FCC Record, Volume 27, No. 5, Pages 3728 to 4696, April 9 - April 27, 2012 Page: 3,767
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Federal Communications Commission
The percentage in that case is very similar to the percentage in this case, but there are significant
differences in other material facts. In Mediacom Delaware, unlike the instant case, there was the
expectation of further build-out by the LEC competitor.35 In Armstrong Commc'n, Inc., we found LEC
effective competition to exist despite having only an 18% overlap because the LEC might to continue to
build-out and expand its overlap, and the incumbent cable operator had cut its rates substantially in
response to the LEC's entry which, taken together, reflect a competitive environment. The Commission
specifically stated in Armstrong that "[i]fthe LEC has not shown its intention to offer service that
substantially overlaps the incumbent cable operator's service, the Commission will entertain a request for
waiver showing that the extent of the LEC's presence is sufficient to have a direct impact on the cable
operator's services throughout its service area, and particularly on the price."36 In this case, all the
evidence indicates that there is no realistic possibility of RCN building out further. The LEC's one-third
coverage of the incumbent's franchise area combined with the impossibility the LEC expanding are the
decisive facts in this case. They amount to a clear showing that the reasons for the earlier revocation of
the City's authority are no longer valid.7
IIL THE "COMPETING PROVIDER EFFECTIVE COMPETITION" TEST
9. Comcast claims that, independent of whether it is still subject to LEC effective
competition, it is now subject to another kind of effective competition, "competing provider" effective
competition.3 The most significant element of this kind of effective competition in this case is that more
than 15 percent of the households in Boston subscribe to RCN and the two providers of Direct Broadcast
Satellite ("DBS") service.39 We decline to address this claim in this Memorandum Opinion and Order.
As we stated in County of New Hanover, North Carolina:
"Our procedures do not expressly allow for the cable operator, in the midst of a
recertification case, to raise and prove alternate grounds for decertification. Instead,
Section 76.916(bX3) of our rules instructs us to focus on whether 'the reasons for the
earlier ... revocation no longer pertain.' Our rules do not contemplate, in re-certification
proceedings, consideration of new evidence for decertification ... that is raised for the
first time in the middle of the pleading cycle. A partial record, unanswered arguments,
and a less than thorough decision could result.""
Accordingly, we do not address Comcast's claim of competing provider effective competition at this time.
We would, however, accept a renewed request for special relief on those grounds as described in the
3s For example, the LEC's map showing its service area described it as "initial." Mediacom Delaware at 26 FCC
Rcd at 3669-70, 5, 3670, 7.
36 Armstrong Commc 'ns, Inc., 16 FCC Red 1039, 1043, 8 (2001).
37 47 C.F.R. 76.916(b)(3).
3K Opposition at 9-15.
See 47 U.S.C. 543(IX)(B)(ii); 47 C.F.R. 76.905(b)2)(ii). Comcast claims that 18.7% of Boston's households
subscribe to these competing providers - the DBS providers being DIRECTV, Inc., and DISH Network. Opposition at
4 County ofNew Hanover, North Carolina, 23 FCC Red 15348, 15353-54, 19 (2008) (footnotes omitted); see also
Reply at i-ii, 7-8.
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United States. Federal Communications Commission. FCC Record, Volume 27, No. 5, Pages 3728 to 4696, April 9 - April 27, 2012, book, April 2012; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc102307/m1/56/: accessed October 22, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.