Goto Section: 101.1411 | 101.1413 | Table of Contents
FCC 101.1412
Revised as of October 1, 2008
Goto Year:2007 |
2009
Sec. 101.1412 MVDDS eligibility restrictions for cable operators.
(a) Eligibility for MVDDS license. No cable operator, nor any entity owning
an attributable interest in a cable operator, shall have an attributable
interest in an MVDDS license if such cable operator's service area
significantly overlaps the MVDDS license area, as “significantly overlaps”
is defined in paragraph (e) of this section.
(b) Definition of cable operator. For the purposes of paragraph (a) of this
section, the term “cable operator” means a company that is franchised to
provide cable service, as defined in 47 CFR 76.5(ff) of this chapter, in all
or part of the MVDDS license area.
(c) For the purpose of this section, the term “MVPD household” refers to a
household that subscribes to one or more Multichannel Video Program
Distributors (MVPDs), as defined in 47 CFR 76.1000(e) of this chapter.
(d) Waiver of restriction. Upon completion of the initial award of an MVDDS
license, a cable operator may petition for a waiver of the restriction on
eligibility based upon a showing that changed circumstances or new evidence
indicate that no significant likelihood of substantial competitive harm will
result from the operator retaining an attributable interest in the MVDDS
license.
(e) Significant overlap with service area. For purposes of paragraph (a) of
this section, significant overlap occurs when a cable operator's subscribers
in the MVDDS license area make up thirty-five percent or more of the MVPD
households in that MVDDS license area.
(f) Definition of attributable interest. For purposes of paragraph (a) of
this section, an entity shall be considered to have an attributable interest
in a cable operator or MVDDS licensee pursuant to the following criteria:
(1) A controlling interest shall constitute an attributable interest.
Controlling interest means majority voting equity ownership, any general
partnership interest, or any means of actual working control (including
negative control) over the operation of the entity, in whatever manner
exercised.
(2) Any general partnership interest in a partnership;
(3) Partnership and similar ownership interests (including limited
partnership interests) amounting to 20 percent or more of the total
partnership interests, calculated according to both the percentage of equity
paid in and the percentage of distribution of profits and losses;
(4) Any stock interest amounting to 20 percent or more of the outstanding
voting stock of an entity;
(5) Any voting or non-voting stock interest, amounting to 20 percent or more
of the total outstanding stock of an entity;
(6) Stock interests held in trust that exceed the limit set forth in
paragraph (f) of this section shall constitute an attributable interest of
any person who holds or shares the power to vote such stock, of any person
who has the sole power to sell such stock, and, in the case of stock held in
trust, of any person who has the right to revoke the trust at will or to
replace the trustee at will. If the trustee has a familial, personal, or
extra-trust business relationship to the grantor or the beneficiary, the
stock interests held in trust shall constitute an attributable interest of
such grantor or beneficiary, as appropriate.
(7) Debt and interests such as warrants and convertible debentures, options,
or other interests (except non-voting stock) with rights of conversion to
voting interests shall not constitute attributable interests unless and
until conversion is effected.
(8) An interest in a Limited Liability Company (LLC) or Registered Limited
Liability Partnership (RLLP) amounting to 20 percent or more, shall
constitute an attributable interest of each such limited partner.
(9) Officers and directors of a cable operator, an MVDDS licensee, or an
entity that controls such cable operator or MVDDS licensee, shall be
considered to have an attributable interest in such cable operator or MVDDS
licensee.
(10) Ownership interests that are held indirectly by any party through one
or more intervening corporations or other entities shall be determined by
successive multiplication of the ownership percentages for each link in the
vertical ownership chain and application of the relevant attribution
benchmark to the resulting product, except that, if the ownership for any
interest in any link in the chain exceeds 50 percent or represents actual
control, it shall be treated as if it were a 100 percent interest.
(11) Any person who manages the operations of a cable operator or an MVDDS
licensee pursuant to a management agreement shall be considered to have an
attributable interest in such cable operator or MVDDS licensee, if such
person or its affiliate has authority to make decisions or otherwise engage
in practices or activities that determine, or significantly influence:
(i) The nature or types of services offered by such entity;
(ii) The terms upon which such services are offered; or
(iii) The prices charged for such services.
(12) Any person or its affiliate who enters into a joint marketing
arrangement with a cable operator, an MVDDS licensee, or an affiliate of
such entity, shall be considered to have an attributable interest in such
cable operator, MVDDS licensee, or affiliate, if such person or its
affiliate has authority to make decisions or otherwise engage in practices
or activities that determine:
(i) The nature or types of services offered by such entity;
(ii) The terms upon which such services are offered; or
(iii) The prices charged for such services.
(g) Divestiture. Any cable operator, or any entity owning an attributable
interest in a cable operator, that would otherwise be barred from acquiring
an attributable interest in an MVDDS license by the eligibility restriction
in paragraph (a) of this section, may be a party to an MVDDS application (
i.e., have an attributable interest in the applicant), and such applicant
will be eligible for an MVDDS license, pursuant to the divestiture
procedures set forth in paragraphs (g)(1) through (g)(6) of this section.
(1) Divestiture shall be limited to the following prescribed means:
(i) An MVDDS applicant holding an attributable interest in a cable operator
may divest such interest in the cable company.
(ii) Other MVDDS applicants disqualified under paragraph (a) of this
section, will be permitted to:
(A) Partition and divest that portion of the existing service area that
causes it to exceed the overlap restriction in paragraph (a) of this
section, subject to applicable regulations of state and local governments;
or
(B) Partition and divest that portion of the MVDDS geographic service area
that exceeds the overlap restriction in paragraph (a) of this section.
(iii) Divestiture may be to an interim trustee if a buyer has not been
secured in the required period of time, as long as the MVDDS applicant has
no interest in or control of the trustee and the trustee may dispose of the
license as it sees fit.
(2) The MVDDS applicant shall certify as an exhibit to its short form
application that it and all parties to the application will come into
compliance with paragraph (a) of this section.
(3) If such MVDDS applicant is a successful bidder in an auction, it must
submit with its long-form application a signed statement describing its
efforts to date and future plans to come into compliance with the
eligibility restrictions in paragraph (a) of this section.
(4) If such an MVDDS applicant is otherwise qualified, its application will
be granted subject to a condition that the applicant shall come into
compliance with the eligibility restrictions in paragraph (a) within ninety
(90) days of final grant of such MVDDS license.
(5) An MVDDS applicant will be considered to have come into compliance with
paragraph (a) of this section if:
(i) In the case of the divestiture of a portion of an MVDDS license service
area, it has successfully completed the assignment or transfer of control of
the requisite portion of the MVDDS geographic service area.
(ii) In all other cases, it has submitted to the Commission a signed
certification that it has come into compliance with paragraph (a) of this
section by the following means, identified in such certification:
(A) By divestiture of a disqualifying interest in a cable operator,
identified in terms of the interest owned, the owner of such interest (and,
if such owner is not the applicant itself, the relationship of the owner to
the applicant), the name of the party to whom such interest has been
divested, and the date such divestiture was executed; or
(B) By divestiture of the requisite portion of the cable operator's existing
service area, identified in terms of the name of the party to whom such
interest has been divested, the date such divestiture was executed, the name
of any regulatory agency that must approve such divestiture, and the date on
which an application was filed for this purpose with the regulatory agency.
(6) If no such certification or application is tendered to the Commission
within ninety (90) days of final grant of the initial license, the
Commission may cancel or rescind the license automatically, shall retain all
monies paid to the Commission, and, based on the facts presented, shall take
any other action it may deem appropriate.
Note to Sec. 101.1412: Waivers of Sec. 101.1412(f) may be granted upon an
affirmative showing:
(a) That the interest holder has less than a fifty percent voting interest
in the licensee and there is an unaffiliated single holder of a fifty
percent or greater voting interest;
(b) That the interest holder is not likely to affect the local market in an
anticompetitive manner;
(c) That the interest holder is not involved in the operations of the
licensee and does not have the ability to influence the licensee on a
regular basis; and
(d) That grant of a waiver is in the public interest because the benefits to
the public of common ownership outweigh any potential anticompetitive harm
to the market.
[ 69 FR 31746 , June 7, 2004, as amended at 69 FR 59146 , Oct. 4, 2004]
Goto Section: 101.1411 | 101.1413
Goto Year: 2007 |
2009
CiteFind - See documents on FCC website that
cite this rule
Want to support this service?
Thanks!
Report errors in
this rule. Since these rules are converted to HTML by machine, it's possible errors have been made. Please
help us improve these rules by clicking the Report FCC Rule Errors link to report an error.
hallikainen.com
Helping make public information public