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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:j<<<@jHHHH((>><d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd"5@^2CTdd+CCd2C28ddddddddddCCdzzzzCYozzdozzooN8NTdCddYdY8dd88Y8ddddNN8dYYYNP7Pl2CC!CCPRCddzdzdzdzdzdYzYzYzYzYC8C8C8C8dddddddddoYzddddoYdzdzdzdzdYYYzYzYzYddddddPdCdCCCdYYo8oRdddzNzRdNdNNF2idNdddddd7>d<d<CCoodCCddCoCddzzzzzzzzzzCCCCozdddddddYYYYY8888dddddddndddddYd"5@^(1<><q*"xxxxWWxxxWWkkxxxWC;XXW  p7sQXP(1(#Xh1  P7jQhPARC;X#XRo=  x7.QXX?xxxX:VbXx6X@DQX@7PC2XLXP\  P6QXP5PC2Xb_XP*f9 xQXXW!0(XL_h0\  P6QhP6?xxxXoXx `NQXM_NEX!_  P7jQP HeNEXd˼e  p7sQ^.9/)Xؤ9  P7jQPs#&Delete...!&Copy..."&Move/Rename...$&Find...2tf dRVf ]f 0i",tB^ f ^;C]ddCCCdCCCCddddddddddCCdxN`xoCCCddCdoYoYFdo8Co8odooYNCodddYdddd4dddddCddddddddo8dddddYYYYYN8N8N8N8oddddooooddpddddxodddXXddXddXdddddooL8doddNorddo8PdN8ppoddXXdpLoNpLodPDdopoopodXYXodoodddCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCdUUddddddFddddFCCssd44ddzzddd~ooCsdF"dsd9dCCzCddoddCdYds`zUvdddCCCCzozoYNYYYN8YooYdYzzdzddYYzozzzNdzYzzzzCCdddddddzCzdYC\   pxtll\tll@\@\`L",tB^ f ^ENluuNNNuNNNNuuuuuuuuuuNNhN[}NNNuuNhuhuhNuuAAuAuuuuV[Auuuuhhuhu=uuuuuNuuuuuuuuuAhhhhhhhhhhNANANANAuuuuuuuuuuhuuuuuuguggguuguuguuuuuuuNAuuuuNuuuuATuFAuuuuuTTu~Y~Y~Y}uTAuuuuuuuuggguuu}uuuNuuNNNWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNuuuNh__uuuuuuRuuuuRNNyyu<<uuuuuNyuR"uyuCuNNNuuuuNuhulcuhhNNNNh[huhNAhhuhuuuhhNuhNNuuuuuuuNuhN /;k  PP9~~+k~~KkKk&&pY",tB^ f ^ENluuNNNuNNNNuuuuuuuuuuNNu[pNNNuuNuhhRuANAuh[Nuuuhuuuu=uuuuuNuuuuuuuuAuuuuuhhhhh[A[A[A[AuuuuuuuuuuuuugguuguuguuuuuYAuuu[uuA]u[AuugguY[Yu]OuughguuuuNuuNNNWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNuuuNuccuuuuuuRuuuuRNNu<<uuuuuNuR"uuCuNNNuuuuNuhupcuuuNNNNh[hhh[Ahhuhuuuhh[uhNNuuuuuuuNuhN /;k  PP9~~+k~~KkKk&&pY2.f t+e5",tB^ f ^;C`ddCCCdCCCCddddddddddCCdxxxsCYoxxdoxxooCCCddCddYdY8dd88Y8ddddLL8dYYYLYdYd4dddddCddddddddd8xdxdxdxdxdYxYxYxYxYC8C8C8C8dddddddddoYxddddoYdxdxdxdxdXXddxxXxdxdxXdddddddD8ddddCdddddp8pHodp8p8dxddddxLxLxddLdLdLddpHp8odddddddodpLpLpLdoddddododxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCd]]ddddddFddddFCCddd88ddzzdddkddCddF"ddd9dCCzCdzdoddCdYds]zUvdYYCCCCzzzozoYzNoYdYC8YooYdYzzdzddoYoYzzozzzzzCdoozYzzzzCCddddzdddooozCsdYC\   pxtll\tll@\@\`L2`FOR FCC RECORD ONLY $//Paragon Cable Manhattan, New York, NY, MO&O, DA 95250//$ $76.922 Rates for Cable Programming Service tiers/$ $/benchmark cable rates/$  a<x` `  hh #_  P7jQ-9P#Before the  b<l  Federal Communications Commission LWashington, D.C.  X-x` `  hh@hpp #XR  P7jQ}XP#DA 95250  Y -In the Matter of hh@) x` ` hh@)  YZ -Paragon Cable Manhattan @) CUID No. NY0104  YC -New York, New Yorkhh@) x` ` hh )  Y-Benchmark Filing To Supporthh@)  Y-Cable Programming Service Priceshh@)  X- Memorandum Opinion and Order ă  Y-xAdopted: February 16, 1995@hReleased: February 17, 1995 By the Chief, Cable Services Bureau:  XF- Introduction x1. Here we consider complaints about the price Paragon Cable Manhattan ("Paragon") was charging for its cable programming service ("CPS") tier in New York, New York, CUID No. NY0104. Paragon has chosen to attempt to justify its price through a benchmark showing on FCC Form 393. This order addresses the reasonableness of Paragon's price only through May 14, 1994. At a later time we will issue a separate order  Y-addressing the reasonableness of the price after that date.b M Y -ԍ The findings in this Order do not in any way prejudge the reasonableness of the price for CPS service after May 14, 1994 under our new rate regulations. However, to the extent  Y!-Paragon has sought to take advantage of the refund deferral period under the Second Order  Y"-on Reconsideration, Fourth Report and Order, and Fifth Notice of Proposed Rulemaking,  Y#-MM Docket No. 92266, FCC 9438, 9 FCC Rcd 4119 (1994) ("Second Order on  Y$-Reconsideration"), the maximum permitted CPS price determined herein might also apply from May 15, 1994 until the date on which Paragon implemented its CPS price under the  Y&<new regulations. See  para. 3, infra.#x6X@`7X@# #XR  P7jQ}XP#Further, to the extent that the price for the period ending May 14, 1994 is found to be excessive, reductions in Paragon's price for the period after May 14, 1994 may be required to reflect the fact that Paragon's price during the earlier period, which is used as the starting point to calculate its price for the prospective period,"B)0*0*0*)"  Y-was unreasonabl#XP\  P6QyoXP#e. See 47 C.F.R.  76.922(b)(4)(C).b"|0*0*0*"Ԍ" 0*0*0*"Ԍ Y-  x2. Under the Cable Television Consumer Protection and Competition Act of 1992,4 Yy-ԍ#Xw PE37}XP# Pub. L. No. 102385, 106 Stat. 1460 (1992); Communications Act,  623(c), as  Yd-amended, 47 U.S.C.  543(c) (1993). and our rules implementing it, 47 C.F.R. Part 76, Subpart N, the Commission must review CPS prices upon the filing of a valid complaint. The filing of a valid complaint triggers an  Y-obligation on behalf of the cable operator to file a justification of its CPS prices.ff4 Y-ԍ#Xw PE37}XP# 47 C.F.R.  76.956.f Under our rules, an operator may attempt to justify its rates through either a benchmark showing or a  Y-costofservice showing.i4 YU -ԍ#Xw PE37}XP# 47 C.F.R.  76.956(b).i In either case, the operator has the burden of demonstrating that its  Yv-CPS prices are not unreasonable.Yv4 Y -ԍ#Xw PE37}XP# Id.Y  YH-x3. The Commission's original rate regulations took effect on September 1, 1993.6H{4 Yt-ԍ#Xw PE37}XP# Order, MM Docket No. 92266, Implementation of Sections of the Cable Television  Y_-Consumer Protection and Competition Act of 1992: Rate Regulation, FCC 93372, 58 Fed. Reg.41042 (Aug. 2, 1993).6  Y1-The Commission subsequently revised its rate regulations effective May 15, 1994.1 4 Y-ԍ#Xw PE37}XP# Second Order on Reconsideration; 47 C.F.R.  76.922(b). Operators with valid CPS complaints filed against them prior to May 15, 1994 must demonstrate that their CPS prices were in compliance with the Commission's initial rules from the time the complaint was filed through May 14, 1994, and that their prices were in  Y -compliance with the revised rules from May 15, 1994 forward. 4 Y;-ԍ#Xw PE37}XP# See Second Order on Reconsideration at 4190, paras. 150152. Operators attempting to justify their prices for the period prior to May 15, 1994 through a benchmark showing must  Y -complete and file FCC Form 393.Y h4 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. y4 YE"-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  Y-x4.  The first valid CPS complaint was completed and served on Paragon prior to" 0*((7"  Y-September 1, 1993. 4 Yy-ԍ The complaint was dated August 31, 1993 and states that it was mailed to Paragon on that date. Paragon has not complied with 47 C.F.R.  76.956(a), which requires it to state when service occurred. Under these circumstances we will consider September 1, 1993, the  Y4-date when the Commission's rate regulations became effective, as the service date.#x6X@`7X@# The Commission received the complaint on September 2, 1993. x5. Paragon attempted to justify its CPS price through an FCC Form 393 filed on November 15, 1993. Paragon amended its justification on May 31, 1994 in response to a Cable Services Bureau Order citing common deficiencies observed in benchmark filings  Yv-generally; v44 Y[ -ԍ#Xw PE37}XP# Cable Operators' Rate Justification Filings, DA 94526, 9 FCC Rcd 7752 (Cab. Serv.  YF -Bur. 1994).#x6X@`7X@# and on December 14, 1994, December 27, 1994 and January 11, 1995 in response to Commission letters which requested further clarification of Paragon's amended  YH-showing.A H4 Y-ԍ Letter from Peter G. Wolfe, FCC, toGeorge James, Paragon Cable Manhattan (Dec. 2, 1994); letter from Peter G. Wolfe, FCC, to Arthur H. Harding, Esq., counsel for Paragon Cable Manhattan (Dec. 21, 1994); letter from Peter G. Wolfe, FCC, to Arthur H. Harding, Esq. (Jan. 9, 1995).A  X - Discussion  x6. Paragon asserts that its monthly CPS tier price of $9.09 per subscriber is justified by its benchmark filing because its price equals the maximum permitted charge calculated in the filing. Upon review of Paragon's FCC Form 393, as amended, we have found the following errors that require a recalculation of Paragon's maximum permitted CPS price: x` ` a. Paragon has included as franchise fees on Form 393, Part II, Worksheet 1, xLine 108 $54,837 in payments to the Manhattan community access organization to xsupport public, educational and governmental ("PEG") access channels. The effect of xincluding these payments on Line 108 is to deduct them from Paragon's regulated xrevenues as of the initial date of regulation and thereby to reduce its base rate per xchannel. Under our rules, franchise fees are not included in an operator's regulated  Y-xrevenues for purposes of calculating its maximum permitted charge.B< 4 Y"-ԍ 47 C.F.R.  76.922(a).B The reason for xthis exclusion is that the benchmark was calculated based on data that excluded  Y-xfranchise fees. 4 Y_&-ԍ Report and Order and Further Notice of Proposed Rulemaking, MM Docket No. 92266, FCC 93177, 8 FCC Rcd 5631 at 613940, Appendix E, paras. 1416 (1993). However, other external costs, including the costs of providing PEG"0*(("  Y-xchannels, were not excluded from the benchmark calculation.F4 Yy-ԍ Id. at 5792, para. 257.F For this reason, such  Y- xcosts are included in regulated revenues, and changes in these costs after the initial (#(#X Y-xdate of regulation are reflected in adjustments to an operator's permitted rates.{4 Y-ԍ See 47 C.F.R.  76.922(d). This provision expressly distinguishes franchise fees from other costs of complying with franchise requirements, including PEG channel support fees, for purposes of external cost adjustments. 47 C.F.R.  76.922(d)(3)(iv)(B) and (C). Changes in franchise fees are reflected in an adjustment separate from the maximum permitted monthly charge. 47 C.F.R.  76.922(d)(viii).  Y-xAccordingly, Paragon's PEG access fees should be included in the per channel rate (#(#X Y-xcalculated in Part II of its Form 393.a4 Y' -ԍ See SBC Media Ventures, Inc., DA 941251, para. 19 (Cab. Serv. Bur. released Nov. 22, 1994). Paragon argues that 47 U.S.C.  542(g) defines franchise fees to include PEG channel support fees required under a franchise agreement that was entered into after October 30, 1984. However, this definition applies only to the statutory limitation of franchise fees to five percent of gross revenues. The section of the Communications Act that governs rate regulation, by contrast, expressly distinguishes franchise fees from obligations to support PEG channels. 47 U.S.C.  543(b)(2)(C)(v) and (vi). We therefore adjust Paragon's xxsubmission to  Y-xexclude the PEG charges from the franchise fees deducted on line 108.v4 Y9-ԍ We do not, however, disallow $4897 which Paragon paid to New York City representing 5% of the imputed value of free services provided by Paragon. Unlike the PEG payments discussed above, those payments constitute a franchise fee within the meaning of our rules. Whether these payments result in the franchising authority collecting a franchise fee in excess of 5% of gross revenues, in violation of 47 U.S.C.  542, is irrelevant for purposes of Form 393. x` ` b. On its Form 393 filing, Paragon calculated the Inflation Adjustment Factor x(line 127, Worksheet 1, Part II) as of the end of October 1993 using data released by xthe U.S. Department of Commerce on August 31, 1993. However, Paragon's use of xOctober 1993 as the date through which it calculated the inflation adjustment is ximpermissible. Paragon was served with a rate complaint prior to September 1, x1993. The instructions to FCC Form 393, page 11, require that the Inflation xAdjustment Factor be calculated using "the number of whole months from September x30, 1992 to the date you will submit this form." In general, a cable operator must xsubmit a justification of its rates no more than 30 days after service of the earliest  Y-xvalid complaint.L94 Yz%-ԍ See 47 C.F.R.  76.956(a).L Paragon cannot be permitted to claim an additional inflation xadjustment simply because it did not file its Form 393 within this 30day period. We xmust therefore recalculate the Inflation Adjustment Factor on the basis of the most"b0*((+" xaccurate data currently available for the latest date contemplated by the Form 393  Y-xinstructions.4 Yb-ԍ See 47 C.F.R.  76.922(b)(9)(iii) (if a cable operator fails to justify its rates, rates must be adjusted in accordance with the most accurate data available at the time of analysis). On July 29, 1994, the Department of Commerce released corrected xinflation data including Gross National Product Price Index ("GNPPI") figures of x122.3 for the third quarter of 1992 and 125.7 for the third quarter of 1993. Using xthese GNPPI figures, we calculate 1.028 as the Inflation Adjustment Factor through xSeptember 1993, the base date Paragon should have used in justifying its rates. x7. Because of these errors, we conclude that Paragon has failed to demonstrate that its price for the CPS tier was not unreasonable. We will therefore set a price for this tier,  Y1-incorporating the adjustments discussed above. These adjustments have the cumulative effect of reducing the maximum permitted monthly CPS tier price from $9.09 (as Paragon  Y -calculated) to $8.41.x d4 Y-ԍ These adjustments have the effect of causing Paragon to calculate its permitted rates from Form 393, Part II, Worksheet 2 rather than Worksheet 1. However, Paragon failed to  Y-respond to the Commission's request that it complete Worksheet 2 of Form 393. See Paragon Response to Federal Communications Commission's Request (filed December 14, 1994). Therefore, we have computed Worksheet 2 by using data supplied by Paragon on its Form 1200 filing. Xx` ` (#  Y - Conclusions  x8. Upon review of the record herein, we conclude that Paragon's showing supports a maximum reasonable CPS tier price of $8.41 per month (plus franchise fee) for the period  Yz-September 2, 1993 to May 14, 1994.zxz 4 Y-  Ѝ#Xw PE37}XP# This finding is based solely on the representations of Paragon listed in paragraph 5,  Y-supra, and the modifications described in paragraphs 6 and 7, supra. Should information come to our attention that these representations were inaccurate in any material way, 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 specifically addressed herein.z We further determine that we will order an appropriate refund pursuant to Section 76.957 of the Commission's Rules, 47 C.F.R.  76.957, in order to reimburse subscribers for the amount they paid in excess of a reasonable price. x9. We further conclude that Paragon must reflect in its FCC Form 1200 rate filing for the period after May 14, 1994 the fact that Paragon's price during the earlier period was"0*(("  Y-unreasonable.4 Yy-ԍ We reviewed Paragon's FCC Form 1200 rate filing and confirmed that Paragon calculated its rate for the period after May 14, 1994 using the rate that we find in this Order to be unreasonable. We reserve the right to make further adjustments to Paragon's price for the period after May 14, 1994, upon completion of our review of Paragon's FCC Form 1200 rate filing. x10. Accordingly, IT IS ORDERED, pursuant to Section 0.321 of the Commission's Rules, 47 C.F.R.  0.321, that the August 31, 1993 complaint against the cable programming service price charged by Paragon Cable Manhattan in New York, New York, CUID No.NY0104, and all other complaints relating to the same price, ARE GRANTED TO THE EXTENT INDICATED HEREIN. x11. IT IS FURTHER ORDERED, that the benchmark filing submitted by Paragon Cable Manhattan with respect to New York, New York, CUID No. NY0104, for the period of September 2, 1993 to May 14, 1994, justifies a maximum price of $8.41 per month (plus franchise fee) for Paragon Cable Manhattan's cable programming service tier. x12. IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's Rules, 47 C.F.R. 76.961, that Paragon Cable Manhattan shall refund to subscribers that  Yy-portion of the amounts paid for cable programming service from September 2, 1993yK4 Yu-ԍOur jurisdiction to order a refund dates from the earliest date a valid complaint is filed with the Commission. 47 C.F.R.  76.961 (b). to May 14, 1994, that exceeded $8.41 (plus franchise fee) per month and was thus unreasonable, plus interest to the date of the refund. x13. IT IS FURTHER ORDERED, that Paragon Cable Manhattan shall promptly determine the overcharges to CPS subscribers for the stated period, and shall within 30 days of the release of this Order file a report with the Chief, Cable Services Bureau, stating the cumulative refund amount so determined (including franchise fees and interest), describing the calculation thereof, and describing its plan to implement the refund within 60 days of Commission approval thereof. x14. IT IS FURTHER ORDERED, pursuant to Section 76.922(b)(4)(C) of the Commission's rules, 47 C.F.R.  76.922(b)(4)(C), that Paragon Cable Manhattan shall, within 30 days of the release of this Order, revise its Form 1200 filing with respect to New York, New York, CUID No. NY0104, for the period beginning May 15, 1994, to reduce the monthly charge per tier as of March 31, 1994 for Tier 2 (Line A6b) to $8.41 (plus franchise fee). x15. IT IS FURTHER ORDERED, that Paragon Cable Manhattan shall place into"0*(( " effect, within 30 days after its submission of the revised Form 1200 filing required above, a price that reflects the reduction in the CPS rate determined in this Order. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhMeredith J. Jones x` `  hhChief, Cable Services Bureau