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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:><q*"xxxxWWxxxWWkkxxxxxxxxPxxxxxxxxxCkkkkkkkkkkPCPCPCPCxxxxxxxxxxkxxxxxxjxjjjxxjxxjxxxxxxxPCxxxxPxxxxCVxHCxxxxxVVx[[[xVCxxxxxxxxjjjxxxxxxPxxPPPWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNxxxPkbbxxxxxxTxxxxTPP||x>>xxxxxP|x!T"x}xExPPPxxxxPxkxofxkkPPPPk]kxkPCkkxkxxxkkPxkPPxxxxxxxPxkP8D%nZZB 3nMnMn..s[",tB^ f ^GPoxxPPPxPPPPxxxxxxxxxxPPx]sPPPxxPxkkTxCPCxk]Pxxxkxxxx>xxxxxPxxxxxxxxCxxxxxkkkkk]C]C]C]Cxxxxxxxxxxxxxjjxxjxxjxxxxx[Cxxx]xxC`x]Cxxjjx[][x`RxxjkjxxxxPxxPPPWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNxxxPxffxxxxxxTxxxxTPPx>>xxxxxPxT"xxExPPPxxxxPxkxsfxxxPPPPk]kkk]Ckkxkxxxkk]xkPPxxxxxxxPxkP8D%nZZB 3nMnMn..s[",tB^ f ^;C`ddCCCdCCCCddddddddddCCdxxxsCYoxxdoxxooCCCddCddYdY8dd88Y8ddddLL8dYYYLYdYd4dddddCddddddddd8xdxdxdxdxdYxYxYxYxYC8C8C8C8dddddddddoYxddddoYdxdxdxdxdXXddxxXxdxdxXdddddddD8ddddCdddddp8pHodp8p8dxddddxLxLxddLdLdLddpHp8odddddddodpLpLpLdoddddododxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCd]]ddddddFddddFCCddd88ddzzdddkddCddF"ddd9dCCzCdzdoddCdYds]zUvdYYCCCCzzzozoYzNoYdYC8YooYdYzzdzddoYoYzzozzzzzCdoozYzzzzCCddddzdddooozCsdYC\   pxtll\tll@\@\`L2h H FOR FCC RECORD ONLY $//TCI Cablevision of Los Angles County, Inc., et al, MO&O, DA 951182//$ $/ 76.922 Rates for Cable Programming Service tier/$ $/benchmark cable rates/$  c<   -Before the FEDERAL COMMUNICATIONS COMMISSION  e<Washington, D.C. 20554  X-* DA 951182 ĐX(#P  Y} -In the Matter of hh@)hpp  Yf -x` `  hh@)h  YO -TCI Cablevision of Los Angeles hh@)hCUID No. CA1168 (South Whittier)(#(#X Y8 -County, Inc.` `  hh@) x` `  hh@)  Y -TCI Cablevision of Florida, Inc.hh@)hCUID Nos. FL0061 (District 5) and  Y-x` `  hh@)hFL0518 (South Daytona) x` `  hh@)  Y-TCI Cablevision of Treasure hh@)hCUID No. FL0230 (Vero Beach)  Y-Coast, Inc.` `  hh@) x` `  hh@)  Y-Miami TeleCommunications, Inc.hh@)hCUID No. FL0653 (Miami) x` `  hh@)  YR-TCI Cablevision of North Centralhh@)hCUID No. KY0569 (Mt. Washington)  Y;-Kentucky, Inc. hh@)h x` `  hh@)  Y -TCI Cablevision of Cape Cod, Inc.@)hCUID Nos. MA0006 (Yarmouth),  Y-x` `  hh@)hMA0039 (Barnstable), MA0040 (Harwich)  Y-x` `  hh@)hand MA0041 (Dennis) x` `  hh@)  Y-TCI Cablevision of West Michigan, Inc.@)hCUID Nos. MI1153 (Cannon) and MI1729  Y-x` `  hh@)h(Tallmadge) x` `  hh@)  Yl-TCI Cablevision of Asheville, Inc.hh@)hCUID No. NC0032 (Asheville) x` `  hh@)  Y>!-TCI Cablevision of Ohio, Inc.hh@)hCUID Nos. OH0028 (Conneaut), OH0893  Y'"-x` `  hh@)h(Kirtland), OH0896 (MentorontheLake)  Y#-x` `  hh@)hand OH0960 (Perry) x` `  hh@)  Y$-TCI Cablevision of Tulsa, Inc.hh@)hCUID Nos. OK0065 (Broken Arrow)  Y%-x` `  hh@)hand OK0194 (Sapulpa) x` `  hh@)  Y'-TCI TKR of Houston, Inc.hh@)hCUID No. TX0424 (Texas City) x` `  hh@)"(0*0*0*)"Ԍ Y&-TCI Cablevision of Dallas, Inc.hh@)hCUID Nos. TX0624 (Farmers Branch) and  Y'-x` `  hh@)hTX0682 (Mesquite) x` `  hh@)"(0*0*0*)"Ԍ Y(-Newport News Cablevision, Inc.hh@)hCUID No. VA0031 (Newport News)(#(#X"(0*0*0*)"ԑx` `  hh@)"(0*0*0*)"Ԍ Y-TCI Cablevision of South Seattle, Inc.@)hCUID No. WA0068 (Renton) x` `  hh@)  Y-TCI of Seattle, Inc. hh@)hCUID Nos. WA0082 (King County S)  Y-x` `  hh@)hand WA0083 (King County) x` `  hh@)  Y-TCI Cablevision of Southwesthh@)hCUID No. WA0253 (King)  Yv-Washington, Inc. hh@) x` `  hh@)  YH-Benchmark Filings to Supporthh@)h  Y1-Cable Programming Service Priceshh@)  Y -}  MEMORANDUM OPINION AND ORDER ă  Y -x` ` Adopted: May 26, 1995@ hReleased: June 7, 1995 By the Chief, Cable Services Bureau:  Yz- 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 operators (individually "Operator" and, collectively, "Operators") were charging for their cable programming service ("CPS") tiers in the communities designated above. Operators have chosen to attempt to justify their prices through benchmark showings on FCC Form 393. This Order addresses the reasonableness of Operators' prices only through May 14, 1994. At a later date we will issue a separate order addressing the reasonableness of the prices after  Y-that date.+  Yi-#Xw PE37XP#э 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 Operators have 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 prices determined herein might also apply from May 15, 1994 until the date on which such Operators #XR  P7jQXP#implemented their CPS  Y<prices under the new regulations. See para. 3, infra.#x6X@`7iX@# #XR  P7jQXP#Further, to the extent that the prices as of March31, 1994 are found to be excessive, reductions in prices for the period after May 14, 1994 may be required to reflect the fact that the prices during the earlier period, which are used as the starting point to calculate the prices for the prospective period, were  Yr!-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 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""0*((~" 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.f Yb-#Xw PE37XP#э 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-#Xw PE37XP#э 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 -#Xw PE37XP#э Id.Y  Yv-x3. The Commission's original rate regulations took effect on September 1, 1993.v Y -#Xw PE37XP#э 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.i_`  Yp-#Xw PE37XP#э 47 C.F.R.  76.922(b).i 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-#Xw PE37XP#э 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.Y  YJ-#Xw PE37XP#э Id.Y 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#э 47 C.F.R.  76.922(b)(6); see also Second Order on Reconsideration, 9 FCC Rcd at4189 n.195.  Yy- x4. The first valid CPS complaints in each of the franchise areas which are the subject of this Order were completed and served on the respective Operators and received by the Commission on the dates set forth on Appendix A. Operators filed FCC Form 393s in  Y4-response; Operators have also filed amended and supplemental Form 393 filings.J 4 Y$-#Xw PE37XP#э For example, Operators filed amended FCC Forms 393 in response to a Cable Services Bureau Order citing common deficiencies observed in benchmark filings generally. Cable Operators' Rate Justification Filings, 9 FCC Rcd 7752 (Cab. Serv. Bur. 1994). J "4 0*((8"Ԍ Y-ԙ  x5. For the franchise areas designated by CUID Nos. FL0230, FL0653 and OK0194, Operators' actual CPS tier prices were above the maximum permitted prices that Operators calculated for the CPS tier and, thus, Operators failed to demonstrate that their prices for the CPS tier were not unreasonable. Furthermore, upon review of Operators' submissions for these franchise areas, we have found that Operators have not correctly calculated their maximum permitted prices, and it is therefore appropriate to make the following adjustments to Operators' calculations in their Form 393s: Xx` ` a. On Line 32, Step G, Part III of their Form 393s, Operators made an error in addition. For CUID No. FL0230, the Operator entered $538,191.90. The correct figure is $496,283.14 and we have revised this entry. For CUID No. FL0653, the Operator entered $945,690.19. The correct figure is $925,858.11 and we have revised this entry. For CUID No. OK0194, the Operator entered $3,991,817.04. The correct figure is $3,891,113.27 and we have revised this entry.(# Xx` ` b. Because the Operators have not demonstrated that their prices in these franchise areas were reasonable, we must also recalculate the Inflation Adjustment Factor using the most accurate data currently available for the date for which the  Yb-Operators filed. b Y-#Xw PE37XP#э 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). The Operators on their amended Form 393s calculated the Inflation Adjustment Factor as of the end of October 1993 using data released on August 31, 1993. 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 an Inflation Adjustment Factor through October 1993, the base date the Operators used in justifying their rates, of 1.030.(# x6. For the franchise area designated by CUID No. FL0518, the Operator's actual CPS tier price was above the maximum permitted price that it calculated for the CPS tier and, thus, the Operator failed to demonstrate that its price for the CPS tier was not unreasonable. Furthermore, upon review of the Operator's submission for this franchise area, we have found that the Operator has not correctly calculated its maximum permitted price, and it is therefore appropriate to make the following adjustment to the Operator's calculations in its Form 393: Xx` ` On its Form 393 filing for CUID No. FL0518, the Operator calculated the Inflation Adjustment Factor as of the end of December 1993. However, the Operator cannot permissibly calculate inflation through the end of December 1993. Based on the service date of the earliest valid complaint, the Operator was required to file a"!d 0*((""  Y-rate justification no later than November 29, 1993.s  Yy-#Xw PE37XP#э See 47 C.F.R.  76.956(a).s If the Operator had filed FCC Form 393 by that date, the instructions to Form 393 would have required it to  Y-calculate the inflation adjustment only through October 1993.{ Y-#Xw PE37XP#э 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"). The 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 currently available for the date that the Operator should have filed Form  Yv-393.v Y% -#Xw PE37XP#э 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 the 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 an Inflation Adjustment Factor through October 1993, the base date the Operator should have used in justifying its rate for CUID No.FL0518, of 1.030.(# x7. For the remaining franchise areas, we have found no apparent errors in the Operators' calculation of their maximum permitted rates. However, the Operators' actual CPS tier prices were above the maximum permitted prices that the Operators calculated for the CPS tier. Accordingly, the Operators have failed to demonstrate that their prices for the CPS tier were not unreasonable, and we therefore must recalculate the Inflation Adjustment Factor in Form 393, Part II, Worksheets 1 and 4, on the basis of the most accurate data  YK-currently available for the date for which the Operators filed:YK Y-#Xw PE37XP#э Id.Y Xx` ` a. Except for the franchise area designated by CUID No. FL0061, the Operators on their amended Form 393s, calculated the Inflation Adjustment Factor as of the end of October 1993 using data released on August 31, 1993. 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 an Inflation Adjustment Factor through October 1993, the base date the  Y|-Operators used in justifying their rates, of 1.030.|M  Yz%-#Xw PE37XP#э This adjustment to Worksheet 1 has the effect of causing operators in some franchise areas to calculate their permitted rate from Form 393, Part II, Worksheet 2 rather than Worksheet 1. In those franchise areas where operators did not file a Worksheet 2 and one is"L'0*((i'" needed, we have computed Worksheet 2 by using data supplied by operators on their Form 1200 filings.(#"|b0*((|"ԌXx` ` b. For the franchise area designated by CUID No. FL0061, the Operator on its amended Form 393, calculated the Inflation Adjustment Factor as of the end of December 1993 using data released on December 1, 1993. 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 126.5 for the fourth quarter of 1993. Using these GNPPI figures, we calculate an Inflation Adjustment Factor through December 1993, the base date the Operator used in justifying its rate, of 1.034.(# x8. Upon review of the record herein, and having incorporated the adjustments discussed above, we conclude that Operators have failed to justify the rates they were charging during the periods in question. Operators' showings justify the maximum reasonable CPS tier prices shown on Appendix B (plus franchise fee) for the period from the filing of the earliest complaint in each franchise area (as set forth in Appendix A) to May 14,  Y -1994. b Y-#Xw PE37XP#э This finding is based solely on the representations of Operators and the modifications described herein. Should information come to our attention that these 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 addressed herein. However, we further determine that for CUID Nos. MA0006, MA0039, MA0040  Y -and MA0041, the total overcharge per subscriber is de minimis. Therefore, it would not serve the public interest to order refunds in these franchise areas. x9. 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 Appendix A against the cable programming service prices charged by Operators in the areas referenced in the caption and at Appendix A herein, and all other complaints in these franchise areas related to the same prices, ARE GRANTED TO THE EXTENT INDICATED HEREIN. x10. IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's rules, 47 C.F.R.  76.961, that Operators shall refund to subscribers in the communities shown in Appendix B, except for CUID Nos. MA0006, MA0039, MA0040 and MA0041, that portion of the amounts paid for cable programming service for the period from the filing  Y~-of the first valid complaint in each franchise area (as set forth on Appendix A)~ Y#-#Xw PE37XP#э 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 each franchise area set forth in Appendix B (plus franchise fee) per month, plus interest to the date of the refund. "9Q 0*((."Ԍx11. IT IS FURTHER ORDERED that Operators shall promptly determine the overcharges to their 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.T x12. 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 Operators shall, within 30 days of the release of this Order, revise their Form 1200 filings with respect to the communities 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 price in each franchise  Y -area set forth in Appendix B (plus franchise fee).  Ye -#Xw PE37XP#э We reserve the right to make further adjustments to Operators' prices for the period after May 14, 1994, upon completion of our review of Operators' Form 1200 filings. x13. IT IS FURTHER ORDERED that Operators shall place into effect, within 30 days after their 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 "b0*((o"   Y-, Appendix A ă  Y-CUID No.` `  Date First ComplainthppDate Complaint xx  Y-x` `  Filed with FCC@hppServed  xx  Y`-CA1168` `  10/15/93hh@hpp10/12/93  Y2-FL0061` `  3/10/94hh@hpp3/5/94  xx 0(#(#X  Y -FL0518` `  11/3/93hh@hpp10/29/93  Y -FL0230` `  9/24/93hh@hpp9/14/93  Y -FL0653` `  9/27/93hh@hpp9/17/93  Yz-KY0569` `  9/30/93hh@hpp9/27/93  YL-MA0006` `  2/2/94hh@hpp1/26/94  Y-MA0039` `  2/2/94hh@hpp1/26/94  Y-MA0040` `  2/2/94hh@hpp1/26/94  Y-MA0041` `  2/2/94hh@hpp1/26/94  Y-MI1153` `  12/9/93hh@hpp11/12/93  Yf-MI1729` `  11/23/93hh@hpp10/18/93  Y8-NC0032` `  10/5/93hh@hpp9/27/93  Y -OH0028` `  2/17/94hh@hpp2/17/94  Y-OH0893` `  2/28/94hh@hpp2/28/94  Y!-OH0896` `  2/28/94hh@hpp2/25/94  Y#-OH0960` `  2/25/94hh@hpp2/25/94  YR%-OK0065` `  12/6/93hh@hpp11/30/93  Y$'-OK0194` `  12/10/93hh@hpp12/6/93  Y(-TX0424` `  1/24/94hh@hpp1/13/94"(0*0*0*0*"Ԍ Y-ԙTX0624` `  2/28/94hh@hpp2/25/94  Y-TX0682` `  11/29/93hh@hpp11/24/93  Y-VA0031` `  10/19/93hh@hpp10/14/93  Yv-WA0068` `  12/20/93hh@hpp12/16/93  YH-WA0082` `  9/7/93hh@hpp9/3/93  Y -WA0083` `  9/7/93hh@hpp9/3/93  Y -WA0253` `  9/7/93hh@hpp9/3/93 " 0*0*0* "   Y-- Appendix B ă  Y-CUID No.` `  Actual Rates@hMaximum Permitted Rates  Y-CA1168` `  $11.10@hpp$10.34  Y`-FL0061` `  $11.25@hpp$10.73  Y2-FL0518` `  $11.25@hpp$10.69  Y -FL0230` `  $11.73@hpp$11.23  Y -FL0653` `  $13.89@hpp$13.55  Y -KY0569` `  $10.79@hpp$10.57  Yz-MA0006` `  $11.48@hpp$11.44  YL-MA0039` `  $11.48@hpp$11.44  Y-MA0040` `  $11.48@hpp$11.44  Y-MA0041` `  $11.48@hpp$11.44  Y-MI1153` `  $11.80@hpp$11.18  Y-MI1729` `  $11.80@hpp$11.18  Yf-NC0032` `  $11.17@hpp$10.80  Y8-OH0028` `  $11.24@hpp$10.71  Y -OH0893` `  $11.89@hpp$11.79  Y-OH0896` `  $11.89@hpp$11.79  Y!-OH0960` `  $11.89@hpp$11.79  Y#-OK0065` `  $10.98@hpp$10.48  YR%-OK0194` `  $10.98@hpp$10.45  Y$'-TX0424` `  $12.48@hpp$11.45  Y(-TX0624` `  $9.98hh@hpp$9.64"( 0*0*0*0*"Ԍ Y-ԙTX0682` `  $10.85@hpp$10.38  Y-VA0031` `  $12.87@hpp$12.46  Y-WA0068` `  $10.61@hpp$10.13  Yv-WA0082` `  $9.98hh@hpp$9.76  YH-WA0083` `  $9.98hh@hpp$9.76  Y -WA0253` `  $10.56@hpp$10.22