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Complainant) ) v.) ) STARPOWER COMMUNICATIONS, LLC)  S ( Defendant)  S ())  S ()) MEDIA GENERAL CABLE ) OF FREDERICKSBURG, INC.) Complainant) ) v.) )  S(STARPOWER COMMUNICATIONS, LLC )  Defendant) ) Open Video System Complaints)   S(G  MEMORANDUM OPINION AND ORDER x  Sx(X` hp x (#%'0*,.8135@8:'K S#(ԍ#X\  P6G;QwP#MGCFairfax Complaint at 5.#&a\  P6G;r&P#ё MGCFairfax states that it  S ( xis not franchised to provide cable service within Washington, D.C.s 'K {O%(#X\  P6G;QwP#эId.; Media General Reply at 7.s MGCFredericksburg did not specify" p ,`(`(88R "  S( xthe exact area(s) for which it sought carriage.!'K Sh(ԍ#X\  P6G;QwP#MGCFredericksburg Complaint at 5.#&a\  P6G;r&P#ј MGCFredericksburg states that it is not authorized to  S(provide cable service within any part of Starpower's proposed open video system service area.X"h'K {O(#X\  P6G;QwP#эId.X  S( `  10.` ` Starpower argues that MGCFairfax is the largest cable system in the Washington, D.C.  xmetropolitan area serving almost 250,000 cable subscribers in Fairfax County, Virginia, and that MGC S8( xFairfax directly competes against Starpower's open video system.g#8'K yO (#X\  P6G;QwP#эStarpower Answer at 18. g Starpower asserts that "[g]iven that  x4there is no dispute that Media General serves subscribers within Starpower's certificated [open video  xsystem] service area, Media General is a competing, inregion cable operator . . . and thus not entitled  S( xto the requested data."$'K S (ԍ#X\  P6G;QwP#Id. at 20.#&a\  P6G;r&P#ц Starpower also argues that its refusal to provide sensitive data to Media General  S( xis consistent with the Cable Services Bureau's (the "Bureau") Time WarnerBoston decision because of  Sr( xVthe imminence of direct competition between Starpower and Media General in Fairfax County.%r*'K S<(ԍ#X\  P6G;QwP#Id. at 2122.#&a\  P6G;r&P#щ To the  SJ ( xextent Starpower's position is different from that espoused in the Time WarnerBoston decision, Starpower  xstates that it respectfully disagrees with the Bureau's decision therein which is currently subject to a  S ( x\petition for reconsideration.& 'K Sf(ԍ#X\  P6G;QwP#Id.#&a\  P6G;r&P# In addition, Starpower states that it is unaware of any impediment that  xtwould prevent Media General from obtaining a franchise to serve Washington, D.C., or other portions of  S (Starpower's proposed open video system service area._' j 'K {O(#X\  P6G;QwP#эId. at 25._  S\( `   11.` ` Starpower argues that the future viability of open video systems depends on the Bureau's  xdecision in this proceeding. Starpower asserts that Media General's complaints, taken together with Time  xWarner's complaints against Starpower's affiliate, RCN, are the "pervasive and seemingly neverending  S( xefforts of the entrenched cable industry to stall competition."( 'K S(ԍ#X\  P6G;QwP#Id. at 15.#&a\  P6G;r&P#ц Starpower urges the Bureau to consider  xMedia General's complaint in the context of Congressional intent to encourage facilitiesbased competition  S( xto incumbent cable operators.) 'K S!(ԍ#X\  P6G;QwP#Id. at 16.#&a\  P6G;r&P#ц Finally, Starpower states that "[i]t is long overdue for the Bureau and the  x$Commission to view these cable industry attacks for what they truly are elements of an industrywide  xcampaign against [open video system] competition and to address them appropriately as anticompetitive  S(abuses of the Commission's processes."*<'K S%(ԍ#X\  P6G;QwP#Id. at 18.#&a\  P6G;r&P#ц "*,`(`(88|"Ԍ S( ` d 12. ` ` Media General rejects Starpower's interpretation of what constitutes an open video system  S( xservice area.j+'K yO@(#X\  P6G;QwP#эMedia General Reply at 47.j Media General argues that Starpower's proposed service territory is divided into numerous  xseparate cable franchise territories, a small part of which Media General has been authorized to provide  S( xfranchised cable service.,X'K S(ԍ#X\  P6G;QwP#Id. at 8.#&a\  P6G;r&P#х Media General argues that it is not franchised to provide cable service to the  S`( xoutofregion communities where it seeks carriage on Starpower's open video system.X-`'K {O(#X\  P6G;QwP#эId.X Media General  S8( xreiterates that because it does not offer cable service in Washington, D.C. or Maryland, it cannot be  S(classified as a competing, inregion cable operator in those areas..'K yO: (#X\  P6G;QwP#эMGCFairfax Complaint at 912; MGCFredericksburg Complaint at 1013; Media General Reply at 48.  S( `  13. ` ` The Commission specifically considered cable operators' eligibility to seek carriage on  S( x open video systems and adopted Section 76.1503(c)(2)(v)(B)./'K yOR(#X\  P6G;QwP#эSecond Report and Order, 11 FCC Rcd. at 18260. That section states that ". . . a competing,  Sp( xinregion cable operator or its affiliate(s) that offers cable service to subscribers located in the service area  SJ ( xof an open video system shall not be entitled to obtain capacity on such open video system. . . ."0L J 'K yO( xB#X\  P6G;QwP#э47 C.F.R.  76.1503(c)(2)(v) (emphasis added). Section 76.1503(c)(2)(v) provides two exceptions to the general prohibition regarding carriage of a competing, inregion cable operator's programming:  @X(A) Where the operator of an open video system determines that granting access to the competing, inregion cable operator is in its interests; or  X(B) Where a showing is made that facilitiesbased competition will not be significantly impeded.   {O ( xId.  76.1503(c)(2)(v)(A)&(B); but see supra n.8, discussing the Fifth Circuit's remand to the Commission its rules  xPgranting an open video system operator discretion to permit carriage to competing, inregion cable operators. The Commission's rules also provide that facilitiesbased competition would not be impeded where:  X(1) The competing, inregion cable operator and affiliated systems offer service to less than 20% of the households passed by the open video system; and   X(2) The competing, inregion cable operator and affiliated systems provide cable service to a total of less than 17,000 subscribers within the open video system's service area.   {MN(  {O (Id. note. The  xopen video system rules were intended to enhance competition, with the ultimate goal of providing  S ( x0subscribers with lower rates and greater programming selections.}1 'K yOX#(#X\  P6G;QwP#эSecond Report and Order, 11 FCC Rcd. at 18229.} To that end, the Commission  xdetermined that different treatment of competing, inregion cable operators better serves the public interest  xby encouraging competing, inregion cable operators to develop and upgrade their own systems, rather  xthan occupying capacity on a competing open video system that could be used by another programming" N1,`(`(88R "  S( xprovider.h2'K {Oh(#X\  P6G;QwP#эId. at 18258.h Should a cable operator fail to satisfy Section 76.1503(c)(2)(v), it would not be entitled to  xcarriage, and could not, by definition, be classified as a programming provider entitled to open video system information.  S`( ` j 14.` ` We agree with Media General that it is not a competing, inregion cable operator in this  xinstance. We believe that the situation in this proceeding is not materially distinguishable from that  S(confronted by the Bureau in Time WarnerBoston, where we stated:  S(X   XThe Commission generally excluded competing, inregion cable operators for the reason  zthat such cable operators' incentive to upgrade and maintain their facilities would be  reduced if given the opportunity to be a programming provider on an open video system  tserving its franchise area. This premise is based on the assumption that the open video  system operator is actually serving, or will soon serve, subscribers in the cable operator's  `franchise area. Moreover, the Commission has repeatedly noted the importance of the  accessibility by multiple programming providers, including certain classes of cable   operators, to open video systems. An incumbent cable operator is a competing, inregion  S ( cable operator where there is an actual overlap between a cable operator's franchise area  SZ(and a specific community served by an open video system operator.K3ZZ'K {OT( xx#X\  P6G;QwP#эTime WarnerBoston, 13 FCC Rcd. at 861819 (citations omitted). In Time WarnerBoston, RCN challenged  xTime Warner's request for open video system information pertaining to RCN's Bostonarea open video system. RCN  xalleged that Time Warner was not entitled to the information because it qualified as a competing, inregion cable  {O( xoperator by offering cable service to several communities within RCN's open video system service area. Id. at 8617.  xTime Warner responded that it was not a competing, inregion cable operator with respect to the communities it  xsought open video system information because it did not offer cable service to those communities, even though it  {O( xoffered cable service to other communities within RCN's open video system service area. Id. The Bureau held that  xTime Warner was not a competing, inregion cable operator in communities where Time Warner did not offer cable  {O( xdservice and where RCN offered open video system service. Id. at 861819. See also Time WarnerNew York, DA 982641, at  12.K   xWe recognize that an open video system operator's service area may be, in many instances, composed of  x4discrete communities. The Commission's regulations permit an open video system applicant to file a  x~single FCC Form 1275 even though the applicant proposes to provide open video system service to more  S( xthan one community or area.4Z 'K {O,( x`#X\  P6G;QwP#эRCN Telecom Servs. of Philadelphia, 13 FCC Rcd. 1200, 1203 (CSB 1998). FCC Form 1275 Section D.  xSystem Information, subsection 1, directs the applicant to "[p]rovide a general description of the anticipated communities or areas to be served upon completion of the [open video] system." Starpower does not dispute Media General's assertion that it is not  x\franchised to provide cable service in the communities in which it seeks carriage. Instead, Starpower  xasserts that it is close to completing negotiations to expand its open video system to portions of MGC S( xFairfax's franchise area.52'K S$( xԍ#X\  P6G;QwP#Starpower Answer at 2223.#&a\  P6G;r&P# #X\  P6G;QwP#Starpower asserts that it expects to commence open video service to Falls Church  xand Fairfax County, Virginia by second quarter 1999 and third quarter 1999 respectively, "unless [Starpower]  {Ov&( xencounter[s] unusual delays in the socalled make ready work, involving access to poles and conduit space." Id.,  yO@'(Exhibit A at 3 (internal quotation marks omitted).#&a\  P6G;r&P#ќ The situation in the instant proceeding is very similar to that faced by the" 5,`(`(88"  S( xBureau in Time WarnerNew York in which the complainant, Time Warner, a Manhattan cable franchisee,  xdirectly competed with RCN in the Borough of Manhattan, but sought information regarding, and carriage  S( xon, the portions of RCN's open video system located outside Manhattan.6'K S(ԍ#X\  P6G;QwP#See Time WarnerNew York, DA 982641, at  12.#&a\  P6G;r&P#ѭ The Bureau granted Time Warner's request.  S:( ` 415. ` ` As discussed above, the sole rationale provided by the Commission for excluding a  x$competing, inregion cable operator from securing carriage as a programming provider on an open video  xsystem operating in its franchise area was the concern that the cable operator would neglect to upgrade  S( x`and maintain its cable system.7h'K S (ԍ#X\  P6G;QwP#Second Report and Order, 11 FCC Rcd at 18258.#&a\  P6G;r&P#ѣ Where, as here, neither MGCFairfax, nor MGCFredericksburg, desire  xopen video system carriage in areas in which they operate cable systems, the rationale to exclude such  x~entities is not present. Carriage on Starpower's open video system in Washington, D.C. or Maryland will  xnot lead to neglect of either cable system especially given that MGCFredericksburg's cable system does  xnot overlap at all with Starpower's proposed open video system service area. Moreover, given  xStarpower's expectation of imminent headtohead competition for video service in MGCFairfax's  x franchise area, we anticipate that MGCFairfax will have every incentive to upgrade and maintain its  xLsystem regardless of whether it may or may not elect carriage on Starpower's open video system outside  xits current franchise area. Accordingly, we conclude that Media General is not a competing, inregion  xHcable operator and therefore is entitled to request carriage as a programming provider on Starpower's system in areas outside its current franchise area.  S(#&a\  P6G;r&P# B.` ` Media General's Requested Information  S( ` P16.` ` In its orders implementing the open video system framework, the Commission determined  Sj( xthat prospective programming providers may request information pursuant to Section 76.1503(b)(2).8j'K yO(#X\  P6G;QwP#эSecond Report and Order, 11 FCC Rcd. at 1825156; 47 C.F.R.  76.1503(b)(2).  xHImplicit in this statement is the Commission's determination that certain entities cannot reasonably be  xconsidered "prospective" programming providers. For example, a cable operator franchised in an area that  xan open video system is serving subscribers and which an open video system operator refuses carriage  xcannot be considered a prospective programming provider in its franchise area unless the Commission has  xTdetermined that carriage of such cable operator's programming will not impede facilitiesbased  xpcompetition. In addition, we believe that an open video system operator is not required to respond to  xnuisance requests for information (i.e., repeated requests by applicants that have been refused carriage as a result of creditworthiness or similar reasons).  S( ` 17. ` ` Section 76.1503(b)(2) directs an open video system operator to provide to a prospective  xprogramming provider, within five business days of a written request, information relating to the open  x$video system operator's buildout schedule, estimated carriage rates, programming provider qualification  xprequirements, and technical interface specifications, unless already provided in the open video system  S:( x operator's Notice of Intent to establish an open video system.9:'K {Or&( xf#X\  P6G;QwP#эSee supra n.11, discussing the information an open video system operator must provide to prospective programming providers. The Commission recognized that "a": 9,`(`(88B"  xprospective video programming provider can reasonably be expected to need additional information  S( xzconcerning the system to assess whether to seek carriage on the system.":'K yO@(#X\  P6G;QwP#эSecond Report and Order, 11 FCC Rcd. at 18255. Only information that the  xvCommission believes is necessary to make an "informed" enrollment decision need be provided to   prospective programming providers.      S8( `  18.` ` Section 76.1503(b) attempts to strike a balance between an open video system operator's  S( xneed to protect arguably proprietary information and a prospective programming provider's need to obtain  x\information necessary to make a carriage request. The Commission recognized that "the competitive  xposition of an open video system operator should not be compromised by the required release of  S( xinformation unnecessary to make an informed enrollment decision,"d;X'K {O (#X\  P6G;QwP#эId.d and expressly rejected a proposal  Sp( xthat open video system operators disclose their construction plans.s<Zp'K {O ( xn#X\  P6G;QwP#эId. at 18255 n.130 ("We believe this [disclosure of construction plans] could unnecessarily risk the disclosure  xof confidential business plans and that the projected activation date should be sufficient for the purposes of video programming providers.").s The record reveals that Media  xGeneral timely made an information request regarding Starpower's Washington, D.C. area open video  S ( x0system.= 'K yO(#X\  P6G;QwP#эMGCFairfax Complaint at 5, Exhibit C; MGCFredericksburg Complaint at 5, Exhibit C. As a valid prospective programming provider, Media General is entitled to information regarding Starpower's open video system consistent with Section 76.1503(b)(2).  S ( ` 19.` ` Media General submitted nine information requests to Starpower. Starpower challenges  xMedia General's information request on two grounds. First, Starpower argues that Media General's  xinformation requests are overbroad, not limited to the Washington, D.C aspects of its open video system,  xand are beyond the scope of Section 76.1503(b)(2) of the Commission's rules. Second, Starpower asserts  xthat Media General failed to comply with its procedures for completing its open video system Information  S( x Request Form.>'K S(#&a\  P6G;r&P#э#X\  P6G;QwP#Starpower Answer at 3334.#&a\  P6G;r&P#ѷ With the exceptions and revisions noted below, we find that Media General's information requests comply with Section 76.1503(b)(2) of the Commission's rules.  Sh(20. ` ` Media General information requests 1 and 2 seek:  S( ` pX1.` ` The projected activation date of the Starpower [open video system] in the District  Pof Columbia, including a description of each phase or stage of activation and the projected  S(date that each phase or stage is scheduled for activation;?< 'K S"(ԍ#X\  P6G;QwP#MGCFredericksburg does not limit its information request to the District of Columbia.#&a\  P6G;r&P#   Sx( ` pX2.` ` Detailed maps showing the exact geographic areas to be served by the Starpower  L[open video system] including, but not limited to, the outermost geographic boundaries  ~of the [open video system], and the geographic boundaries of each area served by each phase of [open video system] activation; " ?,`(`(88"Ԍ S( xԙAs a prospective programming provider, Media General is entitled to know which areas within a  xcommunity Starpower is serving and is projected to serve, if it is activating its open video system in  S( xstages, and when it anticipates offering service to areas that fall under different activation stages.l@'K yO(#X\  P6G;QwP#э47 C.F.R.  76.1503(b)(2).l  xInformation regarding actual and projected service areas and activation dates comports with Section  x 76.1503(b)(2), is not commercially sensitive, and is necessary for a programming provider to decide  xwhether to pursue carriage on an open video system. Accordingly, Media General information requests  x1 and 2 are appropriate with the following revision Starpower need not provide Media General with any  xinformation regarding its open video system in those areas in which MGCFairfax is a franchised cable  xoperator. Although MGCFairfax's information request was limited to the District of Columbia, MGC xFredericksburg's information request was not so limited. Accordingly, in responding to Media General  xinformation requests 1 and 2, Starpower should provide information for its entire open video system, other  xthan those areas in which MGCFairfax is a franchised cable operator. In addition, any maps provided  xby Starpower need indicate only the extent of the open video system service area or proposed service area  xand the activation date or proposed activation date. Starpower does not have to indicate the location of  S (fiber paths or other open video system facilities.A X'K S(ԍ#X\  P6G;QwP#See Time WarnerBoston, 13 FCC Rcd at 8622; Time WarnerNew York, DA 982641, at  19. #&a\  P6G;r&P#  S (21. ` ` Media General information requests 3 and 4 seek:  S0( ` pX3.` ` A complete statement of Starpower [open video system] carriage rate(s) including  \any discounts for lease of multiple channels, or if not yet determined, the estimated carriage rate(s);   S( ` pX4.` ` A complete description and explanation of the information that a video  programming provider, including MGC Fairfax, will be required to supply to demonstrate that the provider is qualified, including any information concerning creditworthiness;   xMedia General Information requests 3 and 4 are consistent with Sections 76.1503(b)(2)(ii)&(iii) and are  S(approved without revision.B'K S`(ԍ#X\  P6G;QwP#47 C.F.R.  76.1503(b)(2)(ii)&(iii).#&a\  P6G;r&P#ѡ  Sx(22. ` ` Media General information requests 5, 6 and 7 seek:  S(( ` p|X5.` ` Any and all engineering or other technical specifications and information that  <would enable MGC Fairfax to ascertain whether or not to seek carriage, including, but not  limited to, the nature, type(s), specification(s), and cost(s) of any customer premises equipment that prospective subscribers may need to receive service;   S`( ` pXX6.` ` A complete description and explanation, including engineering or other technical  specifications, of any and all transmission or reception equipment, capabilities,  $technology, or facilities that MGC Fairfax and other video programming providers will  need to interface with the system, including, but not limited to, any hardware or software  (requirement(s) or other technology, facilities, or equipment that MGC Fairfax would need"! B,`(`(88"  ~to obtain or provide to offer video programming to subscribers via the Starpower [open  video system], as well as whether or not Starpower provides such software, facilities, or  equipment and, if so, the rates, terms, and conditions for obtaining such technology, facilities, or equipment;   S8( ` pX7.` ` A complete description and explanation of any and all equipment available to  facilitate carriage of unaffiliated video programming and the electronic forms that will be  Faccepted for processing and transmission; and, to the extent provided by or available from  S( 2Starpower or its affiliate(s), the rates, charges, or other fees, and the terms and conditions for obtaining such facilities or equipment;   xMedia General information requests 5, 6 and 7, while generally consistent with Sections  S ( x76.1503(b)(2)(iv),(v)&(vi), seek information that appears more expansive than that required by our rules.C 'K S (ԍ#X\  P6G;QwP#47 C.F.R.  76.1503(b)(2)(iv)(v)&(vi).#&a\  P6G;r&P#ѣ  xWe substitute the text of Section 76.1503(b)(2)(iv),(v)&(vi) in lieu of Media General's information requests 5, 6, and 7 and direct Starpower to respond accordingly.  S (23. ` ` Media General information request 8 seeks:  S0( ` p|X8.` ` A complete description and explanation of any applicable channel or carriage deposit requirements;   xThis information request is redundant to Media General information request 3 and Starpower need not  xseparately respond thereto. However, to the extent that Starpower contemplates assessing a channel or  xjcarriage deposit, such deposit, or an estimate thereof, should be included as part of Starpower's response to Media General information request 3 related to actual or estimated carriage rates.  S(24. ` ` Media General information request 9 seeks:  S( ` pX9.` ` A statement indicating whether, based on demand from other prospective  subscribers, Starpower is now considering or has determined to implement digital  *technology or other alternatives to its proposed analog system and, if so, a detailed  jdescription and explanation of such plans, subscriber and programming provider access  S(to such capabilities or service(s), and the rate(s), terms, and conditions that will apply.Dh'K S( xԍ#X\  P6G;QwP#MGCFairfax Complaint at 57, Exhibit C at 23.#&a\  P6G;r&P# #X\  P6G;QwP# MGCFredericksburg's information request was identical  yO(in all material aspects. MGCFredericksburg Complaint at 67, Exhibit C at 2.#&a\  P6G;r&P#љ   xMedia General information request 9 is beyond the scope of the information required in Section  S( xB76.1503(b)(2) and is denied.E'K S#(ԍ#X\  P6G;QwP#47 C.F.R.  76.1503(b)(2).#&a\  P6G;r&P#ѓ In addition, to the extent that Starpower has provided information to any  xother prospective programming provider beyond that ordered herein or that Media General has not  S8( xexpressly requested, we direct Starpower to provide such information to Media General.F8p'K SH'(ԍ#X\  P6G;QwP#See Time WarnerBoston, 13 FCC Rcd at 8622; Time WarnerNew York, DA 982641, at  20. #&a\  P6G;r&P# Consistent with"8 F,`(`(88B"  xour instructions herein, Starpower may tailor such response, if any, to exclude information pertaining to those areas in which MGCFairfax is a franchised cable operator.  S( ` 25.` ` Starpower also argues that Media General failed to comply with its procedures for  xcompleting its open video system Information Request Form. For example, Starpower asserts that MGC x.Fairfax and MGCFredericksburg each signed a nondisclosure form that contained a representation that  S( xthe prospective video provider has no formal or informal affiliation or agreement with any other video  xprogramming provider requesting capacity or with any cable operator providing cable television services  S( x\within Starpower's open video system service area.G'K S( (ԍ#X\  P6G;QwP#Starpower Answer at 34.#&a\  P6G;r&P#э Arguing that Media General could not properly  S( x>make these representations, Starpower states that MGCFredericksburg's representation is erroneous  xbecause it is affiliated with MGCFairfax which provides cable services within Starpower's open video  SH ( xsystem service area.HH h'K SP (ԍ#X\  P6G;QwP#Id.#&a\  P6G;r&P# In response, Media General argues that its information requests expressly set forth  xthe relationship between the two companies and the reasons they were legally entitled to receive the  S ( x information.I 'K S(ԍ#X\  P6G;QwP#Media General Reply at 16.#&a\  P6G;r&P#ѐ Moreover, Media General asserts that the Bureau's Time WarnerNew York decision  x"establishes that Starpower cannot impose conditions in the form of enrollment procedures whether  S ( xreasonable or not that are inconsistent with the open access obligations under Time WarnerBoston  S (and the Commission's rules."J 'K S(ԍ#X\  P6G;QwP#Id.#&a\  P6G;r&P# As the Bureau stated in Time WarnerNew York:  S^(  XWe note that RCN's existing nondisclosure statement requires an entity seeking open  video system information to represent that it has "no formal or informal affiliation . . .  with any cable operator providing cable television services within RCNNY's open video  system service area." This provision is inconsistent with our open video system rules  because it would automatically disqualify eligible entities, such as Time Warner, from  Vsatisfying RCN's otherwise valid nondisclosure requirements necessary to obtain open  Lvideo system information applicable to those open video system service areas in which  8the eligible entity is not a cable franchisee. RCN is instructed to delete, or amend, this  S(provision in conformance with this order.KH'K S(ԍ#X\  P6G;QwP#Time WarnerNew York, at  19 (footnotes omitted).#&a\  P6G;r&P#ѱ   x.Because the language contained in Starpower's open video system Information Form is also inconsistent  x with our open video system rules, Media General's compliance therewith is irrelevant to Starpower's  xHobligation to provide information to Media General. Starpower is instructed to delete, or amend, this  S.(provision in conformance to this order.L.'K S$(ԍ#X\  P6G;QwP#See id.#&a\  P6G;r&P#у  S(" L,`(`(88"Ԍ S( ` 26. ` ` We direct Starpower to provide the information discussed above to Media General as  S( xrequired by the Commission's rules within five days of release of this order.M'K S@(ԍ#X\  P6G;QwP#47 C.F.R.  76.1503(b)(2).#&a\  P6G;r&P#ѓ Release of the information  xis contingent upon Media General agreeing to maintain the confidentiality of Starpower's information.  S`( C.` ` Revocation of Starpower's Open Video System Certification  S8(  S( ` d 27.` ` Media General argues that because Starpower has demonstrated unequivocally that it does  S( x.not intend to comply with the nondiscrimination requirements imposed by the open video system rules,  S( x(it should be stripped of the reduced regulatory burdens of an open video system operator.Nh'K S (ԍ#X\  P6G;QwP#Media General Reply at 18.#&a\  P6G;r&P#ѐ Media General asserts that:  SH ( tXIn determining not to revoke RCNBeCoCom's [open video system] certificate in Time  S" ( WarnerBoston, the Cable Services Bureau noted that the decision clarified the scope of  *the Commission's [open video system] rules and concluded that RCNBeCoCom's  "mistaken" interpretation prior to the issuance of that decision did not warrant revocation.  In this case, by contrast, Starpower has refused to comply with the [open video system]  S ( rules after being informed of its obligations under Time WarnerBoston. Accordingly,  `Starpower's actions constitute a blatant and willful violation of the Commission's [open  `video system] requirements, and Starpower's [open video system] certificate should be  S(revoked.O'K S(ԍ#X\  P6G;QwP#Media General Reply at 18 (emphasis original).#&a\  P6G;r&P#Ѥ   xMedia General also argues that the Commission should consider imposing fines and other sanctions on  S( xStarpower.P'K S(ԍ#X\  P6G;QwP#Id.#&a\  P6G;r&P# In response, Starpower argues that its refusal to provide information to Media General is  Sn( x(consistent with Time WarnerBoston because of the "imminence of direct competition in Fairfax County."QnH'K SV(ԍ#X\  P6G;QwP#Starpower Answer at 2122.#&a\  P6G;r&P#ѐ  SH( x$Starpower also notes that the Bureau's Time WarnerBoston decision is subject to a pending petition for  S"(reconsideration.R"'K S(ԍ#X\  P6G;QwP#Id.#&a\  P6G;r&P#  S( ` 28.` ` We decline to revoke Starpower's open video system certification. First, Starpower's  xrefusal to provide information to Media General is apparently based upon what it considered to be a  xdistinguishing factor between the factual situation surrounding the instant proceeding and the one discussed  SZ( xby the Bureau in Time WarnerBoston. We note that Starpower's refusal occurred before the Bureau's  S4( xdecision in Time WarnerNew York substantially clarified the distinguishing factual situation relied upon  S( xby Starpower. In addition, in both Time WarnerBoston and Time WarnerNew York, the Bureau did not  xrequire that the open video system operator unconditionally furnish the requested information to the  x:complainant. Instead, the Bureau required that the open video system operator either furnish the" R,`(`(88D"  xinformation within five days, or provide notice to the Commission that it intended to seek review of the  S( xBureau's order.S'K S@(ԍ#X\  P6G;QwP#See Time WarnerBoston, 13 FCC Rcd at 8623; Time WarnerNew York, DA 982641, at  22.#&a\  P6G;r&P# In each case the open video system operator gave notice that it intended to seek review.  x Given these circumstances, we do not believe it appropriate that we revoke Starpower's open video system certification.  S8( D.` ` Media General's Discovery Request  S( ` 429.` ` Media General filed a Motion for Leave to Conduct Discovery pursuant to Section  xt76.1513(i)(1) of the Commission's rules seeking the right to propound interrogatories, request documents  S( x$and, if necessary, conduct depositions of key Starpower personnel.Th'K S (ԍ#X\  P6G;QwP#Media General Motion at 2.#&a\  P6G;r&P#ѐ Specifically, Media General seeks discovery on the following issues:  XThe factual bases for Starpower's statements that it will deploy [open video system] service in MGFairfax's cable franchise areas "in the near future;"    XWhether Starpower's decision to withhold information from MGFairfax and MG FFredericksburg constitutes discriminatory behavior in violation of the Telecommunications Act and the Commission's rules and orders; and   S( <XIn light of the Time WarnerBoston decision, whether Starpower's refusal to provide MG Fairfax and MGFredericksburg with system information constitutes a willful violation of  Pthe Commission's [open video system] rules requiring the revocation of Starpower's [open  S(video system] certificate and the imposition of other fines and sanctions.U'K S:( x`ԍ#X\  P6G;QwP#Id#X\  P6G;QwP#. (footnotes omitted).#&a\  P6G;r&P# #X\  P6G;QwP#Media General also suggested that the Commission convene a status conference  yO(pursuant to Section 76.1513(l) of the Commission's rules. 47 C.F.R.  76.1513(l).#&a\  P6G;r&P#   xStarpower opposes Media General's discovery motion on the grounds that it is procedurally defective and  S(that discovery is not justified under the circumstances of this proceeding.Vp'K S*(ԍ#X\  P6G;QwP#Starpower Opposition at 48.#&a\  P6G;r&P#ђ  S( ` t30.` ` Media General's request is denied. While we disagree with Starpower's contention that  xMedia General's discovery motion was procedurally defective, we find that Media General has failed to  xdemonstrate that discovery is necessary to resolve this proceeding. With regard to discovery relating to  xStarpower's asserted schedule for the introduction of open video system service in Media General's  xtFairfax franchise area and alleged discriminatory behavior, our decision herein renders these issues moot.  xWith regard to discovery related to Starpower's alleged willful violation of the Commission's open video  xVsystem rules, this is not an appropriate topic of discovery for a party to an open video system complaint.  S( &79 "V,`(`(88"  S( &79  V.ORDERING CLAUSES  S( ` 31.` ` Accordingly, IT IS ORDERED that Media General Cable of Fairfax County, Inc.'s Open  S( x8Video System Complaint against Starpower Communications, LLC IS GRANTED as described in this Memorandum Opinion and Order, and in all other respects denied.  S( ` 32.` ` IT IS FURTHER ORDERED that Media General Cable of Fredericksburg, Inc.'s Open  S( x8Video System Complaint against Starpower Communications, LLC IS GRANTED as described in this Memorandum Opinion and Order, and in all other respects denied.  Sp( ` Z 33.` ` IT IS FURTHER ORDERED that Starpower Communications, LLC furnish to Media  xGeneral Cable of Fairfax County, Inc. and Media General Cable of Fredericksburg, Inc. the Section  S ( x76.1503(b)(2) open video system information as further described herein within five days of the release  xof this Memorandum Opinion and Order. Should it contest any aspect of this order, Starpower  S ( x\Communications, LLC must, within the same fiveday period, notify Media General Cable of Fairfax  xCounty, Inc., Media General Cable of Fredericksburg, Inc., and the Commission that it intends to seek  S (review of this order.rW 'K yO(#X\  P6G;QwP#э 47 C.F.R.  76.1503(b)(2).r   S0( ` !34. ` ` IT IS FURTHER ORDERED that Media General Cable of Fairfax County, Inc. and  S(Media General Cable of Fredericksburg, Inc.'s Motion for Leave to Conduct Discovery IS DENIED.  S( ` "35.` ` This action is taken pursuant to authority delegated under Section 0.321 of the  S(Commission's rules, as amended.dXX'K yO(#X\  P6G;QwP#э47 C.F.R.  0.321.d ` `  ,hhhFEDERAL COMMUNICATIONS COMMISSION   ` `  ,hhhWilliam H. Johnson  SP(` `  ,hhhDeputy Chief, Cable Services Bureau#Xj\  P6G;XP#