FOR RECORD ONLY $//Appeal ORDER, in Oceanside, CA, DA 95-156//$ $//76.986 A La Carte Offerings//$ $//76.944 Commission Review of Franchising Authority Decisions//$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 95-156 In the Matter of: ) ) TIMES MIRROR CABLE TELEVISION, INC. ) OF SAN DIEGO COUNTY, ) d/b/a DIMENSION CABLE SERVICES ) ) Interlocutory Appeal of ) Local Rate Order of City ) of Oceanside, California ) ORDER Adopted: January 6, 1995 Released: February 7, 1995 By the Chief, Cable Services Bureau: I. INTRODUCTION 1. On August 31, 1994, Times Mirror Cable Television of San Diego County, California Inc., d/b/a Dimension Cable Services ("Dimension") filed with the Commission a Petition for Interlocutory Review of Initial Decision ("Petition") of the initial decision adopted by the City of Oceanside, California (the "City"). In Resolution No. R94-168, adopted August 17, 1994, the City made an initial determination that the channels contained in Dimension's "Preferred Dimension" package are subject to rate regulation. 2. In the Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992: Rate Regulation, Second Order on Reconsideration, Fourth Report and Order, MM Docket No. 92-266, 9 FCC Rcd 4119 (released March 30, 1994) ("Second Reconsideration Order"), the Commission provided that as part of their review of basic service tier rates, local authorities may make an initial decision addressing only the regulatory status of any a la carte package at issue. The Commission further provided that the local authority's initial decision may be appealed to the Commission within 14 days and that the issuance of an initial decision on a la carte issues will toll the time period within which local authorities must decide local rate cases. II. DISCUSSION 3. Dimension objects to the City's finding that the channels comprising its Preferred Dimension a la carte package must be included as regulated channels. Dimension argues that its a la carte package complies with the provisions of the 1992 Cable Act, which it contends encourage cable operators to unbundle programming services from regulated tiers and offer them on a per-channel basis, and that the package complies with the Commission's a la carte rules in effect at the time the package was created. Dimension further argues that the City's reliance upon the 15 interpretive guidelines announced by the Commission in March, 1994 to determine the regulatory status of Multivision's a la carte channels constituted "retroactive rulemaking." The City responds that it properly applied the Commission's guidelines on a la carte packages and concluded that the channels in Dimension's package should be treated as regulated channels. 4. The Dimension a la carte package at issue was first offered to subscribers on September 1, 1993, when Dimension restructured the service offerings on its Oceanside system. Dimension states that its September 1, 1993 restructuring involved offering four channels that previously had been offered on its former cable programming service tier on an individual basis and also as a package that Dimension alleges is not subject to rate regulation. 5. The issue raised by Dimension's appeal already has been resolved in one of our letter of inquiry orders, Dimension Cable Services, Oceanside, California, LOI-93-36, DA 94-1310 (Cab. Serv. Bur., released Nov. 25, 1994). In Dimension Cable Services, we found we could not say that it was clear that the Preferred Dimension package offered by Dimension on its Oceanside, California system was not a permissible non-rate regulated offering under our rules. We further concluded that in light of the prior confusion over what constituted a permissible non-rate regulated a la carte offering, it would be inequitable to subject Dimension to refund liability or to require Dimension to restructure its tiers so as to return the channels offered in the a la carte package to regulated tiers. Instead, we found that, on a prospective basis, the Preferred Dimension package may be treated as a new product tier under the Commission's Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992: Rate Regulation, Sixth Order on Reconsideration, Fifth Report and Order, MM Docket Nos. 92-266 and 93-215, FCC 94-286 (released November 18, 1994) ("Going Forward Order"). 6. We find that the City's determination in its initial decision that the channels comprising Dimension's a la carte package must be included as regulated channels is inconsistent with the action taken in Dimension Cable Services. We further find that, in accordance with Dimension Cable Services, Dimension's a la carte package should not be treated as a rate-regulated tier of service. Accordingly, Dimension's Petition is granted and we remand the initial decision to the City for further proceedings consistent with this ruling. III. ORDERING CLAUSES 7. Accordingly, IT IS ORDERED that the appeal of the initial decision, with respect to the issue of the regulatory status of Dimension's a la carte package, is REMANDED to the City for resolution in accordance with the terms of this Order. 8 This action is taken by the Chief, Cable Services Bureau, pursuant to authority delegated by section 0.321 of the Commission's rules. 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION Meredith J. Jones Chief, Cable Services Bureau