******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect or Word to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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: MediaOne of Colorado, Inc. Petition for Determination of Effective Competition in Atlanta, Georgia and Nearby Communities ) ) ) ) ) ) ) ) ) CSR 5413-E MEMORANDUM OPINION AND ORDER Adopted: July 21, 2000 Released: July 28, 2000 By the Deputy Chief, Cable Services Bureau: I. introduction 1. MediaOne of Colorado, Inc. (MediaOne) has filed with the Commission a petition pursuant to Sections 76.7 and 76.907 of the Commission's rules for a determination of effective competition in the City of Atlanta, Georgia, and certain surrounding cable service franchise areas (the "Communities"). MediaOne alleges that its cable systems serving the Communities are subject to effective competition pursuant to Section 623(a)(2) of the Communications Act of 1934, as amended ("Communications Act"), and the Commission's implementing rules, and are therefore exempt from cable rate regulation. MediaOne claims the presence of effective competition in the Communities stems from the competing services provided by BellSouth Entertainment, Inc. ("BSE"), a multi-channel multi-point distribution service (MMDS) operator affiliated with a local exchange carrier ("LEC"). MediaOne also filed a Supplement to Petition for Relief. No opposition to the petition or supplement was filed. 2. In the absence of a demonstration to the contrary, cable systems are presumed not to be subject to effective competition, as that term is defined by Section 76.905 of the Commission's rules. 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. Section 623(l)(1)(D) of the Communications Act provides that a cable operator is subject to effective competition, and therefore exempt from cable rate regulation, if a 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, provided the video programming services thus offered are comparable to the video programming services provided by the unaffiliated cable operator in that area. 3. The Commission has stated that an incumbent cable operator could satisfy the "LEC" effective competition test by showing that the LEC is technically and actually able to provide services that substantially overlap the incumbent operator's service in the franchise area. The incumbent also must show that the LEC intends to build-out its cable system within a reasonable period of time if it has not already done so, 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. IV. discussion 5. MediaOne holds franchises issued by the Communities and is authorized to provide and provides cable services within the Communities' territorial boundaries. As such, MediaOne qualifies as the incumbent cable operator within the Communities for purposes of the "LEC" effective competition test at issue in this proceeding. On the other hand, BSE provides "wireless cable" service within the Communities by means of digital MMDS technology from four MMDS transmitter sites located in and around Atlanta. BSE is a wholly-owned subsidiary of BellSouth Corporation, a holding company which wholly owns BellSouth Telecommunications, Inc., a provider of telecommunications services, systems and products. We have found previously that BSE is a wholly-owned subsidiary of BellSouth, and that BellSouth Telecommunications, Inc. is unquestionably a LEC. We further find here that MediaOne is unaffiliated with BellSouth Corporation, BellSouth Telecommunications, Inc., or BSE. Therefore, BellSouth Telecommunications, Inc. qualifies as a "LEC," and BSE qualifies as an affiliate of a "LEC" for purposes of the "LEC" effective competition test. 6. MediaOne presented information establishing that a viewable signal form BSE's MMDS transmitters can be received in an area that overlaps MediaOne's franchised service area. This information consists of overlay maps depicting the 35 mile predicted service contours and shadow plot maps of BSE's four MMDS transmitter sites. These maps show that all 56 of MediaOne's franchise areas listed on Attachment A hereto lie within the interference-free contours of BSE's MMDS transmitters. Most importantly, these maps also show that there are no terrain or other obstacles to line of sight service and that BSE stations' signal strength is adequate throughout the area BSE has distributed marketing materials within the Communities pointing out that Communities' residents need only call BSE for installation and commencement of services. BSE's marketing materials show that its MMDS service offers 160 channels of digital video programming that includes non-broadcast programming services such as Fox Sports South, CNN, ESPN, Discovery, BET, and Turner South, as well as a complement of local television broadcast stations. Therefore, BSE provides comparable programming as required by the "LEC" effective competition test. MediaOne's petition also provides substantial evidence that there are no regulatory, technical or other impediments to BSE's provision of service within the Communities. MediaOne has also shown that BSE has commenced providing service not only within the Communities but also within several other nearby communities within the greater Atlanta area, is marketing its services in a manner that makes potential subscribers reasonably aware of those services, and otherwise satisfies the "LEC" effective competition test consistent with evidentiary requirements set forth in the Cable Reform Order. 7. Based on the foregoing, we conclude that MediaOne has submitted sufficient evidence demonstrating that its cable systems serving Atlanta, Georgia and the communities listed in Appendix A are subject to effective competition. VIII. ordering clauses 9. Accordingly, IT IS ORDERED that the petition for a determination of effective competition filed by MediaOne of Colorado, Inc. IS GRANTED. 10. This action is taken pursuant to authority delegated under Section 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Service Bureau APPENDIX A MediaOne Atlanta Area Cable Communities Communities CUID Nos. Acworth GA0280 ApphrettaGA0411 AtlantaGA0018 AustellGA0128 Avondale EstatesGA0081 Bartow CountyGA0475 Berkeley LakeGA0262 BrooksGA0842 ClarkstonGA0080 Clayton CountyGA0143 Cobb CountyGA0169, GA0236, GA0246 College ParkGA0349 ConyersGA0269 Coweta CountyGA0731 DecaturGA0079 DeKalb CountyGA0078 Dobbins AFBGA0530 Douglas CountyGA0781, GA0121, GA0386 DouglasvilleGA0168 DuluthGA0920 East PointGA0350 Fairfield PlantationGA0780 Fayette CountyGA0389 CommunitiesCUID Nos. FayetevilleGA0470 Forest ParkGA0238 Ft. GillemGA0567 Ft. McPhersonGA0556 Fulton County (N)GA0819, GA0700 Fulton County (S)GA0633 Fulton County (W)GA0889 GraysonGA0260 Gwinnett CountyGA0222 HapevilleGA0356 Henry CountyGA0534 JonesboroGA0259 KennesawGA0235 Lake CityGA0258 LilburnGA0227 Lithia SpringsGA0965 LithoniaGA0440 LoganvilleGA0960 LovejoyGA0259 MariettaGA0156 MorrowGA0248 NewtownGA0309 NorcrossGA0261 APPENDIX A (Cont'd) MediaOne Atlanta Area Cable Communities (Cont'd) Communities CUID Nos. Peachtree CityGA0847 Pine LakeGA0106 Powder SpringsGA0655 RiverdaleGA0247 RockdaleGA0308 Communities CUID Nos. RoswellGA0919 SnellsvilleGA0221 Stone MountainGA0077 TyroneGA0388 WoolseyGA0841