In the LEC Communities Within Three Years of the Effective Date of the Respective Franchises
in the LEC Communities within three years of the effective date of the respective franchises. 53
CenturyLink eventually must also offer video service to all households in the LEC Communities, subject to certain penetration benchmarks, and must extend its lines to any potential customer within 4,000 feet ofCenturyLink' s plant.54 CenturyLink, therefore, not only intends to expand
Prism TV in the LEC Communities within a reasonable period, its franchises require it to do so.
· In addition, CenturyLink has undertaken substantial, legally binding commitments to provide a variety of other services to the LEC Communities. For example, Century Link is required to provide as many as four Public, Educational, and Government ("PEG") access channels to its customers in the LEC Communities, and to pay substantial PEG fees, in addition to the required franchise fee, to support the creation of PEG programming. In Omaha,
CenturyLink pays a monthly PEG fee of $0.20 per subscriber, and in Bellevue, the PEG fee is equal to one percent of Century Link' s gross revenues. 55 Century Link likewise must provide complimentary service to police stations, fire houses, government buildings, and schools in the
6 LEC Communities.5 CenturyLink also must comply with specific customer service standards that meet or exceed FCC requirements, including, but not limited to, maintaining and staffmg a convenient local office within each LEC community, providing a 24-hour toll free customer service access line with trained representatives available during normal business hours, and meeting stringent standards when responding to requests for installation or service repairs. 57
Moreover, CenturyLink must pay five percent of its gross revenues as a franchise fee to each of the LEC Communities, 58 and must also maintain substantial liability insurance, ranging from
53 See Exhibit 2, CenturyLink Omaha Franchise and CenturyLink Bellevue Franchise at § I.4(a). 54 See Exhibit 2, CenturyLink Omaha Franchise and CenturyLink Bellevue Franchise at § II.5(a). CenturyLink has already built out one hundred percent (100%) of the service area authorized under its 1996 Omaha franchise. 55 See id. at § II.ll and Exhibit C. 56 See id. at§ Il.l 0. 57 See id at§ Il.9. 58 See id at§ 1.7(a).
12 9 $1,000,000 to $5,000,000, in each ofthe LEC Communities. 5 CenturyLink similarly is required to provide a letter of credit to each LEC Community in the amount of $50,000, which must be maintained throughout the term of the franchise. 60 These obligations confirm CenturyLink's continuing commitment to compete throughout its franchise areas and to continue serving residents in the LEC Cornrnunities.61 4) Aggressive Marketing And More Than Seventeen Years Of Service In Omaha Has Resulted In Broad Regional Consumer Awareness Of CenturyLink's Multichannel Video Services. Residents of the LEC Communities are broadly aware of Century Link's Prism TV service due to press coverage, the company's extensive advertising and marketing efforts, and the more than seventeen years of continuous service the company and its predecessors have provided to the City of Omaha. In addition, Century Link, like its predecessors, maintains a strong corporate presence in Omaha.
Inasmuch as CenturyLink and its predecessors have provided video service in Omaha for more than seventeen years, and currently serve thousands of subscribers in the city, Omaha residents are broadly aware that they can purchase video service from Century Link. Indeed, the company's presence in Omaha extends beyond its thousands of existing video subscribers:
CenturyLink's predecessors, US West and Qwest were a familiar part of Omaha for years, and the city's downtown sports arena long bore the Qwest name. Today, the CenturyLink Center remains a well-known facet oflife in the Omaha metropolitan area.
CenturyLink, moreover, has not merely relied on its history and ubiquitous presence in the region. Since deploying Prism TV in the LEC Communities, CenturyLink has marketed the service aggressively and extensively to residents using, among other things, direct mail promotions, residential fliers, and press releases. Century Link also has opened a retail outlet
59 See id. at § I.ll. 60 See id. at § 1.1 0. 61 CenturyLink also will become subject to similar obligations in Gretna, La Vista, and Ralston once it commences video services in those communities. See n.41, supra.
13 store in Omaha. 62 In addition, CenturyLink' s Prism TV deployment in the Omaha market has been extensively covered in local and regional newspapers, as well as online news sources.63 For example, the Omaha World-Herald has reported the progress ofCenturyLink's Prism TV deployment, and in a recent article characterized CenturyLink' s Prism TV deployment in the
Omaha area as "a move that will expand the geographic reach of its cable services and set up more intense competition with cable provider Cox Communications,"64 which is a view that the
Omaha deputy city attorney echoed.65 On June 8, 2013, the Omaha World-Herald published an update to CenturyLink ' s deployment progress that reported the actual sale of Prism TV service in the Omaha metropolitan area, as well as CenturyLink's negotiated franchise agreements with the nearby communities of Ralston, Gretna, and La Vista, among others. 66 Most recently, in an article published August 7, 2013, the Omaha World-Herald reported the opening of
CenturyLink' s first Nebraska retail store. 67 Residents in the LEC Communities and the metropolitan area generally have therefore been inundated with news and advertising about
CenturyLink's Prism TV service, and they consequently are broadly aware of its availability.
As the foregoing demonstrates, CenturyLink's Prism TV cable service satisfies every aspect of the "offering" prong of the LEC test: CenturyLink is physically able to deliver service with minimal additional investment to potential subscribers in the LEC Communities; no regulatory, technical, or other impediments to CenturyLink' s video service exist; and potential
subscribers are reasonably aware it is available for purchase. Indeed, CenturyLink is a massive,
62 See Local Prism TV Marketing Materials, attached hereto as Exhibit 8. 63 See Exhibit 7, attached hereto. 64 Barbara Soderlin, New CenturyLink cable TV service could ignite price war with Cox, OMAHA WORLD-HERALD (April 13, 2013), included in Exhibit 7. 65 !d. 66 Barbara Soderlin, CenturyLink launches cable-TV alternative, OMAHA WORLD-HERALD (June 8, 2013), included in Exhibit 7. 67 Janice Podsada, CenturyLink to openjirst Nebraska store in west Omaha, OMAHA WORLD-HERALD, (August 7, 2013), included in Exhibit 7.
14 well-financed, and committed multichannel video competitor in the LEC Communities and
beyond, and it only will become more formidable in the future.
C. Century Link Provides Comparable Programming To Subscribers In The LEC Communities. The final prong of the LEC test requires that the competitor's video programming services be "comparable" to those provided by the incumbent cable operator. This aspect of the
LEC test is satisfied here because CenturyLink ' s Prism TV service provides exponentially more
broadcast and non-broadcast programming than the Commission's comparable programming rule requires.
Congress specified in the Telecommunications Act of 1996, that for purposes of the LEC effective competition test "comparable programming" means "the video programming service
should include access to at least 12 channels of programming, at least some of which are
television broadcast signals."68 Under the Commission's rules, however, comparable
programming means "at least 12 channels of video programming, including at least one channel
of nonbroadcast service programming."69 CenturyLink is offering comparable programming to
subscribers in the LEC Communities under either formulation because it provides more than two
hundred channels of broadcast and non-broadcast video programming. 70
68 S. CONF. REP. No. 104-230, H.R. CoNF. REP. No. 104-458, at 170 (1996), reprinted in 1996 U.S.C.C.A.N. 10, 183. The Commission noted the difference between this definition and that adopted for purposes of the effective competition tests enacted as part of the 1992 Cable Act. Cf 47 C.F.R. § 76.905(g). While soliciting comment on the congressional definition, the Commission required on an interim basis that the broadcast programming include the signals of local broadcasters, and determined that satellite "superstations" shall not be considered broadcast programming for purposes of the interim application of the LEC effective competition test. Implementation of Cable Act Reform Provisions ofthe Telecommunications Act of 1996, Order and Notice ofProposed Rulemaking, 11 FCC Red 5937, 5942, at para. 12 (1996). The Commission ultimately determined, however, that its existing defmition of comparable programming "should be used for both competing provider and LEC effective competition determinations." Cable Act Reform Order, 14 FCC Red at 5307-08, para. 18. Therefore, for purposes of the LEC test, "comparable programming" means "at least twelve channels of programming, including at least one channel of nonbroadcast programming service." !d. at 5306, para. 16 (footnote omitted, citing Rate Order, 8 FCC Red at 5666-67, para. 38 (1993)). 69 47 C.F.R. § 76.905(g). 7° CenturyLink's Prism TV channel line-up is attached hereto as Exhibit 9.
15 As the foregoing demonstrates conclusively, CenturyLink' s Prism TV cable television service provides effective competition to Cox in the LEC Communities.
II. Cox Is Subject To Competing Provider Effective Competition From Unaffiliated MVPDs In All The Communities.
Under the Competing Provider test adopted in the 1992 Cable Act, 71 cable operators are subject to effective competition whenever two or more unaffiliated MVPDs offer comparable programming to at least fifty percent (50%) of the households in a franchise area and the number of such households subscribing to MVPDs other than the largest exceeds fifteen percent (15%) of such households.72 Cox's cable systems serving all the Communities are subject to effective competition because: (1) either Cox is the largest MVPD in each Community or the largest
MVPD in the Community cannot be determined and both Cox and its competitors serve more than fifteen percent of occupied households in the relevant Community; (2) Cox, Dish Network, and DirecTV offer service throughout Cox's franchise areas; and (3) more than fifteen percent
(1 5%) of the occupied households in each of the franchise areas subscribe to the comparable video programming services offered by Cox' s unaffiliated MVPD competitors.73 As noted above, the Bureau previously has recognized that DBS operators provide effective competition to ten other nearby franchise areas Cox serves from its Omaha and Sun Valley systems,74 and Cox is subject to both LEC and Competing Provider competition in at least Omaha and Bellevue,
Nebraska.
71 The Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (1992). 72 47 U.S.C. § 543(/)(l)(B). 73 Census data for each of the Communities and for the zip codes encompassing them in whole or in part are attached hereto as Exhibit 10. 74 See CoxCom, Inc. (Omaha el al. ), 25 FCC Red 1484 (Med. Bur. 2010).
16 A. At Least Two Unaffiliated MVPD Competitors Offer Comparable Programming To More Than Fifty Percent Of Households In All The Communities.
The first prong of the Competing Provider test requires that at least two unaffiliated
MVPDs offer comparable programming to at least fifty percent (50%) of the occupied households in the franchise area. This part of the test is satisfied easily here.
Cox is unaffiliated with either DirecTV or Dish Network, both of which are unaffiliated with each other and both of which offer comparable video programming to virtually one hundred percent (100%) ofthe households in all the Communities. 75 Cox' s DBS rivals both provide comparable programming under the Commission's rules because each features more than twelve channels of video programming, including at least one non-broadcast channel.76 The services provided by Dish Network and DirecTV each include more than 200 channels of broadcast and non-broadcast video prograrnrning.77 Cox similarly offers comparable programming to virtually one hundred percent (100%) of its service areas in all the Communities and provides its customers with more than 250 channels of broadcast and non-broadcast programming. In each of the Communities, therefore, more than the two required unaffiliated MVPDs offer comparable video programming to more than fifty percent (50%) of occupied households in the franchise area.
The first part of the Competing Provider test also requires that at least two unaffiliated competitors "offer" video programming services in the relevant franchise area pursuant to the
75 The Commission presumes that DBS providers satisfy the fifty percent (50%) offering and comparable programming thresholds. See, e.g., Comcast Cable Communications, LLC, 20 FCC Red 20438, 24039-40, paras. 3-6 (Med. Bur. 2005); Amzak Cable Midwest, Inc. , 19 FCC Red 6208, 6209, para. 3 (Med. Bur. 2004); Time Warner Entertainment-Advanced/Newhouse Partnership, 12 FCC Red 13801, 13805-6, para. 10 (Cab. Serv. Bur. 1997) (citing Rate Order, 8 FCC Red at 5660-61 , para. 32). Cox also is unaffiliated with the other competitors in the Communities, including CenturyLink. 76 See 47 C.F.R. § 76.905(g). 77 Channel line-ups for DirecTV and for Dish Network are included in Exhibit 11 , attached hereto.
17 Commission' s rules.78 This requirement is satisfied here because: (1) Cox provides service throughout the Communities; (2) Cox is unaffiliated with Dish Network or DirecTV; (3) both
Dish Network and DirecTV are physically, legally, and technically able to deliver service in all the Communities; and (4) potential subscribers in the Communities are reasonably aware that they may purchase competitive multichannel video services from Cox's DBS competitors.
Therefore, more than the two required unaffiliated MVPDs offer service in the Communities pursuant to the Corllinission's standards.
The Commission uniformly has held that "DBS service is presumed to be technically available due to its nationwide satellite footprint, and [is] presumed to be actually available if households in a franchise area are made reasonably aware that the service is available."79 The
Commission also has acknowledged repeatedly that the sustained national, regional, and local advertising campaigns conducted by DirecTV and Dish Network, and their steadily increasing
80 market share- now almost thirty-four percent (34%) of the MVPD market - has resulted in a nationwide awareness ofDBS availability. According to the Commission's most recently
78 Under Section 76.905(e) of the Commission's rules, video programming services are offered: ( 1) When the multichannel video programming distributor is physically able to deliver service to potential subscribers, with the addition of no or only minimal additional investment by the distributor, in order for an individual subscriber to receive service; and (2) When no regulatory, technical or other impediments to households taking service exist, and potential subscribers in the franchise area are reasonably aware that they may purchase the services of the multichannel video programming distributor. 47 C.P.R. § 76.905(e). 79 Frontier Vision Operating Partners, L.P, et al., 16 FCC Red 5228 at para. 3 (Cab. Serv. Bur. 2001) (footnote omitted, citing MediaOne of Georgia, 12 FCC Red 19406 (1997)). See also, e.g., Cablevision ofRockland/Ramapo, Inc., 22 FCC Red 11487 (Med. Bur. 2007); Charter Communications et al., 20 FCC Red 20448 at para. 3 (Med. Bur. 2005); Texas Cable Partners, L.P , 16 FCC Red 4718 at para. 4 (Cab. Serv. Bur. 2001). 80 See Fifteenth Annual Report, 28 FCC Red 10496, at para. 3. The Fifteenth Annual Report reflects data as of June 2012 and the almost thirty-four percent DBS market share reported therein represents a gain of 600,000 DBS subscribers since December 201 0; see id. at para.130 and Table 7.
18 released Video Competition Report, as of June 2012, DirecTV and Dish Network were the second and third largest MVPDs in the nation.81
Given the dramatic growth of DBS service over the past several years and its ubiquitous availability, the Commission presumes a reasonable awareness of DBS service based on the established nationwide market share ofDBS operators.82 The Commission's presumptions regarding DBS availability and awareness are confirmed in this case. Potential subscribers in the
Communities are broadly aware of the competing services provided by DirecTV and Dish
Network due to extensive direct mail and other advertising distributed in local and national media serving the Communities, including newspapers, magazines, television and radio stations, and Internet sites. 83 Given the penetration levels that DBS competitors have achieved in the
Communities, 84 as demonstrated below, the existence of "reasonable awareness" regarding the availability ofDBS services is beyond question.
In addition, no regulatory, technical, or other impediments to households taking service exist, and competitive DBS services are readily available to residents throughout the
Communities. To purchase these services, potential customers need only contact either: (1) the
8 1 See Fifteenth Annual Report, 28 FCC Red 10496, at para. 27. 82 See, e.g., Charter Communications, 24 FCC Red 10130, 10133, para. 12 (Med. Bur. 2009) ("Charter") (no evidence ofDBS awareness is required because the Commission has "no reason to disregard the well-known ubiquity ofDBS service [and] the nationwide subscribership of DBS at almost twice the level needed to show competing provider effective competition .... [which] show real widespread awareness among American households that DBS service is available to them.") (footnote omitted). The Commission formerly presumed a reasonable awareness ofDBS services within any given community based on the existence of national and regional advertising. See, e.g. , Time Warner Entertainment - Advance/New house Partnership d/b/a Time Warner Cable, 20 FCC Red 15709, 15710-11, para. 3 (Med. Bur. 2005); Adelphia Communications, 20 FCC Red 20487, 20488-89, paras. 4-6 (Med. Bur. 2005); see also Amzak, 19 FCC Red at 6208, para. 4 (basing awareness finding solely on the availability of national advertising within community); CCVIII Operating, LLC, 19 FCC Red 6204, 6205, para. 3 (Med. Bur. 2004) (regional and national advertising); Texas Cable Partners, L.P, 19 FCC Red 6213, 6214 para. 3 (Med. Bur. 2004) (regional and national advertising). Under Charter and subsequent cases, the Commission no longer requires evidence of local advertising. 83 Representative examples ofDirecTV's and Dish Network's advertising and marketing materials are attached hereto as Exhibit 12. 84 See Section II.B, infra.
19 DBS companies directly using a toll-free telephone ordering system; (2) local dealers such as
Sears, RadioShack, Best Buy, and Wal-Mart; (3) other local independent dealers; or (4) on-line retailers. 85
Potential subscribers throughout the Communities also may purchase the services of
Cox's DBS competitors with "the addition of no or only minimal additional investment by the distributor."86 Beyond the installation services and customer premises equipment that DirecTV and Dish Network customers must purchase, no additional investment by either the distributor or the customer is necessary. Dish Network and DirecTV therefore satisfy each of the
Commission's standards regarding the offering of comparable video programming.
As demonstrated above, more than the two required unaffiliated MVPDs offer comparable programming to more than fifty percent (50%) of the households in all the
Communities. The first prong of the Competing Provider test therefore is satisfied in this case.
B. More Than Fifteen Percent Of Households In Each Of The Communities Subscribe To Video Services Offered By MVPDs Other Than Cox.
The second and final prong of the Competing Provider test requires that more than fifteen percent (15%) of the occupied households in the relevant franchise area subscribe to services offered by competitors other than the largest MVPD.87 As the analyses and independent third- party reports described below and attached hereto confirm, this standard is satisfied here.
In each of the Communities, either Cox is the largest MVPD or the largest provider cannot be determined, but aggregate competitive penetration and Cox' s penetration both exceed fifteen percent ( 15%) of occupied households in the franchise area. Cox is the largest MVPD in
85 Examples of local and national retailers offering DirecTV and Dish Network's programming services in the Communities can be found at http://www.directv.com/DTVAPP/ global/findRetailer.jsp?assetld=5000 16 (last visited September 9, 20 13); http:/ /www.dish.com/support/tools-apps/locate-retailer/ (last visited September 9, 20 13). 86 47 C.F.R. § 76.905(e). 87 If the first prong of the Competing Provider test is satisfied, the subscribers of all other MVPDs in the franchise area are aggregated to determine whether the statutory fifteen percent (15%) standard has been met under the second prong of the test. See Time Warner, 56 F.3d at 189.
20 each of the Communities other than Bellevue, Idaho because in each of those communities, the number of Cox subscribers exceeds the aggregate total of competing providers' customers. Cox is unable to determine which MVPD is the largest in its Bellevue, Idaho franchise area because reliable local customer data for individual DBS providers is unavailable. 88 The Commission, however, recognizes that where aggregate DBS penetration and cable operator penetration each exceed fifteen percent (15%) in the franchise area, the second prong of the test is satisfied even if the largest MVPD cannot be identified. 89 Competition in Cox' s Bellevue, Idaho franchise area satisfies this portion of the test because in addition to Cox's demonstration below that aggregate
DBS penetration exceeds fifteen percent (15%) of occupied households, the number of Cox subscribers also exceeds fifteen percent (15%) of occupied households.90
To determine precisely the number ofDBS subscribers in each of the Communities, Cox first ascertained all the residential zip codes located either wholly or partially within its franchise areas. 91 Cox then purchased an effective competition tracking report ("ECTR") pursuant to an agreement with the Satellite Broadcasting and Communications Association ("SBCA"). 92 The
ECTR reported total DBS subscribers for the relevant zip codes in each of the Communities. To
88 As the Bureau knows, DirecTV and Dish Network have declined to provide information pursuant to Section 76.907(c) of the Commission's rules, and their trade association, the Satellite Broadcasting and Communications Association ("SBCA"), provides only aggregate DBS subscriber data for specific zip codes. In Bellevue, Idaho, the aggregate DBS penetration exceeds both Cox's penetration level and fifteen percent (15%) of occupied households. 89 See, e.g., Adelphia Communications, et al. , 19 FCC Red 18724, 18725-26, para. 4 (Med. Bur. 2004) (citing Time Warner Entertainment Advance/Newhouse Partnership, et al. , 17 FCC Red 23587, 23589, para. 6 (Med. Bur. 2002)). See also CoxCom, Inc. d/b/a Cox Communications Tucson, 22 FCC Red 4663,4665, para. 5 (Med. Bur. 2007). 9° Cox serves 3 70 households in Bellevue, Idaho, or approximately 40% of the occupied households reported in the 2010 Census. 91 To ascertain the relevant zip codes, Cox first examined the U.S. Postal Service ("USPS") and related commercial websites to determine which residential zip codes USPS associates with each of the Communities. See www.usps.com; www.melissadata.com; www.zipmap.net, and Google Earth. Cox then confirmed that all or a portion of each zip code area listed by the USPS was actually located wholly or partially within the borders of the Communities by consulting detailed maps that reflected political boundaries as well as zip code areas. 92 The ECTR Cox purchased from the SBCA is attached hereto as Exhibit 13. The ECTR includes five-digit zip codes encompassing in whole or in part each of the Communities.
21 detem1ine the full extent of competitor penetration, Cox also obtained the subscriber data for
CenturyLink in the City of Omaha, where it competes directly with Cox.93 Cox obtained official
2010 Census occupied household data for each of the Communities and for each of the five-digit zip codes located eit~er wholly or partially within the associated franchise areas.94 To account for differences between the zip code boundaries reflected in the ECTR and franchise area boundaries, Cox allocated the subscribers reported in the ECTR to Cox' s franchise areas using the Commission's now-familiar allocation methodology.95
Pursuant to the Commission's methodology, after accounting for growth, Cox calculated an allocation percentage for each of the Communities by comparing the updated 201 0 community-specific Census occupied household data with a total ofthe updated 2010 Census occupied household data for the zip code areas located either wholly or partially within the relevant Community. This comparison yielded an allocation percentage96 that Cox applied to the total number ofDBS subscribers reported in the ECTR for the zip codes covering the franchise area.97 In other words, Cox reduced the number of DBS subscribers reported in the ECTR by the
93 See Exhibit 4, CTAC Report. 94 Cox updated the occupied household data for the Communities to account for growth since the 2010 Census using the most recently updated (2012) U.S. Census population estimates and the methodology the Commission held in Pegasus Cable Television to be both reliable and "reasonable in detemlining current household data." Pegasus Cable Television, 13 FCC Red 18, 21 at para. 7 (Cab. Serv. Bur. 1997). Cox's updated occupied household calculations are included in Exhibit 14. 2010 Census data and 2012 Census estimates are included in Exhibit 10. 95 See, e. g., Alert Cable TV ofSouth Carolina, Inc. , 21 FCC Red 269 at para. 9 (Med. Bur. 2006); Amzak, 19 FCC Red at 6210, para. 6; CC VIII, 19 FCC Red at 6205-06, para. 4; Texas Cable Partners, L.P, 19 FCC Red at 62 15, para. 7. 96 For example, the updated Census data for the City of Council Bluffs, Iowa, reflects 24,737 occupied households for the City and a total of 28,331 occupied households for the zip codes located wholly or partially within the Council Bluffs franchise area. Dividing the Census occupied households for Council Bluffs by the total2010 Census occupied households in the relevant zip codes results in an allocation percentage of 87.3147% (24,737 7 28,331 = 87.3 14 7%). Cox's calculations for each of the Communities are set forth in Exhibit 14, attached hereto. 97 For example, the ECTR reports 4,888 DBS subscribers for the residential zip codes located wholly or partially within the City of Council Bluffs, Iowa. Cox reduced this figure to account for the relevant allocation percentage derived above and thereby determined that DBS operators serve 4,267.94 subscribers in Cox's Council Bluffs franchise area (4,888 x .873 147 = 4,267.94). See Exhibit 14.
22 applicable allocation percentage for each of the franchise areas. Cox then divided the allocated figure by the updated 20 10 Census occupied household figure for each Community to determine the DBS penetration rate in the relevant franchise area. In this manner, the Commission's allocation methodology excludes DBS subscribers that reside outside the relevant franchise area and accurately determines the respective extent ofDBS penetration.
Applying the methodologies described above revealed a competitive penetration rate in each of the Communities that exceeds the fifteen percent (15%) statutory test for effective competition. The following table reflects competitive penetration in each of the Communities after accounting for household growth using the Pegasus methodology:
OTHER TOTAL COMPETITIVE FRANCWSE AREA OCCUPIED DBS COMPETITIVE COMPE11ITIVE MVPD COMMUNITY HOUSEHOLDS SUBSCRIBERS SUBSCRlliERS SUBSCRffiERS PENETRATION
Bellevue, ID 846 468.99 --- 468.99 55.41%
Bellevue, NE 19,88 1 3,355.82 --- 3,355 .82 16.88%
Carter Lake 1,382 247.00 --- 247.00 17.87%
Council Bluffs 24,737 4,267.92 --- 4,267.92 17.25% Gretna 1,898 621.86 --- 621.86 32.76% La Vista 7,271 1,165.88 --- 1,165.88 16.03% Offutt Air Force 1 50298 260.40 --- 260.40 17.34% Base ' Omaha 166,505 22,643.58 5,136 27,779.58 16.68%
Valley 928 305.61 - -- 305.613 32.92%
Waterloo 343 142.55 --- 142.55 41.52%
98 2012 Census Population estimates are unavailable for OffuttAFB. This data reflects the nwnber of occupied households on OffuttAFB as reported in the 2010 Census.
23 These calculations demonstrate that DBS penetration in the Communities exceeds the fifteen percent (15%) statutory threshold and that Cox therefore is subject to effective competition in each of the Communities pursuant to Section 623(l)(l)(B) of the Act.99
CONCLUSION For the reasons stated above, the Bureau should grant this Petition forthwith and revoke the authority of the franchising authorities in the Communities to regulate Cox's basic service and equipment and installation rates.
Respectfully submitted,
Cox Communications Omaha, LLC and CoxCom, LLC
Gary S. Lutzker
BA KERHOSTETLER Washington Square 1050 Connecticut Ave., N.W. Suite 1100 Washington, D.C. 20036 202-861-1500
Its Attorneys September 18, 2013 Verification To the best of my knowledge, information and belief formed after reasonable inquiry, this Petition for Determination of Effective Competition is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and it is not interposed for any improper purpose.
Gary S. Lutzker September 18, 2013
99 Based on the foregoing and a review of Cox's subscriber records, the combined total of Competing Provider and Cox penetration in each of the Communities is less than one hundred percent (100%) of occupied households as reported in the Census.
24 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554
In the Matter of ) CUIDNo: PSIDNo: ) Cox Communications Omaha, ) NE0064 (Bellevue) 008575 LLC ) NE0065 (La Vista) ) NE0110 (Offutt AFB) and ) NE0111 (Omaha) ) CoxCom, LLC ) NE0155 (Omaha) ) NE0239 (Omaha) ) NE0512 (Gretna) ) NE0531 (Valley) Petition for Determination of ) NE0530 (Waterloo) Effective Competition ) IA0092 (Council Bluffs) ) IA0214 (Carter Lake) ) ) ID0083 (Bellevue) 003758
To: The Secretary's Office Attn: The Media Bureau
DECLARATION OF JAY ALLBAUGH
1. My name is Jay Allbaugh and I am Field Vice President, Government Affairs, Central Region for CoxCom, LLC ("Cox") which operates cable systems in the above-captioned communities. 2. I have read the foregoing "Petition for Determination of Effective Competition" (the "Petition") and I am familiar with the contents thereof. 3. All the internally maintained records and information relevant to the foregoing Petition were current as of August, 2013. 4. I declare under penalty of perjury that the facts contained herein and within the foregoing Petition are true and correct to the best of my knowledge, information, and belief formed after reasonable inquiry, that the Petition is well grounded in fact, that it is warranted by existing law or a good-faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose. ~
Jay llbaugh Fi ld Vice President Government Affairs, Central Region CoxCom, LLC 901 S. George Washington Blvd. Wichita, KS 67211 Tel: (316) 262-4270
Dated: September ·j 1, 2013 CERTIFICATE OF SERVICE
I, Sandra Jeter, a secretary at the law firm ofBakerHostetler,LLP, certify that on this eighteenth day of September 2013, I caused the foregoing Petition for Determination of Effective Competition to be served by first-class mail, except where hand delivery is indicated, on the following:
William Lake, Esq. * Steven A. Broeckaert, Esq.* Chief, Media Bureau Deputy Chief Policy Division, Media Bureau Federal Communications Commission Federal Communications Commission 445 12th Street, S.W. 445 12th Street, S.W. Room 3-C740 Room 4-A865 Washington, D.C. 20554 Washington, D.C. 20554
Ms. Claudia Tillery * City of Omaha Media Bureau City Clerk Federal Communications Commission 1819 Farnam Street 445 12th Street, S.W. Suite LC-1 Washington, D.C. 20554 Omaha, NE 68183
Thomas 0. Mumgaard Patrick J. Sullivan Deputy City Attorney Adams & Sullivan, P.C., L.L.O. City of Omaha, Nebraska City Attorney - Bellevue, Nebraska 1818 Farnam Street 1246 Golden Gate Drive, Ste. 1 Suite LC-1 Papillion, NE 68046 Omaha, NE 68183
City ofBellevue, NE City of La Vista, NE City Clerk City Clerk 210 West Mission Avenue 8116 Parkview Blvd. Bellevue, NE 68005 La Vista, NE 68128
City of Gretna, NE City ofValley, NE City Clerk City Clerk 204 McKenna A venue 203 North Spruce Street Gretna, NE 68028 Valley, NE 68064
Village of Waterloo, NE City of Council Bluffs, IA 509 S. Front Street City Clerk P.O. Box 127 209 Pearl Street Waterloo, NE 68069 Suite 102 Council Bluffs, IA 51503
City of Carter Lake, IA City of Bellevue, ID City Clerk P.O. Box 825 950 Locust Street Bellevue, ID 83313 Carter Lake, IA 515 10 Offutt AFB, NE Contracting Officer (55 CONS/LGCB) 1 55 h Contracting Squadron 101 Washington Square, Bldg. 40 Offutt AFB, NE 68113
* By Hand Delivery