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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: ) ) GLADES TELECOMMUNICATIONS, INC. ) ) ) Certification to Operate an ) Open Video System ) MEMORANDUM OPINION AND ORDER Adopted: May 8, 1998 Released: May 8, 1998 By the Acting Chief, Cable Services Bureau: I. INTRODUCTION 1. On April 30, 1998, Glades Telecommunications, Inc. ("Glades") filed an application for certification to operate an open video system pursuant to Section 653(a)(1) of the Communications Act of 1934 ("Communications Act") and the Commission's rules. Glades seeks to operate an open video system in the communities of Coconut Creek, Cooper City, Coral Springs, Dania, Davie, Deerfield Beach, Fort Lauderdale, Hallandale, Hillsboro Beach, Hollywood, Lauderdale-By-The-Sea, Lauderdale Lakes, Lauderhill, Lazy Lake, Lighthouse Point, Margate, Miramar, North Lauderdale, Oakland Park, Parkland, Pembroke Park, Pembroke Pines, Plantation, Pompano Beach, Sea Ranch Lakes, Sunrise, Tamarac, Weston, and Wilton Manors, Florida. In accordance with our procedures, the Commission issued a Public Notice acknowledging receipt of Glades' certification application and posted the application on the Internet. Comments were filed by the Cities of Coconut Creek, Margate, Miramar, Plantation, Tamarac, and Weston, Florida and the Broward County Board of County Commissioners, Broward County, Florida ("Broward County") and the City of Deerfield Beach filed an opposition. 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: (1) if construction of new physical plant is required, the applicant must obtain Commission approval of its certification prior to the commencement of construction; and (2) if no new construction is required, the applicant must obtain certification prior to the commencement of service, allowing itself sufficient time to comply with the Commission's requirements regarding notifications that must be provided to potential programming providers. 3. Despite the streamlined nature of the certification process, the Commission intended that the open video system process provide meaningful information by requiring applicants to verify their certifications and provide specific information. To obtain certification, an applicant must file FCC Form 1275 ("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 list of the names of the communities the applicant anticipates it will serve; (d) a statement of the anticipated type and amount of capacity that the system will provide; and (e) a representation as to whether the applicant is a cable operator applying for certification within its cable franchise area. II. COMMENTS AND OPPOSITION 4. The Cities of Coconut Creek, Deerfield Beach, Margate, Miramar, Plantation, Tamarac, and Weston, and Broward County state that Glades' representation of its anticipated analog and digital capacities needs to be clarified with additional information because the stated capacities appear to be inconsistent. The Cities of Margate, Miramar, Plantation, Tamarac, and Weston state that Glades failed to indicate on its Form 1275 whether it intends to construct new physical plant within the public rights-of- way of each community. The Cities of Coconut Grove and Deerfield Beach, and Broward County assert that Glades has not been certified as a local exchange carrier ("LEC") or any other type of telecommunications service provider by the Florida Public Services Commission. The City of Deerfield Beach opposes Glades' certification application because it believes that LECs are the only entities which are eligible to obtain certification to become open video system operators. In addition, the City of Deerfield Beach argues that Glades' service of its open video system certification application was deficient because Glades served the City's Risk Manager instead of the City Clerk and that the five-day time period within which comments must be filed is inadequate to permit a meaningful response and deprived the City of due process. III. DISCUSSION 5. We have reviewed the information contained in Glades' Form 1275. Glades has applied to become a certified open video system operator in the Communities within the State of Florida. As required by Form 1275, Glades' certification application provides: company information and a separate statement of ownership, including all affiliated entities; eligibility and compliance representations; and system information, system capacity and verification statements. Glades indicates that it has served officials of the communities affected by its application in the State of Florida which are the designated telecommunications officials of those respective communities. 6. We have also reviewed the comments and opposition filed in response to Glades' Form 1275. As an initial matter, we note that Congress has required the Commission to approve or disapprove any open video system certification application within ten days of receipt. In order to accommodate the filing of comments within this time constraint, the Commission has required comments and oppositions to be filed within five days of the applicant's filing. The Commission's rules provide for the most efficient review of open video system certification applications and related pleadings within the statutory time frame. 7. Each commenter has raised the issue of the sufficiency of the information Glades provided on its Form 1275 pertaining to its anticipated analog and digital capacities. The ten-day statutory review period for certification applications requires us to confine our review to the Form 1275. Form 1275 requires an open video system operator applicant to state its anticipated channel capacity. The Commission requires certification applicants to state analog and digital portions of the open video system separately and to treat them separately for channel allocation purposes. Glades states on its Form 1275 that it anticipates offering digital capacity of 1000 MHz and analog capacity of 234 channels. Nothing in the Telecommunications Act of 1996 or in the Commission's rules governing open video system certification requires us to dertermine whether an applicant's anticipated digital and analog capacities are consistent. The Form 1275 does not require an applicant to provide technical specifications beyond anticipated capacity or to describe the manner in which the anticipated capacity will be delivered. 8. With regard to the issue of Glades' failure to state whether it intends to construct new physical plant, Form 1275 does not require an applicant to do so. Section 76.1502(a) of our rules does require that, if construction is necessary, an applicant must become certified prior to the commencement of construction and that, if no construction is required, the applicant must become certified prior to commencement of service. None of the commenters has alleged that Glades has commenced construction of a new physical plant or commenced delivery of open video service in violation of the Commission's rules. In addition, our open video system rules require certified open video system operators to comply with all State and local conditions for the use of public rights-of-way as long as such conditions are applied equally to all users of the public rights-of-way. In establishing open video systems as an alternative method of providing video service, Congress sought to avoid erecting barriers to entry and creating potential for delay in the certification process. The Commission, while acknowledging that the certification process was designed to be streamlined, has stated its belief that "Congress did not intend to infringe upon local communities' prerogative to manage their public rights-of- way in order to protect the public health and safety." Thus the Commission has made clear that the open video system certification process does not usurp the authority of local governments to manage the rights- of-way within their communities. 9. With regard to the comments regarding Glades' lack of prior certification as a LEC or a telecommunications provider, there are no pre-certifications or approvals necessary to obtain open video system certification. Glades is not required to be a LEC in order to become certified as an open video system operator. Section 76.1502 of the Commission's rules describes the qualifications for open video system certification and states, in relevant part, that any person may obtain a certification to operate an open video system. Nothing in the Communications Act, or the Commission's rules governing the certification process, requires an applicant to demonstrate or to make a representation that it is currently a facilities-based service provider. 10. The City of Deerfield Beach argues that Glades did not serve the proper city official as required by the Commission's rules and that the five-day comment period deprived the City of a meaningful opportunity to be heard. With regard to the service of process issue, the City cites our prior decision in Urban Communications Transport Corporation in which we denied the open video system certification application based in part upon deficient service of the open video system certification application to the affected communities. We find that this case can be distinguished from Urban. In Urban, the applicant served the clerk of Westchester County, New York but did not serve the numerous municipal local franchising authorities located within Westchester County. In the instant case, Glades has served each of the communities affected by its open video system application with a copy of its certification application and has made a representation that, before making such service, it contacted each community to determine the appropriate official to be served. We note that the City of Deerfield Beach filed extensive comments prepared by its City Attorney addressing substantive arguments in addition to the service of process issue within the five-day time frame required by our rules. In light of these facts, we cannot conclude that Glades' deficient service, if indeed such service was deficient, has materially infringed upon the City of Deerfield Beach's ability to fully and fairly address the issues raised by Glades' certification application. 11. With regard to the City of Deerfield Beach's argument that the limited comment period deprives it of due process, we have noted the brief ten-day period in which the Commission must review open video system certification applications. The Commission established the five-day comment period in order to provide affected parties with the maximum opportunity to be heard within the time constraints of the application review period mandated by statute. 12. We find that Glades has provided the requisite facts and representations concerning the open video system 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) of the Communications Act. We note that, if any representation in Glades' certification filing proves to be materially false or materially inaccurate, the Commission retains the authority to revoke Glades' certification or impose such other penalties it deems appropriate, including forfeiture. We further find that the comments and opposition have not raised issues which warrant denial of Glades' open video system certification application. IV. ORDERING CLAUSES 13. Accordingly, IT IS ORDERED, that the certification application of Glades Telecommunications, Inc. to operate an open video system in the communities of Coconut Creek, Cooper City, Coral Springs, Dania, Davie, Deerfield Beach, Fort Lauderdale, Hallandale, Hillsboro Beach, Hollywood, Lauderdale-By-The-Sea, Lauderdale Lakes, Lauderhill, Lazy Lake, Lighthouse Point, Margate, Miramar, North Lauderdale, Oakland Park, Parkland, Pembroke Park, Pembroke Pines, Plantation, Pompano Beach, Sea Ranch Lakes, Sunrise, Tamarac, Weston, and Wilton Manors, Florida IS APPROVED. 14. This action is taken by the Acting Chief, Cable Services Bureau, pursuant to the authority delegated by Section 0.321 of the Commission's Rules, 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION John E. Logan Acting Chief, Cable Services Bureau