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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:8wC;,Xw PE37XPD?@NE,-_ pi7D7zC;,mXz_ pi7X@V"G($,hG PE37hP6uC;,~Xu&_ x7XX Z Z Z @l",tB^ f ^ENluuNNNuNNNNuuuuuuuuuuNNu[pNNNuuNuhhRuANAuh[Nuuuhuuuu=uuuuuNuuuuuuuuAuuuuuhhhhh[A[A[A[AuuuuuuuuuuuuugguuguuguuuuuYAuuu[uuA]u[AuugguY[Yu]OuughguuuuNuuNNNWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNuuuNuccuuuuuuRuuuuRNNu<<uuuuuNuR"uuCuNNNuuuuNuhupcuuuNNNNh[hhh[Ahhuhuuuhh[uhNNuuuuuuuNuhN /;k  PP9~~+k~~KkKk&&pY",tB^ f ^;C]ddCCCdCCCCddddddddddCCdxN`xoCCCddCdoYoYFdo8Co8odooYNCodddYdddd4dddddCddddddddo8dddddYYYYYN8N8N8N8oddddooooddpddddxodddXXddXddXdddddooL8doddNorddo8PdN8ppoddXXdpLoNpLodPDdopoopodXYXodoodddCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCdUUddddddFddddFCCssd44ddzzddd~ooCsdF"dsd9dCCzCddoddCdYds`zUvdddCCCCzozoYNYYYN8YooYdYzzdzddYYzozzzNdzYzzzzCCdddddddzCzdYC\   pxtll\tll@\@\`L2l\BKZQJ "i~'K2^$(8<><q*"xxxxWWxxxWWkkxxx8wC;,Xw PE37XPD?@NE,-_ pi7D@7zC;,mXz_ pi7XAV"G($,=hG PE37hP6uC;,QXu&_ x7XX<zl , 6z  > z$ dddddddodpLpLpLdoddddododxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCd]]ddddddFddddFCCddd88ddzzdddkddCddF"ddd9dCCzCdzdoddCdYds]zUvdYYCCCCzzzozoYzNoYdYC8YooYdYzzdzddoYoYzzozzzzzCdoozYzzzzCCddddzdddooozCsdYC\   pxtll\tll@\@\`L2f \ h",tB^ f ^;C`ddCCCdCCCCddddddddddCCdxxxsCYoxxdoxxooCCCddCddYdY8dd88Y8ddddLL8dYYYLYdYd4dddddCddddddddd8xdxdxdxdxdYxYxYxYxYC8C8C8C8dddddddddoYxddddoYdxdxdxdxdXXddxxXxdxdxXdddddddD8ddddCdddddp8pHodp8p8dxddddxLxLxddLdLdLddpHp8odddddddodpLpLpLdoddddododxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCd]]ddddddFddddFCCddd88ddzzdddkddCddF"ddd9dCCzCdzdoddCdYds]zUvdYYCCCCzzzozoYzNoYdYC8YooYdYzzdzddoYoYzzozzzzzCdoozYzzzzCCddddzdddooozCsdYC\   pxtll\tll@\@\`L Y- H $//Cablevision of Riverview, Inc., North Bergen, NJ, et al., MO&O, DA951639//$ $/ 76.922 Rates for Cable Programming Services tiers /$ $/benchmark cable rates/$  a<Ԋ#Xw PE37XP#-#_ pi7-#Before the FEDERAL COMMUNICATIONS COMMISSION  a<Washington, D.C. 20554 #Xw PE37XP#X01Í ÍX01Í Í҃  X-* DA 951639 ĐX(#P x` `  Yf -In the Matter of hh@ )h  YO -x` `  hh@ )hCUID Nos. NJ0083 (North Bergen)  Y8 -Cablevision of Riverview, Inc.hh@ )hpp NJ0111 (Hoboken)  Y! -x` `  hh@ )hpp NJ0345 (Weehawken)  Y -Benchmark Filing to Supporthh@ )hpp NJ0365 (West New York)  Y-Cable Programming Service Pricehh@ )hpp NJ0366 (Union)  Y-}  MEMORANDUM OPINION AND ORDER ă  Y-x` ` Adopted: July 24, 1995 @hppReleased: August 2, 1995 By the Chief, Cable Services Bureau:  Y%- I. A. 1. a.(1)(a) i) a) I. 1. 1. a.(1)(a) i) a)  x1. Here we consider complaints about the price that the abovecaptioned operator ("Operator") was charging for its cable programming service ("CPS") tier in the communities 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. f  Y+-ԍ 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 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  Y4(-unreasonable. See 47 C.F.R.  76.922(b)(4)(C). " 0*0*0*"Ԍ Y-  x2. Under the Cable Television Consumer Protection and Competition Act of 1992,| Yy-ԍ 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  Y-obligation on behalf of the cable operator to file a justification of its CPS prices.@| Yb-ԍ 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.Cy| Y-ԍ 47 C.F.R.  76.956(b).C In either case, the operator has the burden of demonstrating that its  Y-CPS prices are not unreasonable.3*| Y -ԍ Id.3  Yv-x3. The Commission's original rate regulations took effect on September 1, 1993.v| Y -ԍ 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.C_` | Yp-ԍ 47 C.F.R.  76.922(b).C 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.w  | Y-ԍ See Second Order on Reconsideration, 9 FCC Rcd at 4190, paras. 150152.w 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 393.3 | YJ-ԍ Id.3 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-ԍ 47 C.F.R.  76.922(b)(6); see also Second Order on Reconsideration, 9 FCC Rcd at 4189 n.195. " 0*((x"  Y- x4. The first valid CPS complaints in each of the franchise areas which are the subject of this Order were served on Operator and received by the Commission on the dates set forth on the Appendix. Operator filed FCC Form 393 in response; Operator has also filed  Y-amended and supplemental Form 393 filings.C 3| Y-ԍ Operator filed an amended FCC Form 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). Operator also submitted additional information in response to a Cable Services Bureau Public Notice offering operators the opportunity to make optional supplemental filings. Public Notice: Cable Services Bureau Announces Optional Procedures with Respect to Pending PreMay 15 Benchmark Cases, DA 941556 (Dec. 29, 1994) and Public Notice: Cable Services Bureau Announces Extension of Time to File Under Optional Procedures with Respect to Pending  Ye -PreMay 15 Benchmark Cases, DA 9587 (Jan. 20, 1995) (together, Public Notice).C  Yv-x5. On March 28, 1994, Operator filed a Motion to Dismiss the complaints filed in each of the franchise areas by the State of New Jersey Board of Regulatory Commissioners because the complainant failed to list the channels included in the CPS tier or otherwise describe the cable programming service at issue. The complainant filed its complaints on a revised FCC Form 329, released by the Commission in January 1994, that does not require an itemization of the channels in the CPS tier. Operator argues that the revised FCC Form 329 is deficient because it does not request "a description of the cable programming service or associated equipment involved and, if applicable, how the service or associated equipment  Y -has changed."F | Y2-ԍ 47 C.F.R.  76.951(b)(6).F Operator's argument does not persuade us that the complaints are invalid or should be dismissed. The Commission revised FCC Form 329 because experience had shown that the prior form requested unnecessary information and was confusing to many complainants. FCC Form 329 was therefore revised consistent with the Congressional mandate to avoid imposing unnecessarily "technical or complicated" pleading requirements  YK-on complainants.  Kt | Yp-ԍ See H.R. Conf. Rep. No. 862, 102d Cong., 2d Sess. at 64 (1992); see also Report and Order and Further Notice of Proposed Rulemaking, MM Docket No. 92266, FCC 93177, 8 FCC Rcd 5631, 584344, para. 339 (1993).  In general, we will find valid any complaint that states a claim on which relief can be granted and provides adequate information to allow us to process the complaint. These complaints clearly relate to Operator's price for the CPS tier. We therefore find the complaints valid and deny Operator's motion to dismiss. x6. Operator's monthly CPS tier price of $10.10 (plus franchise fee) is not justified by its benchmark filing because its price is greater than the maximum permitted charge of $9.98 per month (plus franchise fee), as calculated in the filing. Upon review of Operator's Form " 0*((" 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: Xx` ` Operator calculated the Inflation Adjustment Factor (Part II, Worksheet 1, Line 127) as of the end of April 1994 using data released by the U.S. Department of Commerce on May 27, 1994. However, Operator's use of April 1994 as the date through which it calculated the inflation adjustment is impermissible. Operator was required to file a justification of its CPS price for the franchise areas no later than  Y1-January 27, 1994.1| Y -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 justification in a timely fashion, the instructions to Form 393 would have required it to calculate the inflation adjustment  Y -only through December 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"). Operator cannot be permitted to claim an additional inflation adjustment simply because it filed Form 393 late. We must therefore 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. | YT-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, 1994, the 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 1.034 as the Inflation Adjustment Factor through December 1993, the base  YK-date Operator should have used in justifying its rate.  (#  Y4-xT ă x7. 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 periods in question. Operator's showing justifies the maximum reasonable CPS tier price of $9.63 per month (plus franchise fee) for the period from the filing of the earliest  Y-complaint in each franchise area (as set forth on the Appendix) to May 14, 1994. | Y!-ԍ This finding is based solely on the representations of Operator and the modification 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. "0*(("Ԍx8. Accordingly, IT IS ORDERED, pursuant to Section 0.321 of the Commission's Rules, 47 C.F.R.  0.321, that the complaints referenced herein against the cable programming service price charged by Operator in the areas referenced in the caption, and all other complaints in these franchise areas related to the same price, ARE GRANTED TO THE EXTENT INDICATED HEREIN. x9. IT IS FURTHER ORDERED, pursuant to Section 0.321 of the Commission's Rules, 47 C.F.R.  0.321, that Operator's motion to dismiss the complaints against its cable programming service price charged in the franchise areas referenced in the caption IS DENIED. x10. 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 referenced in the caption 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  Y -the Appendix) | Y -ԍ 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 per month (plus franchise fee) of $9.63, plus interest to the date of the refund. x11. IT IS FURTHER ORDERED that Operator shall promptly determine the overcharges to 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 Operator shall, within 30 days of the release of this Order, revise its Form 1200 filing 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 of $9.63 (plus franchise  YN-fee).Nb| Ya -ԍ We 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. x13. 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. "0*(( "Ԍx14. IT IS FURTHER ORDERED, pursuant to Section 76.960 of the Commission's Rules, 47 C.F.R.  76.960, that Operator shall not be required to obtain advance approval of adjustments to its CPS price in the franchise areas addressed herein for one year following the release of this Order, due to Operator's having submitted in good faith optional  Y-supplemental filings in response to our Public Notice. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhMeredith J. Jones x` `  hhChief, Cable Services Bureau  " 0*((@ "  Y-L4 Appendix ă  Y-CUID No.` `  Date First ComplainthppDate Complaint  Y-x` `  Filed with FCC@hppServed  Y`-NJ0083` `  2/28/94hh@hpp2/25/94  Y2-NJ0111` `  2/28/94hh@hpp2/25/94  Y -NJ0345` `  2/28/94hh@hpp2/25/94  Y -NJ0365` `  2/28/94hh@hpp2/25/94  Y -NJ0366` `  1/3/94hh@hpp12/28/93