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File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** FOR RECORD ONLY $//ORDER Granting Stay in Dallas, TX, DA 95-2262//$ $/76.922 Rates for the basic service tier/$ $/76.923 Rates for equipment and installation/$ $/1.45(d) Request for Stay/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 95-2262 In the Matter of: ) ) TCI Cablevision of Dallas, Inc. ) ) Petition for Stay of Local Rate Order ) of Dallas, Texas) ORDER Adopted: October 30, 1995 Released: October 31, 1995 By the Chief, Cable Services Bureau: I. Introduction 1. On September 22, 1995, TCI Cablevision of Dallas, Inc. ("TCI-D") filed a Request for Emergency Stay of the local rate order issued by the City of Dallas, Texas ("City") pending resolution of TCI-D's appeal of the local rate order. TCI-D also filed its appeal on September 22, 1995. The local rate order was issued by the City on August 23, 1995. The City submitted an opposition to TCI-D's appeal but filed no separate opposition to TCI-D's request for a stay of the local order. The City indicated in its opposition to TCI- D's appeal that it would not argue against the stay request, but it does support implementation of that portion of the local rate order that disallowed TCI-D's additional outlet charge. 2. The City's local rate order addresses the rates TCI-D charged for basic cable service, associated equipment and installations for the period of time from September 1, 1993 through August 23, 1995. TCI-D elected to use a cost of service filing to justify its rates. 3. The City retained the services of a consultant to conduct an in-depth review of TCI-D's cost of service submission. The City adopted the report of the consultant and incorporated it into the City's local rate order. The City found that TCI-D's basic service tier rate and its rates for equipment and installations exceeded TCI-D's costs and ordered TCI-D to reduce its rates and refund to subscribers the overcharges levied since September 1, 1993. TCI-D states that the City's local rate order requires TCI-D to refund over $10 million for the period from September 1, 1993 through August 23, 1995. TCI-D seeks a stay of the local rate order pending the resolution of its appeal on the merits. 4. The Commission evaluates petitions for stay under well-settled principles. To support a stay, a petitioner must demonstrate: (1) that it is likely to prevail on the merits; (2) that it will suffer irreparable harm if a stay is not granted; (3) that other interested parties will not be harmed if the stay is granted; and (4) that the public interest favors the granting of a stay. As discussed below, resolution of this stay petition centers primarily on the strength of TCI-D's argument regarding the second and third prongs of this test. II. Discussion 5. With regard to the matter of harm to other parties, a stay of the payment of refunds owed by TCI-D will not harm any interested party, since under our rules TCI-D can choose to issue refunds by crediting current subscribers. The Commission's rules permit operators to implement refunds in either of the following ways: (1) by returning overcharges directly to those subscribers who actually paid the overcharges; or (2) by means of a prospective percentage reduction in the rates for the basic service tier or associated equipment for current subscribers via a specifically identified, one-time credit. Thus, the Commission's rules are structured so that individuals who were actually overcharged might not receive refunds in the future. A stay of the local rate order will not alter TCI-D's right under our rules to choose the class of subscribers to receive refunds. 6. With regard to the matter of irreparable harm to TCI-D, a stay of the local rate order would prevent TCI-D from being subjected to the irreparable economic harm it could face if it had to issue refunds to subscribers that it might not later recoup. Accordingly, given our findings herein, and the fact that the City does not oppose TCI-D's request for a stay, we will grant TCI-D's request that the City order in the above-referenced proceeding be stayed pending our full review of this case on the merits. This Order will stay the local rate order in its entirety since the City has presented no compelling argument which distinguishes the issue of the additional outlet charge from other issues raised in TCI-D's appeal. 7. As we have concluded in several previous requests for stays of local rate orders, we conclude in this case that TCI-D must establish an escrow account or post a bond to protect the interests of subscribers and to ensure that the refunds will be paid if TCI-D does not prevail on appeal. During the period of this stay, TCI-D must deposit in an interest- bearing escrow account the total amount of money that the City has ordered TCI-D to refund to its customers. Alternatively, TCI-D may elect to post a bond for the benefit of the City. The amount of the bond shall be the total amount of money that the City has ordered TCI-D to refund to its customers, plus interest on that amount for a 12 month period from the date of this Order. The bond shall provide that if TCI-D is unable to fulfill its refund obligations for any reason, then the surety will fulfill that obligation to the City, on behalf of TCI-D's subscribers. III. Ordering Clauses 8. Accordingly, IT IS ORDERED that the request for a stay filed by TCI-D is GRANTED pending the resolution of TCI-D's appeal on the merits. 9. IT IS FURTHER ORDERED that the total amount of money that the City has ordered TCI-D to refund to its customers SHALL BE PLACED by TCI-D in an interest- bearing escrow account OR SHALL BE SECURED by the posting of a bond for the benefit of the City for the total amount of money that the City has ordered TCI-D to refund to its customers, plus interest on that amount for a 12 month period from the date of this Order. Proof of TCI-D's compliance with this Order shall be filed with the Commission within 30 days of the release of this Order. Interest shall accrue, or be computed, at the prevailing U.S. Internal Revenue Service Rate for tax refunds and additional tax payments. 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