WPCh 2BEJ Z Courier c-#XR  P7jQXP#HP LaserJet 4_230_1HPLAS4.PRS 4x  @\oeX@2#6{/3|wCG Times Bold#XR  P7jQ}XP#CourierCG Times907_1HPLAS4SI.PRSx  @\iX@3|wCourierCG TimesCG Times BoldCG Times ItalicCourier Italic2 f Uv p1k",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@\@\`La8DocumentgDocument Style StyleXX` `  ` a4DocumentgDocument Style Style . a6DocumentgDocument Style Style GX  28k>vNta5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  A.  a7DocumentgDocument Style StyleyXX` ` (#` BibliogrphyBibliography:X (# 2j   Na1Right ParRight-Aligned Paragraph Numbers:`S@ I.  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A. a.(1)(a) i) a)Documentg2%& e$%%PleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:xxxxxPxxxxxxxxxCkkkkkkkkkkPCPCPCPCxxxxxxxxxxkxxxxxxjxjjjxxjxxjxxxxxxxPCxxxxPxxxxCVxHCxxxxxVVx[[[xVCxxxxxxxxjjjxxxxxxPxxPPPWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNxxxPkbbxxxxxxTxxxxTPP||x>>xxxxxP|x!T"x}xExPPPxxxxPxkxofxkkPPPPk]kxkPCkkxkxxxkkPxkPPxxxxxxxPxkP8D%nZZB 3nMnMn..s[2A]Lf QI\'"i~'K2^$(8<><q*"xxxxWWxxxWWkkxxxxxxxxPxxxxxxxxCxxxxxkkkkk]C]C]C]Cxxxxxxxxxxxxxjjxxjxxjxxxxx[Cxxx]xxC`x]Cxxjjx[][x`RxxjkjxxxxPxxPPPWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNxxxPxffxxxxxxTxxxxTPPx>>xxxxxPxT"xxExPPPxxxxPxkxsfxxxPPPPk]kkk]Ckkxkxxxkk]xkPPxxxxxxxPxkP8D%nZZB 3nMnMn..s[2f s] +Fh",tB^ f ^;C`ddCCCdCCCCddddddddddCCdxxxsCYoxxdoxxooCCCddCddYdY8dd88Y8ddddLL8dYYYLYdYd4dddddCddddddddd8xdxdxdxdxdYxYxYxYxYC8C8C8C8dddddddddoYxddddoYdxdxdxdxdXXddxxXxdxdxXdddddddD8ddddCdddddp8pHodp8p8dxddddxLxLxddLdLdLddpHp8odddddddodpLpLpLdoddddododxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCd]]ddddddFddddFCCddd88ddzzdddkddCddF"ddd9dCCzCdzdoddCdYds]zUvdYYCCCCzzzozoYzNoYdYC8YooYdYzzdzddoYoYzzozzzzzCdoozYzzzzCCddddzdddooozCsdYC\   pxtll\tll@\@\`LFOR FCC RECORD ONLY $//Sammons Communications, Inc., California, MO&O, DA95739//$ $/76.922 Rates for Cable Programming Service tiers/$  Y-$/benchmark cable rates/$  c<Ԋ EBefore the 8 Federal Communications Commission  e< Washington, D.C. 20554  X-: DA 95739 Đ(#U  Y} -In the Matter of hh,V)pp  Yf -` `  hh,V)  YO -Sammons Communications, Inc.hh,V)CUID Nos. CA0178, Burbank;  Y8 -` `  hh,V) CA0180, Glendale X  Y!-Benchmark Filings to Supporthh,V)  Y -Cable Programming Service Pricehh,V)  Y- Memorandum Opinion and Order ă  Y-` ` Adopted: April 5, 1995 V ppReleased: April 7, 1995 By the Chief, Cable Services Bureau:  Y<- I. A. 1. a.(1)(a) i) a) I. 1. 1. a.(1)(a) i) a)1. Here we consider complaints about the price that the abovecaptioned operator ("Operator") was charging for its cable programming service ("CPS") tier in Burbank, California and Glendale, California. Operator has chosen to attempt to justify its price through benchmark showings 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  Y-addressing the reasonableness of the price after that date.> N YB<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, reductions 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 price for the prospective period, was  YK(-unreasonable.  See 47 C.F.R.  76.922(b)(4)(C).> " 0*0*0*"Ԍ Y-  2. 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  Y-obligation on behalf of the cable operator to file a justification of its CPS prices.fZ Yb<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.iyZ 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*Z Y <ԍ#Xw PE37}XP# Id.Y  Yv-3. The Commission's original rate regulations took effect on September 1, 1993.vZ 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).  Y_-The Commission subsequently revised its rate regulations effective May 15, 1994.{_` Z Yp<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.  Z 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 Z YJ<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.  wZ Y-#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.  Yy- 4. The first valid CPS complaints in Burbank and Glendale were completed and served on Operator and received by the Commission on the dates set forth in the Appendix. For both communities, Operator filed an FCC Form 393 in response. For the Glendale community, Operator also filed amended Form 393 filings on November 18, 1993 and June  Y-24, 1994 and a supplemental filing on February 6, 1995. JZ Y%<ԍ#Xw PE37}XP# Operator filed an amended FCC Form 393 on June 24, 1994 in response to a Cable Services Bureau Order citing common deficiencies observed in benchmark filings"& 0*((&" generally. Cable Operators' Rate Justification Filings, 9 FCC Rcd 7752 (Cab. Serv. Bur. 1994). Operator submitted additional information in response to a Cable Services Bureau Public Notice offering operators the opportunity to make optional supplemental filings. Public Notice: Cable Services Bureau Announces Optional Procedures with Respect to Pending PreMay 15 Benchmark Cases, DA 941556 (Dec. 29, 1994) and Public Notice: Cable Services Bureau Announces Extension of Time to File Under Optional Procedures with Respect to Pending PreMay 15 Benchmark Cases, DA 9587 (Jan. 20, 1995) (together,  Y-Public Notice). " 0*((("Ԍ Y- 5. In its benchmark filings for both Burbank and Glendale, Operator calculated a maximum permitted CPS rate of $8.70 per month (plus franchise fee). Operator's actual monthly charge for its CPS tier was $9.80 (plus franchise fee). Thus, Operator has failed to show that its rate 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: X` ` a. On its Form 393 for Burbank, Operator calculated the Inflation Adjustment Factor (Line 127, Worksheet 1, Part II) as of the end of October 1993 using data released by the U.S. Department of Commerce on August 31, 1993. However, Operator's use of October 1993 as the date through which it calculated the inflation adjustment is impermissible. Operator was served with a rate complaint on September 1, 1993. The instructions to FCC Form 393, page 11, require 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 must submit a justification of its rates no more than 30 days after service of  YK-the earliest valid complaint. K Z Y<ԍ#Xw PE37}XP# See 47 C.F.R.  76.956(a).#x6X@`7X@#ћ Operator cannot be permitted to claim an additional inflation adjustment simply because it did not file its Form 393 within this 30 day period. We must therefore recalculate the Inflation Adjustment Factor on the basis of the most accurate data currently available for the latest date contemplated by the Form  Y-393 instructions.L _ Z Y"<ԍ#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@#L 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 quarter of 1993. Using these GNPPI figures, we calculate 1.028 as the Inflation Adjustment Factor" 0*((" through September 1993, the base date Operator should have used in justifying its rate in Burbank. (#  Y-X` ` b. In its optional supplemental filing in response to the Public Notice for Glendale, Operator claimed an Inflation Adjustment Factor of 1.047, which indicates that inflation was taken through May 1994 using data released by the U.S. Department of Commerce on July 29, 1994. However, for reasons discussed in the preceding paragraph, at the time Operator was required to respond to the first valid rate complaint, the instructions to Form 393 permitted it to claim an inflation adjustment only through October 1993. Operator cannot claim an additional inflation  Y -adjustment simply because it subsequently amended its rate justification. Z Y <ԍ #Xw PE37}XP#We note that in its earlier filings Operator correctly calculated the inflation adjustment through October 1993. We therefore must recalculate the the Inflation Adjustment Factor on the basis of the most accurate data currently available for the date for which Operator should have filed. 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 quarter of 1993. Using these GNPPI figures, we calculate 1.030 as the Inflation Adjustment Factor through October 1993, the base date Operator should have used in justifying its rate in Glendale. (#  YM-  6. Upon review of the record herein, and having incorporated the adjustments  Y6-discussed above, 6bZ YI<ԍ#Xw PE37}XP# These adjustments have the effect of causing Operator to calculate its permitted rates from Form 393, Part II, Worksheet 2 rather than Worksheet 1. Worksheet 2 data was not provided on the Form 393 filings since Operator's calculations, before our adjustments, did not require it. Therefore, we have computed Worksheet 2 by using data supplied by  Y-Operator on its Form 1200 filings.#x6X@`7X@#  we conclude that Operator has failed to justify the rate it was charging during the periods in question. Operator's showings justify a maximum reasonable CPS tier price of $8.57 per month (plus franchise fee) for the period from the filing of the earliest  Y-complaint in each franchise area (as set forth in the Appendix) to May 14, 1994.OvZ YY<ԍ#XR  P7jQ}XP# This finding is based solely on the representations of Operator and the modifications described herein. Should information come to our attention that these  Y+!-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  Y#-addressed herein.O  Y-7. 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 the Appendix against the cable"0*((" programming service price charged by Operator in Burbank, California and Glendale, California ARE GRANTED TO THE EXTENT INDICATED HEREIN.  Y-8. 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 Burbank, California and Glendale, California 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 in  Y_-the Appendix)_Z Y<ԍ#Xw PE37}XP# 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 $8.57 per month (plus franchise fee), plus interest to the date of the refund.  Y -9. 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.l  Yy- 10. 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 Burbank, California and Glendale, California, 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 $8.57 per month (plus franchise  Y-fee).3bZ Y<ԍ#Xw PE37}XP# We reserve the right to make further adjustments to Operator's prices for the  Y-period after May 14, 1994, upon completion of our review of Operator's Form 1200 filings.#x6Nhez7ΠXH#3  Y- 11. IT IS FURTHER ORDERED that Operator shall place into effect, within 30 days after its submission of the revised Form 1200 filings required above, a price that reflects the reduction in the CPS rate determined in this Order.  Y|- 12. IT IS FURTHER ORDERED, pursuant to Section 76.960 of the Commission's rules, 47 C.F.R.  76.960, that in Glendale, California, Operator shall not be required to obtain advance approval of adjustments to its CPS price for one year following the release of this Order, due to Operator's having submitted in good faith an optional supplemental filing  Y -in response to our Public Notice. ` `  hh,FEDERAL COMMUNICATIONS COMMISSION " 0*((!"Ԍ ` `  hh,Meredith J. Jones ` `  hh,Chief, Cable Services Bureau "0*(("  Y-*J Appendix ă  Y-` `  Date First ComplaintppDate Complaint xx-  Y-CUID No.` `  Filed with FCCVppServed  xx-  YI-CA0178` `  9/8/93hh,Vpp9/1/93  Y -CA0180` `  10/18/93hh,Vpp10/13/93  Y -l