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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:><q*"xxxxWWxxxWWkkxxx"i~'K2^)/AFF|m///F|////FFFFFFFFFF//|>|eX`hXSeh/6cXhePe]KXheee[///FF/>F>F>/FF''F'mFFFF46'FFeFF>>F>F$FFFFF/FFFFFFFFF'e>e>e>e>e>|]`>X>X>X>X>/'/'/'/'hFeFeFeFeFhFhFhFhFeFe>hFeFeFeFhFPFe>eFe>_>_>`F`FhTW>XFXFW>eFeFeFeFeFhFhF/'FFFF/FfNFFcFW'W2XFZ*W'hFQhFhFeFeF|e\2\2]FL5L5L5KFW2W'XFhFhFhFhFhFhFeeFZ>Z>Z>hFXFhFKFXFeFT/FF///WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNeeeFFF/>99FF{FFF||F1FFFF|1//IIF|$$FFVVjFFeFSuuNN|/IF1"eeFeIee||F||(|F//eV|eeeeeeeeee/FeFNF|e]F/Fe>FPem[eeeeeeeeeeAeeeeeeu]Vmeeeee>eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee/eee/eee/eee/eeeeeeeeeeeeeeVXNVN]>X6[>hFe>/'c>]NNh>]Fe>eVPFVFFX>e>]VeNmVVVeXh/FeeeV>VVVVg//FFFFehFFFeeeV/PF>/~@~ʚbb~NT~~~~~~Qp__LL~vvv\v{{\shhebp{~~~mhh~~~~@h~Q~~~LL~~~~~~~~~~~~~~~~~~~~~~-@-~~~~~@~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~pp~~~~~~~~mmmm~~{{{{~~sssmmmmC5Zm~~2y X- FOR FCC RECORD ONLY  Y- $//Time Warner Cable Greater Boston, MO&O, DA859//$ $/76.922 Rates for Cable Programming Service tier/$ $/benchmark cable rates/$l  b< # PE37ܼP#E Before the FEDERAL COMMUNICATIONS COMMISSION  a< Washington, D.C. 20554 ă a</ DA 95859 Đ(#U  Y -#Xw PE37XP#  Y -In the Matter of hh,V)pp  Y -` `  hh,V)CUID No. MA0063, Salem  X  Y{ -Time Warner of Greater Bostonhh,V)pp   Yd -` `  hh,V)pp   YM-Benchmark Filing to Supporthh,V)pp   Y6-Cable Programming Service Pricehh,V)  Y-}  MEMORANDUM OPINION AND ORDER ă  Y-` ` Adopted: April 17, 1995 V Released: April 21, 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 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.= ȝ Y-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 Rulemaking,  Y)!-MM Docket No. 92266, FCC 9438, 9 FCC Rcd 4119 (1994) ("Second Order on  Y"-Reconsideration"), the maximum permitted CPS price determined herein might also apply  Y"-from May 15, 1994 until the date on which Opeartor #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  Y'-unreasonable. See 47 C.F.R.  76.922(b)(4)(C).= " 0*0*0*"Ԍ YQ-  2. Under the Cable Television Consumer Protection and Competition Act of 1992,Q C Y&-ԍ#XR  P7jQXP# Pub. L. No. 102385, 106 Stat. 1460 (1992); Communications Act,  623(c), as  Yq'-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.f Yy-ԍ#Xw PE37XP# 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.iy Y-ԍ#Xw PE37XP# 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* Y-ԍ#Xw PE37XP# Id.Y  Y-3. The Commission's original rate regulations took effect on September 1, 1993. Y -ԍ#Xw PE37XP# 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`  Y-ԍ#Xw PE37XP# 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.   Y-ԍ#Xw PE37XP# 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  Ya-ԍ#Xw PE37XP# 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.  w Y-#Xw PE37XP# #Xw PE37XP# 47 C.F.R.  76.922(b)(6); see also Second Order on Reconsideration, 9 FCC Rcd at 4189 n.195. 4. The first valid CPS complaint in the franchise area which is the subject of this  Yy-Order was completed and served on Operator on October 28, 1993 y Y="-ԍOperator states that it did not receive a copy of the complaint at that time. However, the complainant certified on FCC Form 329 that she mailed a copy to Operator on October 28, 1993. Under these circumstances, we will consider October 28, 1993 as the service date for purposes of calculating the inflation adjustment, but we will not consider imposing penalties on Operator for failing to respond to the complaint in a timely manner. and received by the Commission on November 2, 1993. Operator filed FCC Form 393 in response on June 24,"bh 0*((g"  Y-1994. 5. In its benchmark filing of June 24, 1994, Operator calculated a maximum permitted price for the CPS tier of $9.76 per month. However, Operator's actual price for the CPS tier was $9.80 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 filing, we have found that it has not correctly calculated its maximum permitted price, and it is therefore appropriate to make the following adjustment to Operator's calculation's in form 393:  XOn its Form 393 filing, Operator calculated the Inflation Adjustment Factor (line 127, Worksheet 1, Part II) as of the end of November 1993. However, Operator cannot  Y -permissibly calculate inflation through the end of November 1993.   Ye -ԍ Furthermore, even if November 1993 were a permissible base date, Operator incorrectly calculated the Inflation Adjustment Factor using data from inconsistent U.S. Department of Commerce releases. Based on the service date of the earliest valid complaint, Operator was required to file a rate justification no later than November 29, 1993. If Operator had filed Form 393 by that date, the instructions to Form 393 would have required it to calculate the inflation  Y-adjustment only through October 1993. K Y-ԍ #Xw PE37XP#FCC Form 393, page 11, instructions for Line 124 (Inflation Adjustment Factor is calculated using "the number of whole months from September 30, 1992 to the date you will submit this form"). Operator cannot claim an additional inflation adjustment simply because it filed Form 393 late. We therefore must recalculate the Inflation Adjustment Factor on the basis of the most accurate data  YK-currently available for the date that Operator should have filed its Form 393.K Y-ԍ #Xw PE37XP#See 47 C.F.R.  76.922(b)(9)(iii) (if a cable operator fails to justify its rates, rates must be adjusted in acordance with the most accurate data available at the time of analysis.) 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 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 rates. (#  Y-  6. Upon review of the record herein, and having incorporated the adjustment 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 $9.63 (plus franchise fee) for the period from the filing of the earliest complaint in"ej 0*((]"  Y-this franchise area to May 14, 1994.c Yy-ԍ#XR  P7jQXP# This finding is based solely on the representations of Operator and the modifications  Yb-described herein. Should information come to our attention that these representations were  YK-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  Y-argument made by any party to this proceeding not specifically addressed herein.c  7. Accordingly, IT IS ORDERED, pursuant to Section 0.321 of the Commission's rules, 47 C.F.R.  0.321, that the October 28, 1993 complaint against the cable programming service price charged by Operator in the area referenced in the caption IS GRANTED TO THE EXTENT INDICATED HEREIN. 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 the community referenced above that portion of the amounts paid for cable programming service for the  Y -period from the filing of the first valid complaint in this franchise area  Y-ԍ#Xw PE37XP# 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 this franchise area (plus franchise fee) per month, plus interest to the date of the refund. 9. 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.l 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 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 31, 1994 for Tier 2 (Line A6b) to equal the maximum permitted price in this franchise area  Y-(plus franchise fee). Y"-ԍWe reserve the right to make further adjustments to Operator's price for the period after May 14, 1994, upon completion of our review of Operator's Form 1200 filing. "7Q 0*((="Ԍ11. 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. ` `  hh,FEDERAL COMMUNICATIONS COMMISSION ` `  hh,Meredith J. Jones ` `  hh,Chief, Cable Services Bureau "10*((p"   Y-l