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Such term does not include a person insofar as such person is engaged in the  ( W\ provision of a commercial mobile service under Section 332(c), except to the extent that the Commission finds that such service should be included in the definition of such term. ` Communications Act  3(26), 47 U.S.C.  153(26).\ effective competition in Orlando, Florida and surrounding  ! communities from BellSouth Wireless Cable Inc. ("BellSouth"), a multichannel multipoint distribution  !@service ("MMDS" or "wireless cable") operator serving Orlando and 56 other central Florida franchise  SQ' !areas (the "Affected Communities").^Q;l yO' !I ԍThe following franchise areas were subject to the original petition: (1) Apopka (FL0192); (2) Belle Isle  ! (FL0195); (3) Casselberry (FL0191); (4) Eatonville (FL0477); (5) Edgewood (FL0475); (6) Kissimmee (FL0223);  !V (7) Grand Island (FL0869); (8) Osceola County (FL0201, FL0510, FL0201); (9) Lake County (FL0268); (10)  !M Orange County (FL0252, FL1156, FL0548, FL0568 (Windermere), FL0569, FL0712 (Taft), FL0548); (11) Orlando  !3 (FL0181); (12) Longwood (FL0308); Maitland (FL0194); Sanford (FL0188); Seminole County (FL0322, FL1015,  ! FL0686, FL0858); Windermere (FL0193); Winter Park (FL0189); Winter Springs (FL0190); Bunnell (FL0637);  !Q Flagler Beach (FL0254); Flagler County (FL0697); Ormond Beach (FL0016); Clermont (FL0206); DeLand (FL0116);  !" Edgewater (FL0118); Groveland (FL0269); Holly Hill (FL0215); Lake Helen (FL0582); Mascotte (FL0267);  !  Minneola (FL0270); Naval Training Center Annex (FL0476); New Smyrna Beach (FL0125); Oak Hill (FL0736);  ! Oakland (FL0134); Ocoee (FL0135); Orange City (FL0136); Oviedo (FL0687); St. Cloud (FL0137); Volusia County (FL0043, FL0264, FL0015, FL0200, FL0216, FL0735, FL0998); and Winter Garden (FL0138).^ An opposition was filed by Volusia County, a local franchising  !authority certified to regulated the basic service rates of Time Warner. Time Warner filed a reply to this opposition. Time Warner then filed a supplement to its petition. "0,**88e"Ԍ S' ( Ԋ2.` ` Section 623(a)(4) of the Communications Act of 1934, as amended ("Communications  !Act") allows franchising authorities to become certified to regulate basic cable service rates of cable  S' !operators which are not subject to effective competition.d! yO'ԍCommunications Act  623(a)(4), 47 U.S.C.  543(a)(4).d For purposes of the initial request for  !certification, local franchising authorities may rely on a presumption that cable operators within their  S`' !jurisdiction are not subject to effective competition unless they have actual knowledge to the contrary.P`X! yOX'ԍ47 C.F.R.  76.906, 76.910(b)(4).P  !Certification becomes effective 30 days from the date of filing unless the Commission finds that the  S' !^authority does not meet the statutory certification requirements.! {O 'ԍ47 C.F.R.  76.910(e); 47 C.F.R.  76.910(b); see also Communications Act  623(a)(4), 47 U.S.C.  543(a)(4). In Implementation of Cable Act Reform  S' !Provisions of the Telecommunications Act of 1996 ("Cable Act Reform Order"),Ez! yO 'ԍ11 FCC Rcd 5937, 5944 (1996).E the Commission  !"instructed cable operators believing themselves subject to local exchange carrier ("LEC") effective  !competition under Section 623(l)(1)(D) of the Communications Act to file a petition for determination of  St' !effective competition pursuant to Section 76.7 of the Commission's rules.<t ! yO'ԍ47 C.F.R.  76.7.< Section 623(l)(1)(D) of the Communications Act provides that a cable operator is subject to effective competition where:  ( WXX` ` a local exchange carrier or its affiliate (or any multichannel video programming  ( Wdistributor using the facilities of such carrier or its affiliate) offers video  ( Wiprogramming services directly to subscribers by any means (other than directto ( Whome satellite services) in the franchise area of an unaffiliated cable operator  ( Wwhich is providing cable service in that franchise area, but only if the video  ( Wprogramming services so offered in that area are comparable to the video  S 'programming services provided by the unaffiliated cable operator in that area. ! {OF'ԍCommunications Act  623(l)(1)(D), 47 U.S.C.  543(l)(1)(D); See 47 C.F.R. 76.905(b)(4). `  S' II.THE PLEADINGS  Sl' ( 03.` ` Time Warner states that it provides cable service to the Affected Communities pursuant  ! to several cable franchises. Time Warner argues that it is subject to LEC effective competition in the  S'Affected Communities from BellSouth, an MMDS operator serving those same areas.D , ! yO 'ԍTime Warner Petition at 1. D  "| ,p(p(88"Ԍ S' ( 4.` ` With regard to the LEC affiliation requirement, ! yOh' ! ԍThe Commission determined that the definition of affiliate provided in Section 3 of the 1996 Act will apply to the LEC effective competition test: The term "affiliate" means a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another person. For purposes of this paragraph, the term "own" means to own an equity interest (or the equivalent thereof) of more than 10 percent.  {O'Cable Act Reform Order, 11 FCC Rcd at 5944 (quoting Communications Act  3(1), 47 U.S.C.  153(1)).  Time Warner contends that BellSouth  !is a competing MMDS operator, a wholly owned affiliate of BellSouth Corp, a local exchange carrier  S' !serving telephone customers in Florida and other parts of the southern United States. b ! yO ' ! ԍTime Warner Petition at 5. Time Warner notes that American Telecasting of Central Florida was the predecessorininterest in ownership of the wireless cable system. BellSouth makes  S'available on its system 33 channels of broadcast and satellite delivered cable programming.F  ! {O'ԍId. at 10 and Exhibit I.F  S8' ( 5.` ` With regard to the requirement that the LEC competitor offer * 8L ! yO$' ! ԍIn implementing the LEC effective competition test on an interim basis, the Commission determined that its  ! preexisting definition of the term "offer" as used in the three effective competition definitions set forth in the 1992  {O' ! Cable Act would apply to the LEC test. Cable Act Reform Order, 11 FCC Rcd at 5942. The Commission previously determined that service of a multichannel video programming distributor will be deemed offered:  ( W XX` ` (1) When the multichannel video programming distributor is physically able to deliver  ( W  service to potential subscribers, with the addition of no or only minimal additional  ( W investment by the distributor, in order for an individual subscriber to receive service; and  ( Wm (2) When no regulatory, technical or other impediments to households taking service exist,  ( W$ and potential subscribers in the franchise area are reasonably aware that they may purchase the services of the multichannel video programming distributor. ` 47 C.F.R.  76.905(e).  video programming service  !tin the unaffiliated cable operator's franchise area, Time Warner asserts that BellSouth is physically able  S' !^to deliver service to potential subscribers in Orlando and the other Affected Communities.B>! yO'ԍTime Warner Petition at 6.B Time Warner  !explains that BellSouth provides wireless cable service in central Florida through the use of two MMDS  S' !transmitters: one located in Orlando and the other located near Daytona Beach.1! {O#'ԍId.1 According to Time  !}Warner, BellSouth's MMDS transmitter's 35mile presumptive service boundary covers each of the  SH ' !VAffected Communities.6H `! {OH&'ԍId at 7.6 Time Warner asserts that potential subscribers in the franchise areas can  !technically receive service from BSE. To show that service is actually available, Time Warner provides" ,p(p(88 "  !glineofsight surveys allegedly demonstrating that there are no obstacles impeding potential subscribers  S' !from receiving service.W! yO@'ԍTime Warner Petition at 8 and Exhibits D and E.W To buttress its assertion, Time Warner states that BellSouth has 4,680  S' !subscribers according to MMDS count documents@X! {O'ԍId. and Exhibit F.@ and 11,800 subscribers according to 1996 Federal  S' !Copyright filings.! {O' !* ԍId. and Exhibits G and H. The discrepancy between the numbers apparently is attributed to counting hotels and commercial establishments in the copyright calculation. Finally, Time Warner contends that there are no other regulatory, technical or other  S`'impediments exist to the receipt of BellSouth's service in the Affected Communities.D`D! yOD 'ԍTime Warner Petition at 9. D  S' ( 6.` ` Time Warner asserts that potential subscribers in its franchise areas are reasonably aware  S' !that they may purchase MMDS service as a result of BellSouth's marketing efforts.8! {O\'ԍId. at 10.8 Time Warner  !Dprovides marketing materials from BellSouth, including channel guides, advertisements, and flyers, which  S' !have been distributed in the Affected Communities.@f ! {O'ԍId. and Exhibit I.@ Time Warner asserts that individuals must have been made aware of BellSouth's service because the company has thousands of subscribers.  S ' ( ~ 7.` ` Time Warner asserts that BSE offers programming comparable ! yO' !* ԍThe Commission observed that Congress specified a different definition of comparable programming for the  ! LEC effective competition test from that adopted for the first three effective competition tests enacted as part of the  ! 1992 Cable Act. The Commission, on an interim basis, determined that it will apply this new comparable  !k programming standard which "includes access to at least 12 channels of programming, at least some of which are  {O' !! television broadcasting signals" to the LEC effective competition test. See Cable Act Reform Order at 12 (quoting 1996 Act Conference Report, S. Rep. 104230 at 170 (Feb. 1, 1996)). to that offered by Time  !Warner in the Affected Communities. Time Warner provides BSE's channel lineup showing that BSE's  !<video service consists of 33 channels of video programming, including 7 local television broadcast  S ' !signals.Q r! yO'ԍTime Warner Petition at 10 and Exhibit I.Q Time Warner provides between 4674 channels of programming, 15 of which are local broadcast  S 'stations, on its various cable systems serving the Affected Communities.F ! {O"!'ԍId. at 11 and Exhibit J.F  S0' ( m8.` ` In opposition, Volusia County states that MMDS count documents provided by Time  !Warner in its petition show that there are relatively few BellSouth subscribers in the County. Volusia  !County states that this showing does not amount to "effective competition" that would justify exempting  S'Time Warner from rate regulation.G! yO&'ԍVolusia County opposition at 2.G"$,p(p(88"Ԍ S' ( #ԙ9.` ` In reply, Time Warner argues that the new effective competition test does not include a  S' !percentage pass or penetration test.?! yO@'ԍTime Warner reply at 3.? Time Warner asserts that as long as BellSouth is physically able to  !provide wireless cable service to subscribers in a particular community served by Time Warner, and  !regardless of the actual numbers of subscribers which actually receive such service, such community must  S`'be considered to be subject to effective competition.7`X! {OX'ԍId. at 4.7  S' ( 10.` ` In its supplement, Time Warner asks that its earlier request be limited to only those  !kcommunities within Orange County, Florida, excluding such franchise areas as Volusia County, and many  S' !others. ! yOJ ' ! ԍAccording to Time Warner, this would include: Apopka (FL0192), Belle Isle (FL0195), Eatonville (FL0477),  ! Edgewood (FL0475), Unicorporated Orange County (FL0252, FL1156, FL0548, FL0568, FL0569, and FL0712),  !  Orlando (FL0181), Maitland (FL0194), Windermere (FL0193), Winter Park (FL0189), Oakland (FL0134), Ocoee (FL0135), and Winter Garden (FL0138). Time Warner states that it intends to prepare and file new effective competition showings for  S' !all the other communities at a future date.D! yO 'ԍTime Warner supplement at 4.D Time Warner has included, as a new exhibit, a shadow map  !^illustrating that BellSouth's wireless cable service is technically and actually available to subscribers within  SH ' !all of the incorporated communities.7H b ! {OJ'ԍId. at 8.7 Time Warner adds that at most, there are isolated limited pockets  !of poor reception located in sparsely populated areas of unincorporated Orange County near Apopka; the  !gonly other portions of Orange County unable to receive BellSouth's service are located over large lakes  S ' !which are not inhabited.2 ! {Od'ԍId. 2 Time Warner also states that BellSouth has expanded its marketing efforts since  !Zit first filed its petition in 1997; BellSouth now advertises the availability of its MMDS video service on  !its website, on television and radio, and through full page advertisements in the leading local newspaper,  SX' !the Orlando Sentinel.7!X ! {O~'ԍId. at 9.7 As for the comparable programming prong of the effective competition analysis,  !^Time Warner states that BellSouth's MMDS system now provides over 100 video programming channels,  S 'including 11 broadcast station signals.8" ! {O'ԍId. at 11.8  S' III.ANALYSIS  Sj' ( q11.` ` In the absence of a demonstration to the contrary, cable systems are presumed not to be  SB' !Zsubject to effective competition as defined in the Communications Act.#B! yO%'ԍ#X\  P6G;?P#47 C.F.R. 76.906.#Xj\  P6G;XP#ы The cable operator bears the  S' !burden of rebutting the presumption that effective competition does not exist and must provide evidence":#,p(p(88"  !sufficient to demonstrate that effective competition, as defined by Section 76.905 of the Commission's  S'rules, is present in the franchise area.$! yO@'ԍ#X\  P6G;?P#47 C.F.R. 76.911(b)(1).#Xj\  P6G;XP#ё Time Warner has met this burden and its petition will be granted.  S' ( 12.` ` With regard to the first part of the LEC effective competition test, which requires that  !8the alleged competitive service be provided by a LEC or its affiliate (or any multichannel video  S8' !programming distributor ("MVPD")%8X! yO0' ! ԍ#X\  P6G;?P#The Commission's rules define a MVPD as "an entity such as, but not limited to, a cable operator, a  !Q multichannel multipoint distribution service, a direct broadcast satellite service, a television receiveonly satellite  ! program distributor, a video dialtone service provider, or a satellite master antenna television service provider that  ! makes available for purchase, by subscribers or customers, multiple channels of video programming." 47 C.F.R.  yOP '76.905(d). #Xj\  P6G;XP#ѣ using the facilities of such LEC or its affiliate), we find that Time  !ZWarner has provided sufficient evidence demonstrating that BellSouth Wireless Cable Inc. is a wholly !owned subsidiary of BellSouth Corp., which is unquestionably a LEC. We find that Time Warner satisfies  !the affiliation prong of the LEC effective competition test. We also find that Time Warner is unaffiliated with BellSouth or BellSouth Wireless Cable Inc.  SH ' ( ,13.` ` We also find that Time Warner has submitted sufficient evidence demonstrating that  !BellSouth provides comparable programming. In a LEC effective competition setting, a competing MVPD  !is said to offer comparable programming when at least 12 channels of programming, some of which are  !Qtelevision broadcasting signals, are present. The channel lineup for BellSouth submitted by Time Warner  !establishes that BellSouth offers 100 channels of programming, including 11 overtheair broadcast signals. This is sufficient to satisfy the Commission's programming comparability criterion.  S0' (  14.` ` The LEC effective competition test requires that competitive service be offered directly  !to subscribers in the franchise area of an unaffiliated cable operator which is providing cable service in  !Ethat franchise area. In enacting the LEC effective competition test, Congress indicated that the  !tCommission should apply its preexisting definition of the term "offer" to the LEC effective competition test. This definition provides that service is offered:  mX(1) When the multichannel video programming distributor is physically able to deliver  \service to potential subscribers, with the addition of no or only minimal additional  investment by the distributor, in order for an individual subscriber to receive service; and   (2) When no regulatory, technical or other impediments to households taking service exist,  vand potential subscribers in the franchise area are reasonably aware that they may  Sx'purchase the services of the multichannel video programming distributor.[&x! {O !' ! ԍ#X\  P6G;?P#47 C.F.R. 76.905(e); see Cable Act Reform Order, 11 FCC Rcd at 5941 (citing Telecommunications Act 1996  yO!'Conference Report, S. Rep. 104230 at 170 (Feb. 1, 1996) ("Conference Report") ). #Xj\  P6G;XP#[   S(' ( 15.` ` Based on the information before us, we find that BellSouth is offering service in all of  !the Orange County Communities. Time Warner has submitted evidence that BellSouth's transmitters are  !Din place and physically able to offer service. In order to provide service, BSE need only install an MMDS  !xantenna on, or near, a subscriber's home. A Time Warner generated lineofsight/shadow plot map, which  !is the proper evidentiary tool to determine MMDS availability in LEC effective competition cases,"b &,p(p(88"  !indicates that the relevant franchise areas lie within the MMDS transmitter's lineofsight, with no  S'geological barriers inhibiting reception.'! yO@' ! ԍWe need not consider Volusia County's opposition in the analysis as Time Warner has limited the scope of its petition to include only Orange County franchise areas.  S' ( 16.` ` With regard to the Orange County franchise areas, we conclude that no regulatory,  !*technical or other impediments prevent potential subscribers from receiving BellSouth's service. We find  !that potential subscribers in Orange County are reasonably aware that they may receive competing video  !service because of BellSouth's advertising and marketing campaign. The fact that BellSouth has a substantial number of subscribers in the franchise areas supports this finding.  S' IV.ORDERING CLAUSES  Sp'  SH ' ( \17.` ` Accordingly, IT IS ORDERED that the Petition for Determination of Effective  !Competition filed by Time Warner challenging the certification of the local franchising authorities in  S ' !Orange County, Florida IS GRANTED . The franchising authorities' certifications to regulate rates are rescinded.  S ' ( `18.` ` This action is taken pursuant to the interim rules adopted in Implementation of Cable  SZ'Reform Provisions of the Telecommunications Act of 1996, 11 FCC Rcd 5937 (1996).  S ' ( 19.` ` This action is taken pursuant to delegated authority under Section 0.321 of the  S'Commission's rules, as amended.<( ! yO'ԍ47 C.F.R  0.321.< ` `  ,hh]FEDERAL COMMUNICATIONS COMMISSION ` `  ,hh]Deborah A. Lathen ` `  ,hh]Chief, Cable Services Bureau     X<4 #Xj\  P6G;XP#