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PCancel2n+ S- X   0 S-  Federal Communications Commission`(#DA 98573 ă  yxdddy P3 #&a\  P6G;0&P#Before the Federal Communications Commission  S-" Washington, D.C. 20554 ă In the Matter of:R) R) FALCON CLASSIC CABLER) v.R) McCREARY COUNTY, KYR) R) Appeal of Rate Resolution byR) McCreary County, KYR)  S -  MEMORANDUM OPINION AND ORDER TP  S -X` hp x (#%'0*,.8135@8:r yO+-ԍ47 C.F.R.  76.944.> Falcon Classic Cable ("Falcon"),  xthe franchised cable operator serving McCreary County, Kentucky ("County"), has appealed a rate order  Ss- x=adopted by the County as the local franchising authority ("LFA").^sXr yOk-ԍPetition for Review of Rate Order (November 19, 1996).^ The Appeal challenges a McCreary  xCounty Fiscal Court Resolution ("Rate Resolution") that rescinded Falcon's planned October 1, 1996 rate  S#- x\increase.#r yO-ԍMcCreary County, Ky., McCreary County Fiscal Ct. Resolution 96091003 (September 10, 1996). Falcon argues that it filed its Appeal on time and that the County unreasonably denied the  xlincrease by asserting that Falcon failed to provide requested financial records. The County filed a  S-Response and Falcon submitted a Reply.xr yO- x-ԍResponse of McCreary County, Kentucky, to Falcon Classic's Petition for Review of Rate Order (December  yO-2, 1996) ("Response"); Reply to Response to Petition for Review (December 9, 1996) ("Reply").  S- II.XxBACKGROUND (#  S3- ` _x2.` ` Under the Communications Act, the Commission reviews appeals of rate orders issued by  S - xlocal cable franchising authorities ("LFA"). r {O{%-ԍ47 C.F.R.  76.944; Rate Regulation, Report and Order, 8 FCC Rcd 5631, 5729 (1993) ("Rate Order"). When considering appeals, the Commission will not conduct  S- xMa de novo review, but instead will sustain the LFA's decision as long as it did not act unreasonably in"b ,**88-"  S- x applying federal rules. {Oh- x,ԍRate Order, 8 FCC Rcd at 5731; Rate Regulation & Buy-Through Prohibition, Third Order on Reconsideration,  {O2-9 FCC Rcd 4316, 4346 (1994) ("Third Recon."). If the Commission reverses an LFA's decision, it will not substitute its own  S-judgment, but will remand the case with instructions to resolve it consistent with the decision.$ {O-ԍSee Rate Order, 8 FCC Rcd at 5732; see also, Third Recon., 9 FCC Rcd at 4346.  S- ` Bx3.` ` Under the Commission's regulations, when an LFA rejects an operator's proposed rate  S`- x=increase, the LFA must release its decision in writing.A` yO -ԍ47 C.F.R.  76.936(a).A An operator must file any appeal of the decision  S8- xwith the Commission within 30 days of the release of the text of the LFA's decision.A 8F yO -ԍ47 C.F.R.  76.944(b).A The Commission  xhas viewed this 30day limit very strictly, and will accept a late pleading only when the petitioner can  xshow good cause by citing the intervention of something beyond the control of the party, which could not  S-have been foreseen, and for which no corrective action could have been taken.  {O6-ԍMeredith / New Heritage Strategic Partners, 9 FCC Rcd 6841, 6843 (1994) ("Meredith").  Sp- ` ~x4.` ` An operator has the burden of proving that its rate increase conforms with FCC rules.A ph  yOx-ԍ47 C.F.R.  76.937(a).A  xMeeting this burden requires submitting the appropriate forms and responding to requests for supporting  S -information.  {O-č47 C.F.R.  76.937(b), (e); see Rate Order, 8 FCC Rcd at 5718 (1993).  S - III.XxFACTS AND PLEADINGS (#  S - ` nx5.` ` On June 28, 1996, Falcon submitted FCC Forms 1205 and 1240 to the County to support  xa rate increase. The County responded with a request for more information and answers to several  xjquestions. Falcon supplied the information the County sought, except that the operator did not produce  xfinancial records limited to McCreary County only. In a September 11 letter to Falcon, the County  x=reported that it voted against the rate increase because of Falcon's failure to produce the records. Falcon  x=responded with a September 17 letter that asked for a separate, written decision and that stated Falcon's  x=intention to implement its rate increase on October 1 unless it received "a properly filed rate order." On  x[September 23, the County sent a copy of the Rate Resolution to Falcon by certified mail, but Falcon did  x\not receive it until October 22. Falcon filed its Appeal on November 19, more than 30 days after the County passed the Rate Resolution, but within 30 days of receiving a copy.  S- ` x6.` ` Falcon argues that its Appeal was on time because the 30day filing period did not begin  S- xkuntil Falcon received a copy of the Rate Resolution.@   yO%-ԍAppeal at 2; Reply at 3.@ The County responds that nothing in the FCC  xyregulations tolls the start of the 30day period until an operator receives a copy or has actual notice of an"x ,`(`(88"  S- xorder.8 yOh-ԍResponse at 12.8 The County also contends that Falcon admits that it received notice of the Rate Resolution on  S-or before September 17, two months before filing the Appeal.7X {O-ԍId. at 2.7  S- ` x7.` ` Falcon asserts that the request for financial records covering only McCreary County  xy(versus records covering all of Falcon's systems) is "unreasonable and unwarranted" and creates an undue  S8- xburden on such a small system.68 yO -ԍAppeal at 23.6 Falcon claims that the County's decision was not a substantive decision  xon the rates, and the LFA "was obligated to make a decision on the best information available to it even  S- xif it believed that some data was not properly substantiated."9z {O -ԍId. at 34.9 McCreary County did not respond to this argument.  Sp- IV.XxDISCUSSION (#  S - ` x8.` ` McCreary County complied with the Commission's rules regarding the release of written  xrate orders, and Falcon has not otherwise demonstrated good cause for waiving the filing rules. Section  x76.936 of Commission regulations requires an LFA to issue a written decision when it denies an operator's  S - xrate increase.A  yOT-ԍ47 C.F.R.  76.936(a).A The rule also requires the LFA to give public notice of the decision, which includes  S - xjreleasing the text of the order.A  yO-ԍ47 C.F.R.  76.936(b).A The County voted against Falcon's proposed rate increase on September  SX- x10 "in a duly assembled session" of the County's legislative body.=X,  yO$-ԍRate Resolution at 1.= The McCreary County Executive  x\signed and dated the Rate Resolution, and, assuming Kentucky state law was followed, the Executive  S-published its decision in the local newspaper.|  yOd-ԍRate Resolution at 1; 1990 Ky. Rev. Stat. & R. Serv.  67.855(4) (Baldwin).| Falcon has not argued otherwise.KL  {O-ԍSee 47 C.F.R.  76.937(a).K  S- ` x9.` ` Falcon overstates the requirements of Section 76.936 by asserting that an affected cable  S- xoperator must receive a copy of the order before the 30 day appeal period begins.? {O#-ԍSee Reply at 23.? The rule only  x[demands the public release of a written order. Falcon therefore had 30 days after publication of the Rate  S@- xResolution to file its Appeal.H@p yOP&-ԍ47 C.F.R.  76.944(b). H The precise publishing date is not clear from the pleadings, but several  S- xdates are clear: the Rate Resolution is dated September 10, the County's letter to Falcon informing the",`(`(88"  xoperator of the rejection is dated September 11, and Falcon acknowledged the rejection of the rate increase  S- xin its September 17 letter requesting a copy.` {O@-ԍSee Appeal at 12; Opposition at 12; Reply at 2.` It is reasonable to conclude that publication, and therefore  xrelease, of the Rate Resolution was near this time. In any case, Falcon submitted its November 19 Appeal more than 60 days later.  S8- ` x10.` ` The Commission may accept latefiled pleadings in some circumstances: (1) when  xsomething beyond the control of the petitioning party has intervened, and (2) if the party could have taken  S- xkno corrective action.PZ {O -ԍMeredith, 9 FCC Rcd at 6843.P These circumstances are limited. For example, in the Meredith / New Heritage  S- x[Strategic Partners rate appeal, the Commission found that filing merely four minutes late was no excuse,  S- xeven though the petitioner's computer malfunctioned. {O( -ԍId. at 6842. The operator was allowed to file for other reasons. Id. at 6843. In the Falcon Cablevision (Cedartown) rate  Sv- x?appeal, the Commission refused to excuse a latefiler who expected to settle with its LFA.Rv~ yO-ԍ12 FCC Rcd. 4190 (released April 9, 1997).R The  xLCommission held that the failure of the negotiations was foreseeable, so the operator should have sought  S& - xzan extension of time to file.7&  {O-ԍId. at 3.7 In this case, while Falcon had no control over the post office's delivery,  xit knew of the County's ruling and could have followed its request for a copy of the Rate Resolution with a phone call or another letter.  S - ` x11.` ` The burden of moving forward with a rate appeal lies with the petitioner.X  yO-ԍ47 C.F.R.  76.944(b); 47 C.F.R.  76.937.X Since Falcon has not met this burden and has not shown good cause for the late filing, we dismiss the Appeal.  S- V.XxORDERING CLAUSE (#  S-  S-x12.` ` Accordingly, IT IS ORDERED that the Appeal IS DENIED .  Sn- ` Bx13.` ` This action is taken by the Acting Chief, Cable Services Bureau, pursuant to authority delegated by  0.321 of the Commission's rules. 47 C.F.R.  0.321. XxX` ` X XXhhX@FEDERAL COMMUNICATIONS COMMISSION(# XxX` ` X XXhhX@John E. Logan(# XxX` ` X XXhhX@Acting Chief, Cable Services Bureau(#