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File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $//Waiver Order, State of Hawaii, DA 95-1746//$ $/76.942 Refunds/$ $/1.3 Suspension, amendment or waiver of rules/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 95-1746 In the Matter of: ) ) STATE OF HAWAII DEPARTMENT OF ) COMMERCE AND CONSUMER AFFAIRS, ) CABLE TELEVISION DIVISION, ) ) Petitioner ) ) v. ) ) KAUAI CABLEVISION, ) ) Respondent ) ) Request For Clarification or Waiver of Section ) 76.942(b) of the Commission's Rules ) MEMORANDUM OPINION AND ORDER Adopted: August 8, 1995 Released: August 15, 1995 By the Chief, Cable Services Bureau: I. Background 1. On December 27, 1994, the State of Hawaii, through the Cable Television Division of its Department of Commerce and Consumer Affairs (the "State") filed with the Cable Services Bureau of the Federal Communications Commission (the "Bureau") a request for clarification or waiver of 76.942(b) of our rules. In its request, the State seeks a waiver of 76.942(b) of our rules so that it may order Kauai Cablevision ("Kauai") to issue refunds to its subscribers, with interest, from September 1, 1993 to July 14, 1994, a period of time greater than the maximum one-year period allowed by 76.942(b) of our rules. Kauai submitted an opposition to the State's request on January 26, 1995 in which it urged the Bureau to deny the State's request. The State submitted a reply to Kauai's opposition on February 3, 1995. 2. In its request, the State notes that although five of the seven cable operators within the State voluntarily consented to waivers of the Commission's one-year limitation on operators' refund liability periods, Kauai refused to consent to such a waiver. The State contends that it was unable to issue rate orders governing Kauai's rates by September 1, 1994 because of an extension of time sought by Kauai, as well as the volume of work faced by the State as the sole regulator of cable television rates in the State. Because the information sought by the State in its request for supplemental information was significant, the State's review of Kauai's FCC Form 393s was delayed until it received the additional information requested from Kauai. In order to protect subscribers' interests in potential refunds, the State sought Kauai's consent to a waiver of the one-year refund liability limitation set forth in 76.942(b) of our rules. Kauai refused to consent to such a waiver. It is the State's position that a grant of the State's request for a waiver of 76.942(b) of our rules is in the public interest. 3. Kauai asserts that the State has not met its burden of demonstrating that it is entitled to a waiver of our rules. Kauai contends that the State has failed to present any facts or circumstances that would warrant a waiver of our rules. Kauai further asserts that due to the State's tardiness in initiating the certification process, the State was unable to issue a rate order by September 1, 1994. It is Kauai's position that the short extension of time from August 3, 1994 to August 31, 1994 which it received from the State in order to respond to the State's request for supplemental information is not adequate justification for the granting of a waiver in this case. Finally, Kauai contends that the grant of a waiver in the instant case would "eviscerate" the rule which limits an operator's refund liability to a one-year period. II. Discussion 4. The Commission may waive any provision of its rules either on its own motion or on petition if good cause is shown." Because the instant case does not involve a waiver of the Commission's rules on its own motion, we will grant the State's request only upon a showing of the requisite good cause by the State. 5. As Kauai correctly points out, any party seeking a waiver of our rules "faces a high hurdle even at the starting gate." In the instant case, it is our determination that the State has not presented arguments sufficient to justify a waiver of our rules regarding Kauai's maximum refund liability period. The State seeks a waiver of our rules in order to protect subscribers' interests in refunds dating back to September 1, 1993. However, it is necessary to balance the interests both of subscribers and of cable operators such as Kauai. In promulgating our rules regarding franchising authorities' power to order refunds, we considered the concerns voiced both by cable operators and franchising authorities. After careful consideration of the views of these interested parties, we determined that, while the remedy of ordering refunds is available to franchising authorities, that power is not unlimited. Accordingly, we concluded that an operator's refund liability would be limited to a period of one year. This limitation was developed in order to avoid exposing cable operators to lengthy refund liability periods which could affect the viability of their systems. 6. In the instant case, the State's arguments regarding the need for a waiver of our rules are not sufficiently compelling to overcome the limitation of refund liability expressed by the rule. First, whether other operators have entered into voluntary agreements with the State to extend their refund liability periods has no bearing on whether this operator must. As noted in footnote 3, supra, cable operators and franchising authorities are free to enter into such agreements; however, these agreements do not bind any entity which is not a party to such an agreement. Second, the State's argument that it was unable to issue a rate order governing Kauai's rates by September 1, 1994 because of an extension of time sought by Kauai, as well as the volume of work faced by the State as the sole regulator of cable television rates in the State is similarly unavailing. The State, for example, could have denied Kauai's request for an extension of time within which to submit the supplemental information requested by the State, or, in the alternative, it could have negotiated an extension of Kauai's refund liability period in light of its agreement to grant Kauai an extension of time within which to file the supplemental information requested by the State. Finally, the heavy workload faced by the State in its capacity as the sole regulator of cable television rates in the State does not constitute sufficient reason to subject Kauai to refund liability beyond the maximum period set forth in our rules. 7. As indicated in footnote 3, supra, we have recognized and indeed encouraged agreements by local franchising authorities and cable operators to extend the one-year refund liability period set forth in our rules. In the absence of such an agreement here, we cannot find that good cause exists to grant a waiver of these rules. 8. Because the State has failed to demonstrate that good cause exists for the grant of its waiver request, we will deny the State's request that we clarify or waive 76.942(b) of our rules. The State may not order Kauai to issue refunds for a period of time greater than the one-year maximum set forth in our rules. III. Ordering Clauses 9. Accordingly, IT IS ORDERED that the State's Request for Clarification or Waiver of 76.942(b) of our rules IS DENIED. 10. 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