FOR FCC RECORD ONLY
$// Viacom Cable, Eatonville, WA, MO&O, DA 95-135//$
$/76.922 Rates for Cable Programming Service tiers/$
$/benchmark cable rat              es/$
            Before the
                     FEDERAL COMMUNICATIONS COMMISSION
                          Washington, D.C. 20554
            

In the Matter of     )                                            DA 95-135
              )      CUID No. WA0258
Viacom Cable  )
Town of Eatonville, Washington             )              
                        )
Request to Deny Jurisdiction        
                                   ORDER

Adopted:  January 31, 1995          Released:  February 1, 1995

By the Chief, Cable Services Bureau:

       1.  In this Order we dismiss a complaint against the price Viacom Cable was charging
for its cable programming service (CPS) tier in the Town of Eatonville, Washington, CUID
No. WA0258, on the ground that the complaint concerns rates that are outside the
jurisdiction and authority of this Commission.  As explained below, the Commission
regulates rates for CPS only, and then only upon filing of a valid complaint.  Our review
reveals that the complaint filed against Viacom Cable in CUID No. WA0258, while asserting
that it challenges CPS rates, challenges only rates for basic service, not for CPS.  This
complaint therefore does not trigger the Commission's jurisdiction, and it is accordingly
dismissed.

       2.  The  Cable Television Consumer Protection and Competition Act of 1992 (Cable
Act of 1992) distinguishes among basic cable service, premium cable service, and cable
programming service; this Commission regulates rates only for cable programming service. 
The basic service tier includes (at a minimum) the broadcast signals distributed by the cable
operator along with any public, educational, and governmental (PEG) access channels that
the local franchising authority requires the cable operator to carry.  At the cable operator's
discretion, this basic service tier may also include additional program services.  Except in
limited circumstances, the Commission does not have jurisdiction over rates for the basic
service tier, and cannot act upon complaints concerning rates for that tier.  Premium cable
service consists of channels that are paid for individually (per-channel), such as Home Box
Office (HBO) and CineMax.  Channels for which the operator charges a per-channel or per-
program rate are not subject to rate regulation.  CPS includes all video programming
distributed over the system that is not on the basic service tier and for which the operator
does not charge on a per-channel or per-program basis.  Rates for CPS tiers are subject to
regulation by the Commission in response to a valid complaint.   

       3.   The filing of a complaint regarding CPS rates that is not returned by the
Commission establishes our jurisdiction, and triggers the operator's obligation to provide rate
justification.  The complaint noted here was accepted for filing after preliminary review. 
Viacom Cable subsequently filed a response to the complaint stating that it concerns basic,
not CPS, rates.  Viacom Cable argues that challenges against rates for basic service should
be submitted to the appropriate local franchising authority rather than to the Commission.

       4.  The complaint under consideration here was filed with this Commission on an
FCC Form 329.  FCC Form 329 is used by subscribers or local franchising authorities
wishing to lodge with the Commission a complaint about an operator's CPS rates.  The form 
is entitled "Cable Programming Service Rate Complaint."  While it is designed for use in
challenging upper tier rates, the form itself does not explain or define basic tier, premium, or
cable programming services tier, but simply uses the term 'cable programming services' or
'CPS.'  It is thus possible that a complainant might complete such a complaint form, and
might check the box which states that "this complaint challenges the operator's CPS rates,"
without actually having distinguished or understood the difference between basic tier rates,
premium service rates, and CPS tier rates.  

       5.  We have examined the complaint and Viacom Cable's response, and we conclude
that the complaint challenges only basic rates, not CPS rates.  Although the complainant has
checked the box indicating that the rates challenged are CPS rates, and that these rates
violate the Commission's rules, the specific information provided by the complainant
indicates that only basic rates are actually at issue.  When only basic rates are being
challenged, the complaint should properly be brought to the attention of the local franchising
authority in the first instance, and not filed with this Commission.  If the complaint does in
fact challenge CPS rates, the complainant should file a petition for reconsideration providing
information adequate to support his challenge.
       
       6.  Accordingly, IT IS ORDERED, pursuant to Section 623(a)(2)(A) and (B) of the
Communications Act of 1934, as amended, 47 U.S.C. 543(a)(2)(A) and (B), that the
complaint filed on November 8, 1993, against the cable programming service price charged
by Viacom Cable in the Town of Eatonville, Washington, CUID No. WA0258, IS
DISMISSED. 

       7.  This action is taken pursuant to delegated authority under Section 0.321 of the
Commission's Rules, 47 C.F.R.  0.321. 
       
              
              FEDERAL COMMUNICATIONS COMMISSION

              
              
              Meredith J. Jones
              Chief,  Cable Services Bureau