WPC:y 2a BKf Z CG Times3|w=Xw PE37XP",tB^ f ^;C]ddCCCdCCCCddddddddddCCY~~vCN~sk~CCCddCYdYdYCdd88d8ddddJN8ddddYYdYd4dddddCddddddddd8YYYYYY~Y~Y~Y~YC8C8C8C8ddddddddddYdddddsdXdXXXddx|X~d~d|XdddddddC8ddddCdoddd|8|H~d<|8dtddddHHdlLlLlLkd|H|8~ddddddddXXXd~ddkd~ddxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCYQQddddddFddddFCChhd44ddzzdddvooChdF"dhd9dCCzCddoddCdYds]zUvdYYCCCCz~ozoY~NYdYC8YooYdYzsdzdd~YYzozzz~CdzYzzzzCCdddddddzCsdYC\   pxtll\tll@\@\`LHP4Si; LPT1; Rm. 907_1HPLAS4SI.PRSXw PE37\:WXP2L E Z <  c-#XR  P7jQ}XP#HP4Si; LPT1; Rm. 907_1HPLAS4SI.PRSx  @\:WX@3|w2K~ vp?k"i~'^#)0<><q*"xxxxWWxxxWWkkxxx  x4 Y -#XP\  P6QyoXP##XP\  P6QyoXP#э#Xw PE37}XP#  Cable Operators' Rate Justification Filings, DA 94526, 9 FCC Rcd 7752 (Cab. Serv.  Y -Bur. 1994).#x6X@`7X@#> and on February 8, 1995 for all areas in response to a Cable Services Bureau Public Notice offering operators the opportunity to make optional  Yy-supplemental filings. ydx4 W-#XRo=  x7.Q E:XX#э Public Notice: Cable Services Bureau Announces Optional Procedures with Respect to  Yw-Pending PreMay 15 Benchmark Cases, # XR  P7jQ}XP#DA 941556 (Dec. 29, 1994); see also Public Notice: Cable Services Bureau Announces Extension of Time to File Under Optional  YK-Procedures Plan with Respect to Pending PreMay 15 Benchmark Cases, DA 9587 (Jan. 20, 1995).  XK- 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 charges as calculated in the  Y-filings. However, u  pon review we have determined that Viacom has not correctly calculated its maximum permitted prices, and it is therefore appropriate to make the following adjustment to Viacom's calculations in its Form 393 filings prior to February 8, 1995: ` ` a. 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 prices), and if based on this data Form 393 indicated that its prices were reasonable, then Viacom  Y -would have successfully justified its prices under paragraph 94 of the Third Order on"  0*(("  Y-Reconsideration.y x4 Yy-#XP\  P6QyoXP##XP\  P6QyoXP#э#Xw PE37}XP# Third Order on Reconsideration, MM Docket Nos. 92266 and 92262,  FCC 9440, 9  Yd-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 prices. Specifically, Viacom used data 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 November 1993, March 1994 and August 1994 (Line 124), which are inconsistent with an  Yx-attempt to justify rates based on August 1993 data. Viacom's calculation of the Inflation Adjustment Factors are thus incorrect. ` ` b. We must therefore recalculate the Inflation Adjustment Factor on the basis of the most accurate data currently available for the date on which Viacom initially  Y -filed.r .x4 Y-#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@#r On its amended Form 393 filings for CUID Nos. CA0110 and CA0112, Viacom entered 14 months on line 124, indicating that these filings were as of the end of November 1993. On its Form 393 filings for CUID Nos. CA0111 and CA1513, Viacom entered 18 months and 23 months, respectively, indicating that these filings were as of the end of March 1994 and August 1994. However, Viacom's use of the 18 months and the 23 months entries is impermissible. Viacom was required to file a justification of its CPS prices for all of these CUIDs no later than December 13,  Yd-1994.dx4 Y-#XR  P7jQ}XP##XR  P7jQ}XP#э 47 C.F.R.  76.956(a) (operator must file a response within 30 days of the date of service of a complaint). Since Viacom filed its initial FCC Form 393s by that date, the instructions to Form 393 required it to calculate the inflation adjustments only through November  Y6-1993.56d x4 YK-#XR  P7jQ}XP##XR  P7jQ}XP#э FCC Form 393, page 11, instructions for line 124 (Inflation Adjustment Factor is calculated using "the number of whole months from September 30, 1992 to the date you will submit this form").5 Viacom cannot be permitted to claim an additional inflation adjustment simply because it filed amended Form 393s at later dates. On July 29, 1994, the Department of Commerce released corrected inflation data including Gross National Product Price Index (GNPPI) figures of 122.3 for the third quarter of 1992 and 125.7 for the third ##Xquarter of 1993. Using these GNPPI figures, we calculate an Inflation Adjustment Factor through November 1993, the base date Viacom should have used in justifying its rates, of 1.032. This adjustment is consistent with the Inflation Adjustment Factor that Viacom used in its optional filing of February 8, 1995.(# "~ 0*((|" ` ` c. In its February 8, 1995 optional filing, Viacom reduced the number of satellite channels as of the initial date of regulation that it used to calculate the benchmark on Form 393, Part II, Worksheet 1, Line 121 from 22 to 21 and also reduced the number of satellite channels as of September 30, 1992 that Viacom used to calculate the benchmark on Form 393, Part II, Worksheet 2, Line 220 from 21 to 20. We rely on these revisions to recompute Viacom's maximum permitted rate. 7. Because of these errors, we conclude that Viacom has failed to demonstrate that its prices for the CPS tier were not unreasonable. We will therefore set prices for this tier, incorporating the adjustments discussed above. These adjustments have the effect of reducing the maximum permitted monthly CPS tier price for each franchise area to the levels set forth in Appendix B.  X - Conclusions  8. Upon review of the record herein, we conclude that Viacom's showing supports the maximum reasonable CPS tier price for each franchise area set forth in Appendix A (plus franchise fee) for the period from the filing of the earliest complaint in each franchise area  YK-(as set forth in Appendix A) to May 14, 1994.YxKx4 Y-#XR  P7jQ}XP#э This finding is based solely on the representations of Viacom listed in paragraph 5,  Y-supra, and the modifications described in paragraph 6, supra. Should information come to our 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 specifically addressed herein.Y With respect to Healdsburg, California, CUID No. CA0111, we determine that the refund at issue is such a de minimis amount that it would not serve the public interest to order a refund. With respect to the other franchise areas addressed herein, we will order appropriate refunds 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.  9. We further conclude that Viacom must reflect in its FCC Form 1200 rate filings for the period after May 14, 1994 the fact that Viacom's prices during the earlier period  Y|-were unreasonable.|x4 Y5"-#XR  P7jQ}XP#э We reviewed Viacom's FCC Form 1200 rate filings and confirmed that Viacom calculated its rates for the period after May 14, 1994 using the rates that we find in this Order to be unreasonable. We reserve the right to make further adjustments to Viacom's prices for the period after May 14, 1994, upon completion of our review of Viacom's FCC Form 1200 rate filings. "7 0*((."Ԍ10. We further conclude that Viacom has submitted in good faith an optional  Y-supplemental filing in response to our December 29, 1994 Public Notice.x4 Wb-#XRo=  x7.Q E:XX#э Public Notice: Cable Services Bureau Announces Optional Procedures with Respect to  YK-Pending PreMay 15 Benchmark Cases, # XR  P7jQ}XP#DA 941556 (Dec. 29, 1994). As provided in the Public Notice, we will relieve Viacom of its obligation to obtain advance Commission approval of adjustments to its CPS prices for one year following the release of this Order. 11. 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 prices charged by Viacom Cable in Cloverdale, California, CUID No. CA0110; Healdsburg, California, CUID No. CA0111; Sonoma County, CaliforniaHCG Cablevision Inc., CUID No. CA0112; and Windsor, California, CUID No. CA1513, and all other complaints in these franchise areas related to the same prices, ARE GRANTED TO THE EXTENT INDICATED HEREIN. 12. IT IS FURTHER ORDERED that the benchmark filings submitted by Viacom Cable with respect to Cloverdale, California, CUID No. CA0110; Healdsburg, California, CUID No. CA0111; Sonoma County, CaliforniaHCG Cablevision Inc., CUID No. CA0112; and Windsor, California, CUID No. CA1513, for the period beginning with the filing of the first valid complaint in each franchise area and ending on May 14, 1994, as set forth on Appendix A, justify the maximum price in each franchise area set forth in Appendix B (plus franchise fee) for Viacom Cable's cable programming service tier. 13. IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's Rules, 47 C.F.R.  76.961, that Viacom Cable shall refund to subscribers in Cloverdale, California, CUID No. CA0110; Sonoma County, CaliforniaHCG Cablevision Inc., CUID No. CA0112; and Windsor, California, CUID No. CA1513 that portion of the amounts paid for cable programming service for the period from the filing of the first valid complaint in  Y-each franchise area (as set forth on Appendix A)dx4 Y-#XR  P7jQ}XP#э Our 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 which exceeded the maximum price for each franchise area set forth in Appendix B (plus franchise fee) per month and was thus unreasonable, plus interest to the date of the refund. 14. IT IS FURTHER ORDERED that Viacom Cable shall promptly determine the overcharges to CPS subscribers for the stated periods, 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.l " 0*((!" 15. 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 Viacom Cable shall, within 30 days of the release of this Order, revise its Form 1200 filings with respect to Cloverdale, California, CUID No. CA0110; Healdsburg, California, CUID No. CA0111; Sonoma County, CaliforniaHCG Cablevision Inc., CUID No. CA0112; and Windsor, California, CUID No. CA1513, 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 equal the maximum price in each franchise area set forth in Appendix B (plus franchise fee). 16. IT IS FURTHER ORDERED that Viacom Cable shall place into effect, within 30 days after its submission of the revised Form 1200 filings required above, prices that reflect the reductions in the CPS rates determined in this Order. 17. IT IS FURTHER ORDERED, pursuant to Section 76.960 of the Commission's rules, 47 C.F.R.  76.960, that Viacom Cable shall not be required to obtain advance Commission approval of adjustments to its CPS prices for one year following the release of  Y-this Order.` ` ` `  ` `  hh,FEDERAL COMMUNICATIONS COMMISSION ` `  hh,Meredith J. Jones ` `  hh,Chief, Cable Services Bureau  ?<#x6X@`7X@#l Ѓpp  xx- "0*((`"  X<H #XP\  P6QyoXP#Appendix A  X- CUID No.` `  Date First ComplaintppDate Complaint  X-` `  Filed with FCCppServed  Xv-0110` `  11/15/93Vpp11/13/93  X_-0111` `  11/15/93Vpp11/13/93  XH-0112` `  11/15/93Vpp11/13/93  X1-1513` `  11/16/93Vpp11/11/93 " 0*0*0*| "  X-H Appendix B  X- CUID No.` `  Actual RatesVppMaximum Reasonable Rates  X-0110` `  $11.02Vpp$10.85  Xv-0111` `  $11.08Vpp$11.05  X_-0112` `  $11.14Vpp$10.91  XH-1513` `  $11.14Vpp$10.89