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                            Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                 )
                                )    File No. EB-02-TC-025
Booth American Company           )
d/b/a Bloomfield Cable TV        )    CUID No. MI0929 
                                )    (Bloomfield)
Petition for Reconsideration     )

                    ORDER ON RECONSIDERATION

   Adopted:  May 6, 2002                Released:  May 8, 2002

By the Chief, Enforcement Bureau:1

     1.   In   this   Order   we   consider   a   petition    for 
reconsideration  ("Petition")  of   Order,  DA  97-1204   ("Prior 
Order")2  filed  with   the  Federal  Communications   Commission 
("Commission")  on  July  11,  1997,  by  the  local  franchising 
authority ("LFA")  for the  above-referenced community.   In  the 
Prior Order, the Cable Services Bureau dismissed complaints filed 
against  the  rates  charged  by  the  above-referenced  operator 
("Operator") for its cable programming services tier ("CPST")  in 
the community referenced above.  In this Order, we deny the LFA's 

     2.   Under the provisions  of the  Communications Act3  that 
were in effect at the time the referenced complaints were  filed, 
the Commission is authorized  to review the  CPST rates of  cable 
systems not subject to effective competition to ensure that rates 
charged are  not  unreasonable.  The  Cable  Television  Consumer 
Protection and  Competition  Act  of  19924  ("1992  Cable  Act") 
required the Commission to review CPST rates upon the filing of a 
valid complaint by  a subscriber or  LFA. The  Telecommunications 
Act  of  1996   ("1996  Act"),5  amended   Section  623  of   the 
Communications Act and  redefined a small  cable operator as  one 
that "directly or through an  affiliate, serves in the  aggregate 
fewer than 1 percent of all subscribers in the United States  and 
is not affiliated with any entity or entities whose gross  annual 
revenues in the aggregate exceed $250,000,000."6 In the 1996 Act, 
Congress  determined  that,  effective  February  8,  1996,   the 
Commission shall  not  apply  its  CPST  rate  regulation  rules, 
promulgated  under   Sections  623(a),   (b)  and   (c)  of   the 
Communications Act,7 to a small  cable operator in any  franchise 
area  in   which  that   operator   services  50,000   or   fewer 

     3.   In the  Prior Order,  the Cable  Services Bureau  found 
that Operator fit  the definition  of "small  cable operator"  as 
defined above.   It dismissed all pending complaints,  concluding 
that small cable operators  "could not effectively be  restricted 
from offsetting  any possible  prior years'  liability against  a 
contemporaneous actual or putative  rate increase."9 In light  of 
the Congressional finding that post-1996 CPST rate regulation for 
small  systems  is   unjustified,  the   Cable  Services   Bureau 
determined that the expense  associated with the rate  regulation 
process was not  outweighed by  this likely zero  net benefit  to 

     4.   In its Petition, the  LFA argues that  at the time  the 
Cable Services  Bureau determined  that Operator  qualified as  a 
"small cable operator," Operator was  anticipating a sale of  its 
Bloomfield system to MediaOne, a  company that could not  qualify 
for "small cable operator" status.   The LFA argues that  because 
of the sale, Operator's CPST rates will be subject to  regulation 
on a  going forward  basis.  As  a result,  the LFA  claims  that 
adjudication of the  rate complaints will  result in  significant 
benefit to subscribers. The LFA  asserts that had the  Commission 
considered the pending sale of the Bloomfield system by Operator, 
the Commission would not have found Operator to be a "small cable 
operator" and would not have  concluded that adjudication of  the 
complaints would not result in  a net benefit to subscribers.  We 

     5.   The  Commission's  jurisdiction  over  CPST  rates   is 
complaint driven. Following  the amendment of  the definition  of 
"small cable operator" by the 1996 Act, the Cable Services Bureau 
dismissed all pending complaints against all cable operators  who 
met the revised  definition of  "small cable  operator". In  this 
case, the complaints in issue were filed on or before August  18, 
1994, well before the  anticipated sale of Operator's  Bloomfield 
system. At  a  time  when  the  complaints  were  still  pending, 
Operator qualified as  a "small  cable operator"  under the  1996 
Act.  Whether or  not Operator's system  in Bloomfield was  later 
acquired by  an operator  that  did not  meet the  definition  of 
"small cable operator" does not change the determination that, at 
the time the  complaints were still  pending, the Cable  Services 
Bureau lacked jurisdiction  to review the  complaints, using  the 
same test  for  "small  cable operator"  status  that  the  Cable 
Services Bureau applied at  that time to  all cable systems  with 
pending complaints.   It would  be unfair  to apply  a  different 
standard to Operator simply because of the possibility of a  sale 
of the Bloomfield  system.  It  was also possible  that, had  the 
Cable  Services  Bureau   adjudicated  the  pending   complaints, 
Operator might have been able to offset its refund liability,  if 
any, with CPST rate increases, prior to the sale.

     6.   In the Prior Order, the Cable Services Bureau dismissed 
only those complaints that  were pending against Operator's  CPST 
rates.  The  Prior Order  did  not affect  the LFA's  ability  to 
review Operator's or its successor's  basic tier rates.  Nor  did 
the Prior Order prohibit the LFA from filing a complaint  against 
the CPST rates of Operator's successor, which it did not.  We are 
not persuaded  by the  LFA's arguments  that the  Cable  Services 
Bureau  erred  by  dismissing  the  pending  complaints   against 
Operator in the Prior Order.
     7.   Accordingly, IT IS ORDERED, pursuant to Sections 0.111, 
0.311 and 1.106 of  the Commission's rules,  47 C.F.R.   0.111, 
0.311 and 1.106, that the  LFA's Petition for Reconsideration  of 
In the Matter  of Booth American  Company d/b/a Bloomfield  Cable 
TV, DA 97-1204, 12 FCC Rcd. 1711 (1997) IS DENIED.


                              FEDERAL COMMUNICATIONS COMMISSION

                              David H. Solomon 
                              Chief, Enforcement Bureau 

1  Effective   March  25,   2002,  the   Commission   transferred 
responsibility for resolving cable programming services tier rate 
complaints  from  the  former   Cable  Services  Bureau  to   the 
Enforcement Bureau.  See Establishment  of the Media Bureau,  the 
Wireline Competition  Bureau and  the Consumer  and  Governmental 
Affairs Bureau, Reorganization  of the  International Bureau  and 
Other Organizational Changes, FCC 02-10, 17 FCC Rcd 4672 (2002).
2 In the Matter of Booth American Company d/b/a Bloomfield  Cable 
TV, DA 97-1204, 12 FCC Rcd 1711 (CSB 1997).
3 Communications Act,  Section 623(c),  as amended,  47 U.S.C.   
4 Pub. L. No. 102-385, 106 Stat. 1460 (1992).
5 Pub. L. No. 104-104, 110 Stat. 56 (1996).  
6 47 U.S.C.  543(m)(2) (1996).
7 47 U.S.C.  543(a) - (c) (1996).
8 47 U.S.C.  543(m)(1) (1996).  See also 47 C.F.R.   76.1403(a) 
9 Prior Order at 4.
10 Id.