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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:fx6X@`7X@6a8wC;,=Xw PE37XPtb7zC;,bXz_ pi7Xtc@NE,U"_ pi76dV"G($,hG PE37hP6uC;,^Xu&_ x7XXdYdYCdd88d8ddddJN8ddddYYdYdddddd6uC;,M~Xu&_ x7XXV"G($,hG PE37hPD7zC;,]BXz_ pi7X2h8L Q b]J"i~# ^$(8<><q*"xxxxWWxxxWWkkxxxfX@# #XR  P7jQ=XP#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-  2. 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-3. 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.  Yy-4. The complaint in the franchise area which is the subject of this Order was completed and served on Operator on January 26, 1994 and received by the Commission on February 1, 1994. Operator filed FCC Form 393 in response; Operator has also filed amended and supplemental Form 393 filings, most recently on March 1, 1994.  Y-5. Operator asserts that its monthly CPS tier price of $11.78 (plus franchise fee) is justified by its benchmark filing because its price is lower than the maximum permitted charge of $11.81 per month (plus franchise fee), as calculated in the filing. Upon review of" 0*((" Operator's Form 393 filing, we have found that it has not correctly calculated its maximum permitted price, and it is therefore appropriate to make the following adjustments to Operator's calculations in Form 393: X` ` a. The Operator's benchmark calculation for its regulated offerings as of its initial date of regulation (Form 393, Part II, Worksheet 1, Line 121) was based upon 41 regulated channels and 27 satellite channels. From the ratecard provided by the Operator, we were able to verify the 41 regulated channels used for the benchmark calculation, however we were unable to verify Operator's count of 27 satellite channels because the ratecard indicated 23 satellite channels. Based upon our count using the ratecard provided by the Operator, we reduced the number of satellite channels from 27 to 23. This adjustment reduces the benchmark channel rate entered on Line 121 of Worksheet 1.(#  Yy-  X` ` b. In its benchmark filing of March 1, 1994, Operator calculated the Inflation Adjustment Factor (Form 393, Part II, Worksheet 1, Line 127) using data released by the U.S. Department of Commerce on December 1, 1993. However, Operator's use of February 1994 as the date through which it calculated the inflation adjustment is impermissible. The instructions to FCC Form 393, page 11, require that the Inflation  Y-Adjustment Factor be calculated using the "number of whole months from September 30, 1992 to the date you will submit this form." (emphasis added) In general, a cable operator must submit a justification of its rates no more than 30 days after service of  Y-the earliest valid complaint.s  Y<-#Xw PE37=XP#э See 47 C.F.R.  76.956(a).s Operator was served with the rate complaint on January 26, 1994. Since Operator was required to file a rate justification no later than February 27, 1994, Operator should have used January 1994 as the base date for calculating the Inflation Adjustment Factor. We must therefore recalculate the Inflation Adjustment Factor on the basis of the most accurate data currently available  YP-for the correct base date. P{ Y|-#Xw PE37=XP#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). 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 1.037 as the Inflation Adjustment Factor through January 1994, the base date Operator should have used in justifying its rate. (# X(#"  0*((!"Ԍ Y-6. Upon review of the record herein, and having incorporated the adjustments discussed above, we conclude that Operator has failed to justify the rate it was charging during the period in question. Operator's showing justifies a maximum reasonable CPS tier price of $11.57 per month (plus franchise fee) for the period from February 1, 1994 to May  Y-14, 1994.  Y-ԍ This finding is based solely on the representations of Operator 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.  Yv-7. Accordingly, IT IS ORDERED, pursuant to Section 0.321 of the Commission's Rules, 47 C.F.R.  0.321, that the complaint referenced herein against the cable programming service price charged by Operator in the franchise area referenced in the caption IS GRANTED TO THE EXTENT INDICATED HEREIN.  Y -8. 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 franchise area referenced in the caption that portion of the amount paid for cable programming service for  Y -the period from February 1, 1994  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 of $11.57 per month (plus franchise fee), plus interest to the date of the refund.  Yy-9. IT IS FURTHER ORDERED that Operator shall promptly determine the overcharges to CPS subscribers for the stated period, 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.l  Y- 10. 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 franchise area referenced in the caption, 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 permitted  Ye-price of $11.57 (plus franchise fee).e Y$-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. "NQ 0*((M"  Y- 11. 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.  ` `  hh,FEDERAL COMMUNICATIONS COMMISSION ` `  hh,Meredith J. Jones  Y -` `  hh,Chief, Cable Services Bureau l