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


In the Matter of                  )   File No. EB-02-TC-105
                                 )
Marcus Cable Associates, LP       )   CUID No.  TN0036 (Newport)                
                                 )
Complaint     Regarding    Cable  )
Programming                    )  )
Services    Tier    Rates    and  )
Petition for Reconsideration


                            ORDER


     Adopted:  July 16, 2002            Released:   July 17, 
2002

By the Chief, Enforcement Bureau:1

     1.   In this Order we consider complaints filed against 
the   rates  charged   by   the  above-referenced   operator 
("Operator")2  for  its   cable  programming  services  tier 
("CPST")  in  the  community  referenced  above.  The  Cable 
Services  Bureau has  already issued  an Order,  DA 95-781,3 
which  resolved  complaints  filed against  Operator's  CPST 
rates in  effect through May14,  1994. In its  Prior Order, 
the Cable Services  Bureau stated that its  findings "do not 
in any way prejudge the  reasonableness of the price for CPS 
service after May 14, 1994 under our new rate regulations."4 
Operator filed  a refund plan  in response to Order,  DA 95-
781,  which was  rejected by  the Cable  Services Bureau  in 
Order,  DA  97-21025  ("Prior  Order").   Operator  filed  a 
petition for reconsideration ("Petition") of the Prior Order 
along with amended refund plans.   In this Order, we address 
Operator's  refund plans  as well  as the  reasonableness of 
Operator's  CPST rates  for  the period  beginning July  15, 
1994.6

     2.   Under  the provisions  of the  Communications Act7 
that were  in effect at  the time the  referenced complaints 
were   filed,   the    Federal   Communications   Commission 
("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 19928 
("1992 Cable  Act") required  the Commission to  review CPST 
rates upon the  filing of a valid complaint  by a subscriber 
or  local franchising  authority ("LFA").   The filing  of a 
complete and  timely complaint  triggers an  obligation upon 
the  cable operator  to  file a  justification  of its  CPST 
rates.9  The  Operator has the burden  of demonstrating that 
the CPST  rates complained  about are reasonable.10   If the 
Commission  finds  a  rate  to  be  unreasonable,  it  shall 
determine the correct rate and any refund liability.11

     3.   Operators  must use  the FCC  Form 1200  series to 
justify  rates  for  the period  beginning  May15,  1994.12  
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.13  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.14  Any  incurred 
cost that is not projected  may be accrued with interest and 
added to rates at a later time.15

     4.   Upon review of Operator's FCC Form 1200, we accept 
Operator's  calculated  maximum  permitted rate  ("MPR")  of 
$8.05.  Because  Operator's  actual   CPST  rate  of  $9.46, 
effective July 15, 1994  through September 30, 1994, exceeds 
its calculated MPR of $8.05,  we find Operator's actual CPST 
rate of $9.46, effective July 15, 1994 through September 30, 
1994,  to be  unreasonable.  Upon  review of  Operator's FCC 
Form  1210,  covering  the  period  April  1,  1994  through 
September 30,  1994, we accept Operator's  calculated MPR of 
$9.14.  Because  Operator's  actual   CPST  rate  of  $9.46, 
effective October 1, 1994 through  May 31, 1996, exceeds its 
calculated MPR of $9.14, we find Operator's actual CPST rate 
of $9.46, effective October 1, 1994 through May 31, 1996, to 
be unreasonable.   Upon review of Operator's  FCC Form 1240, 
for the projected period June  1, 1996 through May 31, 1997, 
we  find Operator's  actual CPST  rate of  $11.14, effective 
June 1, 1996, to be reasonable.16

     5.   In  the Prior  Order,  the  Cable Services  Bureau 
rejected Operator's  proposed refund plan filed  in response 
to Order, DA 95-781.  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 initial 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").17   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]18  that 
cable operators should  not balance low BST  rates with CPST 
rates  that  exceed  the  maximum  permitted  rate  for  the 
tier."19  Therefore,  we will  not allow Operator  to offset 
its CPST overcharges  with its BST undercharges  and we deny 
Operator's Petition.

     6.   Operator filed  two amended refund plans  with its 
Petition.   For  the reasons  stated  above,  we reject  the 
refund plan  submitted by Operator that  includes inter-tier 
offsets.  Upon  review of  Operator's refund plan  that does 
not include inter-tier offsets ("Amended Refund Plan"),20 we 
find the  refund plan  to be acceptable  provided Operator's 
amends the  refund plan to  include interest to the  date of 
payment of refunds.

     7.   Accordingly, IT  IS ORDERED, pursuant  to Sections 
0.111  and 0.311  of the  Commission's rules,  47 C.F.R.   
0.111 and  0.311, that  the CPST rate  of $9.46,  charged by 
Operator in  the community referenced above,  effective July 
15, 1994 through March 31, 1996, IS UNREASONABLE.

     8.   IT IS FURTHER ORDERED,  pursuant to Sections 0.111 
and 0.311 of the Commission's  rules, 47 C.F.R.  0.111 and 
0.311, that the CPST rate  of $11.14, charged by Operator in 
the community  referenced above, effective June  1, 1996, IS 
REASONABLE.

     9.   IT IS FURTHER ORDERED,  pursuant to Section 76.961 
of the Commission's rules, 47 C.F.R.  76.961, that Operator 
shall  refund to  subscribers  in  the community  referenced 
above  that portion  of the  amount  paid in  excess of  the 
maximum  permitted  CPST  rate  of  $8.05  per  month  (plus 
franchise fees),  plus interest to  the date of  the refund, 
for the period July 15, 1994, through September 30, 1995.

     10.  IT IS FURTHER ORDERED that Operator shall promptly 
determine the overcharges to CPST subscribers for the stated 
periods, and  shall within  30 days of  the release  of this 
Order,  file a  report with  the Chief,  Enforcement Bureau, 
stating   the  cumulative   refund   amount  so   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.

     11.  IT IS FURTHER ORDERED,  pursuant to Sections 0.111 
and 0.311 of the Commission's  rules, 47 C.F.R.  0.111 and 
0.311,  that the  complaints referenced  herein against  the 
CPST rates  charged by Operator in  the community referenced 
above ARE GRANTED.

     12.  IT IS  FURTHER ORDERED, pursuant to  Section 1.106 
of  the Commission's  rules,  47 C.F.R.    1.106, that  the 
petition for reconsideration filed by Operator is DENIED.

     13.  IT  IS FURTHER  ORDERED,  that Operator's  Amended 
Refund  Plan  IS  APPROVED provided  operator  modifies  its 
Amended Refund Plan  to the extent indicated  herein, and IT 
IS  FURTHER  ORDERED,  pursuant  to Section  76.962  of  the 
Commission's  rules,  47  C.F.R.    76.962,  that  Operator 
implement  its Amended  Refund Plan  within 60  days of  the 
release of this Order.

     14.  IT IS FURTHER ORDERED,  pursuant to Section 76.962 
of the Commission's rules, 47 C.F.R.  76.962, that Operator 
shall  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  The term  "Operator" includes  Operator's successors  and 
predecessors in interest.
3 In the Matter of  Sammons Communications, Inc., DA 95-781, 
10 FCC Rcd 8278 (CSB 1995).
4 Id. at n. 1.
5 In the Matter of  Marcus Cable Associates, LP, DA 97-2102, 
13 FCC Rcd 7071 (CSB 1998).
6  The Commission's  rules  provide for  a refund  liability 
deferral  period,  if  timely  requested  by  the  Operator, 
beginning May  15, 1994  and ending July  14, 1994,  for any 
overcharges resulting  from Operator's calculation of  a new 
maximum permitted rate on its  FCC Form 1200.  See 47 C.F.R. 
  76.922(b)(6)(ii).   Operator  elected  to   defer  refund 
liability.   However, Operator  will incur  refund liability 
from May 15,  1994 through July 14, 1994 for  any CPST rates 
charged  above  the FCC  Form  393  maximum permitted  rate.  
Operator's  Amended Refund  Plan,  which  we review  herein, 
includes  this time  period  in its  refund calculation  for 
Order, DA 95-781.
7 Communications Act, Section  623(c), as amended, 47 U.S.C. 
 543(c) (1996).
8 Pub. L. No. 102-385, 106 Stat. 1460 (1992).
9 See Section 76.956 of  the Commission's rules, 47 C.F.R.  
76.956.
10 Id.
11 See Section 76.957 of the Commission's rules, 47 C.F.R.  
76.957.
12 See Section 76.922 of the Commission's rules, 47 C.F.R.  
76.922.
13 Id.
14 Id.
15 Id.
16  Because  Operator's  refund  liability  for  the  period 
October  1, 1995  through May  31, 1996  was trued  up in  a 
subsequent FCC  Form 1240, which we  review herein, Operator 
is  not   required  to  separately  calculate   that  refund 
liability and submit a refund plan for that time period.
17  See  In the Matter  of Cencom Cable Income  Partners II, 
L.P., 12 FCC Rcd 7948 (1997).
18  8 FCC Rcd 5631 (1993).
19  Cencom at 22 (footnote omitted).
20  Operator   calculated  a   total  refund   liability  of 
$7,974.00.