Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) City of Boston, Massachusetts ) Rate Regulation Re-certification ) ) Boston, MA (MAO 182) ) To: Chief, Media Bureau PETITION FOR RECONSIDERATION OF RATE REGULATION RE-CERTIFICATION Comcast Cable Communications, LLC ("Comcast"), pursuant to Section 76.911 of the Commission's rules, hereby seeks reconsideration of the rate re-certification granted to the City of Boston (the "City") in the Media Bureau's recent decision in Petition ofthe City ofBoston, Massachusetts, for Recertification to Regulate the Basic Cable Service Rates ofCom cast Cable Communications, LLC (CUID MA0182), Memorandum Opinion and Order, CSR-8488-R, DA 12-553 (reI. April 9, 2012) (the "Recertification Order"). The Recertification Order expressly states that the Media Bureau will "waive [its] rules to the extent necessary to accept a Comcast petition for reconsideration,"! and further specifies that "Comcast's filing of such a petition will stay the recommencement of basic service tier rate regulation in Boston pending the Commission's adjudication of Comcast's petition.,,2 As demonstrated below, reconsideration of the Recertification Order is warranted because the competing provider effective competition test has been met for the Boston franchise area. ! Recertification Order ~ 11 . 2 Id. ~ 10. I. BACKGROUND The Commission initially revoked the City's cable rate regulation authority in 2001.3 It did so under the local exchange carrier effective competition test ("LEC Test") set forth in Section 623(1)(1)(D) of the Communications Act.4 A decade later, the City sought recertification to regulate basic service rates based on changed circumstances under the LEC Test. In its Opposition to Petition for Recertification,S Comcast disputed the City's LEC Test analysis, but also emphasized that re-certification was barred under the alternative "Competing Provider Test" set forth in Section 623(1)(1)(B) of the Communications Act. 6 Indeed, Comcast demonstrated that competing multichannel video programming distributors C'MVPDs") now 7 serve more than 18 percent of the households in the Boston franchise area - well over the 15 percent threshold required by the Competing Provider Test. In its Recertification Order, the Media Bureau concluded that, based on new evidence regarding the scope of the LEC RCN's Boston build-out, "the reasons for the earlier revocation of the City's authority are no longer valid."g The Media Bureau then declined to consider the Competing Provider Test in the context of that adjudication.9 That procedural ruling, however, did not reflect a substantive evaluation of Comcast' s Competing Provider Test submission. Instead, the Recertification Order stated that Comcast could refile its Competing Provider 3 Cablevision ofBoston, Inc., Memorandum Opinion and Order, 16 FCC Rcd. 14056 (2001) ("Cablevision"), application/or review denied, 17 FCC Rcd. 4772 (2002). 447 U.S.C. § 543(1)(1)(D). S Comcast Opposition to Petition for Recertification, CSR-8488-R (filed May 24,2011) ("Comcast Opposition"). 6 47 U.S.C. § 543(1)(1)(B). 7 Comcast Opposition at 9-15. g Recertification Order ~ 8. 9Id.~9. 2 analysis as part of a petition for reconsideration and noted that "[a]ny petition that Comcast files may contain the same evidence that appears in its Opposition, or other additional evidence that Comcast chooses to submit."lo This Petition is submitted pursuant to the Media Bureau's instructions in the Recertification Order. I I The Competing Provider Test analysis submitted herewith uses the same methodology used in preparing the analysis Comcast submitted in opposing the City'S recertification. Out of an abundance of caution, however, Comcast has rerun that analysis using updated data provided by the competing MVPDs. The updated analysis confirms that Comcast continues to face effective competition in Boston. Competing MVPDs today serve more than 18 percent of the households in the Boston franchise area. In Boston and throughout the country, Comcast is facing rigorous MVPD competition. In these circumstances, the marketplace, rather than regulation, should dictate Comcast's prices. Accordingly, Comcast requests that the Commission reconsider the City'S Form 328 certification and revoke the City'S authority to regulate basic cable service rates. II. COMCAST FACES EFFECTIVE COMPETITION UNDER THE COMPETING PROVIDER TEST Under the Competing Provider Test, a cable system will be deemed subject to effective competition if: (i) the franchise area is served by at least two unaffiliated [MVPDs], each of which offers comparable video programming to at least 50 percent of the households in the franchise area; and 10 Id. ~ 11. II Although Comcast is proceeding here under the Competing Provider Test consistent with the Recertification Order, Comcast does not agree with the Media Bureau's LEC Test findings included therein. 3 (ii) the number of households subscribing to programming services offered by [MPVDs] other than the largest [MVPD] exceeds 15 percent of the households in the franchise area. 12 Both prongs of the Competing Provider Test are satisfied in Comcast's Boston franchise area. A. Competing DBS Providers Offer Programming Comparable To Com cast To Over 50 Percent Of The Households In The Boston Franchise Area. The first prong of the Competing Provider Test requires that a franchise area must be served by "at least two unaffiliated multichannel video programming distributors.,,13 This requirement is clearly satisfied by the two major direct broadcast satellite providers (DirecTV, Inc. and Dish Network, Corp.) ("DBS Providers"). Both DBS Providers are unaffiliated with Comcast and "offer" programming that is comparable to Comcast's to more than 50 percent of the households in Comcast's Boston franchise area. Service of an MVPD will be deemed "offered" when it is both technically and actually available. 14 The Commission has determined that DBS service is presumed to be "technically available" throughout the country due to its nationwide satellite footprint. 15 Thus, both DBS Providers are "technically available" in the Boston franchise area. 12 47 U.S.C. §§ 543(1)(I)(B)(i) and (ii); see also 47 C.F.R. §§ 76.905(b)(2)(i) and (ii). 13 47 U.S.C. § 543(1)(1)(B)(i); 47 C.F.R. § 76.905(b)(2)(i). Section 602 of the Communications Act of 1934, as amended, defines "multichannel video programming distributor" to include DBS providers. See 47 U.S.C. § 522(13). 14 See Implementation o/Section o/the Cable Television Consumer Protection and Competition Act 0/1992, Rate Regulation, Report and Order and Further Notice of Proposed Rulemaking, 8 FCC Rcd. 5631, ~~ 28, 29 (1993) ("Rate Order"). 15 See MediaOne o/Georgia, Inc; Petition/or Revocation o/the Certification o/Gwinnett County, Georgia, Memorandum Opinion and Order, 12 FCC Rcd. 19406, ~ 5 n.16 (1997) (citing Rate Order at 5660-5661). 4 DBS service is presumed to be "actually available" if households in a franchise area are made "reasonably aware" that the service is available. 16 The Commission has stated that "a party may use evidence of penetration rates in the franchise area (the second prong of the competing provider test ... ) coupled with the Ubiquity ofDBS services to show that consumers are reasonably aware of the availability ofDBS service.,,]7 DirecTV and Dish Network are among the largest MVPDs in the nation. 18 With approximately 33.9 million subscribers nationwide, 19 16 See Rate Order ~ 32 (citations omitted); see also Charter Communications, LLC d/b/a Charter Communications Petition/or Determination 0/ Effective Competition in Fourteen North Carolina Communities, et aI, Memorandum Opinion and Order, 19 FCC Red. 7003, ~ 4 (2004). 17 See Comcast Cable Communications, LLC Petition/or Determination o/Effective Competition in Various Michigan Communities, Memorandum Opinion and Order, 23 FCC Red. 9595, ~ 5 (2008) ("Comcast - Various Michigan Communities") (citing Mediacom Illinois LLC et al., Eleven Petitions/or Determination o/Effective Competition in Twenty-Two Local Franchise Areas in Illinois and Michigan, Memorandum Opinion and Order, 21 FCC Red. 1175 (2006». Thus, the Commission has not required the production of advertising to demonstrate that households in the franchise area are "reasonably aware" of the availability ofDBS service. See also Bright House Networks, LLC Petition/or Determination 0/ Effective Competition (Lake Alfred and Dundee FL), Memorandum Opinion and Order, 22 FCC Red. 4390, ~ 6 (2007) ("Bright House Networks - Florida") ("Over more than ten years, we have made hundreds of findings that households in particular franchise areas are reasonably aware that they may purchase DBS services based on localized evidence. These accumulated showings amount to substantial evidence that households in all franchise areas are reasonably aware that they may purchase DBS services. In at least one earlier reported decision, we found households in a franchise area to be reasonably aware that they may purchase DBS service solely based on evidence ofDBS's nationwide growth and local subscriptions, without reference to advertising or other promotion. "). 18 See Annual Assessment o/the Status o/Competition in the Market/or the Delivery o/Video Programming, Thirteenth Annual Report, 24 FCC Red. 542, ~ 76 (2009). 19 See Press Release, DirecTV Inc., DirecTV Announces Fourth Quarter and Full Year 2011 Results (Feb. 16,2012) (reporting that, as of December 31, 2011, DirecTV (US) had 19.9 million subscribers), available at http://ilwestor.directv.com/reieasedetail.cfm?ReieaseTD=649162; See Press Release, Dish Network, Dish Network Reports Fourth Quarter and Year End 2011 Financial Results (Feb. 23, 2012) (reporting that, as of December 31,2011, Dish Network had approximately 13.97 million subscribers), , available at http://press.dishnetwork.comlpress releases/dish-uetwork-reports-fowth-quarter-aud-year-end-2-nasdaq-dish-0855001. 5 comprising over 33 percent of all MVPD subscribers,20 and the substantial DBS penetration figures within Boston (as set forth below), it is clear that consumers in the franchise area are 21 "reasonably" aware of the availability ofDBS competitors.

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