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D+@6X6H+@0F+F;70;00=+F+@;F6K;;;F=H 0FFF;+;;;;G 0000FH000FFF; 70+ aaen~Wv,hWnnrrjDDW6:h[h[WWWWWW8MBB[[44WQQQl@QhUU@OHHFDMUWWWpf]j[[[cYjfKe|H]HWWWW,H_W8ffWWW44WWWWWWWWWWWWWWWWWWWWWWaaaaaaaa,WWWWW],WWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWeeeeaaaaaaaaaazzMMWWWWWW__WWKKKKffWWUUUUWWOOfOKKKK.%>KWW yO- X   ( X-w #Xj\  P6G;9XP# Federal Communications Commission`(#=DA 97789 ă  yxdddy (vK Before the Federal Communications Commission  yO}"Washington, D.C. 20554 ă X01Í ÍX01Í  Í  yO -l#Xj\  P6G;9XP#у  X-In the Matter of: hh,V)pp   ` `  hh,V)  X-CONTINENTAL CABLEVISIONhh,V)pp  X-OF OHIO, INC. hh,V) ` `  hh,V)  Xu-Reconsideration of Appeal hh,V)pp  X^ -of Local Rate Order of thehh,V)  XG -City of Mentor, Ohiohh,V)pp ` `  hh,V  X -  MEMORANDUM OPINION AND ORDER lU  X-X` hp x (#%'0*,.8135@8:In addition, the Second Recon. Order required the operator to submit the relevant FCC rate  X -  justification forms to the local franchising authority no later than August 15, 1994.1 T Bw {O-ԍId.1 Thus,   Continental was required to notify the City by June 14, 1994 that it was electing the refund   deferral option and was required to submit the relevant rate justification forms to the City by   August 15, 1994. As to the first requirement, Continental contended all along that it provided   the required notice, but was unable to locate a copy until prior to its filing of this reconsideration   petition. As to the second requirement, Continental mistakenly provided the City on June 20,   !1994 with a FCC Form 1200 for the wrong franchise area. Continental was notified of its   mistake on August 22, 1994 and, thereafter, provided the City with the correct FCC Form 1200 for Mentor.  X- ",N(N(ZZ" V. ISSUES  X-A. Contentions of the parties  X-  7.` ` The Bureau previously found, and it is undisputed by the parties, that Continental   complied with the following prerequisites to be eligible for refund deferral: (1) maintaining   stability of rates prior to July 15, 1994; (2) providing 30 days notice to subscribers; and (3)   Mcompleting rate restructuring by July 14, 1994. However, the parties disagree as to whether   Continental was required to, and did in fact, fulfill the two additional conditions to qualify for  X1-  refund deferral set forth in the Second Recon. Order. Continental argues that the Bureau's   decision that there are five requirements a cable system must meet in order to become eligible   for refund deferral is contrary to  76.922(b)(6)(ii) of the Commission rules, which only specifies   three requirements. In any event, Continental contends that even if the Bureau does not change   its decision to apply five criteria for refund deferral, rather than the three prerequisites specified   in the rules, Continental effectively has met all five criteria. As to its notification to the City of   Kits election of the refund deferral plan, Continental contends that, despite a thorough search both   of Continental's corporate files and of its attorneys' office files, it only was able to locate a copy   of the notice one week prior to filing its reconsideration petition. Continental now submitted a   .copy of the actual notice to the City dated June 10, 1994, along with a receipt for certified mail,   zindicating delivery to the City on June 13, 1994. Continental contends that the Bureau must   reverse its prior decision, because that decision solely was premised on the fact that this notice was missing.  X-  ~8.` ` As to the timeliness of its rate justification forms, Continental claims that when   the City received the wrong FCC Form 1200 from Continental on June 20, 1994, the City   immediately should have notified Continental of the mistake and not waited until August 22,   1994. Continental contends that once it was notified of the mistake, it delivered the correct copy   of FCC Form 1200 to the City by telecopier the next day and delivered the forms to the City by   ?Federal Express on August 24, 1994. Continental notes that on March 21, 1995, the City   approved all of Continental's rates, including its previously filed FCC Form 393, and the lower   =revised rates were timely implemented in July. Continental maintains that the City should bear   jresponsibility for the delay in the filing of the correct FCC Form 1200 and further contends that neither the City nor any subscriber suffered prejudice as a result of the filing error.  X-  9.` ` In opposition, the City argues that pursuant to Section 1.106(c) of the  X-  Commission's rules,XBw yOV"-  xԍSection 1.106(c) of the rules states that petitions for reconsideration which rely on new facts not previously   presented may only be granted if ". . . consideration of the facts relied on is required in the public interest . . ." or if the facts fall within one or more of the categories specified by  1.106(b)(2) of the rules. Continental should not now be allowed to introduce the notice because it   .is not new evidence; Continental has not shown that it could not have located the documents   sooner through the exercise of ordinary diligence; and Continental does not make a public interest   showing that its request should be considered. The City further argues that, although Continental"",N(N(ZZ!"   =was required to submit FCC Form 1200 to the City by August 15, 1994, the City did not receive   zit until August 24, 1994. The City claims that if it did not contact Continental on August 22,   k1994, because it had received the wrong FCC Form 1200, it might not ever have received the  X-  correct filing. Finally, the City cites the Second Recon. Order, contending that Continental must  X-  meet all five of the Commission's prerequisites to be eligible to receive refund deferral.=Bw yO-ԍ9 FCC Rcd at 418487.= The   City argues that since Continental failed to meet all of these conditions, its subscribers are entitled   to the rate reduction that they would have received absent a refund deferral. Finally, the City   requests that the Commission issue sanctions against Continental for "needlessly expending the   scarce resources" of the Bureau and of the City on its initial rate appeal and on its present reconsideration petition.   X -  510.` ` In its Reply, Continental contends that, contrary to the City's claim, it is   understandable how it might have failed to find the notice in view of the thousands of pages of   jrate regulation materials in its offices. Continental further states that the City has not explained   iits own misstatement concerning its receipt of this notice. Continental notes that the Commission   has a policy of encouraging a level of cooperation between franchising authorities and cable   <operators on rate regulation matters and that the parties owe each other a duty of fair dealing and  X{-  good faith.{XBw {O-ԍSee, e. g., Wah Chang Corp. v. United States, 282 F. 2d 728, 73334 (Cl. Ct. 1960). In addition, Continental contends that the public interest is served here by   "reviewing and correcting decisions based on misstatements of fact," as well as by applying the   rate regulations and "arriving at a reasonable result based on the actual facts as they occurred."   Continental further states that the City's request for sanctions in this case is "inappropriate and frivolous."  X- VI. DISCUSSION  X-  11.` ` We hold that Continental was required to comply with five prerequisites in order   to take advantage of the refund deferral option. Section 76.922 of the Commission's rules   provides that in general cable systems will not incur refund liability if they establish a permitted   rate by July 14, 1994, and if they do not change the rate for, or restructure, any equipment  Xg-  service or program offering subject to regulation between March 31, 1994 and July 14, 1994.(gBw yO -  ԍThese operators also are required to give their subscribers at least thirty days notice of any rate or service  {O -changes they make in response to the rules. 47 C.F.R.  76.964; Second Recon. Order, 9 FCC Rcd at 4184.(  XP-  jIn addition, footnote 190 to the Second Recon. Order specifies that in those rate cases that are   ?still pending when the Order is adopted, an operator who elects refund deferral, such as   [Continental, must submit its FCC forms to the franchising authority by August 15, 1994, and is   .required to notify the local franchising authority of its refund deferral election "by the date on  X-  which its rate justification on an FCC Form is due.":DBw yO&-ԍ9 FCC Rcd at 4187.: These requirements govern different",N(N(ZZ<"  X-  categories of cases and there is no inherent conflict between them. It is the operator's responsibility to ensure that forms are timely filed.  X-  12.` ` Adherence to the procedures established for processing and reviewing rate   complaints is an important element to an orderly and fair adjudication of complaints. Departures   undermine the entire system to the detriment of all involved. In this case, there was a diligent   effort to comply with the procedures. Continental has demonstrated that it filed the notice to   obtain a refund deferral. With regard to the responsibility to justify its rates, Continental filed   FCC Form 1200, due on August 15, 1994, on June 20, 1994. When notified by the City that the   document related to another franchise area, Continental promptly submitted a corrected version.  X -The City does not claim that it was disadvantaged by this error.  X -  13.` ` Our procedural requirements are not so inflexible to override the substantive issues   involved in a particular proceeding. In this case, the record indicates that Continental complied   with all the filing deadlines to obtain a refund deferral. An error made on one document was   corrected promptly and predjudiced neither the City nor the subscribers. We do not think the   ypublic interest is served by denying Continental the refund deferral it was entitled to under our rules.  XK- VII. CONCLUSION  X-   14.` ` For the above reasons, we will grant Continental's request for reconsideration of   the Bureau's initial Order, and we remand this case for further proceedings not inconsistent with this decision.  X- VIII. ORDERING CLAUSES  X-  X-  Q15.` ` Accordingly, in view of the foregoing, IT IS ORDERED that the petition for  X|-reconsideration filed by Continental Cablevision of Ohio, Inc. IS GRANTED .  XN-  #16.` ` IT IS FURTHER ORDERED that Ordinance No. 95046 IS REMANDED to the City of Mentor, Ohio for proceedings not inconsistent with the terms of this Order.  X -  o17.` ` This action is taken by the Chief, Cable Services Bureau, pursuant to authority delegated by  0.321 of the Commission's Rules. 47 C.F.R.  0.321. ` `  hh,VFEDERAL COMMUNICATIONS COMMISSION ` `  hh,VMeredith J. Jones ` `  hh,VChief, Cable Services Bureau