NOTICE ********************************************************* NOTICE ********************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file how2ftp. File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** I.$//ORDER Dismissing Appeal in Greater Denver Area, CO, DA 95-2405//$ $/76.922 Rates for the basic service tier/$ $/76.933 Franchising authority review of basic rates/$ $/76.941 Rate prescription/$ $/76.943 Fines/$ $/76.944 Commission review of franchising authority decisions/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 95-2405 In the Matter of: ) ) HERITAGE CABLEVISION OF TENNESSEE, INC.) MILE HI CABLE PARTNERS, L.P. ) MOUNTAIN STATES VIDEO ) COMMUNICATIONS CO., INC. ) MOUNTAIN STATES VIDEO, INC. ) TCI CABLEVISION OF COLORADO, INC.) TCI CABLEVISION OF FLORIDA, INC. ) UNITED CABLEVISION OF JEFFCO, INC. ) ) ) Appeal of Accounting Order of ) Greater Metro Cable Consortium, Colorado ) ORDER Adopted: November 28, 1995 Released: December 6, 1995 By the Chief, Cable Services Bureau: I. INTRODUCTION 1. On January 12, 1995, Heritage Cablevision of Tennessee, Inc., Mile Hi Cable Partners, L.P., Mountain States Video Communications Co., Inc., Mountain States Video, Inc., TCI Cablevision of Colorado, Inc., TCI Cablevision of Florida, Inc., and United Cablevision of Jeffco, Inc. ("the Companies") filed an appeal of an accounting order issued on December 13, 1995 by the Greater Metro Cable Consortium, ("GMCC") an organization representing twenty local franchising authorities in the greater Denver, Colorado area. On January 12, 1995, the Companies also filed a request for an emergency stay pending resolution of its appeal. The GMCC filed an opposition to the Companies' appeal on January 27, 1995, and the Companies filed a reply to the GMCC's opposition on February 7, 1995. The GMCC issued the accounting order pursuant to Commission rules, as part of its review of the Companies' FCC Forms 1200. In the accounting order, the GMCC requested information concerning programming costs contained in the Companies' Form 1200 submissions. More specifically, the GMCC requested all relevant proprietary programming information not yet submitted. The GMCC accounting order stated that the Companies' failure to provide the requested information may result in fines, penalties and/or the prescription of basic service tier rates by the GMCC. In their appeal, the Companies contend that franchising authorities are entitled to request only information that is reasonably necessary for them to review an operator's rates and to prepare a local rate order, and that the GMCC's request for proprietary information is neither reasonable nor necessary. II. DISCUSSION 2. Cable operators have the burden of establishing the reasonableness of their rates that are subject to regulation. In reviewing a rate filing, a franchising authority may require an operator to provide a reasonable explanation for the operator's proposed rates and may also ask for supporting documentation to substantiate the figures. Operators are required to respond to reasonable requests from franchising authorities in a timely fashion. Generally, franchising authorities are given a certain amount of discretion in conducting their regulatory review. Thus, if a franchising authority does not receive a satisfactory response from an operator or receives no response at all, the franchising authority may rely on the best information available in establishing basic service tier rates. If an operator believes that the established rates are inconsistent with Commission rules, the operator may appeal the local rate order to the Commission in accordance with our rules. 3. In this case, the Companies' appeal to the Commission is untimely. Therefore, we will not address the issues raised in their appeal. The Commission's jurisdiction to hear appeals of local decisions is limited by our rules to decisions by local franchising authorities on rates for the basic service tier or associated equipment. An accounting order is not a rate decision. As we noted in Continental Cablevision of Massachusetts, Inc., d/b/a Continental Cablevision (Natick, MA), 9 FCC Rcd 6833 (1994), a ruling is not a rate decision if "[i]t neither sets rates for [the] basic service tier and associated equipment, nor orders [the operator] to issue any refunds." An accounting order is simply a procedural step in the rate review process, and it is not used to set rates or order refunds. Under our rules, a franchising authority has 30 days to review an operator's proposed rates. The franchising authority may extend this review period for 90 days in cases not involving cost-of-service showings, and for 150 days in cost-of-service cases. However, in order to preserve its right to order refunds after the expiration of the extended review period, a franchising authority must issue an accounting order directing the operator to keep an accurate account of all revenue received as a result of the rates at issue. This order provides notification to the operator and other interested parties that the review process is still underway and that the operator must maintain a record of its accounts. At the end of the review process, the franchising authority issues a local rate order. It is at this time that the operator may seek review of the local order by the Commission. Thus, the key to our appellate jurisdiction is the issuance of a local rate order. In this case, the GMCC has not yet issued such an order. If an operator fails to respond satisfactorily to information requests, a local franchising authority should proceed to consider issuing a local rate order relying on the best information available. The GMCC should do so here. Once the GMCC issues its local rate order, the Companies may file an appeal with the Commission in accordance with our rules. At that point, we could address the merits of the issues raised. Accordingly, the Companies' present appeal must be dismissed as untimely filed. In light of the dismissal of the appeal, the Companies' request for an emergency stay pending resolution of their appeal is rendered moot and, therefore, is also dismissed. III. ORDERING CLAUSES 4. Accordingly, IT IS ORDERED that the appeal by the Companies of the GMCC's accounting order, regarding the GMCC's request that the Companies make their relevant proprietary programming information available as part of the rate review process, is DISMISSED. 5. IT IS FURTHER ORDERED that the Companies' request for emergency stay pending resolution of their appeal IS DISMISSED. 6. 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