FOR RECORD ONLY $//Appeal CONSOLIDATED ORDER, in Muncie, IN, DA 95-158//$ $/76.986 A La Carte Offerings/$ $/76.944 Commission Review of Franchising Authority Decisions/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 95-158 In the Matter of: ) ) CENTURY CABLE TELEVISION ) ) Interlocutory Appeals of ) Initial Decisions of City ) of Muncie, Indiana ) CONSOLIDATED ORDER Adopted: February 6, 1995 Released: February 7, 1995 By the Chief, Cable Services Bureau: I. INTRODUCTION 1. By this Order, we consolidate two proceedings into one and rule on the merits in each proceeding. In deciding this appeal, the Bureau has reviewed all the pleadings filed in each of the separate proceedings. We have determined that the two proceedings are sufficiently similar and related to one another to justify the joint resolution of all the issues raised by each of the concerned parties in one consolidated proceeding. Specifically, the Bureau resolves in this Consolidated Order the two "Petition[s] for Interlocutory Review of Initial Decision" of two initial decisions adopted by the City of Muncie, Indiana (the "City") filed by Century Cable Television ("Century") on July 25 and August 25, 1994. By letters dated July 11, 1994 and August 22, 1994, the City made initial determinations that for the purpose of evaluating Century's Forms 393 and 1200, respectively, the channels contained in Century's "Century Select" 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 and Fourth Report and Order, MM Docket No. 92-266, 9 FCC Rcd 4119 (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. Century objects to the City's findings in its initial decisions that the channels comprising the Century Select a la carte package must be included as regulated channels. Century contends that the City's initial decisions are "wholly conclusory" and fail to offer any basis for the determination that the a la carte package should be treated as a rate- regulated tier in evaluating Century's Form 393 and Form 1200. Century also contends that the City's jurisdiction to decide issues regarding a la carte service is contrary to the Cable Television Consumer Protection and Competition Act of 1992 ("1992 Cable Act") which limits local regulatory jurisdiction to basic service. Century further argues that the 15 interpretive guidelines announced by the Commission in March 1994 to determine the regulatory status of a la carte channels cannot be applied retroactively. The City responds that  76.986(b) of the Commission's Rules allows local franchising authorities to notify operators of initial decisions regarding treatment of a la carte channels without issuing a written decision underlying the initial determination. In addition, the City contends that it properly applied the Commission's guidelines on a la carte packages and concluded that the channels in Century's Select package should be treated as rate-regulated channels. 4. Century's a la carte package at issue, consisting of CNN, Turner Network Television, TNN and the Discovery Channel, was first offered to subscribers on September 1, 1993, when Century restructured the service offerings on its Muncie system. Century states that its September 1, 1993 restructuring involved offering four channels that previously had been offered on its former cable programming service tiers on an individual basis and also as the Century Select package that it alleges is not subject to rate regulation. 5. The issue raised by Century's appeal already has been resolved in one of our letter of inquiry orders, Century Muncie. In Century Muncie we found we could not say that it was clear that the Century Select package offered by Century on its Muncie, Indiana 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 Century to refund liability or to require Century to restructure its tiers so as to return the channels offered in the a la carte package to regulated tiers. Instead, we found that the Century Select 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 and 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 determinations in its two initial decisions that the channels comprising Century's a la carte package must be included as regulated channels is inconsistent with the action taken in Century Muncie. We further find that, in accordance with Century Muncie, Century's a la carte package should not be treated as a rate-regulated tier of service. Accordingly, Century's Petitions are granted. We are remanding this issue to the City so that it can enter orders consistent with our findings in Century Muncie. III. ORDERING CLAUSES 7. Accordingly, IT IS ORDERED that the Petitions for Interlocutory Review of the initial decisions, with respect to the issue of the regulatory status of Century's a la carte package, are 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