FOR FCC RECORD ONLY $//Monmouth Cablevision Associates, MO&O, DA 95-685//$ $76.922 Rates for cable programming service tiers/$ $/benchmark cable rates/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 95-685 In the Matter of ) ) CUID Nos. NJ0069 (Asbury Park) Monmouth Cablevision Associates ) NJ0161 (Ocean Township) ) NJ0277 (Avon) ) NJ0278 (Belmar) ) NJ0279 (Bradley Beach) ) NJ0280 (Brielle) ) NJ0281 (Manasquan) ) NJ0282 (Neptune City) ) NJ0283 (Neptune Township) ) NJ0284 (Sea Girt) ) NJ0285 (South Belmar) ) NJ0286 (Spring Lake) ) NJ0287 (Spring Lake Heights) ) NJ0288 (Wall Township) ) NJ0456 (Interlaken) Benchmark Filing to Support ) NJ0483 (Farmingdale) Cable Programming Service Price ) MEMORANDUM OPINION AND ORDER Adopted: March 30, 1995 Released: April 5, 1995 By the Chief, Cable Services Bureau: 1. Here we consider complaints about the price that the above-captioned operator ("Operator") was charging for its cable programming service ("CPS") tier in the communities 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 reasonableness of the price after that date. 2. Under the Cable Television Consumer Protection and Competition Act of 1992, 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 obligation on behalf of the cable operator to file a justification of its CPS prices. Under our rules, an operator may attempt to justify its prices through either a benchmark showing or a cost-of-service showing. In either case, the operator has the burden of demonstrating that its CPS prices are not unreasonable. 3. The Commission's original rate regulations took effect on September 1, 1993. The Commission subsequently revised its rate regulations effective May 15, 1994. 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 compliance with the revised rules from May 15, 1994 forward. Operators attempting to justify their prices for the period prior to May 15, 1994 through a benchmark showing must complete and file FCC Form 393. Generally, to justify their prices for the period beginning May 15, 1994 through a benchmark showing, operators must use the FCC Form 1200 series. 4. The first valid CPS complaints in each of the franchise areas which are the subject of this Order were 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 February 7, 1995. Operator filed additional information on March 27, 1995, in response to an inquiry by Commission staff. 5. On November 18, 1993, Operator filed a motion to dismiss a complaint against its price in CUID No. NJ0284 that was filed on October 6, 1993. Operator argues that the complaint should be dismissed because the complainant failed to list the channels on the CPS tier in response to question 9 on FCC Form 329 as it then existed. On December 3, 1993, the complainant filed a response to Operator's motion to dismiss which clarified that his complaint was concerned solely with Operator's charge for additional outlets. Under the Cable Act of 1992 and the Commission's rules, rates for equipment that is used to receive the basic tier, including additional outlets, are regulated as part of the regulation of rates for the basic tier and thus are generally outside the Commission's jurisdiction. We will therefore grant Operator's motion and dismiss the complaint filed October 6, 1993. 6. On March 28, 1994, Operator filed a motion to dismiss a complaint filed on February 28, 1994 by the New Jersey Board of Regulatory Commissioners ("New Jersey") that relates to all the franchise areas addressed in this Order. Operator argues that the complaint should be dismissed because New Jersey failed to list the channels included in the CPS tier or otherwise describe the cable programming service at issue. New Jersey filed its complaint on a revised FCC Form 329, released by the Commission in January 1994, that does not require an itemization of the channels in the CPS tier. Operator argues that the revised Form 329 is deficient because it does not request "a description of the cable programming service or associated equipment involved and, if applicable, how the service or associated equipment has changed." Operator's argument does not persuade us that New Jersey's complaint is invalid or should be dismissed. The Commission revised Form 329 because experience had shown that the prior Form 329 requested unnecessary information and was confusing to many complainants. Form 329 was therefore revised consistent with the congressional mandate to avoid imposing unnecessarily "technical or complicated" pleading requirements on complainants. In general, we will find valid any complaint that states a claim on which relief can be granted and provides adequate information to allow us to process the complaint. New Jersey has standing to complain as a relevant state government entity, and its complaint taken as a whole clearly relates to Operator's price for the CPS tier. We therefore find New Jersey's complaint valid and deny Operator's motion to dismiss. 7. In its February 7, 1995 amended filing, Operator calculated a maximum permitted price for the CPS tier of $15.20 per month. However, Operator's actual price for the CPS tier was $15.69 per month. Thus, Operator has failed to demonstrate that its price for the CPS tier was not unreasonable. Furthermore, upon review of Operator's Form 393 filings, 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: a. The 1992 Cable Act requires operators to fully unbundle equipment and installation costs from programming costs. The Commission's regulations implement Congress' directive by requiring operators to establish an equipment basket which includes "all costs associated with providing customer equipment and installation." In Part III of FCC Form 393, an operator calculates its total customer equipment and installation costs which constitute the equipment basket. Form 393, Part II, Worksheet 3 unbundles these costs from the operator's total permitted regulated revenues in order to establish its maximum service rates. b. In reporting its capital costs of leased customer equipment on Form 393, Part III, Schedule C, Operator did not include any costs for remotes. Operator's rate cards indicate that as of September 30, 1992 it leased remotes to customers for a monthly fee, and as of the initial date of regulation it provided remotes at "no fee" per month. Thus, Operator's monthly equipment revenue as of September 30, 1992 on Form 393, Part II, Worksheet 2, Line 204 includes revenue derived from the rental of remotes, but its unbundling figure on Part II, Worksheet 3, Line 301 does not include any costs associated with remotes. Because Operator calculates its permitted programming rates based on its September 30, 1992 regulated revenues and is not subtracting its costs for remotes from these revenues, Operator is recovering the costs associated with its rental of remotes through its charges for the basic and CPS tiers. Such a result is contrary to the statutory and regulatory unbundling requirement. Under our rules, an operator may choose not to charge customers for premises equipment, but it may not recover its costs associated with customer equipment through its programming rates. c. Because Operator has not reported its equipment costs for remotes, we must calculate a cost based on the best evidence available to us. In order to do so, we examined the Form 393 filings made by Operator's affiliates in the State of New Jersey, and we observed that the reported gross book cost per unit of remotes ranged from $8.01 to $9.20. We then imputed to Operator a gross book cost per remote at the midpoint of this range, or $8.61. We further assumed, consistent with the filings of Operator's affiliates, that the number of remotes in service equalled the number of converters in service, and that Operator's remotes were depreciated according to the same schedule as its converters. Based on these assumptions, we calculated Operator's total annual capital costs for remotes to be $68,196. We therefore increased Operator's annual customer equipment and installation costs on Part III, Step G, Line 32 by $68,196, and made corresponding adjustments to Part III, Step G, Line 34 and Part II, Worksheet 3, Line 301. d. In its most recent amended filing, Operator entered $15.20 as its current monthly rate for the CPS tier as of the initial date of regulation on Form 393, Part II, Worksheet 1, Line 101. However, Operator's rate card indicates that its actual monthly rate, exclusive of franchise fees, was $15.69. This figure is consistent with Operator's entry on Form 393, Part I and with Operator's Line 101 entry in its earlier Form 393 filings. The instructions to Form 393 require the operator to enter on Line 101 its actual current monthly charges. We have therefore corrected Line 101, Column B to match the figure on Operator's rate card. e. Operator's Form 393, Part II, Worksheet 1, Line 104 entry does not represent its current monthly equipment revenue as of the initial date of regulation. Instead of entering its current monthly equipment revenue, as required by the Form 393 instructions, Operator entered a figure based on its prior equipment rates. This observation is confirmed by the fact that Operator's Worksheet 2, Line 204 entry is the same as its Worksheet 1, Line 104 entry. As a result, Operator's Line 104 entry must be revised to reflect its current monthly equipment revenue. Since Operator restructured its rates, including its equipment rates, on September 1, 1993 in an attempt to comply with the Commission's regulations, the monthly equipment cost figure it entered on Line 34 of Step G of Part III should have been close or identical to its Line 104 revenue entry. Accordingly, we correct Operator's Line 104 entry to equal Line 34, as adjusted pursuant to paragraph 6c, supra. f. Because Operator has failed to demonstrate that its price for the CPS tier was not unreasonable, we must also recalculate the Inflation Adjustment Factor in Form 393, Part II, Worksheet 1 on the basis of the most accurate data currently available. In its most recent amended Form 393 filing, Operator calculated the Inflation Adjustment Factor (Line 127, Worksheet 1, Part II) as of the end of January 1994 using data released by the U.S. Department of Commerce on December 1, 1993. However, Operator's use of January 1994 as the base date through which it calculated the inflation adjustment is impermissible for CUID Nos. NJ0278 and NJ0284. Based on the date that the earliest valid complaint was served in each franchise area, the instructions to Form 393 permitted Operator an inflation adjustment only through October 1993 in CUID No. NJ0278 and November 1993 in CUID No. NJ0284. Operator cannot be permitted to claim an additional inflation adjustment simply because it later amended its Form 393 filings. We must therefore recalculate the Inflation Adjustment Factor on the basis of the most accurate data currently available for the dates on which Operator should have filed Form 393. On July 29, 1994, the Department of Commerce released corrected inflation data including Gross National Product Price Index ("GNP-PI") 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 GNP-PI figures, we calculate 1.030 as the Inflation Adjustment Factor through October 1993 in CUID No. NJ0278, 1.032 as the Inflation Adjustment Factor through November 1993 in CUID No. NJ0284, and 1.037 as the Inflation Adjustment Factor through January 1994, the base date Operator used in justifying its rates, in all other franchise areas. 8. 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 the maximum reasonable CPS tier prices shown on Appendix B (plus franchise fee) for the period from the filing of the earliest complaint in each franchise area (as set forth in Appendix A) to May 14, 1994. 9. Accordingly, IT IS ORDERED, pursuant to Section 0.321 of the Commission's rules, 47 C.F.R.  0.321, that Operator's motion to dismiss the complaint filed October 6, 1993 against its cable programming service price in Belmar, New Jersey, CUID No. NJ0278, IS GRANTED. 10. IT IS FURTHER ORDERED that the complaint filed October 6, 1993 against Operator's cable programming service price in Belmar, New Jersey, CUID No. NJ0278, IS DISMISSED. 11. IT IS FURTHER ORDERED that Operator's motion to dismiss the complaint filed February 28, 1994 by the New Jersey Board of Regulatory Commissioners IS DENIED. 12. IT IS FURTHER ORDERED that the complaints referred to in Appendix A against the cable programming service price charged by Operator in the areas referenced in the caption and at Appendix A herein, and all other complaints in these franchise areas related to the same price, ARE GRANTED TO THE EXTENT INDICATED HEREIN. 13. 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 communities shown in Appendix B that portion of the amounts paid for cable programming service for the period from the filing of the first valid complaint in each franchise area (as set forth on Appendix A) to May 14, 1994 which exceeded the maximum price for each franchise area set forth in Appendix B (plus franchise fee) per month, plus interest to the date of the refund. 14. IT IS FURTHER ORDERED that Operator 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 of the plan. 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 Operator shall, within 30 days of the release of this Order, revise its Form 1200 filings with respect to the communities listed herein, 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 Operator 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 Operator shall not be required to obtain advance approval of adjustments to its CPS prices in the franchise areas addressed herein for one year following the release of this Order, due to Operator's having submitted in good faith an optional supplemental filing in response to our Public Notice. FEDERAL COMMUNICATIONS COMMISSION Meredith J. Jones Chief, Cable Services Bureau Appendix A CUID No. Date First Complaint Date Complaint Filed with FCC Served NJ0069 02/28/94 02/25/94 NJ0161 02/28/94 02/25/94 NJ0277 02/28/94 02/25/94 NJ0278 10/18/93 10/12/93 NJ0279 02/28/94 02/25/94 NJ0280 02/28/94 02/25/94 NJ0281 02/28/94 02/25/94 NJ0282 02/28/94 02/25/94 NJ0283 02/28/94 02/25/94 NJ0284 12/03/93 11/29/93 NJ0285 02/28/94 02/25/94 NJ0286 02/28/94 02/25/94 NJ0287 02/28/94 02/25/94 NJ0288 02/28/94 02/25/94 NJ0456 02/28/94 02/25/94 NJ0483 02/28/94 02/25/94 Appendix B CUID No. Actual Rate Maximum Permitted Rate NJ0069 $15.69 $15.13 NJ0161 $15.69 $15.13 NJ0277 $15.69 $15.13 NJ0278 $15.69 $15.03 NJ0279 $15.69 $15.13 NJ0280 $15.69 $15.13 NJ0281 $15.69 $15.13 NJ0282 $15.69 $15.13 NJ0283 $15.69 $15.13 NJ0284 $15.69 $15.07 NJ0285 $15.69 $15.13 NJ0286 $15.69 $15.13 NJ0287 $15.69 $15.13 NJ0288 $15.69 $15.13 NJ0456 $15.69 $15.13 NJ0483 $15.69 $15.13