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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-02-TC-033
) CUID No. TX0555 (Hurst)
Marcus Cable Associates, LP )
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 99-1732 ("Second Order"), filed with
the Federal Communications Commission ("Commission") on February
16, 1999. The Second Order resolved a complaint against the
September 1, 1998 rate increase by the above-referenced operator
("Operator")3 for its cable programming services tier ("CPST") in
the community referenced above. It also resolved a petition for
reconsideration of Order, DA 97-2041 ("First Order").4 In this
Order, we dismiss Operator's Petition and calculate Operator's
2. Under the provisions of the Communications Act5 that
were in effect at the time the 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 1992 ("1992 Cable Act")6 and
the Commission's rules required the Commission to review CPST
rates upon the filing of a valid complaint by a subscriber or
local franchising authority ("LFA"). The Telecommunications Act
of 1996 ("1996 Act"),7 and the Commission's rules implementing
the legislation ("Interim Rules"),8 require that a complaint
against the CPST rate be filed with the Commission by an LFA that
has received more than one subscriber complaint. The filing of a
valid complaint triggers an obligation upon the cable operator to
file a justification of its CPST rates.9 If the Commission finds
the rate to be unreasonable, it shall determine the correct rate
and any refund liability.10
3. Operators must use the FCC Form 1200 series to justify
rates for the period beginning May 15, 1994.11 Cable operators
may justify quarterly rate increases based on the addition and
deletion of channels, changes in certain external costs and
inflation, by filing FCC Form 1210.12 Operators may justify
their rates on an annual basis using FCC Form 1240 to reflect
reasonably certain and quantifiable changes in external costs,
inflation, and the number of regulated channels that are
projected for the twelve months following the rate change.13 Any
incurred cost that is not projected may be accrued with interest
and added to rates at a later time.14
4. In the First Order the Cable Services Bureau concluded
that Operator's June 1, 1997 CPST rate increase was unreasonable.
In the Second Order it denied Operator's petition for
reconsideration of the First Order and reviewed Operator's FCC
Form 1240 for the projected period beginning September 1, 1998.
It found Operator's CPST rate, effective September 1, 1998
through March 31, 1999, to be unreasonable. In its Petition,
Operator raises one issue concerning the Cable Services Bureau's
calculation of its maximum permitted rate ("MPR") for the period
September 1, 1998 through March 31, 1999. However, our review of
the record reveals that the total refund liability incurred by
Operator, for the period September 1, 1998 through March 31,
1999, is de minimis, and it would not be in the public interest
to order a refund for that period.
5. It would not be a judicious use of Commission resources
to attempt to resolve appeals of CPST rate orders that had no
adverse affect on the petitioner, either because the order found
no refund liability at all or found a de minimis liability that
did not later result in the petitioner incurring actual refund
liability. Resolution of such appeals will have no consequences
other than to put additional strain on limited Commission
resources which are better used to resolve pending complaints and
appeals of orders that involve potential or actual refund
liability. Therefore, we have determined that appeals of CPST
rate orders that do not involve actual refund liability will be
dismissed because there is no real relief that may be granted
through resolution of the appeal.15 Because our resolution of
Operator's Petition would have no effect on Operator's refund
liability, we decline to address the issue raised by Operator and
we will dismiss Operator's Petition.
6. Because Operator never submitted a refund plan in
response to the First or Second Order, we calculate Operator's
refund liability as follows: For the period from June 1, 1998
through August 31, 1998, we calculate an overcharge of $1.11 per
month per subscriber. Operator's actual CPST rate for this period
was $14.62 and its MPR was $13.51. This time period was not
included in the true-up portion of Operator's FCC Form 1240 for
the projected period beginning September 1, 1998, which we
reviewed in our Second Order. Our total calculation, including
five percent franchise fees plus interest on the overcharges and
franchise fees through April 30, 2002, equals $27,533.00. We
order Operator to refund this amount, plus any additional
interest accrued to the date of refund, to its CPST subscribers
within 60 days of the release of this Order.
7. Accordingly, IT IS ORDERED, pursuant to Section 1.106
of the Commission's rules, 47 C.F.R §1.106, that Operator's
Petition for Reconsideration IS DISMISSED.
8. IT IS FURTHER ORDERED, pursuant to Sections 0.111,
0.311 and 76.962 of the Commission's rules, 47 C.F.R. §§ 0.111,
0.311 and §76.962, that Operator shall refund to subscribers in
the franchise area referenced above the total amount of
$27,533.00, plus any additional interest accrued between April
30, 2002 and the date of refund, within 60 days of the release of
9. IT IS FURTHER ORDERED, pursuant to Sections 0.111,
0.311 and 76.962 of the Commission's rules, 47 C.F.R. §§ 0.111,
0.311 and §76.962, that Operator file a certificate of compliance
with the Chief, Enforcement Bureau, within 90 days of the release
of this Order certifying its compliance with this Order.
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 Marcus Cable Associates, DA 99-173, 14 FCC Rcd
972 (CSB 1999).
3 The term "Operator" includes Operator's predecessors and
successors in interest.
4 In the Matter of Marcus Cable Associates, DA 97-2041, 13 FCC
Rcd 5967 (CSB 1997).
5 47 U.S.C. §543(c) (1996).
6 Pub. L. No. 102-385, 106 Stat. 1460 (1992).
7 Pub. L. No. 104-104, 110 Stat. 56 (1996).
8 See Implementation of Cable Act Reform Provisions of the
Telecommunications Act of 1996, 11 FCC Rcd 5937 1996).
9 See Section 76.956 of the Commission's rules, 47 C.F.R.
10 See Section 76.957 of the Commission's rules, 47 C.F.R.
11 See Section 76.922 of the Commission's Rules, 47 C.F.R. §
15 See, for example, In the Matter TCI of Illinois d/b/a
Telenois, Inc., DA 01-1468, 16 FCC Rcd 12654 (CSB 2001).