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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:><q*"xxxxWWxxxWWkkxxxxxxxxPxxxxxxxxxCkkkkkkkkkkPCPCPCPCxxxxxxxxxxkxxxxxxjxjjjxxjxxjxxxxxxxPCxxxxPxxxxCVxHCxxxxxVVx[[[xVCxxxxxxxxjjjxxxxxxPxxPPPWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNxxxPkbbxxxxxxTxxxxTPP||x>>xxxxxP|x!T"x}xExPPPxxxxPxkxofxkkPPPPk]kxkPCkkxkxxxkkPxkPPxxxxxxxPxkP8D%nZZB 3nMnMn..s[2`eMKxMZOf UCourierCG TimesCG Times BoldCG Times ItalicTimes New RomanTimes New Roman ItalicCourier Italic"i~'^:DTddDDDd4D48ddddddddddDDd||||DXp||dp||ppL8LTdDddXdX8dd88X8ddddLL8dXXXLP8PlD4lTDDD4DDDDDDdDd8|d|d|d|d|dX|X|X|X|XD8D8D8D8dddddddddpX|ddddpXd|d|d|d|dXXlXx|X|X|X|XdddldldD8DdDDDddllXp8pHpDp@p8dtdddd|L|L|LdLdLdLllpHp8pTddddddplpLpLpLdpDddLpDpdx4ddC,CWddddddddddddddddddddddddddddddddddddddddNHxxHhdLdddddd8@d<@d<DDppdDDxddzHxxHkddDpd<"dxtldxxd<?xxx,2x6X@`7X@O8wC;,Xw PE37XPDP7zC;,c!Xz_ pi7XRDPG, PE37PDQBPG,q_ pi7SV"G($,hG PE37hP<R&HHH,,H6X@`7h@xxxWIxkWWWWWWWWWW(xxxxxxPxxxxxxxxCxxxxxkkkkk]C]C]C]Cxxxxxxxxxxxxxjjxxjxxjxxxxx[Cxxx]xxC`x]Cxxjjx[][x`RxxjkjxxxxPxxPPPWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNxxxPxffxxxxxxTxxxxTPPx>>xxxxxPxT"xxExPPPxxxxPxkxsfxxxPPPPk]kkk]Ckkxkxxxkk]xkPPxxxxxxxPxkP8D%nZZB 3nMnMn..s[2}e\aI?'<?xxx,2x6X@`7X@O8wC;,Xw PE37XPDP7zC;,c!Xz_ pi7XRDPG, PE37PDQBPG,q_ pi7SV"G($,hG PE37hP<R&HHH,,H6X@`7h@6uC;,cXu&_ x7XX}}}}}}}UUUUUUUU S S\5hC:,?rXh*f9 xr G;XX ?xxx,VΠx6Nhez7XH^:DTddDDDd4D48ddddddddddDDd||||DXp||dp||ppL8LTdDddX2f e{dFq",tB^ f ^;C`ddCCCdCCCCddddddddddCCdxxxsCYoxxdoxxooCCCddCddYdY8dd88Y8ddddLL8dYYYLYdYd4dddddCddddddddd8xdxdxdxdxdYxYxYxYxYC8C8C8C8dddddddddoYxddddoYdxdxdxdxdXXddxxXxdxdxXdddddddD8ddddCdddddp8pHodp8p8dxddddxLxLxddLdLdLddpHp8odddddddodpLpLpLdoddddododxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCd]]ddddddFddddFCCddd88ddzzdddkddCddF"ddd9dCCzCdzdoddCdYds]zUvdYYCCCCzzzozoYzNoYdYC8YooYdYzzdzddoYoYzzozzzzzCdoozYzzzzCCddddzdddooozCsdYC\   pxtll\tll@\@\`LFOR FCC RECORD ONLY $//TCI of South Florida, MO&O, DA95677//$ $/76.922 Rates for Cable Programming Service Tiers/$ $/benchmark cable rates$  c< -Before the FEDERAL COMMUNICATIONS COMMISSION  e<Washington, D.C. 20554  X- DA 95677 ĐX(#P  Y} -In the Matter of hh@)hpp  Yf -x` `  hh@)hpp  YO -TCI of South Floridahh@)hCUID No. FL0500 (Hollywood)  Y8 -x` `  hh@)h  Y!-Benchmark Filing to Supporthh@)  Y -Cable Programming Service Pricehh@)  Y-}  MEMORANDUM OPINION AND ORDER ă  Y-x` ` Adopted: March 30, 1995 hReleased: April 5, 1995 By the Chief, Cable Services Bureau:  YS- I. A. 1. a.(1)(a) i) a) I. 1. 1. a.(1)(a) i) a)  x1. Here we consider a complaint about the price that the abovecaptioned operator ("Operator") was charging for its cable programming service ("CPS") tier in the community designated above. Operator has chosen to attempt to justify its price through a benchmark showing on FCC Form 393. This Order addresses the reasonableness of Operator's price only through May 14, 1994. At a later date we will issue a separate order addressing the  Y-reasonableness of the price after that date.>  YY<ԍ#XR  P7jQXP# 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 Operator has sought to take advantage of the refund deferral period under the Second Order on Reconsideration, Fourth Report and Order, and Fifth Notice of Proposed  Y -Rulemaking, MM Docket No. 92266, FCC 9438, 9 FCC Rcd 4119 (1994) ("Second Order  Y!-on Reconsideration"), the maximum permitted CPS price determined herein might also apply  Y"-from May 15, 1994 until the date on which Operator #XR  P7jQXP#implemented its CPS price under the  Y#<new regulations. See para. 3, infra.#x6X@`72X@# #XR  P7jQXP#Further, to the extent that the price as of March 31, 1994 is found to be excessive, a reduction in Operator's price for the period after May 14, 1994 may be required to reflect the fact that Operator's price during the earlier period, which is used as the starting point to calculate its prices for the prospective period, was  Yb'-unreasonable. See 47 C.F.R.  76.922(b)(4)(C).> " 0*0*0*"Ԍ Y-  x2. Under the Cable Television Consumer Protection and Competition Act of 1992,= Yy<ԍ#XR  P7jQXP# 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""0*0*0*"  Y-obligation on behalf of the cable operator to file a justification of its CPS prices.fx4 Yy<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.iyx4 Y<ԍ#Xw PE37}XP# 47 C.F.R.  76.956(b).i In either case, the operator has the burden of demonstrating that its  Y-CPS prices are not unreasonable.Y*x4 Y<ԍ#Xw PE37}XP# Id.Y  Y-x3. The Commission's original rate regulations took effect on September 1, 1993.x4 Y <ԍ#Xw PE37}XP# Order in MM Docket No. 92266, Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992: Rate Regulation, FCC 93372, 58 Fed. Reg. 41042 (Aug. 2, 1993).  Yv-The Commission subsequently revised its rate regulations effective May 15, 1994.{v` x4 Y<ԍ#Xw PE37}XP# 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.  x4 Y<ԍ#Xw PE37}XP# See Second Order on Reconsideration, 9 FCC Rcd 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.Z x4 Ya<ԍ#Xw PE37}XP# Id.Z Generally, to justify their prices for the period beginning May 15, 1994 through a benchmark showing, operators must use the FCC Form 1200  Y -series. I wx4 Y-w#Xw PE37}XP# #Xw PE37}XP#47 C.F.R.  76.922(b)(6); see also Second Order on Reconsideration, 9 FCC Rcd at 4189 n.195.  Y- x4. The first valid CPS complaint in the franchise area which is the subject of this Order was completed and served on Operator and received by the Commission on the dates set forth on Appendix A. Operator filed FCC Form 393 in response; Operator has also filed amended and supplemental Form 393 filings, most recently on May 17, 1994.  Y-  x5. In its amended benchmark filing of May 17, 1994, Operator calculated a maximum permitted price for the CPS tier of $10.14 per month. However, Operator's actual price for the CPS tier was $11.11 per month. Thus, Operator has failed to demonstrate that its price for the CPS tier was not unreasonable. Furthermore, upon review of Operator's" 0*((" submission we have found that it has not correctly calculated its maximum permitted price, and it is therefore appropriate to make the following adjustments to Operator's calculations in Form 393: Xx` ` a. In Column G of Schedules A and C of Part III of its FCC Form393, Operator did not correctly account for its income tax expense. By placing entries in these columns, Operator confirms that it is a taxpaying entity (i.e., a "C" corporation). However, Operator 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 ColumnG of Schedules A and C (i.e., calculate the tax as a percentage of return on investment  Yy-plus tax). ayx4 X-#Xj\  P6G;yoXP#э First Order on Reconsideration, Second Report and Order, and Third Notice of Proposed Rulemaking, MM Docket No. 92266, FCC 93428, 9FCC Rcd 1164, 1196 n.92  X-(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").  X-See also Cable Television Rate Regulation Questions and Answers Relating To FCC Form 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 grossedup tax entries.(#  Y- Xx` ` b. On Line 108 of Form 393, Part II, Worksheet 1, Operator entered a monthly franchise fee expense of $20,658.98. Similarly, on Line 208 of Form 393, Part II, Worksheet 2, Operator entered a monthly franchise fee expense of $19,623.51. The instructions to Form 393 provide that franchise fees are to be deducted on Lines108 and 208 only if they are included in the charges listed on Form 393, Part II, Worksheet 1, Line 101 and Worksheet 2, Line 201. However, the rate cards Operator provided with its May 17, 1994 filing indicates that the prices entered by Operator on Lines 101 and 201 for the basic and CPS tiers, do not include  YN-franchise fees. Nx4 X$-#Xj\  P6G;yoXP#э On Worksheet 1, Line 101, Operator entered $12.17 for the basic tier and $11.11 for the CPS tier. On Worksheet 2, Line 201, Operator entered $13.95 for the basic tier and $8.90 for the CPS tier.  Accordingly, we have reduced Operator's Lines 108 and 208 entries"Nt 0*((/" to $0.00 per month.(#  Y-  Xx` ` c. Because Operator has failed to demonstrate that its price for the CPS tier was not unreasonable, we must recalculate the Inflation Adjustment Factor in Form 393, Part II, Worksheets 1 and 4, on the basis of the most accurate data currently  Y-available for the date for which Operator filed. x4 X-#Xj\  P6G;yoXP#э 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 its amended Form 393s, Operator calculated the Inflation Adjustment Factor as of the end of December 1993 using data released on December 1, 1993. 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 and 126.5 for the fourth quarter of 1993. Using these GNPPI figures, we calculate an Inflation Adjustment Factor through December 1993, the base date Operator used in justifying  Y -its rates for the franchise area under consideration in this Order, of 1.034. 0(# x x6. Upon review of the record herein, and having incorporated the adjustments discussed above, we conclude that Operator has failed to justify the rate it was charging during the period in question. Operator's showing justifies a maximum reasonable CPS tier price of $10.40 (plus franchise fee) for the period from the filing of the earliest complaint (as  Yb-set forth in Appendix A) to May 14, 1994.bbdx4 Xw-#Xj\  P6G;yoXP#э This finding is based solely on the representations of Operator and the modifications  X`-described herein. Should information come to our attention that these representations were  XI-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  X-argument made by any party to this proceeding not specifically addressed herein.b x7. Accordingly, IT IS ORDERED, pursuant to Section 0.321 of the Commission's rules, 47 C.F.R.  0.321, that the complaint referred to in Appendix A against the cable programming service price charged by Operator in the area referenced in the caption and at Appendix A herein IS GRANTED TO THE EXTENT INDICATED HEREIN. x8. IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's rules, 47 C.F.R.  76.961, that Operator shall refund to subscribers in the community referenced herein that portion of the amounts paid for cable programming service for the  Y|-period from the filing of the first valid complaint (as set forth on Appendix A)|x4 X#-#Xj\  P6G;yoXP#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 $10.40 (plus franchise fee) per month, plus interest to the date of the refund. "7S 0*((="Ԍx9. IT IS FURTHER ORDERED that Operator 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 of the plan.T x10. 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 Operator shall, within 30 days of the release of this Order, revise its Form 1200 filing with respect to the community listed herein, for the period beginning May 15, 1994, to reduce the monthly charge per tier as of March  Y -31, 1994 for Tier 2 (Line A6b) to equal the maximum permitted price (plus franchise fee).1 x4 X| -#Xj\  P6G;yoXP#э We reserve the right to make further adjustments to Operator's price for the period  Xe -after May 14, 1994, upon completion of our review of Operator's Form 1200 filing.#x6Nhez7 ΠXH#1 x11. IT IS FURTHER ORDERED that Operator shall place into 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 "b0*(("   Y-, Appendix A ă  Y-CUID No.` `  Date First ComplainthppDate Complaint xx  Yw-x` `  Filed with FCC@hppServed  xx  YI-FL0500` `  2/28/94hh@hpp2/28/94