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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[<?xxx,ix6X@`7X@;8wC;,Xw PE37XPD<7zC;,mXz_ pi7X=DPG,J PE37P>V"G($,=hG PE37hP?6uC;,QXu&_ x7XX<R&HHH,>K,H6X@`7h@xxxxxxxxjjjxxxxxxPxxPPPWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNxxxPkbbxxxxxxTxxxxTPP||x>>xxxxxP|x!T"x}xExPPPxxxxPxkxofxkkPPPPk]kxkPCkkxkxxxkkPxkPPxxxxxxxPxkP8D%nZZB 3nMnMn..s[",tB^ f ^;C`ddCCCdCCCCddddddddddCCdxxxsCYoxxdoxxooCCCddCddYdY8dd88Y8ddddLL8dYYYLYdYd4dddddCddddddddd8xdxdxdxdxdYxYxYxYxYC8C8C8C8dddddddddoYxddddoYdxdxdxdxdXXddxxXxdxdxXdddddddD8ddddCdddddp8pHodp8p8dxddddxLxLxddLdLdLddpHp8odddddddodpLpLpLdoddddododxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCd]]ddddddFddddFCCddd88ddzzdddkddCddF"ddd9dCCzCdzdoddCdYds]zUvdYYCCCCzzzozoYzNoYdYC8YooYdYzzdzddoYoYzzozzzzzCdoozYzzzzCCddddzdddooozCsdYC\   pxtll\tll@\@\`L"i~'K2^$(8<><q*"xxxxWWxxxWWkkxxxK,H6X@`7h@6uC;,QXu&_ x7XX ?xxx,/x6Nhez7XHDW!I($,EhI_ pi7hs-_5/,_ PE37P+C:\EDSML{L.TE0(#  ?$7 ????????? ?????? ???IIII?????? ???27 X- FOR FCC RECORD ONLY $//Crown Media, Inc., CT, MO&O, DA 951007//$ $/76.922 Rates for Cable Programming Service tiers/$  X-$/benchmark cable rates/$    e< 2Before the  FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554  X-* DA 951007 ĐX(#P  Y{ -In the Matter of hh@) CUID Nos.: CT0153, Ashford  Yd -Cencom Cable N.E. Connecticut, Inc.@) CT0154, Brooklyn x` `  hh@) CT0155, Canterbury x` `  hh@) CT0156, Chaplin x` `  hh@) CT0157, Columbia x` `  hh@) CT0158, Coventry x` `  hh@) CT0159, Eastford x` `  hh@) CT0160, Hampton x` `  hh@) CT0161, Lebanon x` `  hh@) CT0162, Mansfield x` `  hh@) CT0163, Pomfret x` `  hh@) CT0164, Scotland x` `  hh@) CT0165, Thompson x` `  hh@) CT0166, Windham x` `  hh@) CT0167, Willington  Y"-Benchmark Filings to Supporthh@) CT0168, Woodstock  Y -Cable Programming Service Priceshh@)  Y-}  MEMORANDUM OPINION AND ORDER ă  Y-x` ` Adopted: April 28, 1995@ hppReleased: May 5, 1995 By the Chief, Cable Services Bureau:  YT - I. A. 1. a.(1)(a) i) a) I. 1. 1. a.(1)(a) i) a)  x1. Here we consider complaints about the prices that the abovecaptioned operator ("Operator") was charging for its cable programming service ("CPS") tiers in the  Y&"-communities designated above.&"^ Y$-#Xw PE37XP#э #Xw PE37XP#Operator is a wholly owned subsidiary of Crown Media, Inc., which was purchased by Charter Communications, Inc. subsequent to the time period covered by this Order. As required by the context, the term "Operator" as used in this Order includes Operator's successors in interest.  Operator has chosen to attempt to justify its prices through benchmark showings on FCC Form 393. This Order addresses the reasonableness of Operator's prices only through May 14, 1994. At a later date we will issue a separate order"#40*0*0*&%"  Y-addressing the reasonableness of the prices after that date. ^ Yy-#Xw PE37XP##Xw PE37XP#э#XR  P7jQXP# The findings in this Order do not in any way prejudge the reasonableness of the prices 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 prices determined herein might also apply from May 15, 1994 until the date on which Operator #XR  P7jQXP#implemented its CPS prices under the  Y<new regulations. See para. 3, infra.#x6X@`7iX@# #XR  P7jQXP#Further, to the extent that the prices as of March 31, 1994 are found to be excessive, reductions in Operator's prices for the period after May 14, 1994 may be required to reflect the fact that Operator's prices during the earlier period, which are used as the starting point to calculate its prices for the prospective period, were  Y -unreasonable. See 47 C.F.R.  76.922(b)(4)(C).  Y-  x2. Under the Cable Television Consumer Protection and Competition Act of 1992, ^ Y-#Xw PE37XP#э#XR  P7jQXP# Pub. L. No. 102385, 106 Stat. 1460 (1992); Communications Act,  623(c), as  Y-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."^ Y`-#Xw PE37XP#э#Xw PE37XP# 47 C.F.R.  76.956. Under our rules, an operator may attempt to justify its prices through either a benchmark showing or a  Y_-costofservice showing._^ Y-#Xw PE37XP#э#Xw PE37XP# 47 C.F.R.  76.956(b). In either case, the operator has the burden of demonstrating that its  YH-CPS prices are not unreasonable.H^ Y}-#Xw PE37XP#э#Xw PE37XP# Id.Ā  Y -x3. The Commission's original rate regulations took effect on September 1, 1993.9 7^ Y-#Xw PE37XP#э#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).9  Y -The Commission subsequently revised its rate regulations effective May 15, 1994. ^ Yn#-#Xw PE37XP#э#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 its CPS prices were in compliance with the Commission's initial rules from the time the complaint was filed through May 14, 1994, and that its prices were in  Y -compliance with the revised rules from May 15, 1994 forward. k^ Y(-#Xw PE37XP#э#Xw PE37XP# See Second Order on Reconsideration, 9 FCC Rcd at 4190, paras. 150152. Operators attempting to"  0*0*0*y" justify their prices for the period prior to May 15, 1994 through a benchmark showing must  Y-complete and file FCC Form 393.  Yb-#Xw PE37XP#э#Xw PE37XP# Id. Generally, to justify their prices for the period beginning May 15, 1994 through a benchmark showing, operators must use the FCC Form  Y-1200 series. { Y-#Xw PE37XP#э#Xw PE37XP# 47 C.F.R.  76.922(b)(6); see also Second Order on Reconsideration, 9 FCC Rcd at 4189, n.195.  Y- x4. The first valid CPS complaint in each of the franchise areas which is the subject of this Order was completed and served on Operator and received by the Commission on the dates set forth on Appendix A. Operator filed FCC Forms 393 in response; Operator has also filed amended and supplemental Form 393 filings, most recently on March 22, 1995, in  Y1-response to an inquiry by Commission staff.p 1 Y-#Xw PE37XP#э#Xw PE37XP# For example, Operator filed amended FCC Forms 393 in response to a Cable Services Bureau Order citing common deficiencies observed in benchmark filings generally. Cable Operator's Rate Justification Filings, 9 FCC Rcd 7752 (Cab. Serv. Bur. 1994). p x` `  Y -  x5. Operator offers two different CPS tiers in each franchise area and asserts that its monthly prices for both tiers are justified by its benchmark filings because its prices are lower than or equal to the maximum permitted charges as calculated in the filings. Upon review of Operator's Form 393 filings, we have found that Operator has not correctly calculated its maximum permitted prices, and it is therefore appropriate to make the following adjustments to Operator's calculations in its Forms 393: Xx` ` a. In Column G of Schedules A and C of Part III of its FCC Forms 393, Operator did not report any income tax expense due to a net operating  Y4-loss. 4 Y-#Xw PE37XP#э#Xw PE37XP# Facsimile from Trudi Foushee, Esq., Green & Foushee, to FCC (March 21, 1995) Operator is a Subchapter C corporation and is therefore required to  Y-pay corporate income tax.K  Y-#Xw PE37XP#э #Xw PE37XP#Id.Ā Therefore, Operator must complete Column G on the basis of its statutory tax rate, regardless of the rate it actually paid in any  Y-given year.  Y"-#Xw PE37XP#э#Xw PE37XP# See Cable Television Rate Regulation Questions and Answers Relating to FCC Form 393, Question and Answer No. 15 (released July 30, 1993). By omitting its tax entries in Column G, an operator reduces its effective rate of return on equipment and installations and thereby could increase its CPS price. We therefore calculate Operator's federal income tax allowance on Column G of Schedules A and C on the basis of a 34%"0*(("  Y-corporate tax rate. Yy-#Xw PE37XP# #Xw PE37XP#э Facsimile from Trudi Foushee, Esq., Green & Foushee, to FCC (March 21, 1995) Furthermore, the Commission has stated that taxpaying business entities must grossup their tax entries in Column G of Schedules A and C (i.e., calculate the tax as a percentage of return on investment plus  Y-tax).cy Y-#Xw PE37XP# #XR  P7jQXP#э First Order on Reconsideration, Second Report and Order, and Third Notice of  Y-Proposed Rulemaking, MM Docket No. 92266, FCC 93428, 9 FCC Rcd 1164, 1196 n. 92 (1993) ("Our provision to grossup the return amount for income taxes applies to all tax paying business entities to the extent that it has a state or federal income tax obligation.")  Y -See also Cable Television Rate Regulation Questions and Answers Relating to FCC Form 393, Question and Answer No. 14 (released July 30, 1993) ("The federal tax expense should be calculated based upon a pretax return on investment.") In accordance with this principle, we recalculate Column G of Schedules A and C (and subsequent steps) using a grossedup federal income tax rate of 51.51% of Operator's return on investment.   Y_- Xx` ` b. Operator's Form 393, Worksheet 1, Line 104 entries do not represent its current monthly equipment revenue as of the initial date of regulation. 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 figures it entered on Line 34 of Step G of Part III should have been close or  Y -identical to its Line 104 entries.  YA< #Xw PE37XP##Xw PE37XP#э See Questions and Answers on Completion of FCC Form 393 and Associated Filing Requirements, Question and Answer No. 7 (released Nov. 10, 1993) ("Where operators has restructured equipment rates as of September 1, 1993 in accordance with our regulations... operators will enter on Line 104 the same, or nearly the same, number as on Line 301.").  However, Operator's entries on Line 104 differed substantially from its entries on Line 34. We therefore adjusted Line 104 to equal the  Y -amounts entered on Line 34.(#  Y -Xx` `   Xx` ` c. In its amended filings, Operator states that it calculated the Inflation Adjustment Factor (Form 393, Part II, Worksheet 1, Line 127, and Form 393, Part II, Worksheet 4, Line 401) using data it relied on when it set its CPS prices. If Operator had done so correctly (i.e., if it had completed Form 393 with accurate data, including the most recent inflation data available as of the time it set its prices), and if, based on this data, its Forms 393 indicated that its prices were reasonable, then  Y-Operator would have successfully justified its prices under paragraph 94 of the Third  Y-Order on Reconsideration.y Y$-#Xw PE37XP##Xw PE37XP#э#Xw PE37XP# Third Order on Reconsideration, MM Docket Nos. 92266 and 92262,  FCC 9440, 9  Y%-FCC Rcd 4316 (1994) ("Third Order on Reconsideration").#x6X@`7iX@# y However, the errors described above are of such a magnitude that the CPS prices were excessive even when set. (#"x0*(("ԌXx` ` d. Moreover, the figures Operator used are not consistent with data on which it should have relied in setting its CPS prices. According to Operator's amended filings, Operator calculated its prices prior to September 1, 1993. Operator used Gross National Product Price Index ("GNPPI") data released by the U.S. Department of Commerce on May 28, 1993, to complete Lines 122, 123 and 125, but Operator claimed an Adjustment Time Period extending through September 1993 (Line 124),  Yv-which is inconsistent with an attempt to justify rates based on May 1993 data. Operator's calculation of the Inflation Adjustment Factor is thus incorrect.(# Xx` ` e. We must therefore recalculate the Inflation Adjustment Factor on the basis  Y -of the most accurate data currently available for the date for which Operator filed.r  Y -#Xw PE37XP#э#Xw PE37XP# 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@`7iX@#r On its amended Forms 393, Operator entered 12 months on Line 124, indicating that its filings were as of the end of September 1993. On July 29, 1994, the Department of Commerce released corrected inflation data including 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 an Inflation Adjustment Factor through September 1993, the base date Operator used in justifying its rates, of 1.028.(#  Yb-  x6. Upon review of the record herein, and having incorporated the adjustments discussed above, we conclude that Operator has failed to justify the rates it was charging during the periods in question. Operator's showings justify the maximum reasonable CPS tier prices shown on Appendix B (plus franchise fee) for the period from the filing of the  Y-earliest complaint in each franchise area (as set forth in Appendix A) to May 14, 1994.vd Y<#Xw PE37XP##Xw PE37XP##Xw PE37XP##Xw PE37XP##x6X@`7iX@#э#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 has accepted as correct any specific entry, explanation or argument made by any party to this proceeding not specifically  Y-addressed herein. x7. ACCORDINGLY, IT IS ORDERED that the complaints referred to in Appendix A against the cable programming service prices charged by Operator in the areas referenced in the caption and at Appendix A, and all other complaints in these franchise areas related to the same prices, ARE GRANTED TO THE EXTENT INDICATED HEREIN. x x8. 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 addressed herein 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"  0*(("  Y-Appendix A) Yy-#Xw PE37XP#э#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 prices for each franchise area set forth in Appendix B (plus franchise fee) per month, plus interest to the date of the refund. x9. IT IS FURTHER ORDERED that Operator shall promptly determine the overcharges to its CPS subscribers for the stated periods, and shall within 30 days of the release of this Order file reports with the Chief, Cable Services Bureau, stating the cumulative refund amounts so determined (including franchise fees and interest), describing the calculation thereof, and describing its plans to implement the refunds within 60 days of Commission approval of those plans.T x10. 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 charges per tier as of March 31, 1994 for Tiers 2 and 3 (Lines A6b and A6c) to equal the maximum prices in each  Y-franchise area set forth in Appendix B (plus franchise fee).b Y-#Xw PE37XP#э #Xw PE37XP#We reserve the right to make further adjustments to Operator's prices for the period after May 14, 1994, upon completion of our review of Operator's Form 1200 filings.  x11. 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. x x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhMeredith J. Jones x` `  hhChief, Cable Services Bureau "e0*((N"   Y-, Appendix A ă  Y-CUID No.` ` Subsidiaryhh@Date First Complaint  Date Complaint (#(#X  Y-x` `  hh@Filed with FCC  Served 0(#(#X  Yw-CT0153` ` Cencom Cable N.E. 9/3/93pp  9/1/93 x` ` Connecticut, Inc.  Y2-CT0154` ` Cencom Cable N.E. 9/3/93pp  9/1/93 x` ` Connecticut, Inc.  Y -CT0155` ` Cencom Cable N.E. 9/3/93pp  9/1/93 x` ` Connecticut, Inc.  Y -CT0156` ` Cencom Cable N.E. 9/3/93pp  9/1/93 x` ` Connecticut, Inc.  Yc-CT0157` ` Cencom Cable N.E. 9/3/93pp  9/1/93 x` ` Connecticut, Inc.  Y-CT0158` ` Cencom Cable N.E. 9/3/93pp  9/1/93 x` ` Connecticut, Inc.  Y-CT0159` ` Cencom Cable N.E. 9/3/93pp  9/1/93 x` ` Connecticut, Inc.  Y-CT0160` ` Cencom Cable N.E. 9/3/93pp  9/1/93 x` ` Connecticut, Inc.  YO-CT0161` ` Cencom Cable N.E. 9/3/93pp  9/1/93 x` ` Connecticut, Inc.  Y -CT0162` ` Cencom Cable N.E. 9/3/93pp  9/1/93 x` ` Connecticut, Inc.  Y -CT0163` ` Cencom Cable N.E. 9/3/93pp  9/1/93 x` ` Connecticut, Inc.  Y#-CT0164` ` Cencom Cable N.E. 9/3/93pp  9/1/93 x` ` Connecticut, Inc.  Y;&-CT0165` ` Cencom Cable N.E. 9/3/93pp  9/1/93 x` ` Connecticut, Inc.  Y(-CT0166` ` Cencom Cable N.E. 9/3/93pp  9/1/93"(0*0*0*0*"Ԍx` ` Connecticut, Inc.  Y-CT0167` ` Cencom Cable N.E. 9/3/93pp  9/1/93 x` ` Connecticut, Inc.  Y-CT0168` ` Cencom Cable N.E. 9/3/93pp  9/1/93 x` ` Connecticut, Inc. "H0*(("  Y-- Appendix B ă T  Y-CUID No.` `  Actual Rates hh@hppMaximum Permitted Rates  Yw-x` `  for CPS Tier 2@hppfor CPS Tier 2  YI-CT0153` `  $9.41hh@hpp$9.19  Y -CT0154` `  $9.41hh@hpp$9.19  Y -CT0155` `  $9.41hh@hpp$9.19  Y -CT0156` `  $9.41hh@hpp$9.19  Y-CT0157` `  $9.41hh@hpp$9.19  Yc-CT0158` `  $9.41hh@hpp$9.19  Y5-CT0159` `  $9.41hh@hpp$9.19  Y-CT0160` `  $9.41hh@hpp$9.19  Y-CT0161` `  $9.41hh@hpp$9.19  Y-CT0162` `  $9.41hh@hpp$9.19  Y}-CT0163` `  $9.41hh@hpp$9.19  YO-CT0164` `  $9.41hh@hpp$9.19  Y!-CT0165` `  $9.41hh@hpp$9.19  Y-CT0166` `  $9.41hh@hpp$9.19  Y -CT0167` `  $9.41hh@hpp$9.19  Y"-CT0168` `  $9.41hh@hpp$9.19 T"$' 0*((P("Ԍ Y-CUID No.` `  Actual Rates hh@hppMaximum Permitted Rates  Y-x` `  for CPS Tier 3@hppfor CPS Tier 3  Y-CT0153` `  $4.39hh@hpp$4.29  Y-CT0154` `  $4.39hh@hpp$4.29  Y_-CT0155` `  $4.39hh@hpp$4.29  Y1-CT0156` `  $4.39hh@hpp$4.29  Y -CT0157` `  $4.39hh@hpp$4.29  Y -CT0158` `  $4.39hh@hpp$4.29  Y -CT0159` `  $4.39hh@hpp$4.29  Yy-CT0160` `  $4.39hh@hpp$4.29  YK-CT0161` `  $4.39hh@hpp$4.29  Y-CT0162` `  $4.39hh@hpp$4.29  Y-CT0163` `  $4.39hh@hpp$4.29  Y-CT0164` `  $4.39hh@hpp$4.29  Y-CT0165` `  $4.39hh@hpp$4.29  Ye-CT0166` `  $4.39hh@hpp$4.29  Y7-CT0167` `  $4.39hh@hpp$4.29  Y -CT0168` `  $4.39hh@hpp$4.29