Form FCC Form 328 FCC Form 328 Franchising Authority Certification

Federal Communications Commission
Washington, D.C. 20554

Approved by OMB
3060-0550

INSTRUCTIONS FOR FCC 328
FRANCHISING AUTHORITY CERTIFICATION
1.

2.

3.

4.

The Cable Television Consumer Protection and Competition
Act, enacted in October 1992, changes the manner in which
cable television systems that are not subject to effective
competition are regulated. In general, rates for the basic
service tier (the tier required as a condition of access to all
other video services and containing, among other services,
local broadcast station signals and public, educational, and
public access channels) and associated equipment will be
subject to regulation by local or state governments
("franchising authorities"). Rates for cable programming
services and associated equipment (all services except basic
and pay channels) will be subject to regulation by the FCC.
Rates for pay channels (channels for which there is a
specific per-channel or per-program charge) are not
regulated.
Only cable systems that are not subject to effective
competition may be regulated. Effective competition means
that (a) fewer than 30 percent of the households in the
franchise area subscribe to the cable service of a cable
system; or (b) the franchise area is (i) served by at least two
unaffiliated multichannel video programming distributors
each of which offers comparable video programming to at
least 50 percent of the households in the franchise area; and
(ii) the number of households subscribing to programming
services offered by multichannel video programming
distributors other than the largest multichannel video
programming distributor exceeds 15 percent of the
households in the franchise area; or (c) a multichannel video
programming distributor operated by the franchising
authority for that franchise area offers video programming to
at least 50 percent of the households in that franchise area;
or (d) a local exchange carrier or its affiliate (or any
multichannel video programming distributor using the
facilities of such carrier or its affiliate) offers video
programming services directly to subscribers by any means
(other than direct-to-home satellite services) in the franchise
area of an unaffiliated cable operator which is providing
cable service in that franchise area, but only if the video
programming services so offered in that area are comparable
to the video programming services provided by the
unaffiliated cable operator in that area.
In order to regulate basic service tier rates, a franchising
authority must be certified by the FCC. In order to be
certified, a franchising authority must complete this form.
An original and one copy of the completed form and all
attachments must be returned to the FCC by registered
mail, return receipt requested, to the FCC at the address
on the form.
A copy of the form must be served on the cable operator by
first-class mail on or before the date the form is sent or
delivered to the FCC.

5.

The franchising authority's certification will become
effective 30 days after the date stamped on the postal
return receipt unless otherwise notified by the
Commission by that date. The franchising authority cannot
begin to regulate rates, however, until it has actually adopted
the required regulations (see below) and until it has notified
the cable operator that it has been certified and that it has
adopted the required regulations.

6.

In order to be certified, franchising authorities must answer
"yes" to Questions 3, 4, and 5; which are explained as
follows:

7.

Question 3:
The franchising authority must adopt rate
regulations consistent with the Commission's regulations for
basic cable service. To fulfill this requirement for
certification, the franchising authority may simply adopt a
regulation indicating that it will follow the regulations
established by the FCC.
The franchising authority has 120 days to adopt these
regulations after the time it is certified. The franchising
authority may not, however, begin to regulate cable rates
until after it has adopted these regulations and until it has
notified the cable operator that it has been certified and has
adopted the required regulations.

8.

Question 4(a): The franchising authority's "legal authority"
to regulate basic service must come from state law. In some
states, only the state government may regulate cable rates. In
those states, the state government should rule this
certification. Provisions in franchise agreements that
prohibit rate regulation are void, and do not prevent a
franchising authority from regulating the basic service tier
and associated equipment.
Question 4(b): The franchising authority must have a
sufficient number of personnel to undertake rate regulation.
A franchising authority unable to answer "yes" to questions
4(a) or 4(b) may wish to review the FCC's Report and Order
in Docket 92-266, FCC 93-177 (released May 3, 1993) for
further information on the establishment of alternative
federal regulatory procedures.

9.

Question 5: Franchising authorities must have procedural
regulations allowing for public participation in rate
regulation proceedings. If a franchising authority does not
have these regulations already in place, it must adopt them
within 120 days of certification and before it may undertake
rate regulation.

10. Question 6(a): The Commission presumes that cable systems
FCC 328 Instructions
September 2015

are subject to competing provider effective competition.
(The definition of competing provider effective competition
is included in Item 2(b), above.) If the franchising authority
believes that this presumption is incorrect with regard to the
listed cable system(s), it must submit an attachment
containing evidence adequate to satisfy the franchising
authority's burden of rebutting the presumption of competing
provider effective competition with specific evidence that
such effective competition does not exist in the franchise
area.

Please DO NOT SEND COMPLETED APPLICATIONS TO
THIS ADDRESS.
THE FOREGOING NOTICE IS REQUIRED BY THE
PAPERWORK REDUCTION ACT OF 1995, P.L. 10413, MAY 22, 1995, 47 U.S.C. 3507.

Question 6(b): The franchising authority must indicate
whether it has reason to believe that the listed cable
system(s) are subject to any of the other three types of
effective competition, as defined in Item (a), (c)-(d) above.
For purposes of applying the definition of effective
competition (see Item 2 above), "multichannel video
programming distributors" include a cable operator, a
multichannel multipoint distribution service, a direct
broadcast satellite service, a television receive-only satellite
program distributor, a video dial tone service, and a satellite
master antenna television system. A multichannel video
programming distributor's services will be deemed "offered"
when they are both technically and actually available.
Service is "technically available" when the multichannel
distributor is physically able to deliver the service to a
household wishing to subscribe, with only minimal
additional investment by the distributor. A service is
"actually available" if subscribers in the franchise area are
reasonably aware through marketing efforts that the service
is available. Subscriber Ship of those multichannel video
programming distributors offering service to at least 50
percent of the households in a franchise area will be
aggregated to determine whether at least 15 percent of the
households in the franchise area are served by competitors.
A multichannel video programming distributor must offer at
least 12 channels of programming, at least one channel of
which is non-broadcast, to be found to offer "comparable"
video programming.
11. This certification form must be signed by a government
official with authority to act on behalf of the franchising
authority.

FCC NOTICE REQUIRED BY THE PAPERWORK
REDUCTION ACT
Public reporting burden for this collection of information is
estimated to average 2 hours, including the time for
reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing
and reviewing the collection of information. If you have any
comments on this burden estimate, or on how we can improve
the collection and reduce the burden it causes you, please email them to [email protected] or send them to the Federal
Communications Commission, AMD-PERM, Paperwork
Reduction Project (3060-0550), Washington, DC 20554.

2

Approved by OMB
3060-0550

Federal Communications Commission
Washington, D. C. 20554

For FCC Use Only

FCC 328
CERTIFICATION OF FRANCHISING AUTHORITY TO REGULATE BASIC CABLE SERVICE
RATES AND INITIAL FINDING OF LACK OF EFFECTIVE COMPETITION

1. Name of Franchising Authority

3. Will your franchising authority adopt (within 120
days of certification) and administer regulations with
respect to basic cable service that are consistent with
the regulations adopted by the FCC pursuant to 47
U.S.C Section 543(b)?

Mailing Address

City

State

ZIP Code

Yes

No

4. With respect to the franchising authority's regulations referred to in
question 3,

Telephone No. (include area code):

a. Does your franchising authority have the legal
authority to adopt them?

Yes

No

Person to contact with respect to this form:

b. Does your franchising authority have the
personnel to administer them?

Yes

No

Yes

No

Yes

No

Yes

No

2a. Narne(s) and address(es) of cable system(s) and associated FCC
Community unit identifier(s) within your jurisdiction. (Attach
additional sheets if necessary)

rate regulation proceedings by your franchising
authority provide a reasonable opportunity for
consideration of the views of interested parties?

6a. The Commission presumes that the cable system(s)

Cable System's Name

Mailing
Address
City

5. Do the procedural laws and regulations applicable to

State

ZIP Code

listed in 2b is (are) subject to competing provider
effective competition. Based on definition (b) below,
do you have reason to believe that this presumption is
incorrect? If so, you must provide an attachment
containing evidence adequate to satisfy your burden
of rebutting the presumption with specific evidence.

Cable System's FCC Community Unit Identifier:

6b. The Commission presumes that the cable system(s)
listed in 2b is (are) not subject to any other type of
effective competition. Based on definitions (a), (c),
and (d) below, do you have reason to believe that this
presumption is correct?

Cable System's Name

Mailing Address

City

State

ZIP Code

Cable System's FCC Community Unit Identifier:

2b. Name(s) of system(s) and associated community unit identifier(s)
you claim are subject to regulation and with respect to which you
are filing this certification. (Attach additional sheets if necessary.)
Name of System

Name of System

2c. Have you served a copy of this form on
all parties listed in Item 2?

Yes

No

FCC Form 328
September 2015

(Effective competition means that (a) fewer than 30 percent of the households
in the franchise area subscribe to the cable service of a cable system; (b) the
franchise area is (i) served by at least two unaffiliated multichannel video
programming distributors each of which offers comparable video
programming to at least 50 percent of the households in the franchise area,
and (ii) the number of households subscribing to programming services
offered by multichannel video programming distributors other than the largest
multichannel video programming distributors exceeds 15 percent of the
households in the franchise area; (c) a multichannel video programming
distributor operated by the franchising authority for that franchise area offers
video programming to at least 50 percent of the households in the franchise
area; or (d) a local exchange carrier or its affiliate (or any multichannel video
programming distributor using the facilities of such carrier or its affiliate)
offers video programming services directly to subscribers by any means
(other than direct-to-home satellite services) in the franchise area of an
unaffiliated cable operator which is providing cable service in that franchise
area, but only if the video programming services so offered in that area are
comparable to the video programming services provided by the unaffiliated
cable operator in that area. 47 C.F.R. § 76.905.)
Signature

Title
Date
WILLFUL FALSE STATEMENTS MADE ON THIS FORM
ARE PUNISHABLE BY FINE AND / OR IMPRISONMENT
(U.S. CODE TITLE 18, SECTION 1001).
Return the original and one copy of this certification form (as
indicated in the Instructions for FCC 328), along with any
attachments, to:
Federal Communications Commission
Attn: Media Bureau, Policy Division
FCC Form 328 Cable Franchising Authority Certification
445 12th Street, SW
Washington, DC 20554

FCC Form 328
September 2015