III. CONCLUSION

In the Phase I Decision we determined that DIVCA gives us the authority to obtain information necessary for the enforcement of specific DIVCA provisions. That decision also determined that we do not have authority to award intervenors compensation for their participation in proceedings regarding DIVCA. Both these holdings are now final and conclusive.

The Phase II Decision applied these holdings. We determined that TURN was not entitled to intervenor compensation, and that video subscribership data met the criteria for information that should be reported to us for enforcement purposes. The rehearing applications assert that these conclusions are in error, but as we have explained in this order, these arguments, do not demonstrate error. We will modify the Phase II Decision to make the nature of its underlying statutory authority clear. Because the rehearing applications do not demonstrate error, we will deny rehearing of D.07-10-013, as modified.

Therefore IT IS ORDERED that:

1. D.07-10-013 is modified as follows:

a. The first two paragraphs of Section 2.1, entitled "Summary of Statutory Requirements," on page 4 are restated to read:

For the purposes of this discussion regarding safe harbor provisions, we will note some of the salient features of DIVCA's antidiscrimination, build-out, and open access requirements. DIVCA contains a general requirement that state video franchise holders provide open access to their video service and avoid discrimination. More specific requirements, for the larger franchise holders, are expressed, in part, in terms of (1) minimum percent of low-income households out of total households with access to the franchise holder's video service within specified periods, and (2) minimum percent of total households with access to the franchise holder's video service within specified periods, depending on the predominant video technology that the franchise holder is deploying. A complete discussion of these requirements is found in our Phase I Decision and we also describe these requirements in greater detail below.

Pub. Util. Code § 5890(a) sets forth the fundamental principle that a "cable operator or video service provider that has been granted a state franchise ... may not discriminate against or deny access to service to any group of potential residential subscribers because of the income of the residents in the local area in which the group resides." Pub. Util. Code § 5890(b)(1) and (2) then prescribe two of the conditions that would allow larger state video franchise holders (over one million telephone customers) to meet DIVCA's open access and non-discrimination requirements:

b. The second sentence of the paragraph spanning pages 21 and 22, which sentence begins, "However, we agree generally..." is modified to read as follows:

    However, we agree generally with the comments of current or potential providers of video programming and broadband services that DIVCA intends video programming and broadband services to be offered in a competitive environment. As we concluded in the Phase I Decision, for policy reasons this Commission should avoid imposing additional requirements that impose a heavy burden on service providers yet do not assist this Commission in carrying our its role.

c. A new sentence is added at the end of the first full paragraph on page 42, immediately prior to the reference to footnote 49, which sentence reads:

The comments of the parties further indicate that economic, technical, or logistical factors could create discriminatory conditions interfering with potential customers' ability to obtain video services even if a franchise holder provides open access.

d. Footnote 49 on page 42 is restated to read:

See DRA's Reply Comments on PD, discussing the usefulness of such reports for the Commission to determine whether holders are complying with anti-discrimination requirements and factors that could interfere with a customers ability to obtain service. See also Greenlining's Reply Comments on PD, stating that knowing whether customers are actually utilizing services that have been made available is an indicator of whether economic or technical factors have impeded with the ability of those customers to obtain service.

e. Ordering Paragraph 2.c. on pages 48-49 is restated to read:

c. Restate Paragraph G. of Section VII, "Reporting
Requirements" as follows:

f. A new Ordering Paragraph 2.d is added at page 49, which Ordering Paragraph shall state:

2. Rehearing of D.07-10-013, as modified, is denied.

This order is effective today.

Dated July 29, 2010 at San Francisco, California.

                                                                                 President

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