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See Cable Operators' Petitions for Reconsideration  {O-  and Revocation of Franchising Authorities' Certification to Regulate Basic Cable Service Rates,  9 FCC Rcd 3656  {O-(1994) ("Effective Competition Order"). Century claims that it currently offers service to (i.e., passes with cable)   25,348 housing units which, according to Century's calculations, equates to 24,081 households, or 68%  SX-  Lof the total 35,408 households in the City. XE yO-  ԍCentury converted its 25,348 housing unit figure to a 24,081 household figure by making the following   xcalculations based on 1990 Census data: (1) dividing the number of households in the City, 35,408 by the number   of housing units, 37,343, which results in a figure of .95 and (2) multiplying .95 by the number of housing units Century currently passes, 25,348, to arrive at 24,081 households. Century Petition at 4. Century maintains, therefore, that due to the availability of   its cable service and DBS, two MVPDS offer comparable programming to more than 50% of the households in the City.  S-  Q6.` ` Century argues that the number of households in the City receiving multichannel video  S-  kprogramming from an MVPD other than the largest MVPD, Century, is greater than 15% of the total   Mhouseholds in the City. Specifically, Century asserts that Avenue, another franchised cable operator"h,`(`(88"  S-  serving the City, has 10,650 subscribers.E yOh-ԍCentury Petition at 4, citing 1997 Television & Cable Factbook, Cable Systems Volume, at D191. Century contends that Avenue's subscriber base constitutes  S-  approximately 30% of the total number of households in the City (10,650  35,408 = 30%). Century   further maintains that Avenue "offers" service in the City within the meaning of Commission rules.   Century states that the subscription of more than 10,650 customers to Avenue's service demonstrates that   Avenue is physically able to deliver service. Century also explains that both it and Avenue have been  S8-  granted nonexclusive franchises to operate cable systems within the City limits. 8XE yO0-  hԍCentury states that the City issues franchises covering cable television operations within the City limits pursuant   to City ordinances which are attached at Exhibit B to Century's Petition. Century also includes a copy of its 1983   franchise renewal agreement with the City at Exhibit D, as well as a copy of Avenue's 1983 franchise renewal agreement at Exhibit C. Both agreements extend the operators' franchises for a period of 15 years. Century contends that   Avenue's offering of cable service to 10,650 customers pursuant to a franchise grant from the City   demonstrates that no regulatory, technical or other impediments to households taking Avenue's service   exist. Century also asserts that potential subscribers are reasonably aware that the may purchase Avenue's   service as evidenced by Avenue's subscriber base. In addition, Century submits examples of Avenue's  Sp-  advertisements which have appeared in local newspapers.Np@E {OP-ԍSee Century Petition, Exhibit E.N Century states that Avenue offers  SH -  programming comparable to that offered by Century and provides a copy of Avenue's current channel   lineup which shows that Avenue offers 74 channels of programming, including numerous nonbroadcast  S -programming services. E {Oj-ԍSee Century Petition, Exhibit F. Century includes its own channel lineup at Exhibit G.  S -  7.` ` In opposition, the City argues that regardless of the number of subscribers allegedly served   by Avenue, Century does not face effective competition in its franchise area because Century and Avenue  SX-  serve different franchise areas.8Xd E yO\-ԍOpposition at 3.8 The City states that the areas served by Century and Avenue do not   overlap, and that while both cable operators serve the City, no subscriber can obtain service from more  S-  kthan one cable operator.8 E yO-ԍOpposition at 3.8 The City contends that Century and Avenue, operating sidebyside, have  S-  redefined their franchise areas to cover different parts of the City.: E yO-ԍOpposition at 38.: The City asserts that cable operators  S-  must demonstrate effective competition within their respective franchise areas.8E yOl!-ԍOpposition at 6.8 The City contends that   =because Century and Avenue serve different franchise areas within the City, Century's use of Citywide   data, such as its inclusion of Avenue's subscribership in the calculation of the 15% penetration   krequirement, does not support Century's claim that it faces effective competition in its own franchise  S-area.:E yO\&-ԍOpposition at 67.: "4,`(`(88a"Ԍ S-   8.` ` The City asserts that cable franchise applicants are required by ordinance to provide the   [City with "[a] map specifically showing and delineating the proposed service area or areas within which  S-  the applicant proposes to provide CATV services and for which a franchise is requested."yE {O-ԍSee Opposition, Exhibit 2 (City Ordinance No. 1527 at p.19,  20(a)(4)).y The City   jincludes with its Opposition maps submitted pursuant to this requirement by both Century and Avenue  S`-  in 1983, the year the cable operators' current franchises were granted.o`ZE yOZ-ԍThe City granted franchise renewals to both Avenue and Century in 1983.o The City states that Avenue's   yand Century's city maps contain identical boundary lines that divide the City into two separate franchise  S-  areas.E {O -  ԍSee Opposition at Exhibit 10 (Avenue's 1983 Application for Renewal of Franchise, with map) and Exhibit 11 (Century's 1983 Application for Renewal of Franchise, with map). The City contends that these boundary lines provide written evidence of franchise area   redefinition. The City notes that Avenue's map is marked with a boundary line labeled "Boundry [sic]   of Construction" and that Century, in its map entitled "Century Cable of No. Calif. System Coverage,"  S-  defines its franchise area along the same boundary as does Avenue.SDE {O|-ԍSee Opposition at Exhibits 10 and 11.S The City argues that these maps   demonstrate that the two cable operators in their applications acknowledge the division of the City into separate franchise areas.  S -  9.` ` In addition to the 1983 maps, the City points to three other maps submitted by Avenue   [which the City contends more explicitly show the limitation of Avenue's franchise area. The City states   Mthat a 1998 map shows Avenue occupying essentially the same territory it served 15 years earlier, in  S -  =1983.K E {O-ԍSee Opposition at Exhibit 12.K The City notes that the legend to this map labels the dividing line between Avenue and Century   ."Franchise Boundary" and displays a line with "Avenue TV Cable" on one side and "Century Cable" on  S0-  the other. 0h E {O8-  KԍId. The City states that a similar map submitted by Avenue in 1997 bears the same markings. Opposition at 5. The City does not include this map in its Opposition. The City further asserts that a 1990 map submitted by Avenue describes the boundary line  S-  zas the "Franchise Divide" and again shows Avenue on one side of the line and Century on the other.M! E {Oj-ԍSee Opposition at Exhibit 13. M   The City argues that these maps graphically illustrate that Avenue's franchise area does not extend to parts   Lof the City served by Century and that the two cable operators recognize this division. In fact, the City   argues that since 1971, the City has been served by two cable companies with distinct franchise areas that do not overlap.  S-  10.` ` The City contends that the fact that both Century and Avenue recently sought to refer a   -potential subscriber to the other operator is further evidence that the two cable operators regard themselves  S-  [as serving two separate franchise areas.d"ZT E {O%-  ԍOpposition at 6. The City also cites a Bureau order, Lake Cablevision, Inc., 10 FCC Rcd 9406 (1995),   indicating that refusals of requests to expand service may be evidence that the cable operator has redefined its  yON'-franchise area. Opposition at n.18. d The City argues that the lines of demarcation between the two"v",`(`(88$"   franchise areas preclude Century and Avenue from competing with each other. The City warns that if the   yCommission grants Century's petition, despite the absence of any real competitive choice for subscribers  S-in the City, the result would be a rate overcharge to Century's customers.  S`-  S11.` ` The City also argues that Century's petition to revoke the City's certification is   procedurally defective. The City contends that, under the Commission's rules, a cable operator is required   to first petition the City for a change in regulatory status due to the presence of effective competition and   [then, only after exhausting this recourse, may the cable operator seek review of the City's decision at the   <Commission through a petition for revocation. The City states that Century did not petition the City prior   to seeking relief from the Commission. The City argues that Century's failure to follow Commission procedures warrants denial of the petition.  S -  12.` ` In reply, Century contends that it has satisfied competing provider test for effective   competition. Century asserts that it has met this standard by demonstrating that it and DBS offer   lcomparable programming to more than 50% of the households in the City, and that the number of   households subscribing to the cable service of Avenue, the smaller of the two franchised operators,   exceeds 15% of the households in the City. Century states that the Bureau has previously found that   "[t]he competing provider test does not require that the Commission find actual headtohead competition.   Instead, petitioning cable operators must show that the penetration, passage and comparable programming  S-standards enacted by Congress have been satisfied."#E {Op-  ԍDaniels Cablevision, Inc. d/b/a North County Cablevision, L.P., Order on Reconsideration, 12 FCC Rcd 17410, 17418 (1997).  S-  P13.` ` Century argues that the City has not met its burden of proving that Century has redefined  S-  jits franchise area to encompass less than the entire City.9$"E yOR-  ,ԍCentury asserts that according to previous Bureau decisions, the franchising authority has the burden of showing   + that the cable operator has made an "affirmative decision" to restrict service. In support of its assertion, Century cites  {O-  Valley Center Cablesystems, L.P. Application for Review of Order of the Cable Services Bureau 11 FCC Rcd 1250,  {O-  1252 (1995); Daniels Cablevision, Inc., d/b/a Pala Mesa Cablevision, Inc. et al., 11 FCC Rcd 10347, 10350 (1996);  {Mv-  YFlorida Cablevision Management, Corp. d/b/a Cablevision Industries Petition for Reconsideration of Cable Services  {O>-Bureau Order, 11 FCC Rcd 6876, 6881 (1996).9 Century asserts that both it and Avenue have   nonexclusive citywide franchises. Century states that the two operators were granted franchise renewals   in 1983 which cover the operation of cable television systems "within the City limits of the City of San  S-  Buenaventura."%E {OX-  iԍSee Century's Petition at Exhibits C and D (City ordinances granting renewal of Avenue's and Century's cable franchises) Century maintains that the plain language of the renewals does not limit either operator's   service area within the City in any way. Century contends that the City could have set forth specific   franchise area limitations in the operators' renewals but did not do so. Century explains that as part of   kthe 1983 renewal process, the operators submitted maps showing the areas for which a franchise was   \requested. Century asserts that these maps showed the entire City and that the accompanying cover   documents stated that the maps show "the current service area and location of [either Century's or  S(-  Avenue's] facilities," "with such extensions as may be made thereto."S&( E {O&-ԍSee Opposition at Exhibits 10 and 11.S Century argues that the 1983 maps"( &,`(`(88l"   and related documentation indicated the current state of each operator's system construction and reserved   the operators' rights to make periodic extensions to their cable plant. Century asserts that in keeping with   the nature of the maps as factual indications of current plant coverage, Avenue entitled its map "Boundry  S-  [sic] of Construction" and Century entitled its map "Century Cable of No. Calif. System Coverage."S'E {O-ԍSee Opposition at Exhibits 10 and 11.S   Century argues that the City is attempting to distort the plain purpose of the maps by arguing that, rather   than delineating the current state of construction, both operators were carving up the City into discrete   franchise areas. Century argues that the fact that neither cable operator has yet built out the entire City   does not prove that the operators have redefined their franchise areas to encompass less than the entire City.  Sp-  14.` ` As to the maps submitted by Avenue in 1990 and 1998, Century contends that the purpose   -of those maps was to inform the City of the current state of construction of Avenue's cable plant. Century   argues that the 1983 franchise renewals, not the 1990 and 1998 construction maps, govern the location   Lof each operator's franchise area. Century asserts that despite Avenue's notations on the 1990 and 1998   /maps of a "franchise boundary" or "franchise divide," neither Century's nor Avenue's 1983 franchise   renewals limit either cable operators' service areas within the City limits. Moreover, Century contends   ythat even if Avenue was attempting to limit its franchise area, Century has never expressed any intention   to limit its own franchise area and is entitled, pursuant to its 1983 franchise renewal, to build in any portion of the City, including those areas presently served by Avenue.  S-  15.` ` Century argues that the facts in this case differ from those in other cases in which the  S-  Bureau has found that the cable operator redefined its franchise area.(^ZE {O-  <ԍCentury cites TeleMedia Company of North Carolina, 10 FCC Rcd 882; CTEC Cable Systems of Michigan,  {O|-  =Inc. (Algoma Township, MI), 10 FCC Rcd 1025; CTEC Cable Systems of Michigan, Inc. (Plainfield Charter  {OF-Township, MI), 10 FCC Rcd 1735; and Cecilton CATV, Inc., 10 FCC Rcd 2937. Century asserts that in contrast   .to cases finding franchise area redefinition, Century has not entered into an agreement with a third party   to restrict its right to overbuild the other cable system in the franchise area, nor does the relevant franchise   language (contained in the 1983 renewals) indicate any sort of geographic limitations on Century's and Avenue's franchise areas within the City.  S-  16.` ` Century contends that the instant case is indistinguishable from the Daniels Cablevision  S-  reconsideration decision)E {O-  ԍDaniels Cablevision, Inc. d/b/a North County Cablevision, L.P., Order on Reconsideration, ("Daniels") 12 FCC Rcd 17410 (1997). in which the Bureau affirmed its grant of the cable operator's petition for   revocation. In that case, the Bureau failed to find that the cable operator had redefined its franchise area   despite the local franchising authority's arguments that the operator did not face headtohead competition   in its franchise area, did not build out the entire franchise area, and had referred a potential customer to  S-  another operator.;*E {O|$-ԍId. at 17418.; Century also argues that the Bureau in Daniels dismissed the procedural argument that"l *,`(`(88M"   >cable operators must make an effective competition showing to the local franchising authority before  S-bringing the case to the Commission.E+E {O@-ԍSee id. at 1741717418.E  S-  Q17.` ` In a supplement to its opposition, the City submits hundreds of transcribed telephone  S`-  jcomplaints and subscriber letters concerning Century's rates and services.,`ZE yOZ-ԍThe City states that from April 6, 1998 to May 8, 1998 the City was contacted by 1,030 Century subscribers. According to the City, these  S8-  documents indicate that subscribers believe they do not have access to competitive sources of comparable   video programming. The City argues that these complaints provide additional evidence that Century is   not subject to effective competition and that the cable operators have limited their franchise areas. The   City asserts that even if Century actually faces competition, its subscribers are not "reasonably aware" of an alternative video programming service provider.  SH -  P18.` ` Century argues that the City's supplement is not relevant to the issue of whether Century   =has affirmatively redefined its franchise area to cover only a portion of the City. Century reiterates that   it was granted a franchise renewal in 1983 covering the entire area within City limits and that Century has   Lnever expressed any intention to limit its franchise. Century argues that none of the subscriber feedback   [has any relevance to the fact that Century is authorized to provide cable service throughout the City and   has never indicated that it has fully completed constructing its cable plant in the City. Century argues that   >"[t]he fact that Century's current subscribers, located in an area that Avenue has so far chosen not to   overbuild, state that they cannot currently order service from Avenue simply adds nothing of relevance  S-  yto the record."c-E yO-ԍResponse to Motion for Leave to Supplement the Record at 3.c Century further contends that the subscriber complaints have no bearing on the issue of   Lwhether subscribers in the franchise area are reasonably aware that they may purchase the services of an   MVPD. Century states that it has demonstrated that Avenue regularly advertises in the local newspaper  S-  (the Ventura County Star) and that such advertising efforts have been successful as Avenue serves at least   10,650 subscribers in the City. Century adds that its subscribers are free to order DBS service which is   ynationally advertised. Century asserts, therefore, that its subscribers at least are aware of the availability of DBS as a competitive alternative.  S-   S-J ANALYSIS ă  Sx-  P19.` ` We find that Century has affirmatively redefined its franchise area to include only the area   that it serves within the City of San Buenaventura. We further conclude that the penetration and passage   information presented by Century does not demonstrate that it is subject to effective competition in its redefined franchise area.  S-  20.` ` Generally, a franchise area is defined as the area a system operator is authorized to serve  S-  in its franchise.a.\zE {O$-  ZԍImplementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992, First   Order on Reconsideration, Second Report and Order, and Third Notice of Proposed Rulemaking, 9 FCC Rcd 1164,  {O4&-1180 (1994) ("First Recon. Order").a Thus, demonstrations of effective competition must be made using household and   subscriber data for the authorized area in the franchise. The Commission has also stated that a more"`.,`(`(88"   [restricted definition of a franchise area may be appropriate under limited circumstances, such as when an  S-  operator, "through its own conduct, selfdefined the areas to be served to such an extent that this redefined  S-  area accurately portrays the operator's franchise area."1/E {O-ԍId.1 The franchising authority has the burden of  S-  showing that the operator has made an "affirmative decision. . . to restrict service. . . ."10ZE {O-ԍId.1 However, as   the Commission cautioned, the fact that a franchise area had not yet been filled out entirely by system  S8-construction by the operator would not by itself be evidence that the service area had been redefined.118E {O -ԍId.1  S-  21.` ` The record in this proceeding indicates that Century has made an affirmative decision to   yrestrict its cable service to the portion of San Buenaventura that is not served by Avenue. A comparison   of the maps filed with the City as part of the franchise renewal process in 1983, by both Century and   Avenue, to a map filed with the City by Avenue in 1998 reveals that in the 15 year period since Century's   >renewal, the cable operator has not expanded its service area. Century, in fact, acknowledges that its  S -  [current subscribers are located in an area not served by Avenue.m2 ~E yO>-ԍCentury Response to Motion for Leave to Supplement the Record at 34.m In addition, there is no evidence in the   Mrecord to suggest that Century has extended its cable service area, in any way, since its franchise was   renewed in 1983. Nevertheless, Century argues that the plain language of the franchise renewal permits   jCentury to build in any portion of the City, including those areas served by Avenue. Despite the ability  S -  under the renewal to expand to "the City limits,"P3 E {O.-ԍSee Century Petition at Exhibit D.P it appears that Century's service area has remained   static for the past 15 years, encompassing only a portion of the City. Century contends that it has never   expressed any intention to restrict its franchise area. Century's refusal, over a 15 year period, to extend   the boundaries of its service area evinces a resolve to restrict its franchise area. The City argues that maps   with identical boundary lines filed by the two cable operators plainly show that the City is divided into   =separate franchise areas. In an effort to rebut this assertion, Century claims that the 1983 maps filed by   Century and Avenue are simply factual indications of "current plant coverage" and that Avenue's 1998  Sh-  Lmap shows the "current state" of system construction.=4hE yO-ԍCentury Reply at 56.= We find it significant that the "current" service  S@-  area has not changed in 15 years. Century argues that the fact that it has not yet built out its entire   franchise does not, by itself, prove that Century has redefined its franchise area. But Century has not   indicated, either through its pleadings or through its conduct over the past 15 years, that it has any   intention to ever fill out its franchise area. We conclude, therefore, that Century, through its own conduct,  S-has selfdefined its franchise area to include only a portion of the City which is not served by Avenue.  SP-  `22.` ` Century argues that its actions are indistinguishable from those of the cable operator in  S(-  Daniels.5(0 E {O%-  ԍDaniels Cablevision, Inc. d/b/a North County Cablevision, L.P., Order on Reconsideration, ("Daniels") 12 FCC Rcd 17410 (1997). We believe that the facts of this case are distinguishable from those presented in Daniels. In"( 5,`(`(88"  S-  Daniels, the local franchising authority argued, as does the City here, that a lack of headtohead   competition in the franchise area and a failure to build out the entire franchise warranted a finding of  S-  franchise area redefinition arguments which the Bureau rejected in Daniels as a standalone basis for a  S-  Lfinding of franchise area redefinition.16E {O-ԍId.1 The important difference between the two cases, however, is that  Sd-  in Daniels the cable operator, while not expanding into its competitor's service area, did, in fact, submit   evidence demonstrating that it had substantially expanded its cable system and service area since receiving  S-  Lits franchise.$7ZE {O -  ,ԍEvidence of the cable operator's system expansion was important to our holding in the Daniels Reconsideration   Order as well as in the underlying Bureau order. In the underlying order we found that "[i]t is uncontested that  {O -  Daniels has substantially built out its system since receiving its franchise in 1978." Daniels Cablevision, Inc. d/b/a/  {Ol -  North County Cablevision, L.P., 11 FCC Rcd 11858, 11863 (1996). In both the Reconsideration Order and the initial  {O6 -  KBureau order we quoted a section from a previous Bureau decision, Valley Center Cablesystems, L.P., 10 FCC Rcd  yO -  J11940, 11945 (1995), concerning franchise area redefinition which reads in part,"[i]ndeed, we note that the instant   <proceeding is not a case where the cable operator has engaged in no expansion..." This decision was affirmed by  {O-  the Commission in Valley Center Cablesystems, L.P., Application for Review, 11 FCC Rcd 1250, 1252 (1995) (also noting that "the instant proceeding is not a case where the cable operator has engaged in no expansion"). $ In the instant proceeding, Century has submitted no evidence that it continues to expand   =its service area or that it has not affirmatively redefined its franchise area. Instead, Century relies on the   assertion that it has never indicated that it considers its franchise area to be less than the entire City of   LSan Buenaventura. While the burden of proof rests with the local franchising authority arguing franchise  Sv-  area redefinition,^8v4 E {OJ-ԍFirst Recon. Order, 9 FCC Rcd 1164, 1181 (1993).^ a cable operator that does not counter evidence of franchise area redefinition with   record evidence of its own is at risk of the Commission determining, as we have here, that the local   franchising authority has satisfied its burden of proof on this issue. We are faced with a record which   fails to contradict the City's evidence that Century has not expanded its service area since receiving its   franchise extension in 1983. Accordingly, we find that Century has affirmatively redefined its franchise  S -area consistent with its current service area.k9 E yO-  ԍWe reject the City's procedural argument that Century was required to first petition the City for a change in   wregulatory status before filing a petition for revocation of certification with the Commission. Section 76.914 of the   Commission's rules, which governs the filings of petitions for revocation, does not require cable operators to petition   jlocal authorities prior to seeking revocation from the Commission. 47 C.F.R.  76.914. Cable operators are  {O4-  permitted to seek deregulation directly from the Commission. See Daniels Cablevision, Inc. d/b/a North County  {O-  Cablevision, L.P., Order on Reconsideration, ("Daniels") 12 FCC Rcd 17410, 1741717418 (1977). In addition, the   language of Section 76.915 of the Commission's rules makes clear that filing a petition for change in regulatory   status with the local franchising authority is an optional deregulation procedure. 47 C.F.R.  76.915. Section  {OX -  w76.915 provides that "[a] cable operator that becomes subject to effective competition may petition the franchising authority for change in its regulatory status." 47 C.F.R.  76.915 (emphasis added).k%QG  S-%QG1' ORDERING CLAUSES  S-  A 23.` ` Accordingly, IT IS ORDERED that the petition for revocation filed by Century Cable   kof Northern California Inc. challenging the certification of the City of San Buenaventura, California to  S`-regulate basic cable service rates IS DENIED.  S-   24.` ` This action is taken pursuant to delegated authority pursuant to Section 0.321 of the  S-Commission's Rules.=:E yOP-ԍ47 C.F.R.  0.321.=  Sp-` `   hh,FEDERAL COMMUNICATIONS COMMISSION ` `  hh,Deborah Lathen ` `  hh,Chief, Cable Services Bureau  B <# ~6Nhez7LvH#