$/  For FCC Record Only/$

$// Order,   Cable Act of 1992, certification, DA 94-1458//$
$/  600.623 Regulation of Rates/$
$/  76.905   Standards for Effective Competition/$
$/  76.906   Presumption of No Effective Competition/$
$/  76.910   Franchising Authority Certification/$
$/  76.911   Petition for Reconsideration/$

                                Before the
                     FEDERAL COMMUNICATIONS COMMISSION
                          Washington, D.C.  20554

In the Matter of:                       )              DA 94-1458
                                   )
WB CABLE ASSOCIATES, LTD.               )
                                   )
Partial Petition for Reconsideration              )
of Certification of                     )
City of Boca Raton, Florida                  )
to Regulate Basic Cable Service Rates        )
FCC Community ID No. (FL0278)           )

                       MEMORANDUM OPINION AND ORDER

Adopted:  December 12, 1994                           Released:  December 13, 1994

By the Chief, Cable Services Bureau:

I.   INTRODUCTION

     1.   On December 13, 1994, WB Cable Associates, Ltd. d/b/a West Boca
Cablevision ("West Boca") filed a timely partial petition for reconsideration challenging the
certification of the City of Boca Raton, FL ("Boca Raton" or "The City") to regulate rates
for the basic cable service and associated equipment.  The City did not file an opposition to
West Boca's petition. 

       2.     Section 623(a)(4) of the Communications Act of 1934, as amended, allows
franchising authorities to become certified to regulate basic cable service rates of cable
operators that are not subject to effective competition.  For purposes of the initial request
for certification, local franchising authorities may rely on a presumption that cable operators
within their jurisdiction are not subject to effective competition unless the franchise authority
has actual knowledge to the contrary.  Such certification becomes effective 30 days from the
date of filing unless the Commission finds that the authority does not meet the statutory
certification requirements.  Cable operators may file petitions for reconsideration of the
franchising authority's certification within 30 days of the date such certification becomes
effective.  Regulation of rates is automatically stayed pending review of a timely filed
petition for reconsideration alleging effective competition.

II.  DISCUSSION

     3.   In its petition, West Boca states that its cable system is subject to effective
competition because the system serves fewer than 30 per cent of the "households" in Boca
Raton, its  franchise area.  West Boca states that it serves 198 of the 33,134 "households" in
Boca Raton.  As support, West Boca submits an affidavit from John T. Gash, General
Manager, West Boca Cablevision.  In the affidavit, however, West Boca states that there are  
approximately 33,134 "existing dwelling units" in Boca Raton according to statistics
compiled by the City for the year 1991.  West Boca refers to "households" in its petition and
"existing dwelling units" in the affidavit, but does not clearly explain upon which it bases its
effective competition claim.     

     4.   In the absence of a demonstration to the contrary, cable systems are presumed
not to be subject to effective competition.  The cable operator bears the burden of rebutting
the presumption that effective competition does not exist with evidence that effective
competition, as defined by Section 76.905 of the Commission's rules, exists in the franchise
area.   West Boca has not met this burden.  In order to demonstrate the presence of
effective competition, our rules require the use of data reflecting the number of households
(i.e., occupied housing units) in the franchise area.  See Third Order on Reconsideration, in
MM Docket Nos. 92-266 and 92-262, 9 FCC Rcd 4316, 4324 (1994) ("Third Recon.
Order").  As the Commission stated in the Third Recon. Order, "[a]s used in the Cable Act,
we presume that Congress did not intend "households" to have a different meaning than in
the 1990 Census that would include vacant units or even partial-year vacant units."  The term
"households" is defined for purposes of the 1990 Census to include only occupied housing
units.  Here, West Boca submits no evidence clarifying whether it's use of "existing dwelling
units" excludes vacant housing units.  As West Boca has failed to submit evidence
demonstrating that its effective competition claim is based on "households" its petition is
denied.

III. ORDERING CLAUSES

     5.   Accordingly, IT IS ORDERED that the petition for reconsideration filed by
WB Cable Associates, Ltd. d/b/a West Boca Cablevision challenging the certification of the
City of Boca Raton, Florida to regulate West Boca Cablevision's basic cable service rates IS
DENIED.

     6.   IT IS FURTHER ORDERED that the automatic stay imposed by Section
76.911(c) of the Commission's Rules, as amended, 47 C.F.R.  76.911(c) IS
TERMINATED.

     7.   IT IS FURTHER ORDERED that West Boca Cablevision SHALL FILE the
required rate justifications on the appropriate forms with the City of Boca Raton, Florida
within thirty (30) days of the release date of this Memorandum Opinion and Order or within
thirty (30) days of receipt of notice from the franchising authority that it is regulating West
Boca Cablevision's rates, whichever is later.

     8.   This action is taken pursuant to delegated authority under Section 0.321 of the
Commission's rules, as amended, 47 C.F.R.  0.321.

                         FEDERAL COMMUNICATIONS COMMISSION




                         Meredith J. Jones
                         Chief, Cable Services Bureau