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File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** $//Appeal ORDER, Continental Cablevision, Avon Lake, OH, DA 95-2471/$ $/76.922 Rates for the basic service tier/$ $/76.923 Rates for equipment and installation/$ $/76.944 Commission Review of Franchising Authority Decisions/$ Before the FEDERAL COMMUNICATION COMMISSION Washington, D.C. 20554 DA 95-2471 In the Matter of: ) ) CONTINENTAL CABLEVISION ) OF OHIO ) ) Appeal of Local Rate ) Order of the City of ) Avon Lake, Ohio ) ORDER Adopted: December 12, 1995 Released: January 19, 1996 By the Chief, Cable Services Bureau: I. INTRODUCTION 1. On August 24, 1995, Continental Cablevision of Ohio ("Continental"), by its attorneys, filed with the Commission an appeal of the local rate order adopted on July 24, 1995 by the City of Avon Lake, Ohio ("City"). Continental also filed a request for stay of the local order on August 24, 1995. In its order, the City established Continental's rates for basic cable service, equipment, installations and hourly service charges. 2. Continental challenges the City's rate order with respect to two issues. First, Continental argues that the City ordered Continental to cease collecting a monthly fee for in- home wiring and required Continental to make refunds to subscribers for a seven month period for an alleged overcharge associated with the inside wiring fee. Continental argues that the specific charge in question is an unbundled wire maintenance charge supported factually by equipment basket labor and material cost actually incurred by the company and reported on its FCC Form 1205. Second, Continental asserts that the city failed to provide the necessary sixty days for Continental to comply with the local rate order. 3. Under our rules, rate orders made by local franchising authorities may be appealed to the Commission. In ruling on appeals of local rate orders, the Commission will not conduct a de novo review, but instead will sustain the franchising authority's decision as long as there is a reasonable basis for that decision. Therefore, the Commission will reverse a franchising authority's decision only if the Commission determines that the franchising authority acted unreasonably in applying the Commission's rules in rendering its local rate order. If the Commission reverses a franchising authority's decision, it will not substitute its own decision but instead will remand the issue to the franchising authority with instructions to resolve the case consistent with the Commission's decision on appeal. II. DISCUSSION A. INSIDE WIRING MAINTENANCE PLAN 4. Continental alleges that the City ordered Continental to cease collecting a monthly fee for in-home wiring and required Continental to make refunds to subscribers for a seven month period for an alleged overcharge associated with the inside wiring fee. 5. The Commission has previously stated that the regulatory treatment of inside wiring and the costs associated with its maintenance depends upon who owns the wiring An operator is not likely to be the owner of a subscriber's inside wiring if it did not install the wiring in the subscriber's premises. In addition, an operator is not the owner if the operator installed the wiring but transferred ownership of the wiring to the subscriber. If an operator installs inside wiring and retains ownership of that wiring, our rules specifically provide that the rate for the lease of that equipment must be justified on Form 1205. That rate for the operator-owned wiring includes a component for maintenance costs. Under those circumstances, Continental's subscribers can not also be charged a separate wire maintenance fee. On the other hand, if Continental's subscribers own their inside wiring, no lease rate would apply, but Continental's costs of providing any maintenance and repair of that wiring may be recovered through a service contract. Our rules provide that charges for such service contracts must be based on the operator's Hourly Service Charge multiplied by either the estimated average number or the actual number of hours for maintenance and repair. However, we are unable to rule on this issue as presented in this appeal because the record is unclear with regards to the ownership of the wiring at issue. Accordingly, we remand this issue to the City in order to allow Continental to clarify these facts and for the City to issue a order consistent with our findings. B. REFUND TIMETABLE 6. Continental next contends that the City's requirement that Continental issue refunds for overcharges within 30 days from the date the local rate order was adopted violates Commission procedural rules. Specifically, Continental relies on language in our rules which, in the context of cable programming service rate orders, requires operators to issue rate reductions or refunds within 60 days from the date an order is released declaring rates unreasonable and mandating a remedy. 7. The 60-day requirement, on which Continental relies, on its face applies to cable programming service rate reductions or refunds ordered by the Commission not basic service orders. We have stated in our orders that cable operators should be given the opportunity to provide 30 days' notice of any rate changes or refunds to its subscribers. In providing operators such an opportunity, we further stated that the franchising authority should consider the amount of time required to prepare and send notices and bills reflecting the rate change with particular attention paid to the impact of cycle billing, if applicable. Continental has claimed that the City's 30-day time limit on issuing refunds does not give Continental the opportunity to provide its subscribers notice and that claim has not been rebutted. Based on the record before us, we determine that the City did not give Continental adequate time to comply with the local rate order. This issue is therefore remanded to the City for further proceedings consistent with this order. III. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED that the appeal of the local order, with regard to the regulatory treatment of inside wiring maintenance fees, IS REMANDED for further proceedings consistent with this Order. 9. Accordingly, IT IS FURTHER ORDERED that Continental's appeal, with respect to the issue of the refund timetable, IS GRANTED. 10. Accordingly, IT IS FURTHER ORDERED that Continental's request for stay, with respect to its appeal, IS DISMISSED as moot in light of the decision on the merits herein. 11. 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 (1993). FEDERAL COMMUNICATIONS COMMISSION Meredith J. Jones Chief, Cable Services Bureau