******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Cencom Cable Income ) Partners II, L.P. ) CUID No. TX0061 (Jasper, TX) ) Benchmark Filing to Support ) Cable Programming Service Price ) ORDER Adopted: June 6, 1997 Released: June 13, 1997 By the Commission: Commissioner Quello concurring and issuing a statement. I. INTRODUCTION 1. Before the Commission is an application for review filed May 8, 1995, by Cencom Cable Income Partners II, L.P. ("Cencom") of the action by the Cable Services Bureau ("Bureau") in Cencom Cable Income Partners II, L.P., Memorandum Opinion and Order ("Bureau Order") covering the above-referenced community unit. In the Bureau Order, the Bureau determined that Cencom's rate for its cable programming service tier ("CPST") was in excess of the maximum permitted rate and was unreasonable, and ordered Cencom to provide refunds to subscribers of this service. Having considered Cencom's application for review, we conclude that the Bureau Ordershould be affirmed except for modifying the number of months allowed for the inflation adjustment period under the benchmark showing and a corresponding change to the inflation adjustment factor. II. BACKGROUND 2. Section 623(c)(3) of the Communications Act of 1934, as amended, gives the Commission jurisdiction to resolve subscriber complaints about CPST rates, i.e., rates for video programming offered separately from an operator's basic service tier ("BST") and for which the operator does not charge on a per channel or per program basis. If a valid complaint is filed, the cable operator must show that its rate is not unreasonable, using either a benchmark or cost of service showing as provided for in the Commission's rules. If the Commission finds that the rate is unreasonable after reviewing the operator's justification, the Commission can order the operator to reduce its rate and "refund such portion of the rates or charges that were paid by subscribers after the filing of such complaint and that are determined to be unreasonable." 3. The Commission's benchmark approach to rate regulation uses a formula to derive a benchmark rate against which the reasonableness of an operator's rate can be measured. The formula is based on an analysis of the rates of systems subject to effective competition and is used to ascertain, on an individual cable system basis, whether rates exceed the competitive rate level, and if so, the extent by which they do. By comparing a system's rate with the rate computed from the benchmark formula, the Commission can determine an initial reasonable regulated rate for each cable system. Because the benchmark formula is based on cable rates in effect on September 30, 1992, the date of the rate survey data from which the benchmark formula was derived, a system's rate at the time of a valid complaint is compared to the benchmark rate produced by the formula, adjusted forward by an inflation factor and by changes in the number of channels provided from September 30, 1992 until the system justifies its rates. Adjustments to the initial reasonable regulated rate are determined by applying a price cap mechanism or supported by a cost of service showing. 4. During the first phase of rate regulation, from September 1, 1993 until May 15, 1994, the benchmark analysis and comparison with an operator's actual rates were calculated using FCC Form 393. The benchmark formula was revised, effective May 15, 1994. Systems first becoming subject to rate regulation after May 15, 1994 were required to justify their initial regulated rates using forms in the FCC Form 1200 series. Systems against which rate complaints were still pending when the Commission revised its benchmark formula were required to recalculate their benchmark rates as of May 15, 1994 using FCC Form 1200. 5. The instant proceeding is concerned with the period from November 16, 1993, when the first valid CPST complaint was filed against Cencom, through May 14, 1994, the end of the first phase of the Commission's rate regulation. After the November 16, 1993 complaint had been filed, Cencom attempted to justify its CPST rate using the benchmark formula in FCC Form 393. The Bureau found that Cencom's CPST rate exceeded the maximum permitted rate, ordered Cencom to refund the amount of the overcharge collected from November 16, 1993 through May 14, 1994, and ordered Cencom to submit a revised FCC Form 1200 reflecting the adjustments in the Bureau Order, which could result in adjustments to the CPST rate that Cencom charged from May 15, 1994 onward. III. BUREAU ACTION 6. When the complaint was filed, Cencom was charging $14.69 a month for its CPST. Its FCC Form 393, as amended and supplemented, purported to justify a maximum permitted rate of only $14.31 a month. Because Cencom's calculations failed to show that its actual rate was reasonable based on data available either when it set or when it justified its rate, the Bureau recalculated the maximum permitted rate and, in doing so, made adjustments in the data used in the calculation. 7. In recalculating the rate, the Bureau adjusted the inflation figure used to update Cencom's benchmark rate, which is computed from September 30, 1992 data, to the current rate. When Cencom filed its justification on FCC Form 393, it used the preliminary Gross National Product Price Index ("GNP-PI") available from the U.S. Department of Commerce ("Commerce") at the time it set its rate to calculate the inflation adjustment factor. That data had been released by Commerce on May 28, 1993. When the Bureau recalculated the maximum permitted rate, it adjusted the inflation to use the GNP-PI for the most recent quarter that was available when Cencom justified its rate, the third quarter of 1993, and it used the updated data for this quarter, which was released by Commerce on July 29, 1994. It also adjusted the time factor used in the calculation. After "refreshing" the inflation adjustment factor in this way, the Bureau determined that the maximum permitted rate should have been $14.17. It ordered Cencom to refund to subscribers the difference between the actual rate paid per month and the newly calculated maximum permitted rate, plus the applicable franchise fee and interest to the date of refund. IV. APPLICATION FOR REVIEW 8. In its Application for Review, Cencom alleges that the Bureau Order is defective for several reasons: incorrectly computing the inflation adjustment factor; failing to allow Cencom offsets between the basic and CPS tiers; failing to provide sufficient information to explain the Bureau's calculations; allowing for retroactive ratemaking by preserving the Commission's right to deal with any material inaccuracies discovered in Cencom's information in the future; and requiring a revised FCC Form 1200 filing. We find that the number of months Cencom used to compute the inflation adjustment was less than Cencom could have claimed and accordingly adjust the Bureau's inflation calculation, which used the Cencom count, with the number of months Cencom was entitled to claim. As a result of this recalculation, we conclude that the maximum permitted rate should have been $14.24 for the period before us and that Cencom must make appropriate refunds. We are denying Cencom's application for review in all other respects. A. Inflation Adjustment 9. Cencom alleges that the Bureau improperly adjusted its rate for inflation by using July 29, 1994 GNP-PI data that was not available to Cencom at the time of its filing. Cencom maintains that using this adjusted data in the Bureau Order impermissibly imposed an inflation factor retroactively. Cencom also contends that use of refreshed inflation data is inconsistent with Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992: Rate Regulation, MM Docket No. 92-266, Third Order on Reconsideration ("Third Order on Reconsideration") at paragraph 94, the instructions to FCC Form 393, and explanations in Bureau Questions and Answers, all of which require that rates be calculated with the most current data at the time of the operator's filing. Cencom further contends that the Bureau's use of refreshed inflation data is inconsistent with the Commission's stated intent not to penalize cable operators for good faith efforts to restructure rates. Cencom complains that the Bureau's policy holds an operator's refund liability at the mercy of ever-changing GNP-PI statistics, creating an unstable regulatory environment. 10. Cencom further asserts that the Commission's authority to order refunds in these circumstances is bounded by the principles codified in 47 U.S.C.  204(a)(1), which provides that the Commission has no power to alter filed rates absent compliance with suspension procedures. In support, Cencom cites Illinois Bell Telephone Co. v. FCC for the proposition that the Commission's authority to order refunds follows the exercise of the suspension process of Section 204(a)(1). Cencom maintains that this subsection is intended to ensure that the Commission abides by the "filed rate" doctrine and that, when it engages in ratemaking, it applies rates prospectively and does not engage in retroactive ratemaking. Here, according to Cencom, the Commission departs from the strictures of Section 204(a)(1) by insisting that cable operators calculate rates based on the GNP-PI data available in November 1993, not suspending rates based on this data, but nevertheless requiring cable operators to change these rates based upon newer data. 11. Contrary to Cencom's argument, determining an operator's initial regulated rate as accurately as possible is neither unlawful nor contrary to Commission policy. The Commission is charged with protecting subscribers from paying unreasonable CPST rates, while also providing system operators with a fair return. Accurate information, including accurate inflation information, is central to setting an initial regulated rate that meets the standard. Thus, the Commission requires that data used in setting a rate be refreshed with the most current data available when an operator's rates become regulated and are justified. Because final inflation data for the period addressed in rate justifications may not be available when a justification is filed, the Commission directs operators to estimate inflation by using the most recently available inflation data published on an interim basis in the Commerce "Survey of Current Business" at Table 7.3, Line 5. The Bureau practice when reviewing rate justifications is to verify that the operator has used this inflation data. The Bureau also determines whether the other information in the rate justification is correct, and on the basis of the inflation and other information in the form, including any corrections, whether the operator's rate meets the statutory requirement that the rate not be unreasonable. The Bureau does not find a rate unreasonable solely because more accurate inflation data has become available by the time it makes its review. This would churn rates, causing significant administrative expenses to operators and confusion to subscribers. However, if a rate is unreasonable on its face or has to be adjusted for reasons other than the availability of a more accurate inflation figure, e.g., because the operator failed to provide correct information in its rate justification or failed to complete its rate justification form correctly, the Bureau recalculates the maximum permitted rate using the most accurate inflation information available, rather than earlier estimates. This practice is consistent with 47 C.F.R. 76.922(b)(9)(iii), which provides: [I]f the rates charged by a cable operator are not justified by an analysis based on the data available at the time it initially adjusted its rates, the cable operator must adjust its rates in accordance with the most accurate data available at the time of the analysis. 12. Determining the most accurate maximum permitted rate possible when rate adjustment is needed is not inconsistent with the instruction that operators use the best available information when filing rate forms. Moreover, where review indicates that an adjustment is required, it would be unfair to operators and subscribers alike not to use the most recent and accurate figures applicable to that period, even though those figures may not have been available to the cable operator at the time of its filing. In some instances, such an adjustment may be advantageous to cable subscribers and, in others, to the operator. In all instances, however, the required adjustment will more accurately ensure that the rates being charged to subscribers are in fact not unreasonable. When inflation is refreshed, neither consumers nor the operator are harmed, because consumers pay only for the inflation experienced by the operator, and the operator recovers the full cost of the inflation it experienced. Since future rate adjustments are computed from the initial regulated rates, refreshing results in more accurate rates both initially and in the future. Furthermore, because "refreshing" inflation data should ordinarily involve only a one-time adjustment, and because the Commission does not update an operator's rate each time new inflation figures are released, this policy does not create an unstable regulatory environment as Cencom alleges. 13. We also disagree that following this practice is inconsistent with the Commission's stated intention in the Third Order on Reconsideration not to penalize cable operators for good faith efforts to restructure rates. The Third Order on Reconsideration provides that, when different rates are dictated by data used in initial rate-setting than by data current at the time the operator files an FCC Form 393, and the data used in the initial rate-setting was accurate at the time, cable operators will not be required to change their rates simply because of intervening changes in the facts or data upon which the rate-setting was based, although they will be required to adjust for the disparity when making future rate adjustments. One of the possible changes noted by the Commission was that tentative inflation adjustments used in setting the rate initially could have become definite in the intervening time. The Third Order on Reconsideration emphasizes that, when current rates are not justified by analysis using the old data, cable operators must adjust their rates based on data that has been refreshed with current information. 14. In this case, Cencom has not demonstrated that its initial CPST rate was ever justified. It argues only that it changed its rate in good faith. As explained in the Bureau Order, in its Form 393 Cencom overstated the number of months for which it would have been entitled to an inflation adjustment when it set its rates, which would affect the overall rate calculation. Its amended FCC Form 393 dated June 20, 1994 and filed June 23, 1994 shows that its actual rate exceeded its maximum permitted rate, using the inflation rate it advocates for the overstated number of months it claimed. The amended FCC Form 393 also reduces the CPST channel count for the initial date of regulation from that shown in the forms dated November 11 and December 14, 1993, a correction which also affects the maximum permitted rate. Thus, Cencom's rate justification does not fall within the limited exception provided in the Third Order on Reconsideration. 15. Finally, we reject Cencom's arguments that the Bureau's action constitutes retroactive ratemaking, violates the filed rate doctrine, or is subject to the principles set forth in Section 204(a)(1) of the Communications Act. Section 204 applies only to common carriers, not to cable operators, and the filed rate doctrine was developed by the courts in that common carrier context. Neither the filed rate doctrine, the prohibition against retroactive ratemaking, nor the principles underlying Section 204(a)(1) are applicable here. Moreover, Section 623 clearly sets out the regulatory structure for cable operators. Under Section 623(c) of the Communications Act, an operator's rate justification filing is subject to review and approval and is, therefore, only provisional. In fact, cable rates are not filed with the Commission. The Commission's review is invoked only when a complaint is filed. The statute authorizes the Commission to determine if a rate is not unreasonable. It authorizes the Commission not only to reduce rates prospectively but to make retroactive adjustments to the date of the filing of the complaint if the Commission determines the rate was unreasonable. 16. Unlike cases where impermissible retroactive ratemaking or a violation of the filed rate doctrine was found, a rate for CPST filed by a cable operator on its FCC Form 393 does not become final until it has been reviewed and approved after a timely complaint has been filed. Correcting a rate that is only provisional does not constitute retroactive ratemaking, nor violate the filed rate doctrine. The relevant statutory provision is Section 623. Unlike Section 204(a)(1) of the Communications Act, Section 623 does not provide that the filed rate automatically becomes effective after a stated period of time if no agency intervention occurs either suspending or preventing the filed rate from going into effect. Instead, Section 623 gives the Commission broad discretion to establish procedures to review rates and make retroactive adjustments. We do not believe that Congress precluded the Commission from using the most recent and accurate data available where adjustment, as determined by the Commission, is necessary to ensure the reasonableness of the operator's cable program service rates. In doing so, we ensure the accuracy of any retroactive adjustment, as well as of the rates charged prospectively to subscribers. For these reasons, we reject Cencom's arguments. 17. Cencom also challenges the Bureau Order for using an inflation adjustment period of 12 months from September 1992 to the date Cencom was required to file its FCC Form 393. Although Cencom complains that the Bureau erred in failing to allow Cencom to calculate inflation data through November rather than through September 1993, the Bureau properly relied on Cencom's claim to an inflation period of twelve, not fourteen, months in its FCC Form 393. The Commission's task is to determine whether a complained-of rate is unreasonable, not whether an operator is or will be charging the highest permitted rate. Therefore, the Bureau does not impose on an operator a longer period of inflation than it claims. Cencom is correct, however, that it was entitled to apply the inflation factor to the number of full months from September 30, 1992 until it was required to file its response to the complaint triggering Commission jurisdiction over its CPST, which was fourteen months. We will make that adjustment here. 18. Cencom also alleges error in the Bureau's failure to use a precise inflation adjustment factor by failing to carry out its calculation to four decimal places, a point mooted by the recalculation of the inflation factor herein to include the fourteen month inflation adjustment period. The inflation adjustment factor derived herein, 1.0320, has been calculated to full precision and takes into consideration both the July 29, 1994 GNP-PI statistics and the fourteen month inflation adjustment period. With this recalculated inflation adjustment factor, the maximum permitted rate is $14.24. Because the actual rate charged by Cencom was $14.69 per month, the amount of the refund to subscribers is the difference between the actual monthly rate of $14.69 and the maximum permitted monthly rate of $14.24, or $0.45 per subscriber per month, plus franchise fees and interest. B. Offsets Between Tiers 19. Cencom argues that if the Commission upholds the Bureau's adjustments to its rate calculations, then it should be allowed to offset any refund due to the CPST overcharges against Cencom's BST undercharges. Cencom claims entitlement to an offset because it miscounted the number of CPST channels, an error it corrected in its amended FCC Form 393 filed June 24, 1994. It asserts that failure to allow an offsetting adjustment would violate the Commission's policy of ensuring that operators are not required to reduce rates beyond the maximum reduction that is determined under the benchmark approach. In support of its argument that offsets should be allowed between different tiers of service, Cencom cites the Third Order on Reconsideration, which allows operators to offset between the basic service rate and equipment charges. It also refers to Section 76.942 of the Commission's Rules, which it maintains, provides for "balancing" refunds or the "offsetting" it is requesting. Finally, Cencom contends that the decision in TCI Cablevision of North Central Kentucky ("TCI Cablevision") removed any doubt on the issue of refund balancing by reiterating that operators could calculate refunds by comparing aggregate "actual" revenue with the aggregate "permitted" revenue, i.e., that overcharges must be balanced against undercharges. Cencom believes that the Commission should clarify here, before a refund plan is submitted, that it is entitled to calculate its refund liability by claiming credit for any past undercharges. 20. If both basic and CPST rates were within the Commission's jurisdiction, we might consider inter-tier offsets when ordering refunds for overcharges on CPST where less than the maximum permitted rate has been charged on the BST. However, the Communications Act sets up a dual regulatory structure for cable services, giving local franchising authorities jurisdiction to regulate BST and associated equipment rates, and giving the Commission jurisdiction to regulate CPST rates upon the filing of a valid complaint. While the Commission has prescribed standards and procedures for local rate regulation and is authorized to consider appeals from local rate orders, the Commission generally is not otherwise involved in local rate regulation and is not in a position to evaluate offsets between tiers as a matter of routine. Absent an appeal, it may be uninformed about local matters potentially affecting the BST rates. Its processes are not coordinated with local rate review processes. In short, allowing inter-tier offsets under the current statutory scheme would create practical problems in determining the correct BST rates for offset purposes, further burdening the administrative processes of cable rate regulation, and would be discordant with the dual regulatory structure Congress envisioned. 21. In the limited context of global resolutions of rate complaints for all or a substantial number of a company's cable systems, the Commission has allowed inter-tier offsets when determining refund liability. But, it has done so only after reviewing rates for BSTs, and where both individual complainants and local franchising authorities were able to participate in the rate resolution through comments on the proposal. We have learned from this process that there often are considerations affecting rates at the local level that are not apparent from the face of the rate form filed to justify CPST rates and to which the Commission is not normally privy. The special circumstances applicable to the rate resolutions are not present here. 22. The rule and legal precedents cited by Cencom address offsets within the BST but do not support inter-tier offsets. Section 76.942 of the Commission's Rules and the Third Order on Reconsideration direct local franchising authorities to base refunds on the amount by which aggregate actual revenues exceed aggregate permitted revenues for BST service and equipment rates under their regulatory jurisdiction. TCI Cablevision directed a local franchising authority to calculate refunds consistent with  76.942 and the Third Order on Reconsideration. None of the authorities cited by Cencom provides for aggregating revenues for services and equipment costs that are subject to review by different regulatory jurisdictions. Indeed, Cencom's refund offset request is inconsistent with the Commission's conclusion in the Rate Order that cable operators should not balance low BST rates with CPST rates that exceed the maximum permitted rate for the tier. Cencom is seeking to accomplish through refunds what it was prohibited from doing when setting its rates, without demonstrating any special circumstances that would justify such treatment in this case. We deny Cencom's request. C. Sufficiency of Information 23. Cencom contends that the Bureau Order is defective in that it fails to provide an adequate description of the rate calculations the Bureau made in reaching its conclusions. The Administrative Procedure Act and established case law make clear, Cencom asserts, that agencies must at a minimum provide a reasoned analysis of their decisions. Cencom maintains that the order should be invalidated on this basis. 24. We disagree. We conclude that the Bureau Order did provide a sufficient explanation of the bases for the Bureau's actions. It provides an explanation of the adjustments made by the Bureau that produced the refund calculation, adequately discussing Cencom's use of inconsistent inflation data and the Bureau's application of the appropriate inflation adjustment factor and the resulting impact on the rate calculation. We note that the Bureau makes available to the public, in the Bureau's Public Reference Room, staff spreadsheets showing recalculations of FCC Form 393 filings. By showing the elements of how the Bureau evaluates a complaint, these spreadsheets help to reduce cost and increase efficiency for both cable operators and the Bureau. In this case, revised spreadsheets of Cencom's FCC Form 393 filings were made available in the Bureau's Public Reference Room and are part of the record of this proceeding. We accordingly deny Cencom's application for review on this issue. D. Reservation of Powers 25. Cencom challenges the Bureau's reservation of the right to revisit its FCC Form 393 filings should new information come to light. Specifically, it objects to Footnote 15 of the Bureau Order, which states: This finding is based solely on the representations of Operator and the modifications described herein. Should information come to our attention that 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 by any party to this proceeding not specifically addressed herein. Cencom argues that the Commission is unconstitutionally reserving for itself the power to engage in retroactive ratemaking since "the Commission is clearly contemplating revising the CPST rate found justified for the period September 1, 1993, to May 14, 1994, if the FCC Form 393 proves materially inaccurate." 26. We do not agree that the reservation expressed by the Bureau violates the prohibition against retroactive ratemaking or is otherwise inappropriate or unjustified. Footnote 15 states that the Bureau's finding is based on the representations of Cencom and that if the representations are inaccurate, appropriate action can be taken by the Bureau. This provision preserves the Commission's flexibility to act where material misrepresentations are made by an operator in its submissions. This is an appropriate safeguard to protect the rights and interests of the cable subscribing public. 27. The final provision in the Bureau's footnote states that the order should not be construed as a finding that the Commission has accepted as correct "any specific entry, explanation, or argument" not specifically addressed in the order. As we have noted, the retroactive ratemaking strictures apply only if the Commission revises a previously approved rate and impermissibly applies that revised rate retroactively, a circumstance not present in cable rate regulation. The provision advises an operator that the figures and information supplied by the operator in its rate filing for a particular period of time, and any adjustments made thereto, relate only to that filing and not to future rate filings by an operator unless stated otherwise by the Commission. It conveys to an operator that inaccurate information provided in connection with its FCC Form 393 will not be considered binding upon the Commission in other rate proceedings, e.g., an FCC Form 1200 proceeding involving post May 14, 1994 rates or an FCC Form 393 proceeding involving an adjacent community served by an operator. We see no reason to delete or otherwise alter the language of the footnote in the Bureau Order. E. 1200 Filings 28. Cencom contends that the Bureau Order requiring it to recompute its FCC Form 1200 rates by entering the new FCC Form 393 rate into the FCC Form 1200 and to implement any revised rate within 30 days is arbitrary and will cause confusion to the subscribers and irreparable harm to Cencom, particularly since the Bureau Order is on appeal. In addition, Cencom maintains that the Commission has now ruled that FCC Form 1200 cases are separate from FCC Form 393 cases and that there is no basis for resolving any FCC Form 1200 issue in an FCC Form 393 case. Cencom therefore requests that the Commission suspend or remove the clause in the Bureau Order that required Cencom to revise its FCC Form 1200 filing for the period beginning May 15, 1994. 29. We shall require Cencom to submit a revised FCC Form 1200 to reflect the adjustments indicated herein. We conclude after analyzing Cencom's FCC Form 393 and making appropriate adjustments that the maximum permitted rate is $14.24, not the higher rates either actually charged by Cencom or shown on its FCC Form 393. Although the only issues addressed in this proceeding concern FCC Form 393, and FCC Forms 393 and 1200 cover different periods of time, an incorrect rate in FCC Form 393 can require changes in FCC Form 1200. The CPST maximum permitted rate is carried through from the FCC Form 393, Part I, to the FCC Form 1200, Module A, line A6. An inaccurate rate in line A6 can affect the ultimate maximum permitted rate determined from FCC Form 1200. This, in turn, affects the rate calculations in FCC Forms 1210 and 1240. Because an error in FCC Form 1200 could result in excessive rates charged to subscribers after the period governed by FCC Form 393, we do not believe that submission of a revised rate on FCC Form 1200 to reflect these adjustments should, absent a stay, be unnecessarily delayed. For these reasons, we hereby direct Cencom, pursuant to Section 76.922(b) of the Commission's rules to submit a revised FCC Form 1200 form that reflects the adjustments required herein. IV. CONCLUSION AND ORDERING CLAUSES 30. Accordingly, IT IS ORDERED, pursuant to Section 1.115 of the Commission's Rules, 47 C.F.R.  1.115, that the Application for Review of Cencom seeking reversal of Cencom Cable Income Partners II, L.P., Memorandum Opinion and Order, 10 FCC Rcd. 10038 (Cab. Serv. Bur. 1995), IS GRANTED to the extent indicated herein and otherwise DENIED. 31. IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's Rules, 47 C.F.R.  76.961, that Cencom shall refund to subscribers in Jasper, Texas, CUID No. TX0061, that portion of the amounts paid for cable programming service for the period commencing with the date of the filing of the first valid complaint on November 16, 1993, and ending May 14, 1994, which exceeded the maximum permitted rate of $14.24 (plus franchise fee) per month and was thus unreasonable, plus interest to the date of the refund. 32. IT IS FURTHER ORDERED that Cencom shall within 30 days of the release of this Order file a report with 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 thereof. 33. IT IS FURTHER ORDERED, pursuant to Section 76.922(b) of the Commission's rules, 47 C.F.R.  76.922(b), that Cencom shall, within 30 days of release of this Order, revise its FCC Form 1200 filing with respect to Jasper, Texas, CUID No. TX0061, for the period beginning May 15, 1994, to reduce the monthly charge for its cable programming service tier by $0.45 per subscriber per month (plus franchise fee). 34. IT IS FURTHER ORDERED that Cencom shall place into effect, within 30 days after its submission of the revised FCC Form 1200 filing required above, a rate that reflects the reduction in the CPST rate determined in this Order. 35. We reserve the right to make adjustments to Cencom's prices for the period after May 14, 1994, upon completion of our review of Cencom's FCC Form 1200 rate filings. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary CONCURRING STATEMENT OF COMMISSIONER JAMES H. QUELLO Re: Cencom Cable Income Partners II, L.P., CUID No. TX0061 (Jasper,TX) I am issuing this statement to address my concern regarding one aspect of our decision in this case. It has been the Bureau's practice to "refresh" the figures used for inflation adjustment with more recent information when the Bureau determines that a rate is in error. Varying inflation figures evolve for the same time period because revisions are made to the figures as more refined information becomes available. As our Order states, the Bureau's practice of adjusting inflation figures with the most recent information ensures that the corrected rate reflects the most accurate information. My concern goes to those circumstances where an operator, having made a good faith and diligent effort to comply with the newly implemented rate regulations, makes an error in calculation or a simple mistake in filling out the form. The Bureau's practice in these circumstances could subject a cable operator to additional liability disproportionate to the error made because the inflation numbers are refreshed. Our decision today should not foreclose our ability to examine these circumstances.