FOR FCC RECORD ONLY $/ORDER granting waiver of new product tier filing requirement, DA95-430/$ $/76.986 "A la carte" offerings/$ $/76.987 New Product Tiers/$ Before the FEDERAL COMMUNICATIONS COMMISSION DA 95-430 Washington, DC 20554 In the Matter of ) ) Implementation of Sections of the ) Cable Television Consumer Protection and ) MM Docket No. 92-266 Competition Act of 1992: ) Rate Regulation ) ORDER Adopted: March 6, 1995 Released: March 7, 1995 By the Chief, Cable Services Bureau: I. Introduction 1. In this Order, the Bureau grants a waiver of the requirement, stated in the Sixth Order on Reconsideration, Fifth Report and Order, and Seventh Notice of Proposed Rulemaking ("Sixth Reconsideration Order"), that operators file with the Commission, for each New Product Tier ("NPT"), the names of the programming services contained on the NPT and the price of the NPT within 30 days of the approval of this requirement by the Office of Management and Budget ("OMB"). The Bureau also clarifies its position on packages of services to which this requirement, and the similar requirement that operators file with the Commission whenever they make a rate or service change on an NPT, applies. II. Background 2. In the Sixth Reconsideration Order, the Commission established NPTs, which are tiers of unregulated programming. The Sixth Reconsideration Order also settled the issue of how packages of per-channel, or a la carte, offerings should be treated by concluding that these packages are included among the definition of NPTs. While NPTs are not subject to rate regulation, they are subject to filing and other requirements. Specifically, within 30 days of the approval of this requirement by the Office of Management and Budget ("OMB"), and whenever a new NPT is offered, an operator must file with the Commission the names of programming services contained on each tier and the price of each tier. The requirement also necessitates the filing of an updated rate card and a copy of customer notification within 30 days of a rate or service change affecting the package. In a Question and Answer, we interpreted the Sixth Reconsideration Order's filing requirements on NPTs as applying to premium channel packages. III. Waiver of the Initial Filing Requirement 3. Under our rules, operators are required to make an initial filing within 30 days of the approval of the filing requirement by OMB. OMB approval of the filing requirement took place on February 21, 1995, but we believe that operators may not be aware of that approval until the release of this Order. Although the rule was intended to give operators 30 days in which to make their initial filings, we recognize that enforcement of the initial filing requirement would leave operators with only 16 days from the date of this Order to make their filings. Consequently, in order to give operators the full 30 days to make their initial filings, we hereby waive the requirement under 47 C.F.R.  76.987(g) that filings be made by March 23, 1995, and instead require that operators make their initial filings under 47 C.F.R.  76.987(g) by April 4, 1995. IV. Filing Requirements for NPTs 4. We also take this opportunity to respond to National Cable Television Association's ("NCTA") request for clarification of a la carte packages subject to treatment as NPTs. NCTA contends that the filing requirements should not extend to packages consisting solely of traditional premium packages. It argues that such an application would be burdensome on operators and would inundate the Commission with materials that would serve no public interest purpose. 5. A la carte packages offered prior to April 1, 1993 are not treated as NPTs. We have previously exempted these packages from regulation because we wanted to avoid elimination of discounts that were available to consumers and were not established to evade rate regulation. Similarly, we believe that a la carte packages consisting wholly of channels offered on an a la carte basis prior to April 1, 1993 should not be subject to the NPT filing requirement. These channels' status as a la carte on April 1, 1993 indicates that the operator had not removed them from tiered service in an attempt to evade rate regulation. Moreover, this interpretation is consistent with our position in the Sixth Reconsideration Order that "there are sound policy reasons to treat as reasonable any price offered for a package of channels that traditionally have been offered on a per-channel basis. Indeed, we cannot envision circumstances in which any price of a collective offering such as the commonly offered 'HBO/Showtime' package would be found to be unreasonable." We therefore grant NCTA's request that packages of a la carte channels consisting wholly of channels offered on an a la carte basis prior to April 1, 1993 are not subject to the reporting requirements discussed above. It is not necessary that the package itself was offered prior to April 1, 1993. 6. Additionally, we have stated that promotional offerings are permissible with respect to regulated services. Operators are not restricted in their promotional offerings of regulated services, other than by the requirements that they be universally offered and of limited duration. Since there is no filing requirement on promotional offerings of regulated programming, it would be inconsistent to impose filing requirements on promotional offerings of unregulated packages. Accordingly, promotional rates and promotional packages of NPTs are not subject to the NPT reporting requirement. V. Ordering Clause 7. 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