA has raised no new arguments, nor has it introduced new evidence which bears upon the adequacy or accuracy of the information which was required to be provided by DBOVS in its certification application. In light of the foregoing, we find that CCTA's Application for Review fails to raise issues which warrant review under either Section 1.115(b)(2)(i) or Section 1.115(b)(2)(iv) of Commission rules. IV. ORDERING CLAUSE 13. Accordingly, IT IS ORDERED that the Application for Review of the Cable Services Bureau's DBOVS Order granting the open video system certification application of Digital Broadcasting OVS, Inc., filed by the California Cable Television Association pursuant to Section 1.115(a) of the Commission's rules, 47 C.F.R.  1.115(a), IS DENIED. 14. IT IS FURTHER ORDERED that, pursuant to Section 0.445 of the Commission's rules, 47 C.F.R.  0.445, the Cable Services Bureau mail a copy of this Order On Review to each of the parties. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary