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File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** $//ORDER, Petition for Special Relief, TCI Cablevision of Washington, DA 96-171/$ $/76.922(d) Rates for the basic service tier, price cap requirements/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 96-171 In the Matter of: ) ) TCI Cablevision of Washington ) CSR No. 4621-R ) CUID WA0114 Petition for Special Relief ) MEMORANDUM OPINION AND ORDER Adopted: February 12, 1996 Released: February 21, 1996 By the Chief, Cable Services Bureau: I. Introduction 1. On October 31, 1995, TCI Cablevision of Washington ("TCI-WA") filed a Petition for Special Relief with the Cable Services Bureau requesting authorization to treat increases in the pole attachment fees charged by the Public Utility District No. 1 of Douglas County, Washington ("the PUD") as external costs for purposes of 47 C.F.R.  76.922(d)(3). 2. In this Order, we find that TCI-WA has failed to show that it would suffer significant economic hardship from the PUD's increases in pole attachment fees as required by Section 76.922(d)(3) of the Commission's rules, and we therefore deny TCI-WA's request to treat the PUD's pole attachment fee increases as external costs. II. Facts 3. TCI-WA states that it serves approximately 6368 subscribers in the Douglas County area. The PUD owns utility poles within Douglas County to which TCI-WA must attach its cable. TCI-WA states that it could not provide cable television service to subscribers in Los Angeles without the ability to attach its cable to the PUD's poles. 4. According to TCI-WA, the PUD notified TCI-WA that on January 1, 1996 it would increase TCI-WA's fee for use of its poles by 97 percent from $6.50 to $12.80. TCI- WA states that it rents space on 2,057 poles, and that as a result of the increase, it will pay the PUD $12,959 per year more in 1996 than it paid in 1995. TCI-WA estimates that this increase is equivalent to roughly $2.04 per subscriber per year. TCI-WA states that use of these poles is essential to its cable service, that the PUD's pole attachment fees are not regulated on the federal or state level, and that it lacks bargaining power with the PUD. III. Discussion 5. Section 76.922(d)(3), 47 C.F.R.  76.922(d), provides that permitted rates for regulated cable programming may be adjusted for inflation, changes in the number of regulated channels and changes in external costs. Section 76.922(d)(3) limits adjustments for changes in external costs to certain designated categories of costs. Changes in pole attachment fees are not among the designated external costs for which adjustments are permitted to subscribers' cable service rates. 6. However, in fashioning this rule the Commission considered the impact of increases in pole attachment fees and provided an instance when such increases may be considered external costs for purposes of section 76.922(d). In the Second Order on Reconsideration, Fourth Report and Order, and Fifth Notice of Proposed Rulemaking, MM Docket No. 92-266, 9 FCC Rcd 4119 (1994) (Second Order on Reconsideration), the Commission generally denied external cost treatment of pole attachment fees because, unlike franchise fees or taxes, pole attachment fees are not imposed by the government, nor are they a cost over which the legislative history of the 1992 Cable Act expresses explicit concern. In denying external cost treatment to pole attachment fees, however, the Commission noted that "some pole attachment fees are regulated under the 1978 Pole Attachment Act, 47 U.S.C.  224." The Commission stated that it will consider the need for special relief "in instances of significant hardship resulting from unusually large pole attachment fee increases imposed by utilities or other pole providers not subject to regulation under the Pole Attachment Act." The Commission stated that its standard for finding an instance of significant economic hardship in this regard may include, but will not be limited to, "showings regarding both the magnitude of the increases in pole attachment fees and the impact of the increase on the operator." 7. TCI-WA points out that because the PUD is owned by Douglas County, and Douglas County is a political subdivision of the State of Washington, the PUD is not subject to regulation under the 1978 Pole Attachment Act. It also states that the PUD's pole attachment fees are not subject to regulation by the State of Washington. It argues that the 97 percent fee increase demanded by the PUD is, on its face, extraordinarily high, and that this rate is well above the rates charged by regulated, investor-owned utilities. 8. We find that while TCI-WA has indicated the magnitude of the fee increase, it has not provided any specific evidence regarding the impact of the increase upon TCI-WA, nor has it provided any other evidence sufficient to show significant economic hardship resulting from the PUD's increases in pole attachment fees. In the absence of such a showing, we do not have grounds to grant the relief sought. Accordingly, we deny TCI- WA's petition for special relief requesting authority to treat the pole attachment fee increases imposed by the PUD as external costs for purposes of our rules. IV. Ordering Clause 9. Accordingly, IT IS ORDERED, pursuant to 47 C.F.R.  76.922(d), that TCI Cablevision of Washington's Petition for Special Relief requesting authorization to treat pole attachment fee increases imposed by the Public Utility District No. 1 of Douglas County, Washington as external costs for purposes of rate adjustments IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Meredith J. Jones Chief, Cable Services Bureau