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

In the Matter of                        )    
                              )    File No. EB-02-TC-026         
Marcus Cable Associates, LP             )
                              )    CUID No. TX0647 (Benbrook)    
Petition for Reconsideration            )
and Refund Plan                    )              


                              ORDER

        Adopted:  June 14, 2002                        Released:  
June 17, 2002          

By the Chief, Enforcement Bureau:1

     1.   In   this   Order   we   consider   a   petition    for 
reconsideration  ("Petition")  of   Order,  DA  98-4222   ("Prior 
Order"), concerning  the rates  charged by  the  above-referenced 
operator ("Operator")3 for  its cable  programming services  tier 
("CPST") in the  community referenced above.   On April 3,  1998, 
Operator filed a petition for reconsideration of our Prior  Order 
as well as an amended refund plan ("1998 Refund Plan").  In  this 
Order we deny  the Petition, reject  Operator's 1998 Refund  Plan 
and calculate Operator's refund liability.

     2.   Under the provisions  of the  Communications Act4  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")5  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"),6 and the  Commission's rules  implementing 
the legislation  ("Interim  Rules"),7 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.8  If the Commission finds 
the rate to be unreasonable, it shall determine the correct  rate 
and any refund liability.9 

     3.   Operators must use the FCC Form 1200 series to  justify 
rates for the period  beginning May15, 1994.10  Cable  operators 
may file an  FCC Form  1210 to justify  quarterly rate  increases 
based on  the  addition  and deletion  of  channels,  changes  in 
certain external costs  and inflation.11   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.12  Any 
incurred cost that is not projected may be accrued with  interest 
and added to rates at a later time.13

     4.   In the Prior Order, the Cable Services Bureau  rejected 
Operator's proposed refund  plan ("1995 Refund  Plan"), filed  in 
response to Order, DA 95-30714 and concluded that Operator's CPST 
rates for the period beginning May 15, 1994 were unreasonable. In 
its Petition, Operator argues that it should have been allowed to 
raise the issue of inter-tier offsets for the first time when  it 
filed its 1995 Refund Plan. Because we reject Operator's  request 
for offsets  on  substantive  grounds,  we  find  the  procedural 
argument to be moot and decline to address it.  In its  Petition, 
Operator also argues that  it should be  permitted to offset  its 
past CPST overcharges  with its past  basic service tier  ("BST") 
undercharges.  The Commission has  addressed the issue of  inter-
tier offsets in  Cencom Cable Income  Partners ("Cencom").15   In 
Cencom, the Commission  determined that  such inter-tier  offsets 
are  "inconsistent  with  the  Commission's  conclusion  in   the 
[Implementation of  Sections  of the  Cable  Television  Consumer 
Protection and  Competition  Act  of 1992,  Rate  Regulation,  MM 
Docket 92-266, Report  and Order and  Further Notice of  Proposed 
Rulemaking]16 that  cable operators  should not  balance low  BST 
rates with CPST rates that exceed the maximum permitted rate  for 
the tier."17  Therefore, we will not allow Operator to offset its 
CPST overcharges  with  its BST  undercharges  and we  will  deny 
Operator's Petition on these grounds.  

     5.   In its Petition, Operator  also requests that we  allow 
Operator to make adjustments to its 1996 and 1997 FCC Form  1240s 
to take advantage of  an extended true-up  period in its  initial 
1996 FCC Form 1240 filing. Operator argues that it is entitled to 
make additional favorable adjustments to its filings because  the 
Cable Services  Bureau  made  corrections  to  the  filings  that 
reduced Operator's maximum permitted  rate. We disagree. Once  an 
operator has filed  FCC Forms and  supporting documentation  with 
the Commission, which the operator  has certified upon filing  to 
be  true  and  accurate,  we  are  entitled  to  act  upon   that 
information.18   Moreover,  once  an  order  has  been   released 
concerning those  FCC  Forms, we  will  not ordinarily  allow  an 
operator to amend those FCC Forms on appeal with information that 
an operator should have submitted in the original  certification.  
We therefore deny  Operator's request  for an  adjustment to  the 
1996 Form 1240. 

     6.   In addition, Operator requests  that we allow  Operator 
to offset its CPST overcharges with its CPST undercharges from  a 
later time  period. Operator  requests that  we allow  intra-tier 
offsets across time periods  when there is  only one CPST.   This 
would require subscribers  to pay for  undercharges that did  not 
necessarily benefit them.   Cross-period offsets  could allow  an 
operator to market a  service by undercharging  and then pass  on 
that cost to a subsequent  group of subscribers.  Our mandate  is 
to review an operator's actual CPST rates. In doing so, we ensure 
that an operator  has correctly calculated,  and is not  charging 
above,  its  maximum  permitted  rate  ("MPR").  We  approve   an 
operator's actual CPST rate if it  is equal to or lower than  the 
MPR as of the effective date of the MPR.  If an operator  chooses 
to charge less than its calculated  MPR at one point in time,  it 
cannot make up the difference at a different time by charging  in 
excess of  its  calculated MPR.    Operator's refund  plan  would 
require us to approve Operator's acknowledged overcharging of its 
CPST subscribers, which  we cannot  do.  Therefore,  we will  not 
allow  Operator  to  offset   its  CPST  overcharges  with   CPST 
undercharges from a different time period.
     
     7. Our review of Operator's 1998 Refund Plan19 reveals  that 
the 1998 Refund  Plan does  not fulfill the  requirements of  the 
Refund Order.  Operator did not calculate its 1998 Refund Plan in 
accordance with  the  Prior Order.20   Therefore,  we  calculated 
Operator's refund  liability  as  follows: For  the  period  from 
January  21,  1994  through  July  14,  1994,  we  calculated  an 
overcharge of $0.15 per month per subscriber; for the period from 
July 15, 1994 through April 5, 1995, we calculated an  overcharge 
of $0.26 per month per subscriber;  for the period from April  6, 
1995 through June 30, 1995, we calculated an overcharge of  $1.45 
per month  per subscriber;  and for  the month  of May  1997,  we 
calculated an overcharge of $0.25 per month per subscriber.   Our 
total calculation, including franchise fees plus interest on  the 
overcharges and  franchise fees  through  March 31,  2002  equals 
$49,763.16.  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. 

     8.   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 of  Marcus Cable Associates, DA  98-
422, 13 FCC Rcd 10530 (1998) IS DENIED.

     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's Refund Plan IS NOT ACCEPTED.

     10.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  $49,763.16, 
plus interest accruing from April 1, 2002 to the date of  refund, 
within 60 days of the release of this Order.

     11.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 98-422, 13 FCC Rcd 
10530 (CSB 1998).

3  The  term  "Operator"   includes  Operator's  successors   and 
predecessors in interest.

4 47 U.S.C. 543(c) (1996).

5 Pub. L. No. 102-385, 106 Stat. 1460 (1992).

6 Pub. L. No. 104-104, 110 Stat. 56 (1996).  

7 See  Implementation  of  Cable Act  Reform  Provisions  of  the 
Telecommunications Act of 1996, 11 FCC Rcd 5937 1996).

8 See  Section  76.956  of  the  Commission's  rules,  47  C.F.R. 
76.956.

9 See  Section  76.957  of  the  Commission's  rules,  47  C.F.R. 
76.957.

10 See  Section 76.922  of the  Commission's rules,  47 C.F.R.   
76.922.

11 Id.

12 Id.

13 Id.

14 In the Matter of  Sammons Communications, Inc., DA 95-307,  10 
FCC Rcd 3824 (CSB 1995).

15  See In the Matter of  Cencom Cable Income Partners II,  L.P., 
12 FCC Rcd 7948 (1997).

16  8 FCC Rcd 5631 (1993).

17  Cencom at 22 (footnote omitted).

18 See  In the  Matter of  Time  Warner Cable,  13 FCC  Rcd  7336 
(1998).

19 Operator calculated a total refund liability of $41,064.00.

20 The Prior Order required Operator to determine the overcharges 
to cable programming  service tier ("CPST")  subscribers for  the 
period stated in  the Refund  Order and  file a  report with  the 
Chief, Cable  Services  Bureau,  stating  the  cumulative  refund 
amount  determined  (including  franchise  fees  and   interest), 
describing the calculation  thereof, and describing  its plan  to 
implement the refund within 60 days of Commission approval of the 
plan.