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NJ0481 (Borough of Princeton)  S-d/b/a Home Link Communications ofj)ppNJ0482 (Township of Princeton) Princeton, Ltd.j)  S@-j) Complaints Regardingj) Cable Programming Services Tier Ratesj) j)  SP -T ORDER lU  S-X` hp x (#%'0*,.8135@8:"inconsistent with the Commission's conclusion in the [Implementation of Sections of the Consumer   Protection and Competition Act of 1992, Rate Regulation, MM Docket 92266, Report and Order and  S-  Further Notice of Proposed Rulemaking@  o yO"-ԍ 8 FCC Rcd 5631 (1993).@] that cable operators should not balance low BST rates with  S-  CPST rates that exceed the maximum permitted rate for the tier."V R o {O!-ԍ Cencom at para. 22 (footnote omitted).V Based on the Commission's holding  Sp-in Cencom we reject Operator's request without further comment.  S"-  B6.` ` Finally, Operator argues that its Family Value Package ("FVP") is an a la carte tier and   therefore not regulated. In order to determine whether or not a subject tier is regulated, the Commission   nreviews the rules that were in effect September 1, 1993 and subsequent orders. We held in  Q-  Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992:  Q-  >Rate Regulation, MM Docket 92266, Report and Order and Further Notice of Proposed Rulemaking" ,_(_(II"  S-  ("Rate Order")Fo yOh-ԍ 8 FCC Rcd 5631 (1993).F that collective a la carte offerings will not be regulated so long as two essential  S-  conditions are met.bXo {O-ԍ Rate Order at Para. 327329 & n. 808. b We determined that a la carte packages would be exempt from rate regulation if:   1) the price for the combined package does not exceed the sum of the individual charges for each   Lcomponent service and 2) the cable operator continues to provide the component part of the package to   subscribers separately in addition to the package. We said that the second condition would be satisfied   only when "the per channel offering provides consumers with a realistic service choice." In  Q-  Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992:   Rate Regulation, MM Docket No. 92266, Second Order on Reconsideration, Fourth Report and Order,  S-  and Fifth Notice of Proposed Rulemaking ("Second Order on Reconsideration"),No yOL -ԍ 9 FCC Rcd 4119 (1994). N we identified several   factors that local franchising authorities and the Commission should consider in assessing whether an a   la carte package enhances consumer choice and therefore does not constitute an evasion of rate regulation.  SL -  Finally, in Implementation of Sections of the Cable Television Consumer Protection and Competition Act  S& -  zof 1992: Rate Regulation, MM Docket Nos. 92266 and 93215, Sixth Order on Reconsideration, Fifth  S -  0Report and Order, and Seventh Notice of Proposed Rulemaking ("Going Forward Order"),G zo yO-ԍ 10 FCC Rcd 1226 (1995).G the   Commission reconsidered its regulatory treatment of a la carte offerings. Specifically, we determined that   such packages are cable programming tiers within the meaning of Section 3(1)(2) of the 1992 Cable Act   and therefore will be subject to our general rate regulation rules. We established criteria for the creation   of New Product Tiers ("NPTs"), which cannot include channels taken from regulated tiers. We concluded,   however, that cable operators may treat existing packages as NPTs, so long as such packages involve only a small number of migrated channels.  S-  7.` ` In Falcon Cable TV,A o yOl-ԍ 10 FCC Rcd 1002 (1995).A the Commission concluded that the a la carte tier, which started  S-  with seven channels and was enlarged to include ten channels, was a regulated tier."o {O-  ԍ See, also, In the Matter of: Multimedia Cablevision, Inc., Benchmark Filing to Support Cable Programming  yO-  Services Prices, DA 951124, 10 FCC Rcd 9866 (1995) (Seven channels regulated) and In the Matter of: Vision   Cable of Salisbury, Inc., Benchmark Filing to Support Cable Programming Prices, DA 95295, released February 22, 1995 (Seven channels regulated). In the instant case,   Operator moved seven channels from regulated tiers to create its FVP. Therefore, we find that Operator's   FVP is a regulated tier. Thus, we review both Operator's Expanded Basic Tier ("CPST1") and its FVP ("CPST2").  S-  8.` ` Operators with complete and timely CPST complaints filed against them prior to May   L15, 1994 must demonstrate that their CPST rates were in compliance with the Commission's initial rules   from the time the complaint was filed through May 14, 1994, and that the CPST rates were in compliance   =with the revised rules from May 15, 1994 forward. Operators attempting to justify CPST rates for the   Lperiod prior to May 15, 1994 through a benchmark showing must complete and file FCC Form 393. To"4 ,_(_(II"   justify rates for the period beginning May 15, 1994 through a benchmark showing, operators must use the   FCC Form 1200 series. Operators are permitted to make changes to their rates on a quarterly basis using   FCC Form 1210 to account for the addition and deletion of channels, changes in certain external costs and  S-  inflation.so {O-ԍ See Section 76.922 of the Commission's Rules, 47 C.F.R. 76.922.s In addition, Operators must file FCC Form 1210 at least 30 days before new rates are  S`-scheduled to go into effect, where there is a pending complaint against the CPST rate.y`Zo {OZ-ԍ See Section 76.958 of the Commission's Rules, 47 C.F.R. 76.958.y  S-  9.` ` Upon review of Operator's FCC Form 393, we find that Operator has not correctly   {calculated its maximum permitted rate ("MPR") for its CPSTs. We corrected Operator's Inflation   =Adjustment Factor in Form 393, Part II, Worksheet 1, on the basis of the most accurate data available at   the time Operator filed. Operator filed its FCC Form 393 on March 21, 1997. On July 29, 1994, the U.S.   .Department of Commerce released corrected inflation data including Gross National Product Price Index   ("GNP-PI") figures of 122.3 for the third quarter of 1992 and 126.5 for the fourth quarter of 1993. We   also corrected Operator's entry on Line 125 (GNPPI Time Period) of Worksheet 1 from 9 to 15 months.   These adjustments resulted in a revised MPR for Operator's CPST1 of $5.64, effective September 1, 1993   rather than Operator's MPR of $5.78, and a revised MPR of $4.84 for CPST2, effective September 1,   1993, rather than Operator's MPR of $4.95. Because Operator was charging in excess of its revised MPR   =for CPST1, we find Operator's actual rate of $7.50, effective September 1, 1993, to be unreasonable for  SX-  the period beginning February 28, 1994 through May 14, 1994. Because Operator's actual CPST2 rate   of $5.95 exceeds its revised MPR, we find Operator's actual CPST2 rate of $5.95, effective September  S -1, 1993, to be unreasonable for the period beginning February 28, 1994 through May 14, 1994.x o yO-  ԍ These findings are based solely on the representations of Operator. Should information come to our attention   Ythat these representations were materially inaccurate, we reserve the right to take appropriate action. This Order is   not to be construed as a finding that we have accepted as correct any specific entry, explanation or argument made   xby any party to this proceeding not specifically addressed herein. Information regarding the specific adjustments   made to Operator's filings can be found in the public file for CUID No. NJ0481, which is available in the Cable   ,Services Bureau's public reference room, or through the Commission's copy contractor, International Transcription Services (ITS), 1919 M Street N.W., Washington, DC, 20554, or by calling ITS at (202) 857-3800.   S-  ~10.` ` Upon review of Operator's FCC Form 1200, we find Operator's MPRs of $5.42 for its   >CPST1 and $4.15 for its CPST2 to be reasonable. Because Operator's actual CPST1 rate of $7.50   exceeds its MPR, we find Operator's actual CPST1 rate of $7.50, effective May 15, 1994 through  SB-  October 31, 1994, to be unreasonable./XB, o yO -  ԍ Operator did not elect to defer refund liability pursuant to the Commission's Rules, 47 C.F.R.   76.922(b)(6)(ii). Consequently, Operator's refund liability, for charges in excess of its FCC Form 1200 MPR, begins May 15, 1994./ Because Operator's actual CPST2 rate of $5.95 exceeds its   MPR, we find Operator's actual CPST2 rate of $5.95, effective May 15, 1994 through October 31, 1994 to be unreasonable.  S-  Q11.` ` Upon review of Operator's FCC Form 1210 covering the period April 1, 1994 through   December 31, 1994, we find Operator's MPRs of $5.50 for its CPST1 and $4.17 for its CPST2 to be   kreasonable. Because Operator's actual CPST1 rate of $7.71, effective November 1, 1994, exceeds its   MPR for both this FCC Form 1210 and Operator's FCC Form 1200, we find Operator's actual CPST1"*L ,_(_(II{"   !rate of $7.71, effective November 1, 1994 through March 31, 1995, to be unreasonable. Because   Operator's actual CPST2 rate of $5.95 exceeds its MPR, we find Operator's actual CPST2 rate of $5.95, effective November 1, 1994 through March 31, 1995 to be unreasonable.  S`-  212.` ` Upon review of Operator's FCC Form 1210 covering the period January 1, 1995 through   March 31, 1995, we find Operator's MPRs of $6.44 for its CPST1 and $5.63 for its CPST2 to be   Lreasonable. Because Operator's actual CPST1 rate of $9.56 exceeds its MPR, we find Operator's actual   CPST1 rate of $9.56, effective April 1, 1995 through December 31, 1995, to be unreasonable. Because   Operator's actual CPST2 rate of $7.45 exceeds its MPR, we find Operator's actual CPST2 rate of $7.45, effective April 1, 1995 through December 31, 1995, to be unreasonable.  SH -  ~13.` ` Upon review of Operator's FCC Form 1210 covering the period April 1, 1995 through   December 31, 1995, we find Operator's MPRs of $6.99 for its CPST1 and $5.81 for its CPST2 to be   Lreasonable. Because Operator's actual CPST1 rate of $7.50 exceeds its MPR, we find Operator's actual   CPST1 rate of $7.50, effective January 1, 1996 through December 31, 1996, to be unreasonable. Because   Operator's actual CPST2 rate of $8.95 exceeds its MPR, we find Operator's actual CPST2 rate of $8.95, effective January 1, 1996 through December 31, 1996, to be unreasonable.  S0-  214.` ` Upon review of Operator's FCC Form 1210 covering the period January 1, 1996 through   December 31, 1996, we find Operator's MPRs of $7.33 for its CPST1 and $6.79 for its CPST2 to be   Lreasonable. Because Operator's actual CPST1 rate of $7.95 exceeds its MPR, we find Operator's actual   CPST1 rate of $7.95, effective January 1, 1997 through the present, to be unreasonable. Because   Operator's actual CPST2 rate of $9.45 exceeds its MPR, we find Operator's actual CPST2 rate of $9.45, effective January 1, 1997 through the present, to be unreasonable.  S-  15.` ` Accordingly, IT IS ORDERED, pursuant to Section 0.321 of the Commission's rules, 47   C.F.R.  0.321, that the CPST1 rate of $7.50, charged by Operator in the franchise areas referenced  S-above, effective September 1, 1993 through October 31, 1994, IS UNREASONABLE.  Sx-  16.` ` IT IS FURTHER ORDERED, pursuant to Section 0.321 of the Commission's rules, 47   C.F.R.  0.321, that the CPST1 rate of $7.71, charged by Operator in the franchise areas referenced  S(-above, effective November 1, 1994 through March 31, 1995, IS UNREASONABLE.  S-  17.` ` IT IS FURTHER ORDERED, pursuant to Section 0.321 of the Commission's rules, 47   C.F.R.  0.321, that the CPST1 rate of $9.56, charged by Operator in the franchise areas referenced  S-above, effective April 1, 1995 through December 31, 1995, IS UNREASONABLE.  S8-  18.` ` IT IS FURTHER ORDERED, pursuant to Section 0.321 of the Commission's rules, 47   C.F.R.  0.321, that the CPST1 rate of $7.50, charged by Operator in the franchise areas referenced  S -above, effective January 1, 1996 through December 31, 1996, IS UNREASONABLE.  S"-  19.` ` IT IS FURTHER ORDERED, pursuant to Section 0.321 of the Commission's rules, 47   C.F.R.  0.321, that the CPST1 rate of $7.95, charged by Operator in the franchise areas referenced  SH$-above, effective January 1, 1997 through the present, 1996, IS UNREASONABLE. " %,_(_(II&"Ԍ S-  20.` ` IT IS FURTHER ORDERED, pursuant to Section 0.321 of the Commission's rules, 47   C.F.R.  0.321, that the CPST2 rate of $5.95, charged by Operator in the franchise areas referenced  S-above, effective September 1, 1993 through March 31, 1995, IS UNREASONABLE.  S`-  21.` ` IT IS FURTHER ORDERED, pursuant to Section 0.321 of the Commission's rules, 47   C.F.R.  0.321, that the CPST2 rate of $7.45, charged by Operator in the franchise areas referenced above, effective April 1, 1995 through December 31, 1995, IS UNREASONABLE.  S-  22.` ` IT IS FURTHER ORDERED, pursuant to Section 0.321 of the Commission's rules, 47   C.F.R.  0.321, that the CPST2 rate of $8.95, charged by Operator in the franchise areas referenced above, effective January 1, 1996 through December 31, 1996, IS UNREASONABLE.  S -  23.` ` IT IS FURTHER ORDERED, pursuant to Section 0.321 of the Commission's rules, 47   C.F.R.  0.321, that the CPST2 rate of $9.45, charged by Operator in the franchise areas referenced above, effective January 1, 1997 through the present, IS UNREASONABLE.  S -  24.` ` IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's rules, 47   C.F.R.  76.961, that Operator shall refund to subscribers in the community referenced above that portion   =of the amount paid in excess of the maximum permitted CPST1 rate of $5.64 per month (plus franchise   fees), plus interest to the date of the refund, for the period beginning February 28, 1994 through May 14, 1994.  S-  25.` ` IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's rules, 47   C.F.R.  76.961, that Operator shall refund to subscribers in the community referenced above that portion   =of the amount paid in excess of the maximum permitted CPST1 rate of $5.42 per month (plus franchise   fees), plus interest to the date of the refund, for the period May 15, 1994 through December 31, 1994.  S-  26.` ` IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's rules, 47   C.F.R.  76.961, that Operator shall refund to subscribers in the community referenced above that portion   =of the amount paid in excess of the maximum permitted CPST1 rate of $5.50 per month (plus franchise fees), plus interest to the date of the refund, for the period January 1, 1995 through March 31, 1995.  S-  27.` ` IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's rules, 47   C.F.R.  76.961, that Operator shall refund to subscribers in the community referenced above that portion   =of the amount paid in excess of the maximum permitted CPST1 rate of $6.44 per month (plus franchise fees), plus interest to the date of the refund, for the period April 1, 1995 through December 31, 1995.  S8-  28.` ` IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's rules, 47   C.F.R.  76.961, that Operator shall refund to subscribers in the community referenced above that portion   =of the amount paid in excess of the maximum permitted CPST1 rate of $6.99 per month (plus franchise fees), plus interest to the date of the refund, for the period January 1, 1996 through December 31, 1996.  Sp#-  29.` ` IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's rules, 47   C.F.R.  76.961, that Operator shall refund to subscribers in the community referenced above that portion   =of the amount paid in excess of the maximum permitted CPST1 rate of $7.33 per month (plus franchise   fees), plus interest to the date of the refund, for the period January 1, 1997 through the day before Operator implements the maximum permitted CPST rate of $7.33. "&,_(_(IIn("Ԍ S-  ԙ30.` ` IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's rules, 47   C.F.R.  76.961, that Operator shall refund to subscribers in the community referenced above that portion   =of the amount paid in excess of the maximum permitted CPST2 rate of $4.84 per month (plus franchise   fees), plus interest to the date of the refund, for the period February 28, 1994 through May 14, 1994.  S8-  31.` ` IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's rules, 47   C.F.R.  76.961, that Operator shall refund to subscribers in the community referenced above that portion   =of the amount paid in excess of the maximum permitted CPST2 rate of $4.15 per month (plus franchise   fees), plus interest to the date of the refund, for the period May 15, 1994 through December 31, 1994.  Sp-  32.` ` IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's rules, 47   C.F.R.  76.961, that Operator shall refund to subscribers in the community referenced above that portion   =of the amount paid in excess of the maximum permitted CPST2 rate of $4.17 per month (plus franchise fees), plus interest to the date of the refund, for the period January 1, 1995 through March 31, 1995.  S -  33.` ` IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's rules, 47   C.F.R.  76.961, that Operator shall refund to subscribers in the community referenced above that portion   =of the amount paid in excess of the maximum permitted CPST2 rate of $5.63 per month (plus franchise   fees), plus interest to the date of the refund, for the period for the period April 1, 1995 through December 31, 1995.  S-  34.` ` IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's rules, 47   C.F.R.  76.961, that Operator shall refund to subscribers in the community referenced above that portion   =of the amount paid in excess of the maximum permitted CPST2 rate of $5.81 per month (plus franchise fees), plus interest to the date of the refund, for the period January 1, 1996 through December 31, 1996.  S-  35.` ` IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's rules, 47   C.F.R.  76.961, that Operator shall refund to subscribers in the community referenced above that portion   =of the amount paid in excess of the maximum permitted CPST2 rate of $6.79 per month (plus franchise   fees), plus interest to the date of the refund, for the period January 1, 1997 through the day before Operator implements the maximum permitted CPST2 rate of $6.79.  S-  36.` ` IT IS FURTHER ORDERED that Operator shall promptly determine the overcharges to   CPST subscribers for the stated periods, and shall within 30 days of the release of this Order, file a report   kwith the Chief, Cable Services Bureau, stating the cumulative refund amount so determined (including   franchise fees and interest), describing the calculation thereof, and describing its plan to implement the refund within 60 days of Commission approval of the plan.  S8-  S -  37.` ` IT IS FURTHER ORDERED, pursuant to Section 0.321 of the Commission's rules, 47   >C.F.R.  0.321, that Operator's Motions to Dismiss are DENIED TO THE EXTENT INDICATED HEREIN and the referenced complaints ARE GRANTED. ` `  hh,VFEDERAL COMMUNICATIONS COMMISSION ` `  hh,VMeredith J. Jones ` `  hh,VChief, Cable Services Bureau