FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 4,902

Federal Communications Commission DA 11-557

A. The Competing Provider Test
3. Section 623(1)(1 )(B) of the Communications Act provides that a cable operator is subject
to effective competition if the franchise area is (a) served by at least two unaffiliated multi-channel video
programming distributors ("MVPDs") each of which offers comparable video programming to at least 50
percent of the households in the franchise area; and (b) the number of households subscribing to
programming services offered by MVPDs other than the largest MVPD exceeds 15 percent of the
households in the franchise area.'0 This test is referred to as the "competing provider" test.
1. The First Part
4. The first part of this test has three elements: the franchise area must be "served by" at
least two unaffiliated MVPDs who offer "comparable programming" to at least "50 percent" of the
households in the franchise area." It is undisputed that the Attachment A Communities are "served by"
both DBS providers and that these two MVPD providers are unaffiliated with Comcast or with each other.
A franchise area is considered "served by" an MVPD if that MVPD's service is both technically and
actually available in the franchise area. DBS service is presumed to be technically available due to its
nationwide satellite footprint, and presumed to be actually available if households in the franchise area are
made reasonably aware of the service's availability.'2 The Commission has held that a party may use
evidence of penetration rates in the franchise area (the second part of the competing provider test
discussed below) coupled with the ubiquity of DBS services to show that consumers are reasonably aware
of the availability of DBS service." We further find that Comcast has provided sufficient evidence of
DBS advertising in local, regional, and national media that serve the Attachment A Communities to
support its assertion that potential customers in there are reasonably aware that they may purchase the
service of these MVPD providers.'4 The "comparable programming" element is met if a competing
MVPD provider offers at least 12 channels of video programming, including at least one channel of
nonbroadcast service programmingS and is supported in this petition with copies of channel lineups for
both DBS providers.' Also undisputed is Comcast's assertion that both DBS providers offer service to at
least "50 percent" of the households in the Attachment A Communities because of their national satellite
footprint."7 Accordingly, we find that the first part of the competing provider test is satisfied.
10 47 U.S.C. 543(l)(l)(B); see also 47 C.F.R. 76.905(b)2).
" 47 C.F.R. 76.905(b)(2)Xi).
12 See Petition at 3.
'3 Mediacom Illinois LLC, 21 FCC Rcd 1175, 1176, 3 (2006).
14 47 C.F.R. 76.905(e)(2).
'5 See 47 C.F.R. 76.905(g). See also Petition at 4.
'6 See Petition at Exh. 2.
'7 See Petition at 2-3.


Federal Communications Commission

DA 11-557

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United States. Federal Communications Commission. FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011, book, April 2011; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc52169/m1/74/ocr/: accessed April 30, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.