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The a la carte package at issue in Century of Morgantown was a three channel   >package, made up of channels formerly available on a cable programming service tier, which was first  S~-  offered as part of a restructuring. In that case, we found we could not say that it was clear that the a la   carte package at issue was not a permissible nonrate regulated offering under our rules. We further   concluded that in light of the prior confusion over what constituted a permissible nonrate regulated a la   [carte offering, it would be inequitable to subject the operator to refund liability or to require the operator   to restructure its tiers so as to return the channels offered in the a la carte package to regulated tiers.   Instead, we found that the a la carte package at issue may be treated as a new product tier under the  S-  Commission's Implementation of Sections of the Cable Television Consumer Protection and Competition  Sh-  Act of 1992: Rate Regulation, Sixth Order on Reconsideration and Fifth Report and Order, MM Docket"h ,_(_(II"  S-Nos. 92266 and 93215, 10 FCC Rcd 1226 (1994) ("Going Forward Order"). FU` yOh-  -# X\  P6G;IP#эNew product tiers are cable programming services that, subject to certain conditions, are not rate regulated.  {O0-  Going Forward Order, 10 FCC Rcd at 12331239. In the Going Forward Order, the Commission reconsidered its   regulatory treatment of collective offerings of a la carte channels. Specifically, the Commission determined that such   packages are cable programming service tiers within the meaning of Section 3(1)(2) of the 1992 Cable Act and  {O-  Ytherefore will be subject to our general rate regulation rules. Id. at 1243. However, the Commission also stated that   Lwith respect to packages created between April 1, 1993, and September 30, 1994, where it is not clear that a   particular package was not a permissible offering under the a la carte rules in effect at the time it was created, the  {O-package may be treated as a new product tier. Id.#&a\  P6G; 0&P#ё  S-  ~8.` ` We find that the DPUC's determination that the Century Select 1 a la carte package is a   regulated tier is inconsistent with the action taken in the letter of inquiry orders, and in particular, in  Sb-  Century of Morgantown. We further find that, in accordance with Century of Morgantown, the Century   Select 1 a la carte package should not be treated as a rate regulated tier of service. Accordingly, we  S-remand this issue to the DPUC for resolution in accordance with our findings in Century of Morgantown. ZU` yO-  # X\  P6G;IP#эWe need not address Century's argument with respect to the "retroactive" application by the DPUC of the 15  {OR-  guidelines set forth in the Second Reconsideration Order, in light of the fact that we grant Century's appeal on the  yO-a la carte issue and remand this case to the DPUC.#&a\  P6G; 0&P#  S-` ` B. Century Select 2  Sv-  P9.` ` The second a la carte package, Century Select 2, was first offered to Century's subscribers   on March 31, 1994. It consists of five channels (Bravo, Weather Channel, Court TV, Family Channel,   Mand ESPN2) that were not previously offered on the system. Century states that the channels in the   [Century Select 2 package are available on an individual basis (for $1.35 apiece) and also as a package (for   $3.95) that Century alleges is not subject to rate regulation. Century did not remove any channels from otherwise rateregulated tiers to create the Century Select 2 package of channels.  S^-  }10.` ` The 1992 Cable Act requires the Commission to adopt standards and guidelines to prevent   evasions, which we define as an act or practice that "avoids the rate regulation provisions of the [1992  S-  Cable] Act or our rules contrary to the intent of the Act or its underlying policies." U` {O-# X\  P6G;IP#эRate Order, 8 FCC Rcd at 5915. #&a\  P6G; 0&P#ѝ We must examine   jwhether the Century Select 2 package had the effect of evading rate regulation for channels that Congress   intended to be rateregulated. The Bureau has stated previously that a particular factor favoring the   unregulated treatment of an operator's a la carte package was the fact that a limited number of channels  Sn-  were removed from a regulated tier.n U` {O!-  # X\  P6G;IP#эSee In the Matter of Chattanooga Cable TV Company, LOI 9351, DA 941427 (Cab. Serv. Bur., released  yOb"-December 22, 1994).#&a\  P6G; 0&P# Thus, because no channels were removed from regulated tiers, it does not appear that Century was attempting to avoid application of our regulations.  S-  `11.` ` Other factors corroborate our view that the Century Select 2 package was not intended   .to have the effect of avoiding rate regulation. First, it did not offer this package on the eve of regulation.   kSecond, it did not automatically subscribe its customers to the Century Select 2 package. Fewer than   1,000 of Century's 19,000 BST subscribers initially elected to subscribe to Century Select 2. In light of"~,_(_(II"   the above facts, it does not appear that the Century Select 2 package was intended to evade rate regulation.   .Furthermore, we will not find an actual evasion occurred if Century's action complied with our a la carte policy that was in effect at the time of the introduction of the Century Select 2 package.  S`-  12.` ` In our Rate Order, the Commission recognized that "a la carte packages" appear to be   "cable programming services," which are subject to regulation, but said that "interpreting the statute in   such a literal fashion could disadvantage consumers by denying them discounts on packages of perchannel   _or perprogram services and by limiting subscriber access to a greater quantity of premium  S-  programming."U` {O* -# X\  P6G;IP#эRate Order, 8 FCC Rcd at 5837. #&a\  P6G; 0&P#ѣ We had envisioned that cable operators, for the most part, would offer channels that   previously had been offered a la carte in discounted packages, and concluded that it would be better for  Sr-  consumers if we construed the 1992 Cable Act to permit such discounting.\rZU` {Ol -  # X\  P6G;IP#эSee, e.g., Rate Order, 8 FCC Rcd at 5916 n.1161 ("There is no evidence that operators would or, as a business  {O6 -  matter, could shift programming previously offered as part of a tier to a la carte status, i.e., a perchannel or per yO-program offering, to avoid the rate regulation applicable to tiers").#&a\  P6G; 0&P# The Commission determined  SJ -  in the Rate Order that a la carte packages would be exempt from rate regulation, i.e., would be deemed   Lnot to fall within the definition of "cable programming service," if two conditions were met: (1) the price   =for the combined package must not exceed the sum of the individual charges for each component service;   and (2) the cable operator must continue to provide the component parts of the package to subscribers   yseparately in addition to the package. The Commission said that the second condition would be satisfied  S -only when "the per channel offering provides consumers with a realistic service choice."e ~U` {O-  # X\  P6G;IP#эId. at 58365837 n.808. In the Second Reconsideration Order, the Commission affirmed its prior view. It said   that "we continue to believe that the public interest will be served by generally permitting non-regulated treatment   of collective offerings of a la carte channels if the offering enhances consumer choice and does not constitute an  {O-  evasion of rate regulation." Second Reconsideration Order, 9 FCC Rcd at 4212. In this regard, we retained the two {O-  part test contained in the Rate Order for determining when we would refrain from regulating "a la carte packages."   In addition, the Commission set out 15 guidelines to enable operators to better determine what collective offerings  {OX-of a la carte channels will be considered "realistic service offerings." Id. at 42134214.#&a\  P6G; 0&P#e  S4-  213.` ` Under the twopart test that we set forth in the Rate Order, it is clear, first, that the price   Lfor the combined package does not exceed the sum of the individual charges for the five channels because   subscribers may purchase the fivechannel package for $3.95, while the individual channels may be   >purchased for $1.35 apiece. The second part of the test is whether the separate parts of the package   constitute a "realistic service offering." Our review of Century's submission reveals that 523 customers   =subscribe to the Century Select 2 package, while 136 subscribe to Court TV, 86 subscribe to ESPN2, 77   >subscribe to the Weather Channel, 18 subscribe to Bravo, and none subscribe to the Family Channel.  S-  =These facts, together with the other factors present in this case, U` {O"-# X\  P6G;IP#эSee, e.g.,  1011, supra.#&a\  P6G; 0&P#ѣ tend to show, in this instance, that the   perchannel offering does constitute a realistic service offering, since, in addition to the 523 Century Select  S-  2 subscribers, there were 317 subscriptions to individual channels. Because the Century Select 2 package  S-  satisfies the requirements for a permissible a la carte package as set forth in the Rate Order, it is exempt  S-  from rate regulation.X U` {Ox'-# X\  P6G;IP#эSee paragraph 13, supra.#&a\  P6G; 0&P#њ Thus, we need not consider the 15 interpretive guidelines set forth in our Second",_(_(II"  S-Reconsideration Order.  S-  o14.` ` However, in the Commission's Going Forward Order, it was determined that a la carte   Mpackages are in fact cable programming service tiers within the meaning of Section 3(l)(2) of the 1992   Cable Act. Thus, a la carte packages are subject to rate regulation and should not continue to be treated  S<-  0as unregulated package of channels. In reaching this conclusion in the Going Forward Order, we  S-  acknowledged that, as applied to many fact patterns, we did not provide a clear test in the Rate Order and  S-  \the Second Reconsideration Order for determining whether an a la carte package was permissible.  S-   15.` ` Because of the confusion surrounding our a la carte rules, as well as the fact that the   jCentury Select 2 package satisfies the requirements for a permissible a la carte package as set forth in the  SR -  !Rate Order, and thus does not constitute an evasion of our regulations, we think that it would be   inequitable to subject Century to refund liability for the Century Select 2 package. We will not require   that the channels in the Century Select 2 a la carte package be treated as regulated channels. Instead, on   .a prospective basis, we will consider the Century Select 2 collective offering of a la carte channels a new  S -  product tier.%B U` {O-  x# X\  P6G;IP#эSee Going Forward Order, 10 FCC Rcd at 12331239. Since it is our determination that the Century Select   2 package is to be treated as a new product tier, which is an unregulated tier of service, we need not address   Century's appeal of the DPUC's decision to establish two separate basic tier rates for Century, one covering the   period prior to the introduction of the Century Select 2 package, and one covering the period subsequent to the   .introduction of the Century Select 2 package. Because the channels in the Century Select 2 package are not   regulated, they should not be included in the DPUC's calculation of Century's basic service tier rates. Century,   therefore, should only be subject to one basic tier rate for the period of time from September 1, 1993 and July 14,  yO-1994. #&a\  P6G; 0&P#% Accordingly, we remand this issue to the DPUC for resolution in accordance with the terms  S -of this Order.   S<- IV.Ordering Clauses  S-  16.` ` Accordingly, IT IS ORDERED that the local rate order is REMANDED to the DPUC for resolution in accordance with the terms of this Order.  St-  |17.` ` IT IS FURTHER ORDERED that our stay of the local order, which was granted pending  SL-the resolution of this appeal, is hereby VACATED .  S-  18.` ` 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. ` `  hh,FEDERAL COMMUNICATIONS COMMISSION  r#]m   r#]m  ` `  hh,Meredith J. Jones ` `  hh,Chief, Cable Services Bureau