WPCz 2BEJ Z Courier c-#XR  P7jQXP#HP LaserJet 4_230_1HPLAS4.PRS 4x  @\_)^X@206{D3|wCG Times Bold#XR  P7jQ}XP#CourierCG Times907_1HPLAS4SI.PRSx  @\:WX@3|wCourierCG TimesCG Times BoldTimes New Roman BoldTimes New Roman8wC;,Xw PE37XPANE,ܼ PE37PD@NE,"#_ pi7><q*"xxxxWWxxxWWkkxxxN Y <ԍ#Xw PE37}XP# Id.Y Generally, to justify their prices for the period beginning May 15, 1994 through a benchmark showing, operators must use the FCC Form 1200  Yy-series. yN Y$<ԍ#Xw PE37}XP# 47 C.F.R.  76.922(b)(6); see also Second Order on Reconsideration at 4189, n.195.  XK- Procedural Matters  4. The first complete and timely CPS complaints in the franchise areas addressed in" 0*0*0*7" this Order were completed and served on Viacom and received by the Commission on the dates set forth in Appendix A. 5. Viacom filed its first FCC Form 393 for the City of Napa, California, CUID No. CA0407, on December 1, 1993 and filed an amended FCC Form 393 on December 2, 1993, in response to a notice from the City of Napa. Viacom filed its first FCC Forms 393 for Napa County, California, CUID No. CA0408, and the City of American Canyon, California, CUID No. CA1339, on December 8, 1993. Viacom filed amended FCC Forms 393 for each franchise area on June 27, 1994 in response to a Cable Services Bureau Order citing  Y1-common deficiencies observed in benchmark filings generally. 1x4 Y -#XR  P7jQ}XP#э#Xw PE37}XP# Cable Operators' Rate Justification Filings, DA 94526 (released May 23, 1994).#x6X@`7X@#  X - Discussion  6. Viacom asserts that its monthly CPS tier prices are justified by its benchmark filings because its prices are lower than the maximum permitted charges as calculated in the filings. Upon review of Viacom's Form 393 filings, we have found that Viacom has not correctly calculated its maximum permitted prices, and it is therefore appropriate to make the following adjustments to Viacom's calculations in Form 393: ` ` a. In its Form 393 filings, Viacom's calculations for its rateregulated package as of the initial date of regulation (Form 393, Part II, Worksheet 1 and Form 393, Part I) count Channel 55 in the case of CUID Nos. CA0407 and CA0408 and Channel 27 in the case of CUID No. CA1339 as a satellite channel on the basic tier. However, according to the September 1, 1993 channel lineups presented in Viacom's June 27, 1994 amendments, these channels carried Viewer's Choice, which is a payperview service, for 17 hours a day and carried CSpan 2, which is a rateregulated satellite service, for only 7 hours a day. X` ` b. Our policy on "split" channels is to categorize them according to their preponderance of use. This policy is based on the fact that the 1992 price survey underlying the benchmark system was analyzed based on whole, not fractional, channel counts. Under the benchmark system in effect prior to May 15, 1994, all channels must be characterized as either rateregulated or not subject to rate regulation and as either satellite or nonsatellite. A "channel" is defined as a "unit of cable service identified and selected by a channel number or similar designation." FCC Form 393, p. 10. The preponderanceofuse test is the only one consistent with  Y -this conceptual framework.  {x4 Y$-#XR  P7jQ}XP##XR  P7jQ}XP#э See Viacom Cable, Nashville, Tennessee, CUID No. TN0148, DA 941151, para. 6a6c (released Nov. 9, 1994). (#  Y!- "! 0*((""Ԍ` ` c. Under our rules, payperview channels may not be counted as regulated  Y-channels or as satellite channels.  cx4 Yb-#XR  P7jQ}XP#э#XR  P7jQ}XP# See General Instructions for Completing FCC Form 393, Instruction No. 5 ("Cable programming service consists of all video programming distributed over a cable system that  Y6-is not included in the basic service tier or offered on a perchannel or perprogram basis");   Y-Instructions for Worksheet 1, Line 121 ("For purposes of using the benchmark tables, a 'satellitedelivered signal' is any cable program service or 'superstation' delivered on a communications satellite that is not a premium service (pay channel or payperview  Y-channel)").#XR  P7jQ}XP#  We therefore reduce the number of satellite channels used in calculating the benchmark on Form 393, Part II, Worksheet 1, Line 121 from 20 to 19 for CUID Nos. CA0407 and CA0408, and from 18 to 17 for CUID No. CA1339. We also reduce the number of total regulated channels on Form 393, Part II, Worksheet 1 from 34 to 33 for CUID Nos. CA0407 and CA0408, and from 31 to 30 for CUID No. CA1339. These adjustments have the net effect of increasing the benchmark channel rate entered on Line 121 of Worksheet 1. ` ` d. In its amended filings of June 27, 1994, Viacom states that it calculated the Inflation Adjustment Factor (Form 393, Part II, Worksheet 1, Line 127, and Form 393, Part II, Worksheet 4, Line 401) using data it relied on when it set its CPS prices. If Viacom had done so correctly (i.e., if it had completed Form 393 with accurate data, including the most recent inflation data available as of the time it set its prices), and if based on this data Form 393 indicated that its prices were reasonable, then Viacom would have successfully justified its prices under  Y-paragraph 94 of the Third Order on Reconsideration.yx4 Y4-#XP\  P6QyoXP##XP\  P6QyoXP#э#Xw PE37}XP# Third Order on Reconsideration, MM Docket Nos. 92266 and 92262,  FCC 9440, 9  Y-FCC Rcd 4316 (1994) ("Third Order on Reconsideration").#x6X@`7X@# y However, the figures Viacom used are not consistent with data on which it should have relied in setting its CPS prices. Specifically, Viacom used data released by the U.S. Department of Commerce on August 31, 1993, to complete Lines 122 and 125, but used earlier data to calculate the Inflation Factor on Line 123. Furthermore, Viacom claimed an Adjustment Time Period extending through November 1993 (Line 124), which is  Y-inconsistent with an attempt to justify rates based on August 1993 data. Viacom's calculation of the Inflation Adjustment Factor is thus incorrect. ` ` e. We must therefore recalculate the Inflation Adjustment Factor on the basis  Y-of the most accurate data currently available for the date as of which Viacom filed.Y x4 Y$-#XR  P7jQ}XP##XR  P7jQ}XP##XR  P7jQ}XP#э#Xw PE37}XP# See 47 C.F.R.  76.922(b)(9)(iii) (if a cable operator fails to justify its rates, rates  Y%-must be adjusted in accordance with the most accurate data available at the time of analysis).#x6X@`7X@# On its amended Form 393s, Viacom entered 14 months on Line 124, indicating that these filings were as of the end of November 1993. On July 29, 1994, the"~ 0*((m" Department of Commerce released corrected inflation data including Gross National Product Price Index (GNPPI) figures of 122.3 for the third quarter of 1992 and 125.7 for the third quarter of 1993. Using these GNPPI figures, we calculate an Inflation Adjustment Factor through November 1993, the base date Viacom used in justifying its rates, of 1.032 . 7. Correction of Viacom's errors does not result in a reduction in Viacom's maximum permitted CPS tier prices. We therefore conclude that Viacom has demonstrated that its prices for the CPS tier were not unreasonable.  X - Conclusions  8. Upon review of the record herein, we conclude that Viacom has demonstrated that its prices shown on Appendix B were just and reasonable for the period from the filing of the  Y -earliest complaint in each franchise area (as set forth in Appendix A) to May 14, 1994.x x4 Y -#XR  P7jQ}XP#  Ѝ#Xw PE37}XP# This finding is based solely on the representations of Viacom listed in paragraph 5,  Y -and the modifications described in paragraph 6, supra. Should information come to our  Y-attention that these representations were materially inaccurate, we reserve the right to take appropriate action. This Order is not to be construed as a finding that we have accepted as correct any specific entry, explanation or argument made by any party to this proceeding not  Y-specifically addressed herein. 9. Accordingly, IT IS ORDERED, pursuant to Section 0.321 of the Commission's Rules, 47 C.F.R.  0.321, that the complaints referred to in Appendix A against the cable programming service prices charged by Viacom Cable in the City of Napa, California, CUID No. CA0407; Napa County, California, CUID No. CA0408; and the City of American Canyon, California, CUID No. CA1339, and all other complaints relating to the same prices, ARE DENIED TO THE EXTENT INDICATED HEREIN. 10. IT IS FURTHER ORDERED, that the benchmark filings submitted by Viacom Cable with respect to the City of Napa, California, CUID No. CA0407; Napa County, California, CUID No. CA0408; and American Canyon, California, CUID No. CA1339, justify the price in each franchise area set forth in Appendix B (plus franchise fee) for Viacom Cable's cable programming service tier. ` `  hh,FEDERAL COMMUNICATIONS COMMISSION ` `  hh,Meredith J. Jones"0*(( "Ԍ` `  hh,Chief, Cable Services Bureau "0*(("  Y-H #XP\  P6QyoXP#Appendix A  X- CUID No.` `  Date First ComplaintppDate Complaint  X-` `  Filed with FCCppServed  Xw-0407` `  11/8/93Vpp11/1/93  X`-0408` `  11/15/93Vpp11/8/93  XI-1339` `  11/12/93Vpp11/8/93 ` `  hh,Vpp ` `  hh,Vpp ` `  hh,Vpp " 0*0*0*] "  X-H Appendix B  X- CUID No.` `  hh,VCPS Tier Price  xx- X(#(#  X-0407` `  hh,V$9.31pp  xx-  Xv-0408` `  hh,V$9.27pp  xx-  X_-1339` `  hh,V$9.44pp  xx- ` `  hh,V  ?1<#x6X@`7X@#