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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** FOR RECORD ONLY $//ORDER Granting Stay in Santa Monica, CA, DA 95-981//$ $/76.922 Rates for the basic service tier/$ $/76.923 Rates for equipment and installation/$ $/1.45(d) Request for Stay/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 95-981 In the Matter of ) ) CENTURY SOUTHWEST CABLE ) TELEVISION, SANTA MONICA, ) CALIFORNIA ) ) Request for Stay ) of Cable Services Bureau Order, DA 95-123 ) ORDER Adopted: May 1, 1995 Released: May 3, 1995 By the Chief, Cable Services Bureau: I. Introduction 1. On August 18, 1994, Century Southwest Cable Television ("Century") filed with the Commission an appeal of the local rate order adopted by the City of Santa Monica, California ("City") on July 19, 1994. In its local rate order, the City established Century's rates for basic tier service, associated equipment and installations. As part of its decision setting Century's basic tier rates, the City found that the channels contained in Century's "Century Select" a la carte package should be included as regulated channels for purposes of the local rate order. The City ordered Century to make refunds or credit subscribers for all payments made in excess of the rates for basic service and equipment and installations set forth in the local rate order for the period of time between September 1, 1993 and July 14, 1994. The sole issue raised by Century in its appeal of the local rate order centered on the proper regulatory treatment of Century's a la carte package offering. 2. On January 31, 1995, the Cable Services Bureau ("Bureau") denied Century's appeal. See In the Matter of Century Southwest Cable Television, Santa Monica, California, DA 95-123 (Cab. Serv. Bur., released January 31, 1995)("Century Southwest Cable Television, Santa Monica, California"). The Bureau held that the City's decision to treat the channels in the Century Select package as regulated channels was consistent with the Bureau's Letter of Inquiry ("LOI") Orders. In particular, the City's action was consistent with the Bureau's LOI Order involving Century Southwest Cable TV's Los Angeles and Beverly Hills systems. 3. On March 2, 1995, Century filed both an Application for Review of the Bureau's decision in Century Southwest Cable Television, Santa Monica, California, as well as an Emergency Petition for Stay of the Bureau's decision. The City filed an opposition to Century's Emergency Petition for Stay on March 9, 1995. In its stay request, Century submits that it satisfies the legal standard for the granting of a stay and is, therefore, entitled to a stay of the Bureau's decision. II. Standard of Review 4. The Commission evaluates petitions for stay under well settled principles. To support a stay, petitioners must demonstrate: (1) that they are likely to prevail on the merits; (2) that they will suffer irreparable harm if a stay is not granted; (3) that other interested parties will not be harmed if the stay is granted; and (4) that the public interest favors the granting of a stay. As discussed below, resolution of this stay petition centers primarily on the strength of Century's argument regarding the third prong of this test. III. Discussion 5. The Commission's rules permit operators to implement refunds using either of the following methods: (1) by returning overcharges directly to those subscribers who actually paid the overcharges; or (2) by means of a prospective percentage reduction in the rates for the basic service tier or associated equipment for current subscribers via a specifically identified, one-time credit. Thus, the Commission's rules are structured so that individuals who were actually overcharged might not receive refunds in the future. Thus, a delay in the implementation of the refunds owed by Century will not harm any interested party, since if Century must implement refunds, it can choose to do so by way of credits to the then-current class of subscribers. 6. A stay of the Bureau's Order in Century Southwest Cable Television, Santa Monica, California would prevent Century from being subjected to the irreparable economic harm it could face by issuing refunds to subscribers that it may not later recoup. Accordingly, given our findings herein, we will grant Century's request that the Bureau's Order in Century Southwest Cable Television, Santa Monica, California be stayed pending full review of Century's Application for Review. During the period of this stay, Century must deposit in an interest-bearing escrow account the total amount of money that the City has ordered Century to refund to its customers. Alternatively, Century may elect to post a bond for the benefit of the City. The amount of the bond shall be the total amount of money that the City has ordered Century to refund to its customers, plus interest on that amount for a twelve (12) month period from the date of this Order. The bond shall provide that if Century is unable to fulfill its refund obligations for any reason, then the surety will fulfill that obligation to the City, on behalf of Century's subscribers. IV. Ordering Clauses 7. Accordingly, IT IS ORDERED that the Emergency Petition for Stay filed by Century is GRANTED pending the resolution of Century's Application for Review on the merits. 8. IT IS FURTHER ORDERED that the total amount of money that the City has ordered Century to refund to its customers SHALL BE PLACED by Century in an interest-bearing escrow account, OR SHALL BE SECURED by the posting of a bond for the benefit of the City for the total amount of money that the City has ordered Century to refund to its customers, plus interest on that amount for a twelve (12) month period from the date of this Order. Proof of Century's compliance with this Order shall be filed with the Commission within thirty (30) days of the release of this Order. Interest shall accrue, or be computed, at the prevailing U.S. Internal Revenue Service Rate for tax refunds and additional tax payments. 9. 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