§ 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  § 101.1412:  Waivers  of  § 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]

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