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In the LEC Communities Within Three Years of the Effective Date of the Respective Franchises

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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.
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