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A.  a7DocumentgDocument Style StyleyXX` ` (#` BibliogrphyBibliography:X (# 2:M8 8 9 1:a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  X(# a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` a3DocumentgDocument Style Style B b  ?  1.  a3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# 2> ; ;<K=a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# a5Right ParRight-Aligned Paragraph Numbers _o` `  @h(1)  hh#(#h a6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# 2}AM>&?&@@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 Technicala1DocumentgDocument Style Style\s0  zN8F I. ׃  a5TechnicalTechnical Document Style)WD (1) . 21DA6BBCa6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   a4TechnicalTechnical Document Style8bv{ 2  a.   2dGcD%EE31Fa1TechnicalTechnical Document StyleF!<  ?  I.   a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical 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)Documentg2MGeKKLPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:><q*"xxxxWWxxxWWkkxxxl Y -ԍ#Xw PE37}XP# Pub. L. No. 102385, 106 Stat. 1460 (1992); Communications Act,  623(c), as  Y| -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.f~ >l Y-ԍ#Xw PE37}XP# 47 C.F.R.  76.956.f Under our rules, an operator may attempt to justify its prices through either a benchmark showing or a  Y-costofservice showing.i/ >l Ym-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.Yv>l Y-ԍ#Xw PE37}XP# Id.Y  YH-x3. The Commission's original rate regulations took effect on September 1, 1993.2H>l Y-ԍ#Xw PE37}XP# Order in MM Docket No. 92266, Implementation of Sections of the Cable Television  Yw-Consumer Protection and Competition Act of 1992: Rate Regulation, FCC 93372, 58 Fed. Reg. 41042 (Aug. 2, 1993).2  Y1-The Commission subsequently revised its rate regulations effective May 15, 1994.u1>l Y-ԍ#Xw PE37}XP# 47 C.F.R.  76.922(b).u 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. >l YQ#-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 ~>l Y&-ԍ#Xw PE37}XP# Id.Y Generally, to justify their prices for the period beginning" 1 0*0*0*y" May 15, 1994 through a benchmark showing, operators must use the FCC Form 1200  Y-series. >l Yy-ԍ#Xw PE37}XP# 47 C.F.R.  76.922(b)(6); see also Second Order on Reconsideration at 4189 n.195.  X-  X-Procedural Matters  x4. The first valid CPS complaints for the franchise areas addressed in this Order were completed and served on Vision Cable and received by the Commission on the dates set forth in Appendix A. x5. Vision Cable submitted its initial CPS price justification through an FCC Form 393 filed on November 11, 1993 in response to the earliest valid complaint filed with the Commission for Morehead, North Carolina (CUID No. NC0201). Vision Cable filed its first FCC Form 393 filings for Carter, North Carolina, CUID No. NC0202 on November 15, 1993; Morehead, North Carolina, CUID No. NC0168 on November 18, 1993; Beaufort, North Carolina, CUID No. NC0196, Atlantic Beach, North Carolina, CUID No. NC0197, Pine Knoll Shores, North Carolina, CUID No. NC0198, Emerald Isle, North Carolina, CUID No. NC0199, Cape Carteret, North Carolina, CUID No. NC0200, Swansboro, North Carolina, CUID No. NC0203, Craven, North Carolina, CUID No. NC0205, and Cedar Point, North Carolina, CUID No. NC0815 on January 10, 1994; and Indian Beach, North Carolina, CUID No. NC0282 on January 12, 1994. Vision Cable supplemented its filings on June 21, 1994 in response to a Cable Services Bureau Order citing common deficiencies  Y-observed in benchmark filings generally >l Y`-ԍ Cable Operators' Rate Justification Filings, DA 94526, 9 FCC Rcd 7752 (Cab. Serv. Bur. 1994). by submitting a systemwide filing that included each franchise area in which a complaint was pending. The record indicates that the CUIDs addressed here constitute twelve separate franchise areas but are served through a single cable system, that Vision Cable charges the same prices for all rateregulated cable services and associated equipment in each franchise area, and that Vision Cable offers the same channel lineups in all twelve areas. Because there are no significant distinctions among Vision Cable's services and rates in these twelve areas, we will permit these rates to be justified through a single Form 393 filing. Vision Cable supplemented its Form 393 filings on February 7, 1995 in response to a Cable Services Bureau Public Notice offering operators  YN-the opportunity to make optional supplemental filings. N.>l Y-!-ԍ Public Notice: Cable Services Bureau Announces Optional Procedures with Respect to  Y"-Pending PreMay 15 Benchmark Cases, DA 941556 (Dec. 29, 1994); see also Public Notice: Cable Services Bureau Announces Extension of Time to File Under Optional  Y#-Procedures with Respect to Pending PreMay 15 Benchmark Cases, DA 9587 (Jan. 20, 1995).  X - Discussion   Y-x6. Vision Cable asserts that its monthly price of $ 14.84 per subscriber for the Cable" 0*0*0* " Service Tier is justified by its benchmark filing because its price is equal to the maximum  Y-permitted charge of $ 14.84 as calculated in the benchmark filing made on June 21, 1994.  Y-Vision Cable did not attempt to justify its monthly prices of $ 2.95 per subscriber for the  Y-SuperStation Package and $ 1.15 per subscriber for the Preferred Service Package in its benchmark filing on June 21, 1994. In Vision Cable's amended filing of February 7, 1995, Vision Cable calculated maximum permitted prices of $12.29 for the Cable Service Tier,  Yv-$ 2.59 for the SuperStation Package and $ 1.94 for the Preferred Service Package. However, upon review of the entire record, we have determined that Vision Cable has not correctly calculated its maximum permitted prices, and it is therefore appropriate to make the following adjustments to Vision Cable's calculations in its Form 393 filed on June 21, 1993:   ` ` a. In Column G of Schedules A and C of Part III of its FCC Form 393, Vision Cable did not correctly grossup its tax entries. By placing entries in these columns, Vision Cable confirms that it is a taxpaying entity (i.e., a "C" corporation). However, Vision Cable incorrectly calculated its income tax by simply applying the corporate tax rate to its return on investment. The Commission has stated that taxpaying business entities must grossup their tax entries in Column G of Schedules A  Yy-and C (i.e., calculate the tax as a percentage of return on investment plus tax). ey* Y-ԍ First Order on Reconsideration, Second Report and Order, and Third Notice of  Y-Proposed Rulemaking, MM Docket No. 92266, FCC 93428, 9FCC Rcd 1164, 1196 n.92  Y-(1993) ("Our provision to grossup the return amount for income taxes applies to all tax paying business entities to the extent that they have a state or federal income tax obligation").  W-See also Cable Television Rate Regulation Questions and Answers Relating To FCC Form  Y-393, Question and Answer No.14 (released July 30, 1993) ("The federal tax expense should be calculated based upon a pretax return on investment"). By understating its tax entries in Column G, an operator reduces its effective rate of return on equipment and installations and thereby could increase its CPS price. We therefore recalculate Column G of Schedules A and C (and subsequent steps) using correctly adjusted tax entries. ` hp` hpQ` ` b. In its calculations on Form 393, Part I, and Form 393, Part II, Worksheet 1, Vision Cable did not count as rateregulated or as satellite channels seven channels  Y-that it offered as part of two a la carte packages of channels available either as packages or individually. The information before the Commission concerning Vision  Y-Cable's a la carte packages for the cable system serving CUID Nos. NC0168, NC0196, NC0197, NC0198, NC0199, NC0200, NC0201, NC0202, NC0203, NC0205, NC0282, and NC0815 shows that Vision Cable restructured its cable service offerings in these twelve franchise areas in the same manner that it restructured its cable services and prices in the system serving the City of Charlotte and Mecklenburg County, North Carolina, where the Commission has determined that the channels in the SuperStation Package and Preferred Service Package should be treated as rate"  0*0*0*"ԫ Y-regulated service tiers.N Yy-ԍ Vision Cable of North Carolina, Inc., Charlotte, North Carolina, LOI 9324, DA 94 Yd-1552 (Cab. Serv. Bur. released December 22, 1994) ("Mecklenburg County"). In the  YO-Mecklenburg County case, the SuperStation Package included three channels (WTBS, WOR, and WGN) that were offered before September 1, 1993 as part of the Basic Tier and one channel (TNT) that was offered previously as part of the Cable Service Tier. Vision Cable  Y -created the Preferred Service Package by including the same four channels (Sport South, SciFi Channel, Comedy Central, and Country Music TV) previously offered as a separate Preferred Service Tier.  Prior to September 1, 1993, two of the channels in the SuperStation Package (WTBS and WGN) were offered as part of the Basic Tier and two channels (TNT and Discovery) were part of the Cable Service Tier; the three channels in the Preferred Service Package (SciFi, Country Music TV, and The Learning Channel) were previously offered as a separate Preferred Service Tier.  Y-Consistent with the Commission's decision in the Mecklenburg County case, the SuperStation Package and the Preferred Service Package should have been treated as  Ya-rateregulated service tiers.8a Y-ԍ Id.8 Vision Cable's a la carte offerings in this case are  YL-identical to the Mecklenburg County case, except in this case the Preferred Service consisted three channels rather than four channels and the identity of some of those channels was different. The difference in the packages, however, is inconsequential and the material facts are indistinguishable. Vision Cable's maximum permitted prices are therefore determined by including the seven channels of the SuperStation and Preferred Service Packages as additional CPS tiers, increasing the total rateregulated channels from 25 to 32 and the total satellite channels from 19 to 26. This adjustment is consistent with the information that Vision Cable included in its amendment on February 7, 1995.   ` ` c. Vision Cable submitted additional information in response to the Commission's inquiry which revised upward the number of nonaddressable converters leased to subscriber as of the initial date of regulation. This change caused corresponding increases in the gross book value of converters and other figures which  Y -must be reported on Form 393, Part III, Schedule C.   YN -ԍ Letter from Gwendolyn G. Flowers, FCC, to Joel Reichard, Controller, Vision Cable of North Carolina, Inc. (Dec. 19, 1994); Letter from Joel Reichard to Gwendolyn G. Flowers, FCC (Dec. 21, 1994). We have recalculated Schedule C (and subsequent steps) to reflect Vision Cable's revised estimate of the number of nonaddressable converter units leased to subscribers. ` ` d. Vision Cable's Form 393, Worksheet 1, Line 104 entry does not represent its current monthly equipment revenue as of the initial date of regulation. Vision Cable should have entered on line 104 the monthly equipment revenue figure it"0*0*0*m"  Y-entered on Line 34 of Step G of Part III. Yy-ԍ See Questions and Answers on Completion of FCC Form 393 and Associated Filing  Yd-Requirements, Question and Answer No. 7 (released Nov. 10, 1993) ("Where operators have restructured equipment rates as of September 1, 1993 in accordance with our regulations... operators will enter on Line 104 the same, or nearly the same, number as on Line 301.").  Accordingly, we have recalculated Worksheet 1 using the correct entry.    ` hpQ` hpQx7. Because of these errors, we conclude that Vision Cable has failed to demonstrate that its prices for the CPS tiers were not unreasonable. We will therefore set prices for these tiers incorporating the adjustments discussed above. In doing so, we must also recalculate the Inflation Adjustment Factor in Form 393, Part II, Worksheet 1. On its amended Form 393, Vision Cable calculated the Inflation Adjustment Factor using data it relied on when it set its CPS prices. If based on this data Form 393 indicated that Vision Cable's prices were reasonable, then Vision Cable would have successfully justified its prices under paragraph 94  Y -of the Third Order on Reconsideration. 8e Y-ԍ Third Order on Reconsideration, MM Docket Nos. 92266 and 92262, FCC 9440, 9 FCC Rcd 4316, 4348 (1994). However, Vision Cable has not shown that its prices were reasonable, so we must recalculate the Inflation Adjustment Factor on the basis of the most accurate data currently available for the date that Vision Cable first filed Form  Y -393 in each franchise area.J e Y\-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). The instructions to FCC Form 393, page II, requires that the Inflation Adjustment Factor be calculated using "the number of whole months from September 30, 1992 to the date you will submit this form. In general, a cable operator mut submit a justification for its rates no later  Y-than 30 days after service of the earliest valid complaint." 47 C.F.R.  76.956(a). The Inflation Adjustment Factor therefore must be calculated as if Vision Cable filed Form 393 within this 30day period. On July 29, 1994, the U.S. Department of Commerce released corrected inflation data including Gross National Product Price Index ("GNPPI") figures of 122.3 for the third quarter of 1992, 125.7 for the third quarter of 1993, and 126.5 for the fourth quarter of 1993. Using these GNPPI figures, we calculate an Inflation Adjustment Factor of 1.028 through September 1993 for CUID No. NC0199; 1.030 through October 1993 for CUID Nos. NC0201 and NC0202; 1.032 through November 1993 for CUID No. NC0168; and 1.034 through December 1993 for NC0196, NC0197, NC0198, NC0200, NC0203, NC0205, NC0282, and NC0815.  Y-` hpQ` hpQ x 8. These adjustments have the cumulative effect of reducing the maximum permitted monthly price for the Cable Service Tier from $14.84 (as Vision Cable calculated in its benchmark filing on June 21, 1994) to the amounts set forth in Appendix B. These adjustments further result in the maximum permitted prices set forth in Appendix B for the SuperStation Package and the Preferred Service Package. "0*0*0*}"Ԍ X- Conclusions  x9. Upon review of the record herein, we conclude that Vision Cable's showing supports the maximum reasonable CPS tier prices set forth in Appendix B (plus franchise fee) for the period from the filing of the earliest complaint in each franchise area (as set forth  Y-on Appendix A) to May 14, 1994.X01Í ÍX01Í Í>xe Y-ԍ This finding is based solely on the representations of Vision Cable listed in paragraph  Y-5, supra and the modifications described in paragraphs 6 and 7, 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.> 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. x10. We further conclude that Vision Cable must reflect in its FCC Form 1200 rate filings for the period after May 14, 1994 the fact that Vision Cable's prices during the earlier  Y -period were unreasonable. e Y-ԍ We reviewed Vision Cable's FCC Form 1200 rate filings and confirmed that Vision 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 Vision Cable's prices for the period after May 14, 1994, upon completion of our review of Vision Cable's FCC Form 1200 rate filings. x x11. We further conclude that Vision Cable has submitted in good faith a timely  Y-optional supplemental filing in response to our December 29, 1994 Public Notice. e Y-ԍ Public Notice: Cable Services Bureau Announces Optional Procedures with Respect to  Y-Pending PreMay 15 Benchmark Cases, DA 941556 (Dec. 29, 1994). As provided in the Public Notice, we will relieve Vision Cable of its obligation to obtain advance Commission approval of adjustments to its CPS prices for one year following the release of this Order. x12. 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 Serviceprices charged by Vision Cable of Morehead, Inc. in Morehead City, North Carolina, CUID No. NC0168; Beaufort, North Carolina, CUID No. NC0196; Atlantic Beach, North Carolina, CUID No. NC0197; Pine Knoll Shores, North Carolina, CUID No. NC0198; Emerald Isle, NC, CUID No. NC0199; Cape Carteret, North Carolina, CUID No. NC0200; New Port, North Carolina, CUID No. NC0201; Carter, North Carolina, CUID No. NC0202; Swansboro, North Carolina, CUID No. NC0203; Craven, North Carolina, "|) 0*0*0*m" CUID No. NC0205; Indian Beach, North Carolina, CUID No. NC0282; and Cedar Point, North Carolina, CUID No. NC0815, ARE GRANTED TO THE EXTENT INDICATED HEREIN. x13. IT IS FURTHER ORDERED that the benchmark filings submitted by Vision Cable of Morehead, Inc. with respect to Morehead City, North Carolina, CUID No. NC0168; Beaufort, North Carolina, CUID No. NC0196; Atlantic Beach, North Carolina, CUID No. NC0197; Pine Knoll Shores, North Carolina, CUID No. NC0198; Emerald Isle, North Carolina, CUID No. NC0199; Cape Carteret, North Carolina, CUID No. NC0200; New Port, North Carolina, CUID No. NC0201; Carter, North Carolina, CUID No. NC0202; Swansboro, North Carolina, CUID No. NC0203; Craven, North Carolina, CUID No. NC0205; Indian Beach, North Carolina, CUID No. NC0282; and Cedar Point, North Carolina, CUID No. NC0815, 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 prices in each franchise area set forth in Appendix B (plus franchise fee) for Vision Cable of Morehead, Inc.'s Cable Programming Service Tiers. x14. IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's Rules, 47 C.F.R.  76.961, that Vision Cable of Morehead, Inc. shall refund to subscribers that portion of the amounts paid for cable programming service for the period from the filing  Y4-of the first valid complaint in each franchise area (as set forth on Appendix A)4e Y-ԍ 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 were thus unreasonable, offset in each franchise area by the amounts paid by each subscribers during the same period for cable programming service tiers which were less than the maximum permitted price, plus interest to the date of the refund. x15. IT IS FURTHER ORDERED that Vision Cable of Morehead, Inc. shall promptly determine the overcharges to CPS subscribers for the stated periods, and shall "|b0*0*0*O"  U@\ 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.T x16. 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 Vision Cable of Morehead, Inc. shall, within 30 days of the release of this Order, revise its Form 1200 filings with respect to Vision Cable of Morehead, Inc. in Morehead City, North Carolina, CUID No. NC0168; Beaufort, North Carolina, CUID No. NC0196; Atlantic Beach, North Carolina, CUID No. NC0197; Pine Knoll Shores, North Carolina, CUID No. NC0198; Emerald Isle, North Carolina, CUID No. NC0199; Cape Carteret, North Carolina, CUID No. NC0200; New Port, North Carolina, CUID No. NC0201; Carter, North Carolina, CUID No. NC0202; Swansboro, North Carolina, CUID No. NC0203; Craven, North Carolina, CUID No. NC0205; Indian Beach, North Carolina, CUID No. NC0282; and Cedar Point, North Carolina, CUID No. NC0815, for the period beginning May 15, 1994, to include the SuperStation Package and the Preferred Service Package as Cable Programming Service Tiers and to reduce the monthly charge per tier as of March 31, 1994 for Tier 2 (Line A6b) to equal the maximum prices in each franchise area set forth in Appendix B (plus franchise fee). x17. IT IS FURTHER ORDERED that Vision Cable of Morehead, Inc. 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.{{ x18. IT IS FURTHER ORDERED, pursuant to Section 76.960 of the Commission's rules, 47 C.F.R.  76.960, that Vision Cable of Morehead, Inc. shall not be required to obtain advance Commission approval of adjustments to its CPS prices for one year following the release of this Order. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhMeredith J. Jones x` `  hhChief, Cable Services Bureau  ?!<#x6X@`7X@#  Xu"-#Xw PE37}XP#  "u" 0*0*0*#"   Appendix A  Y- CUID No.` `  Date First ComplaintppQQQQDate Complaint  Y-x` `  Filed with FCChppQQServed  Y-  Yv-NC0168` `  121693` @XhXppQQ110593 p  Y_-NC0196` `  010394@XhXppQQ123093 p  YH-NC0197` `  011194` @XhXppQQ122993 p  Y1-NC0198` `  010494` @XhXppQQ123093 p  Y -NC0199` `  101293` @XhXppQQ091993 p  Y -NC0200` `  010394` @XhXppQQ122903 p  Y -NC0201` `  102593` @XhXppQQ100693 p  Y -NC0202` `  102693` @XhXppQQ102293 p  Y -NC0203` `  010394` @XhXppQQ123093 p  Y -NC0205` `  010494` @XhXppQQ123093 p  Y-NC0282` `  010494` @XhXppQQ123093 p  Yy-NC0815` `  010494` @XhXppQQ123093 p"y 0*0*0*"  Y- Appendix B ă  Y-  ` hpQ` hpx  Maximum Permitted Rates eUx` `  ` hpx` hp^x` `  hh@hpp^^Preferred  Y-  ` hp^` hp^CUID No. Cable Service^SuperStation^^^^Service  x` `  hh@^  Y`-` hp^A <cpNC0168A A  $12.23ccm$2.58$1.93$A  YI-NC0196A A  $12.26ccm$2.58$1.94  Y2-NC0197A A  $12.26ccm$2.58$1.94$A  Y -NC0198A A  $12.26ccm$2.58$1.94$A  Y -NC0199A A  $12.18ccm$2.56$1.92||||$A  Y -NC0200A A  $12.26ccm$2.58$1.94$A  Y -NC0201A A  $12.21ccm$2.57$1.93||||$A  Y -NC0202A A  $12.21ccm$2.57$1.93||||||||$A  Y -NC0203A A  $12.26ccm$2.58$1.94$A  Y-NC0205A A  $12.26ccm$2.58$1.94$A  Yz-NC0282A A  $12.26ccm$2.58$1.94$A  Yc-NC0815A A  $12.26ccm$2.58$1.94 $A