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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. ) CUID No. CA0589 (Oakland) ) ) Resolution of ) Cable Programming Service ) Rate Complaints ) ORDER Adopted: September 11, 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 rate complaints in TCI's system in Oakland, California. 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 this Proposed Resolution for Oakland on all persons that filed a valid complaint, including the local franchising authority. Complainants wishing 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 parties 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 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 the cable programming services tier ("CPST") rate complaints pending against TCI Communications, Inc.'s ("TCI") system in Oakland, CA (CUID CA0589) ("Oakland"). II. Background 2. Complaints have been filed with the Federal Communications Commission ("Commission"), pursuant to 47 C.F.R.  76.950, concerning the CPST rate charged by TCI in Oakland. 3. The Commission's Cable Services Bureau ("Bureau"), under delegated authority, has reviewed the rate justification filed in Oakland 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 in Oakland. 4. TCI and the Bureau propose to resolve the CPST rate case in Oakland 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) "Effective Date" means the date on which the Commission adopts the Resolution Order regarding this Proposed Resolution. (b) "Eligible Subscribers" means CPST subscribers of record in Oakland as of the date bills are issued reflecting Refunds. (c) "Publication Date" means the date on which a copy of this Proposed Resolution is mailed to the local franchising authority and the CPST complainant in Oakland as specified in paragraph 12(c). (d) "Refund" means a credit on a subscriber's bill. (e) "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 this rate resolution for purposes of the Resolution Order. 7. The pending CPST rate complaints filed in Oakland 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 the CPST rate complaints pending in Oakland, TCI hereby agrees to the following terms, conditions, and procedures, which will facilitate a fair and expeditious resolution of this matter in a manner that serves the public interest: (a) TCI will issue Refunds to Eligible Subscribers over a twelve-month period in equal payments of $3.49. TCI will begin to issue Refunds to Eligible Subscribers no later than December 31, 1997. If Refund payments are not begun by December 31, 1997, TCI will adjust the Refunds to reflect additional interest (calculated at the IRS rate of interest for tax over-payments) for the period after December 31, 1997 through the date on which the Refund payments begin. (b) The Resolution Order will find that the CPST rate in Oakland as of March 31, 1997 is not unreasonable under the 1992 Cable Act and Commission rules. TCI will not implement any CPST rate change in Oakland from the Publication Date through March 31, 1999. (c) A copy of this Proposed Resolution shall be provided to: (1) the local franchising authority in Oakland; and (2) the party that filed a complaint on FCC Form 329, pursuant to 47 C.F.R.  76.950, in Oakland. Such party will be given the opportunity to comment on this Proposed Resolution. (d) Except as provided in subparagraph (e) 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. (e) Notwithstanding the terms hereof, TCI may avail itself of any applicable modification of any law or regulation governing the CPST rates charged in Oakland, 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, and TCI may not change its CPST rate in Oakland until after March 31, 1999. 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 this 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, TCI and the Commission (or the Bureau) shall attempt in good faith to reconstitute this Proposed Resolution in a form that is, to the maximum extent possible, consistent with the original intent of this Proposed Resolution. 15. Nothing in this Proposed Resolution shall be deemed to affect any TCI rate case other than the CPST rate case resolved by this Proposed Resolution in Oakland.