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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:xxxxxPxxxxxxxxxCkkkkkkkkkkPCPCPCPCxxxxxxxxxxkxxxxxxjxjjjxxjxxjxxxxxxxPCxxxxPxxxxCVxHCxxxxxVVx[[[xVCxxxxxxxxjjjxxxxxxPxxPPPWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNxxxPkbbxxxxxxTxxxxTPP||x>>xxxxxP|x!T"x}xExPPPxxxxPxkxofxkkPPPPk]kxkPCkkxkxxxkkPxkPPxxxxxxxPxkP8D%nZZB 3nMnMn..s[",tB^ f ^ENluuNNNuNNNNuuuuuuuuuuNNu[pNNNuuNuhhRuANAuh[Nuuuhuuuu=uuuuuNuuuuuuuuAuuuuuhhhhh[A[A[A[AuuuuuuuuuuuuugguuguuguuuuuYAuuu[uuA]u[AuugguY[Yu]OuughguuuuNuuNNNWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNuuuNuccuuuuuuRuuuuRNNu<<uuuuuNuR"uuCuNNNuuuuNuhupcuuuNNNNh[hhh[Ahhuhuuuhh[uhNNuuuuuuuNuhN /;k  PP9~~+k~~KkKk&&pY2Kuf ]T_^ef i",tB^ f ^S]]]]]]]]]]m]]]]||bN]N|m]|I]N"|||||mNmNmNmN{{{{jNmNpmN<{{jmjp_{|{]]]]WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN]wwbb]]II]Gb"P$]]]]|w]]]]|m|||mN|||||m|]]]|]#?lzV.??JJ4w..:.E) 44)#f ))ZZ ####aa)))j"i~'K2^$(8<><q*"xxxxWWxxxWWkkxxxK,H6X@`7h@6uC;,QXu&_ x7XX ?xxx,/x6Nhez7XH R&HHH,/N,H6Nhez7hH",tB^ f ^;C`ddCCCdCCCCddddddddddCCdxxxsCYoxxdoxxooCCCddCddYdY8dd88Y8ddddLL8dYYYLYdYd4dddddCddddddddd8xdxdxdxdxdYxYxYxYxYC8C8C8C8dddddddddoYxddddoYdxdxdxdxdXXddxxXxdxdxXdddddddD8ddddCdddddp8pHodp8p8dxddddxLxLxddLdLdLddpHp8odddddddodpLpLpLdoddddododxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCd]]ddddddFddddFCCddd88ddzzdddkddCddF"ddd9dCCzCdzdoddCdYds]zUvdYYCCCCzzzozoYzNoYdYC8YooYdYzzdzddoYoYzzozzzzzCdoozYzzzzCCddddzdddooozCsdYC\   pxtll\tll@\@\`L2}u fM FOR FCC RECORD ONLY $//Warner Cable, Green Bay, WI, MO&O, DA 95990//$ $/76.922 Rates for Cable Programming Service tiers/$  Y-$/benchmark cable rates/$#Xw PE37XP# fM   nK #Xw PE37XP#u>#_ pi7-#Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554  a8</ DA 95990 Đ(#U  YL -#Xw PE37XP#In the Matter of hh,V)pp  Y5 -` `  hh,V)CUID No. WI0234 (Green Bay) X  Y -Warner Cable hh,V)  Y -` `  hh,V)  Y -Benchmark Filing to Supporthh,V)  Y-Cable Programming Service Pricehh,V)  Y-}  MEMORANDUM OPINION AND ORDER ă  Y~-` ` Adopted: April 28, 1995 VppReleased: May 4, 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.* ^ 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  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 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@`7iX@# #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 price for the prospective period, was  Y1'-unreasonable. See 47 C.F.R.  76.922(b)(4)(C).* " 0*0*0*z"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""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. I w Y-w#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.  Y- 4. The complaint was completed and served on Operator on October 26, 1993  Y!<ԍ #Xw PE37XP#Operator claims that it did not receive a copy of the complaint in October 1993. However, the complainant certified on FCC Form 329 that he mailed a copy to Operator on October 26, 1993. Under these circumstances, we will consider October 26, 1993 as the service date for the purposes of calculating the inflation adjustment, but we will not consider imposing penalties for failing to respond to the complaint in a timely manner. and received by the Commission on November 1, 1993. Operator filed FCC Form 393 in response. "b 0*((g"Ԍ Y-ԙ  5. Operator asserts that its monthly CPS tier price of $12.67 is justified by its benchmark filing because its price is lower than the maximum permitted charge as calculated in the filing. 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 calculations in Form 393: ` ` In its Form 393 filing, Operator calculated the Inflation Adjustment Factor  Y_-(line 127, Worksheet 1, Part II) as of the end of November 1994 using data  X(#(# YH-released by the U.S. Department of Commerce on March 31, 1994. However, (#(# Y1-Operator's use of November 1994 as the date through which it calculated the  X(#(# Y -inflation adjustment is impermissible. Based on the service date of the complaint, (#(# Y -Operator was required to file a justification of its CPS price for the Green Bay (#(# Y -franchise area no later than November 26, 1993.   Ye <ԍ #Xw PE37XP#47 C.F.R.  76.956(a) (operator must file a response within 30 days of the date of service of a complaint). If Operator had filed its  X(#(# Y -justification in a timely fashion, the instructions to Form 393 would have required it (#(# Y -to calculate the inflation adjustment only through October 1993.  b 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").  We must therefore  Y -recalculate the Inflation Adjustment Factor on the basis of the most accurate data (#(# Y-currently available for the date on which Operator should have filed. 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 accordance with the most accurate data available at the time of analysis). On July 29, (#(# Yy-1994, the Department of Commerce released corrected inflation data including Gross (#(# Yb-National Product Price Index ("GNPPI") figures of 122.3 for the third quarter of (#(# YK-1992 and 125.7 for the third quarter of 1993. Using these GNPPI figures, we (#(# Y4-calculate 1.030 as the Inflation Adjustment Factor through October 1993, the base (#(#date Operator should have used in justifying its rate.  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 the maximum reasonable CPS tier price of $12.33 (plus franchise fee) for the period from November 1, 1993 to May 14,  Y-1994.wj  Y$<ԍ#XR  P7jQXP# 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"i'0*(('" entry, explanation or argument made by any party to this proceeding not specifically  Yy-addressed herein.w "b0*((}"Ԍ 7. 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 herein 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 in the caption that portion of the amounts paid for cable programming service for  Y -the period from November 1, 1993  Yu<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 $12.33 (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  Y|-31, 1994 for Tier 2 (Line A6b) to equal $12.33 (plus franchise fee).|  Y$<#Xw PE37XP##x6Nhez7 XH#э# Xw PE37XP# We reserve the right to make further adjustments to Operator's price for the period  Y%-after May 14, 1994, upon completion of our review of Operator's Form 1200 filing.#x6Nhez7 XH#р 11. IT IS FURTHER ORDERED that Operator shall place into effect, within 30"N: 0*((M" 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