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File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $//Amended Order on Recon, Complaints Regarding CPS Prices, DA 95-1872//$ $/76.950 Complaints regarding cable programming service (CPS) prices/$ BEFORE THE FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 95-1872 In the Matter of ) ) Northern Dakota County Complaints Regarding Cable ) Cable Communications Programming Service Prices ) Commission, MN ) City of Manteca, CA ) Town of Ramapo, NY ) City of Artesia, CA ) Charles Warrender, CT ) Hardin County, KY ) City of Henderson, KY ) Bruce Coleman, KY ) Don F. Tibbs, GA ) Don F. Tibbs, FL ) City of Canyon Lake, CA ) Kenton/Boone Counties Cable ) Television Board, KY ) City of Lauderhill, FL ) City of Monroe, NC AMENDED ORDER ON RECONSIDERATION Adopted: August 25, 1995 Released: August 25, 1995 By the Chief, Cable Services Bureau: 1. This Order addresses requests for reconsideration opposing the Commission's decision to return complaints filed by petitioners regarding cable programming service (CPS) prices. The Commission returned the complaints on the grounds that they were not filed with the Commission within the period provided for by our rules. The petitioners listed above request reconsideration and argue that their complaints should be accepted as timely filed. For the reasons set forth below, we grant petitioners' requests for reconsideration where complainants attempted to file a complaint on the February 28, 1994 deadline by facsimile and/or postmarked their complaint by the deadline and, in either case, sought reconsideration of the rejection of their complaint within the 30 day period provided by our rules and provided notice of their request for reconsideration to the cable operator. All other requests for reconsideration in this matter are denied. 2. Under the Cable Television Consumer Protection and Competition Act of 1992 ("1992 Cable Act"), and Section 79.950 et. seq. of our rules, the Commission must review CPS prices upon the filing of a valid complaint. The filing of a valid complaint triggers an obligation on behalf of the cable operator to file a justification of its CPS prices. The 1992 Cable Act provides that such "complaints [must be] filed . . . during the 180-day period following the effective date of the [Commission's] regulations," and that "complaints [must be] filed within a reasonable period of time following a change in rates." 3. The Commission adopted rules pursuant to the directives of the 1992 Cable Act, and those rules became effective on September 1, 1993. Under the Commission's rules, except with regard to small systems, parties seeking to challenge rates that were in effect on September 1, 1993 must file a complaint with the Commission on or by February 28, 1994. Thereafter, parties challenge a rate change by filing a complaint with the Commission within 45 days after receiving a bill from the cable operator that reflects the rate change. The February 28, 1994 deadline is derived from the requirement in Section 623(c)(3) of the Communications Act which permits the filing of complaints relating to pre-existing cable programming service rates to be filed only "during the 180-day period following the effective date of the [rate] regulations prescribed by the Commission ..." The Commission's authority to alter the filing date is thus limited by this statutory time limitation. 4. Under Section 1.3 of the Commission's rules, any provision of the rules may be waived on petition if good cause is demonstrated. In order to establish good cause, a party must provide a legitimate reason for not being able to file within the time specified. We shall use the same "good cause" standard to justify making an exception to our policy that the filing date is deemed to be the date on which documents are received at the Commission, which is modeled after the Commission rules. As discussed below, we find that an exception is warranted in those situations where complainants made attempts to file a complaint by facsimile on the filing date of February 28, 1994, but were unable to complete the filing due to technical difficulties in reaching the Commission via facsimile. We also find an exception for complainants who postmarked their complaints by February 28, 1994. However, in both cases, petitioners must have requested reconsideration of the Commission's initial decision within 30 days and must have provided notice to opposing parties of their request for reconsideration. a. To trigger Commission jurisdiction over a cable operator's CPS rates, a complaint must be filed on FCC Form 329. Pursuant to FCC Form 329 instructions, a petitioner has the option to file a complaint via facsimile transmission or mail. Commission policy allows for facsimile filings by the due date. Many of those complainants who opted to use facsimile transmission on the day of February 28, 1994, were unsuccessful due to the unforeseeable problem of busy lines blocking access to the Commission throughout the day. Petitioners who attempted to file by facsimile, argue that the inadequacy of the Commission's "doorway" should not preclude them from being heard. Extraordinary circumstances beyond the control of the complainants precluded complainants from successfully filing via facsimile on February 28, 1994. In these situations, we find good cause exists to accept those complaints attempted to be filed by facsimile on February 28, 1994, even though the actual filing was not completed until after that date. b. The second group of petitioners argue that their complaint was timely filed because it was postmarked by February 28, 1994. Although it is established Commission precedent that the filing date is the date by which a document must be received, in this case it is in the interest of subscribers and in keeping with the intent of the 1992 Cable Act to accept those complaints postmarked by the filing date of February 28, 1994. The rate complaint form does not clearly state that a rate complaint challenging a rate that was in effect on September 1, 1993 has to be received by the Commission by a date certain. The form states only that the complaint must be filed by February 28, 1994. On the other hand if the complainant is challenging a rate increase, the form specifically states that the complaint must be received by the Commission within 45 days from the date the complainant first received a bill showing the rate increase. We recognize the confusion that complainants may have experienced due to the ambiguity of the term "filing date" in the one instance and the term "received by" in the other instance. c. Accordingly, petitions for reconsideration will be granted if the petitioner postmark or attempted to fax a complaint by the February 28, 1994 deadline, and if the petitioner filed a petition for reconsideration within 30 days from the date the late-filed complaint was returned, while providing notice to the cable operator of the petition for reconsideration. These petitioners are listed in Attachment A. Petitions for reconsideration which were not filed 30 days after a late-filed complaint was returned and were not served on the cable operator, are hereby denied. Those Petitioners are listed in Attachment B. 5. One petitioner, listed in Attachment C, claims to have limited access to cable rate regulation information and did not discover the existence of the February 28, 1994 deadline until it expired. We do not believe that lack of awareness of our rules constitutes good cause sufficient to warrant granting a waiver of our rules. The complainant has not presented adequate grounds for a waiver, since notice of the deadline was provided on FCC Form 329 itself, in the Commission's Public Notice of February 25, 1994, and in various publications and outreach materials made available by the Commission staff. Accordingly, this petitioner's request for reconsideration is hereby denied. 6. Accordingly, IT IS ORDERED, pursuant to Sections 0.321, 1.7, and 76.953(a) and (b) of the Commission's rules, 47 C.F.R. 0.321, 1.7, and 76/953(a) and (b), that the requests for reconsideration noted in Attachment A are GRANTED, and the request for reconsideration noted in Attachment B and Attachment C are DENIED. FEDERAL COMMUNICATIONS COMMISSION Meredith J. Jones Chief, Cable Services Bureau ATTACHMENT A NAME NAME CUID FCC RETURN PETITION FOR OF OF NO. DATE RECONSIDERATION COMPLAINANT OPERATOR FILING DATE City of Manteca Continental CA0817 3/29/94 4/8/94 Cablevision Bruce Coleman Tel-Com, Inc. KY0268 3/29/94 4/12/94 City of Canyon King CA0699 3/24/94 4/6/94 Lake Videocable Northern Dakota Continental MN0515 3/25/94 4/4/94 County Cable Cablevision MN0516 Commission MN0517 MN0518 MN0519 MN0520 MN0521 ATTACHMENT B NAME NAME CUID FCC RETURN PETITION FOR OF OF NO. DATE RECONSIDERATION COMPLAINANT OPERATOR FILING DATE Charles Warrender Century Norwich CT0039 3/24/94 5/5/94 Corporation City of Henderson TCI KY0144 3/29/94 8/26/94 City of Artesia Insight CA1294 4/14/94 4/26/94 Cablevision Town of Ramapo TKR NY0448 3/25/94 4/4/94 City of Monroe Time Warner NC0575 3/29/94 7/14/95 Hardin County Telecable Radcliff KY0330 3/24/94 4/4/94 Renaissance CATV KY1124 of KY Kenton/Boone TKR KY0748 3/28/94 4/14/94 Counties Cable Television Board Don F. Tibbs Wometco GA0169 7/1/94 7/22/94 Cablevision FL0758 7/1/94 7/22/94 ATTACHMENT C NAME NAME CUID FCC RETURN PETITION FOR OF OF NO. DATE RECONSIDERATION COMPLAINANT OPERATOR FILING DATE City of Lauderhill American d/b/a FL0815 3/24/94 4/6/94 Continental