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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: ) ) LyncStar Integrated Communications, LLC ) ) Certification to Operate an ) Open Video System ) MEMORANDUM OPINION AND ORDER Adopted: December 23, 1998 Released: December 24, 1998 By the Acting Chief, Consumer Protection and Competition Division, Cable Services Bureau: I. INTRODUCTION 1. LyncStar Integrated Communications, LLC ("LyncStar") filed an Application for Certification for Open Video System (FCC Form 1275) ("Application") on December 17, 1998, pursuant to Section 653(a)(1) of the Communications Act of 1934 ("Communications Act") and the Commission's regulations. LyncStar seeks to operate an open video system in portions of the City of Austin, Texas. In accordance with our regulations, we issued a Public Notice of receipt of LyncStar's Application and set forth the comment period, and posted the Application on the Internet. The City of Austin, Texas ("Austin") filed comments on LyncStar's Application. 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. Prospective open video system operators may apply for certification at any point prior to the commencement of service, subject to two conditions. If construction of new physical plant is required, the applicant must obtain Commission approval of its certification prior to the commencement of construction. 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 it to provide purposeful representations regarding the responsibilities of the open video system operator by requiring that applicants verify their certifications and provide specified information. To obtain certification, an applicant must file FCC 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 channel 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 4. Austin does not directly challenge LyncStar's Application, but filed comments stating that the Commission's open video system rules are unfair to local franchising authorities and exceed the Commission's authority under the Telecommunications Act of 1996. Austin also argues that the Commission's open video system rules, which do not permit build-out requirements, are contrary to the public interest and Congress' procompetitive goals. According to Austin, these objectives could be served by requiring open video system operators to perform a reasonably-phased build-out of their systems. Austin contends that such a requirement would hasten the availability of broadband services to all citizens and promote competition. III. DISCUSSION 5. We have reviewed LyncStar's Application. As required by FCC Form 1275, LyncStar's 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. LyncStar served its Application on the Commission's Office of the Secretary, the Chief, Cable Services Bureau, and on the designated telecommunications officials of the communities affected by its Application. 6. Austin's comments refer to matters not relevant to our inquiry into the adequacy and accuracy of LyncStar's Application. Austin asserts that our open video system rules adopted in 1996 "may exceed" the statutory authority imparted by Congress to implement open video systems. LyncStar's Application proceeding is not the proper forum to raise these concerns. The Commission's implementation of Section 653 of the Communications Act is currently subject to review by the United States Court of Appeals for the Fifth Circuit. 7. Austin also argues that local franchising authorities should be permitted to impose reasonable build-out requirements on open video system operators. This argument also does not relate to the adequacy and accuracy of LyncStar's Application and, therefore, is beyond the scope of the open video system certification process. We note that, in enacting the open video system provisions of the Communications Act, Congress expressly excluded requirements, such as build-out obligations, which would impede the rapid development and operation of open video systems. Accordingly, the fact that LyncStar may initially provide service only to certain areas within the City of Austin is not grounds for denying LyncStar's certification. 8. We find that Lyncstar 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 Lyncstar's Application proves to be materially false or inaccurate, the Commission retains the authority to revoke Lyncstar's certification or impose such other penalties it deems appropriate, including forfeiture. IV. ORDERING CLAUSES 9. Accordingly, IT IS ORDERED that the Application for Certification for Open Video System of LyncStar Integrated Communications, LLC to operate an open video system in the City of Austin, Texas IS APPROVED. 10. This action is taken by the Acting Chief, Consumer Protection and Competition Division, 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 Deborah E. Klein Acting Chief Consumer Protection and Competition Division Cable Services Bureau