WPCZj 2BEJ Z Courier c-#XR  P7jQXP#HP LaserJet 4_230_1HPLAS4.PRS 4x  @\_)^X@2[6{v3|wCG Times Bold#XR  P7jQ}XP#CourierCG Times907_1HPLAS4SI.PRSx  @\:WX@3|wa8DocumentgDocument Style StyleXX` `  ` 2xpkkha4DocumentgDocument Style Style . a6DocumentgDocument Style Style GX  a5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  A.  2vt  .a7DocumentgDocument Style StyleyXX` ` (#` BibliogrphyBibliography:X (# a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  X(# a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` 2   V  a3DocumentgDocument Style Style B b  ?  1.  a3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# a5Right ParRight-Aligned Paragraph Numbers _o` `  @h(1)  hh#(#h 2m    m a6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# a8Right ParRight-Aligned Paragraph NumbersyW"3!` `  hh#(-@p/a) -pp2(#p Tech InitInitialize Technical Style. k I. A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technical2+ o}a1DocumentgDocument Style Style\s0  zN8F I. ׃  a5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  A.   2]la3TechnicalTechnical Document Style9Wg  2  1.   a4TechnicalTechnical Document Style8bv{ 2  a.   a1TechnicalTechnical Document StyleF!<  ?  I.   a7TechnicalTechnical Document Style(@D i) . 2F$3ea8TechnicalTechnical Document Style(D a) . Doc InitInitialize Document Stylez   0*0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:><q*"xxxxWWxxxWWkkxxxx4 Y <ԍ#Xw PE37}XP# Id.Y Generally, to justify their prices for the period beginning May 15, 1994 through a benchmark showing, operators must use the FCC Form 1200  Yy-series. yx4 Y$<ԍ#Xw PE37}XP# 47 C.F.R.  76.922(b)(6); see also Second Order on Reconsideration at 4189, n.195.  XK- "K 0*((W"  X-Procedural Matters  4. The first complete and timely CPS complaints in the franchise areas addressed in 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 Livermore, California, CUID No. CA0356; the City of Pleasanton, California, CUID No. CA0360; and the City of San Ramon, California, CUID No. CA1115, on November 26, 1993. Viacom filed its first FCC Form 393 for the City of Dublin, California, CUID No. CA0353, on December 13, 1993. Viacom filed its first FCC Form 393 for Alameda County, CaliforniaSunol, CUID No. CA0364, on March 28, 1994. Viacom filed amended FCC Forms 393 for each franchise area on June 14 and June 27, 1994, in response to a Cable Services Bureau Order citing  Y -common deficiencies observed in benchmark filings generally. x4 YN-#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 charge 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 Channels 0 and 27 as satellite channels on the basic tier. However, according to the September 1, 1993 channel lineups presented in Viacom's June 27, 1994 amendments, Channel 0 carried Playboy TV, which is a premium service, for 10 hours a day and carried the California Channel, which is a rateregulated service, for only 5 hours a day; and Channel 27 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. Further, Viacom's  Y -calculations ` ` for its rateregulated package as of September 30, 1992 (Form 393, Part II, Worksheet 2) count Channel 0 as a satellite channel on the basic tier and Channel 22 as a satellite channel on the CPS tier. However, according to the November 1992 channel lineups presented in Viacom's June 27, 1994 amendments, Channel 0 carried the Playboy Channel for 10 hours a day and it appears that it carried CNBC, which is a rateregulated satellite service, for only 5 hours a day; and Channel 22 carried Sports Channel Pacific, which was a premium channel. X` ` b. Our policy on "split" channels is to categorize them according to their"h${ 0*((%" 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). (#  YH-  ` ` c. Under our rules, payperview channels or premium channels offered on a  Y -per channel basis may not be counted as regulated channels or as satellite channels.  c dx4 Y/-#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  Y-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 18 to 16. We reduce the number of total regulated channels on Form 393, Part II, Worksheet 1 from 34 to 32. We also reduce the number of satellite channels used in calculating the benchmark on Form 393, Part II, Worksheet 2, Line 220 from 18 to 16 and the number of total regulated channels on Worksheet 2 from 32 to 30. These adjustments have the net effect of increasing the benchmark channel rates entered on Line 121 of Worksheet 1 and Line 220 of Worksheet 2. ` ` d. In its amended filings, 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 price), and if based on this data Form 393 indicated that its price was reasonable, then Viacom  Y-would have successfully justified its price under paragraph 94 of the Third Order on  Y-Reconsideration.y x4 Y$-#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 price. Specifically, Viacom used data" 0*((m" 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 Adjustment Time Periods extending through October 1993, November 1993 and February 1994 (Line 124), which are inconsistent with an  Y-attempt to justify rates based on August 1993 data. Viacom's calculations of the (#(#Inflation Adjustment Factors are thus incorrect. ` ` e. We must therefore recalculate the Inflation Adjustment Factors on the basis  YH-of the most accurate data currently available for the dates as of which Viacom filed.Hx4 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@#  Y1-On its amended Form 393s for CUID Nos. CA0356, CA0360 and CA1115, Viacom (#(# Y -entered 13 months on Line 124, indicating that these filings were as of the end of (#(# Y -October 1993. On its amended Form 393s for CUIDs CA0353 and CUID0364, (#(# Y -Viacom entered 14 months and 17 months, respectively, indicating that these filings (#(# Y -were as of the end of November 1993 and February 1994. On July 29, 1994, the (#(# Y -Department of Commerce released corrected inflation data including Gross National (#(# Y -Product Price Index (GNPPI) figures of 122.3 for the third quarter of 1992, 125.7 (#(# Y-for the third quarter of 1993, and 126.5 for the fourth quarter of 1993. Using these (#(# Yy-GNPPI figures, we calculate Inflation Adjustment Factors through October 1993, (#(# Yb-November 1993, and February 1994, the base dates Viacom used in justifying its (#(#rates, of 1.030, 1.032, and 1.039, respectively. 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 monthly price for each franchise area set forth in Appendix B (plus franchise fee) was just and reasonable for the period from the filing of the earliest complaint in each franchise area  Y7-(as set forth in Appendix A) to May 14, 1994.x7dx4 YL!-#XR  P7jQ}XP#  Ѝ#Xw PE37}XP# This finding is based solely on the representations of Viacom listed in paragraph 5,  Y5"-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. "  0*(("Ԍ9. 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 price charged by Viacom Cable in the City of Dublin, California, CUID No. CA0353; the City of Livermore, California, CUID No. CA0356; the City of Pleasanton, California, CUID No. CA0360; Alameda County, CaliforniaSunol, CUID No. CA0364; and the City of San Ramon, California, CUID No. CA1115, 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 Dublin, California, CUID No. CA0353; the City of Livermore, California, CUID No. CA0356; the City of Pleasanton, California, CUID No. CA0360; Alameda County, California, CUID No. CA0364; and the City of San Ramon, California, CUID No. CA1115, justify the monthly price for 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 ` `  hh,Chief, Cable Services Bureau "0*((p"  Y-D #XP\  P6QyoXP##XR  P7jQ}XP#Appendix A  Y- CUID No.` `  Date First ComplaintppDate Complaint  Y-` `  Filed with FCCppServed  Yw-0353` `  11/23/93Vpp11/11/93  Y`-0356` `  11/16/93Vpp10/27/93  YI-0360` `  11/16/93Vpp10/27/93  Y2-0364` `  2/24/94Vpp2/25/94  Y -1115` `  11/16/93Vpp10/27/93 ` `  hh,Vpp " 0*0*0* "  Y-l ă  X<#x6X@`7X@#E #XR  P7jQ}XP#Appendix B ă  Y-CUID No.` `  hh,VCPS Tier Price  Yv-0353` `  hh,V$10.23  Y_-0356` `  hh,V$10.23  YH-0360` `  hh,V$10.23  Y1-0364` `  hh,V$10.23  Y -1115` `  hh,V$10.14