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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 ) ) TCI Communications, Inc. ) ) ) Resolution of ) Cable Programming Service ) Rate Complaints ) ORDER Adopted: September 10, 1997 Released: September 12, 1997 By the Commission: 1. Pursuant to 47 C.F.R. Section 1.1204(a)(10), the Cable Services Bureau staff met with TCI Communications, Inc. ("TCI") to discuss the resolution of issues relating to complaints regarding the rates charged for cable programming service offerings that were not resolved by our previous Order. The staff of the Cable Services Bureau has received from TCI the attached proposal to resolve the rate complaints in the franchise areas referred to in Exhibits 1 and 2 to the proposal. On initial review the Commission believes that the proposal is a reasonable approach to resolve these matters. The Commission directs the Cable Services Bureau to serve a copy of the attached Proposed Resolution on (i) all local franchising authorities in the franchise areas referred to in Exhibits 1 and 2 to the proposal; and (ii) any party other than a local franchising authority that filed a valid complaint. Parties that filed complaints with respect to rates in the areas referred to in Exhibits 1 and 2 of the proposal that wish to comment on the proposal should do so by filing with the Secretary within thirty days of the date of this Order. Because it would be unduly burdensome to require that each complainant be served with every comment, pursuant to our Rate Order we will not require the complainants to serve their comments on all parties. However, all comments will be publicly available. 2. Accordingly, it is ORDERED that the staff shall serve the complainants in affected local franchising authorities with this proposed amended resolution and provide thirty days for comment. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary TERMS OF PROPOSED RESOLUTION I. Introduction 1. This Proposed Resolution finally resolves cable programming services tier ("CPST") complaints pending as of March 31, 1997 against TCI Communications, Inc. and its subsidiaries as of the same date ("TCI"). II. Background 2. Complaints have been filed with the Federal Communications Commission ("Commission"), pursuant to 47 C.F.R.  76.950, concerning the CPST rates charged by TCI in the communities listed in Exhibit 1 and Exhibit 2. 3. The Commission's Cable Services Bureau ("Bureau"), under delegated authority, has reviewed TCI's pending CPST benchmark and cost-of-service rate justifications pursuant to the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (1992) ("1992 Cable Act") and the Commission's cable rate regulations. As a result of that review, the Bureau has determined that certain refunds are owed to TCI subscribers. 4. TCI and the Bureau propose to resolve TCI's pending CPST rate cases filed under FCC Forms 393, 1200, 1210, 1240, and/or 1220 in communities listed in Exhibits 1 and 2 that were pending as of March 31, 1997, under the terms set forth below. III. Definitions 5. As used herein, the following definitions will apply. When used throughout this document, these definitions are capitalized. (a) "Benchmark Franchises" means those cable franchises in which benchmark rate justifications were filed to justify CPST rates, as listed in Exhibit 1. (b) "Commission Rules" means all Commission rules currently in effect as of March 31, 1997, as well as all subsequent clarifications, amendments, and additions thereto, including, but not limited to, changes initiated by the Commission or changes required by or made pursuant to changes in federal law. (c) "Cost-of-Service Franchises" means those cable franchises in which a cost-of service rate justification was filed at any time to justify CPST rates, as listed in Exhibit 2. (d) Current Rate" means the CPST rate in effect in a TCI franchise as of March 31, 1997, or the maximum permitted CPST rate included in FCC Form 1200, 1210, 1220, or 1240 and filed with the Commission if such rate had not been implemented as of March 31, 1997. (e) "Effective Date" means the date on which the Commission adopts the Resolution Order regarding this Proposed Resolution. (f) "Eligible Subscribers" means CPST subscribers of record in all Benchmark Franchises and Cost-of-Service Franchises as of the date bills are issued reflecting Refunds. (g) "Refund" means a credit on a subscriber's bill. (h) "Resolution Order" means a final order issued by the Commission regarding the terms of this Proposed Resolution. IV. Terms 6. TCI accepts the jurisdiction of the Commission over it and the subject matter of these rate resolutions for purposes of the Resolution Order. 7. TCI's pending CPST rate cases filed under FCC Forms 393, 1200, 1210, 1240, and/or 1220 in the Benchmark Franchises and the Cost-of-Service Franchises for the period through March 31, 1997 are finally resolved under the terms provided herein. 8. TCI agrees that these terms shall be incorporated by reference in the Resolution Order. Assuming the adoption of these terms in the Resolution Order, TCI and the Commission will each actively defend the Resolution Order against any appeal of, or other legal challenge to, the Resolution Order by any third party. TCI and the Commission will reasonably cooperate in any such defense of these terms. 9. Assuming the adoption of these terms in the Resolution Order, TCI agrees that any violation of the Resolution Order shall constitute a violation of a Commission order, entitling the Commission to exercise any rights and remedies attendant to the enforcement of a Commission order. 10. These terms are for purposes of settlement only and do not constitute an admission by TCI of any violation of, or failure to conform to, the 1992 Cable Act, Commission Rules, or any other applicable law, rule, or policy. 11. The Commission will not institute, on its own motion, any proceedings against TCI based upon the information obtained during consideration of this Proposed Resolution. In addition, in the absence of additional facts, any allegations and other circumstances involved in consideration of this Proposed Resolution will not be used by any party against TCI with respect to any future proceeding. 12. In consideration for the resolution of all TCI CPST rate complaints pending before the Commission as of March 31, 1997, TCI hereby agrees to the following terms, conditions, and procedures, which will facilitate a fair and expeditious resolution of those matters in a manner that serves the public interest: (a) In settlement of all of TCI's pending CPST rate cases in Benchmark Franchises and Cost-of-Service Franchises, TCI will issue a $2.18 Refund to Eligible Subscribers. These Refunds include applicable interest through December 1, 1997. Refunds will be reflected as a one-time credit on the bills of Eligible Subscribers. (b) TCI will issue Refunds to Eligible Subscribers no later than December 31, 1997. If Refunds are not issued by December 31, 1997, TCI will adjust the Refunds to reflect additional interest for the period after December 31, 1997 through the date on which the refund payments begin. (c) The Resolution Order will find that in each of the Benchmark Franchises and Cost-of- Service Franchises, the Current Rate is deemed not unreasonable under the 1992 Cable Act and Commission Rules. TCI may adjust CPST rates in such Benchmark Franchises and Cost-of-Service Franchises at any time after the Effective Date without prior Commission approval. (d) As of the Effective Date, any Bureau orders which concern TCI's CPST rates charged in the franchises listed in Exhibits 1 and 2 are vacated. The Resolution Order shall supersede any such vacated Bureau orders. (e) As of the Effective Date, TCI will withdraw the Applications for Review, Petitions for Reconsideration, and Petitions for Stay of any Bureau orders relating to CPST cases filed with the Commission for the franchises listed in Exhibits 1 and 2. (f) A copy of the Proposed Resolution shall be provided to: (1) all local franchising authorities ("LFAs") in Benchmark Franchises and Cost-of-Service Franchises; and (2) each party that filed a complaint on FCC Form 329, pursuant to 47 C.F.R.  76.950, in the franchises listed in Exhibits 1 and 2. Parties that filed a complaint will be given the opportunity to comment on the Proposed Resolution. (g) Except as provided in subparagraph (h) hereof, these terms may not be terminated or modified without the mutual written agreement of TCI and the Commission. The Commission's consent to any such modification or termination shall be demonstrated by an order by the Bureau or, at the Commission's option, by the Commission itself. (h) Notwithstanding the terms hereof, TCI may avail itself of any applicable modification of any law or regulation governing the CPST rates charged in any TCI franchises listed in Exhibits 1 and 2, including the adoption by the Commission of any regulation governing rates as applied to the cable industry generally. If TCI exercises this election, the terms contained herein shall be superseded upon the effective date of such law or regulation, except that TCI shall provide Refunds to Eligible Subscribers pursuant to the terms of this Proposed Resolution. Nothing herein shall restrict the ability of any TCI system to adjust its rates in the event such rates are not regulated for any reason, including changes to the Communications Act of 1934, as amended, or to Commission Rules. 13. The Resolution Order shall affirmatively state that any and all waivers of Commission Rules necessary to effectuate these terms are deemed to be granted. The Commission will not assert in any proceeding that TCI's compliance with the terms of the Proposed Resolution violates any Commission Rule or order, and, in any proceeding before the Commission brought by a third party, a showing by TCI that it has complied with these terms shall constitute a defense to any claim that TCI's actions in meeting the terms constitute a violation of any applicable Commission Rule or order. Notwithstanding the foregoing, nothing in this Proposed Resolution should be construed to preempt the authority of a local franchising authority to regulate the basic service tier and related equipment rates, consistent with the Commission's regulations and orders. This Proposed Resolution will not alter the effect of any future Commission order concerning commercial rate issues. 14. If any provision, clause, or part of this Proposed Resolution is invalidated, the remainder of this Proposed Resolution shall not be affected thereby and shall remain in effect; provided, however, that if such invalidation is material to this Proposed Resolution, TCI and the Commission (or the Bureau) shall attempt in good faith to reconstitute the Proposed Resolution in a form that is, to the maximum extent possible, consistent with the original intent of the Proposed Resolution. 15. Nothing in this Proposed Resolution shall be deemed to affect any TCI rate case other than the CPST rate cases resolved by this Proposed Resolution in the franchises referenced in Exhibit 1 or Exhibit 2. EXHIBIT 1 BENCHMARK COMMUNITIES CUID# FRANCHISE NAME AL0010 PLEASANT GROVE AL0062 HOOVER AL0082 JEFFERSON COUNTY AZ0018 SIERRA VISTA AZ0281 PIMA COUNTY CA0036 PACIFIC GROVE CA0062 CONCORD CA0239 LAFAYETTE CA024 3 CONTRA COSTA CA0303 THOUSAND OAKS CA0347 MERCED CA0376 HEMET CA0388 VALLEJO CA0492 CUPERTINO CA0575 BROADMOOR CA0743 IDYLLWILD CA1058 DAVIS CA1228 LOS ALTOS CA1233 Contra Costa (East) CA1507 CLYDE CO0037 MESA DE0010 Elsemere FL0231 Indian River Shores FL0133 PASCO COUNTY FL0418 MIRAMAR FL0846 Spruce Creek GA0008 MILLEDGEVILLE GA0022 FITZGERALD GA0023 HAZELHURST GA0035 MOULTRIE GA0705 Ty Ty HI0073 KAUNAKAKAI HI0074 LANAI CITY IA0033 CLINTON IA0040 STORM LAKE IA0062 Camanche IA0072 Webster City IA0101 DEWITT IA0853 JEFFERSON (UO FAIRFIELD) ID0059 GARDEN CITY IL0109 PEORIA IL0161 ROCK ISLAND IL0172 EAST ALTON IL0178 MCHENRY [CARPENTERSVILLE] IL0417 DEPUE IN0007 Bedford IN0026 Hartford City IN0061 Martinsville IN0082 Lebanon IN0104 East Chicago LA0036 Lake Charles LA0055 BATON ROUGE (REBUILD) LA0064 Sulphur LA0195 Walker LA0444 CHALMETTE LA0475 SULPHUR MA0058 ZZ CHATHAM MA0172 ANDOVER MD0059 ANNAPOLIS ME0157 WELLS MI0315 KENTWOOD MI0389 BYRON MI0392 ALPINE MI0829 FERNDALE MI0830 HUNTINGTON WOODS MI0900 WHITE LAKE MI1166 BRIDGEPORT MN0010 WINONA MO0156 BOONE MO0160 SPRINGFIELD MS0152 NETTLETON MT0053 YELLOWSTONE COUNTY NE0064 BELLEVUE NE0080 SARPY NJ0120 PARSIPPANY NJ0135 ROCKAWAY NJ0151 FLORHAM PARK NJ0159 DENVILLE TOWNSHIP NJ0166 BROOKLAWN NJ0168 MOUNT EPHRAIM NJ0242 BOONTON NJ0270 Randolph NJ0319 MAPLE SHADE NJ0421 MAHWAH NJ0459 HAMILTON NJ0561 ALLENTOWN NJ0566 PATERSON NJ0588 WASHINGTON, NJ NM0021 Farmington NM0141 GAMERCO NV0020 WASHOE NV0084 DAYTON NY0165 Esopus NY0168 Kingston NY0222 Poughkeepsie NY0235 LOWVILLE NY0363 PATCHOGUE NY0451 LAKE GROVE NY0746 PERTH NY0905 SLOATSBURG NY0906 TUXEDO NY1464 NEW HEMPSTEAD OH0251 HAMILTON OH0292 Jefferson OH0327 RAVENA OH0413 NEWTON FALLS OH0576 RAVENNA OH0615 TRENTON OH0931 PAULDING OH2195 Bowerston OH2395 SUPERIOR OK0059 STILLWATER OK0202 BIXBY OK0202 BIXBY (REBUILD) OR0043 Claskanie OR0047 CORVALLIS OR0157 CLACKAMAS PA0147 Ferguson PA0162 Penn Hills PA0528 MCKEES ROCKS PA0714 ROSS RI0025 TIVERTON TN0050 MANCHESTER TN0085 SHELBYVILLE TN0452 BELL BUCKLE TX0002 MINERAL WELLS TX0074 KERRVILLE TX0164 UVALDE TX0251 BEAUMONT TX0284 GONZALES TX0514 LA MARQUE TX0640 WYLIE TX0649 EULESS TX1276 DOUBLE OAK UT0006 SALT LAKE CITY (REBUILD) UT0006 SALT LAKE CITY UT0007 MURRAY UT0007 MURRAY (REBUILD) UT0161 SALT LAKE (W) [WEST VAL] WA0008 OLYMPIA WA0097 ARLINGTON WV0115 VIENNA WV0751 NORTH HILLS WY0002 RIVERTON WY0003 THERMOPOLIS EXHIBIT 2 COST OF SERVICE COMMUNITIES CUID# FRANCHISE NAME CA0006 BERKELEY CA0487 RICHMOND OR0362 MULTNOMAH (HAYDEN ISLAND) OR0363 HAYDEN ISLAND WA0347 VANCOUVER WA0348 CLARK