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


In the Matter of                        )   File No.  EB-02-
TC-063
                              )    CUID      No.      AR0037 
(Fayetteville)      
TCA Cable Partners                 )
                              )             
Petition for Reconsideration            )


                     ORDER ON RECONSIDERATION
                                 

        Adopted:  September 30, 2002              Released:  
October 1, 2002        

By the Chief, Enforcement Bureau:1

     1. In   this   Order  we   consider   a  petition   for 
reconsideration ("Petition") and request  for stay of Order, 
DA  98-25062  ("Second  Order"),   filed  with  the  Federal 
Communications Commission ("Commission").3  The Second Order 
resolved a complaint against the April 1, 1998 rate increase 
by the above-referenced operator ("Operator")4 for its cable 
programming   services  tier   ("CPST")  in   the  community 
referenced  above.    It  also   resolved  a   petition  for 
reconsideration of  Order, DA 96-1936 ("First  Order").5  In 
this Order, we grant Operator's  Petition in part, amend the 
Second Order and calculate Operator's refund liability.

     2.   Under  the provisions  of the  Communications Act6 
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")7 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"),8 
and  the  Commission's  rules implementing  the  legislation 
("Interim  Rules"),9 require  that a  complaint against  the 
CPST rate  be filed with the  Commission by an LFA  that has 
received more than one subscriber complaint.  

     3.   The  filing  of  a  valid  complaint  triggers  an 
obligation upon  the cable operator to  file a justification 
of its CPST rates.10  If the Commission finds the rate to be 
unreasonable, it  shall determine  the correct rate  and any 
refund liability.11   Operators must  use the FCC  Form 1200 
series  to justify  rates for  the period  beginning May15, 
1994.12    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 1210.13 

     4.   In  its  Petition,  Operator argues  that  it  was 
entitled to an additional month of inflation on its FCC Form 
393.   We agree.   Our adjustment  increases Operator's  FCC 
Form  393  maximum  permitted   rate  ("MPR")  from  $12.97, 
established in the Second Order, to $13.00.  

     5.   Operator also argues that  it should be allowed to 
substitute  $83,792 for  the  $65,703  figure it  originally 
inserted  on  Line  204  (Equipment  Revenue  (Monthly))  of 
Worksheet 2  of its FCC Form  393.  In the First  Order, the 
Cables  Services Bureau  revised  Line  G5 (Total  Equipment 
Revenue as of 9/30/92) of  Operator's FCC Form 1200 to match 
Line 204 of  Operator's FCC Form 393.  In  the Second Order, 
the Cable  Services Bureau reversed its  decision, accepting 
Operator's argument  that the  instructions for Line  204 of 
the  FCC Form  393 and  Line  G5 of  the FCC  Form 1200  are 
different, and allowed Operator its claim of $83,792 on Line 
G5  of its  FCC Form  1200  rather than  the $65,703  figure 
reported by Operator on Line 204 of its FCC Form 393.14  

     6.   Now Operator  reverses itself  and argues  that it 
should be allowed to change  the original FCC Form 393 entry 
to match its FCC Form  1200 entry.  We disagree.  First, the 
proposed adjustment  was not made  on a timely basis,  as it 
was  filed after  the  date  of the  First  Order.  Once  an 
operator has  filed FCC Forms  with the Commission,  each of 
which  requires a  signed certification  statement that  the 
information  on the  FCC Form  is true  and correct,  we are 
entitled  to  act upon  that  information.15   Once we  have 
released  an order  concerning  those FCC  Forms, we  cannot 
ordinarily allow an operator  to submit additional FCC Forms 
on appeal  with information that should  have been submitted 
with the  original certification,  unless we  have requested 
the  additional information.16   Furthermore,  as the  Cable 
Service Bureau stated  in the Second Order,  and as Operator 
previously  argued,  the FCC  Form  393  and FCC  Form  1200 
instructions  are  not  identical.  In  requesting  that  we 
accept $83,792  on Line  204 of the  FCC Form  393, Operator 
contradicts the FCC Form 393 instructions as well as its own 
previous argument.    In support  of its  argument, Operator 
cites the  answer to Question  9 of  a July 30,  1993 Public 
Notice17 that lists certain criteria  that must be met if an 
Operator is seeking to use the most recent monthly equipment 
figure as  opposed to the  annual average monthly  figure on 
the FCC Form 393.  However, Operator fails to satisfy any of 
the listed  criteria, most  notably, that  there must  be no 
material difference in the result from using the substituted 
figure.18  Therefore, we reject Operator's argument.    

     7.   Based on  our review  of Operator's FCC  Form 393, 
Operator's MPR is  $13.00 for the period  from September 13, 
1993 (the date the first  valid complaint was filed with the 
Commission) through May 14, 1994.  Because Operator's actual 
CPST rate  of $13.22,  effective September 13,  1993 through 
May 14, 1994, exceeds its  MPR of $13.00, we find Operator's 
actual  CPST rate  of $13.22,  effective September  13, 1993 
through May 14, 1994, to be unreasonable.

     8.   In  its Petition,  Operator also  argues that  the 
Cable  Services Bureau  used the  wrong figure  on Line  I2a 
(Monthly  Equipment  Cost   per  Subscriber)  when  revising 
Operator's FCC Form 1200 in the Second Order.  We agree that 
a clerical error was made and  our revised FCC Form 1200 MPR 
of $13.00 matches Operator's calculated MPR.  Operator added 
a channel on  June 1, 1994.  In the Second  Order, the Cable 
Services  Bureau allowed  Operator an  additional $0.29  for 
external costs associated with the added channel. Therefore, 
Operator's MPR for the period  from May 15, 1994 through May 
31, 1994 is $13.00 and  $13.29 for the time period beginning 
June 1, 1994 through September 30, 1994.  Because Operator's 
actual CPST rate  of $13.22, effective May  15, 1994 through 
May 31, 1994,  exceeds is MPR of $13.00,  we find Operator's 
actual CPST rate  of $13.22, effective May  15, 1994 through 
May 31, 1994, to be unreasonable.  We find Operator's actual 
CPST rate of $13.22, effective  June 1 through September 30, 
1994, to be reasonable.

     9.   Upon review of Operator's  FCC Form 1210, covering 
the  period April  1, 1994  through September  30, 1994,  we 
revised   Operator's  methodology   for  incorporating   the 
external costs associated with the  channel added on June 1, 
1994,  which increased  Operator's  Line  B10 (Current  Ext. 
Costs  per  Tier  per   Sub.)  to  $2.5895.19   Despite  our 
adjustment, which  we carried through  Operator's subsequent 
filings,  we accept  Operator's  calculated  MPR of  $13.57, 
effective  October  1,  1994   through  December  31,  1994.  
Because  Operator's actual  CPST rate  of $13.57,  effective 
October 1, 1994  through December 31, 1994,  does not exceed 
its  MPR, we  find Operator's  actual CPST  rate of  $13.57, 
effective October 1,  1994 through December 31,  1994, to be 
reasonable.  Upon  review of Operator's next  FCC Form 1210, 
we  accept Operator's  calculated MPR  of $15.01,  effective 
January  1, 1995.   Because Operator's  actual CPST  rate of 
$15.01, effective January 1, 1995 through May 31, 1996, does 
not exceed its  MPR, we find Operator's actual  CPST rate of 
$15.01, effective January  1, 1995 through May  31, 1996, to 
be reasonable.  

     10.  Upon review  of Operator's FCC Form  1210 covering 
the period  October 1,  1995 through  December 31,  1995, we 
adjusted Line C14 (Previous Ext. Costs per Tier per Sub.) to 
$2.5895 to match Line D9 (Current Ext. Costs per Subscriber) 
of  Operator's   previous  revised   FCC  Form   1210.   Our 
adjustment reduced Operator's calculated  MPR from $17.36 to 
$17.26.   Because Operator's  actual  CPST  rate of  $17.36, 
effective June 1,  1996 through March 31,  1998, exceeds its 
revised MPR, we find Operator's  actual CPST rate of $17.36, 
effective  June  1,  1996  through March  31,  1998,  to  be 
unreasonable.20     Upon review of  Operator's FCC Form 1210 
covering the period  from January 1, 1998  through March 31, 
1998,  we  find  Operator's  actual  CPST  rate  of  $18.95, 
effective April 1, 1998, to be reasonable.21
     
     11.  Due  to our  granting  of  Operator's Petition  in 
part,  the  refund plan  that  Operator  submitted with  its 
Petition is  no longer applicable.  Therefore,  we calculate 
Operator's refund liability as  follows: For the period from 
September 13,  1993 through  May 31,  1994, we  calculate an 
overcharge  of $0.22  per month  per subscriber.  Operator's 
actual CPST rate for this period  was $13.22 and its MPR was 
$13.00. For the period June  1, 1996 through March 31, 1998, 
we  calculate   an  overcharge   of  $0.10  per   month  per 
subscriber. Operator's actual CPST  rate for this period was 
$17.36  and  its  MPR  was $17.26.  Our  total  calculation, 
including interest  on the  overcharges through  October 31, 
2002, equals  $109,984.00. Our calculation does  not include 
franchise  fees. We  order Operator  to refund  this amount, 
plus any additional interest accrued  to the date of refund, 
plus franchise fees,  if any, and interest  on the franchise 
fee principal amount, to its CPST subscribers within 60 days 
of the release of this Order.  We dismiss Operator's request 
for stay as moot.

     12.  Accordingly,  IT IS  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 GRANTED IN 
PART AND DENIED IN PART TO THE EXTENT INDICATED HEREIN. 

     13.  IT IS  FURTHER ORDERED, pursuant to  Section 1.106 
of the  Commission's rules, 47  C.F.R.  1.106, that  In the 
Matter of TCA Cable Partners d/b/a TCA Cable TV, DA 98-2506, 
13  FCC Rcd  23577  (CSB  1998) IS  MODIFIED  TO THE  EXTENT 
INDICATED  HEREIN   and  Operator's  request  for   stay  IS 
DISMISSED.

     14.  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 $13.22, charged by Operator in 
the community referenced above, effective September 13, 1993 
through May 31, 1994, IS UNREASONABLE.

     15.  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  rates  charged  by Operator  in  the 
community referenced  above, effective June 1,  1994 through 
May 31, 1996, ARE REASONABLE.

     16.  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 $17.36, charged by Operator in 
the  community  referenced  above, effective  June  1,  1996  
through March 31, 1998, IS UNREASONABLE.

     17.  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 $18.95, charged by Operator in 
the community referenced above,  effective April 1, 1998, IS 
REASONABLE.

     18.  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 $109,984.00, plus any additional interest accruing 
between  October  31, 2002  and  the  date of  refund,  plus 
franchise fees,  if any, and  interest on the  franchise fee 
principal  amount within  60  days of  the  release of  this 
Order.

     19.  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 TCA Cable Partners d/b/a TCA Cable TV, DA 
98-2506, 13 FCC Rcd 23577 (CSB 1998).

3 Operator  originally filed an application  for review, but 
requested that  the application for  review be treated  as a 
petition for  reconsideration.  See  letter dated  April 17, 
2002 from Steven J. Horvitz, counsel for Operator.

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

5 In  the Matter  of TCA  Cable TV, DA  96-1936, 11  FCC Rcd 
15024 (CSB 1996).

6 47 U.S.C. 543(c) (1996).

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

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

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

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

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  The   Cables  Services  Bureau  concluded   that  "[t]he 
instructions for FCC Form 1200, Line G5 require the entry of 
equipment revenue  information `for  the last  whole monthly 
billing  period ending  on  or before  September 30,  1992.' 
[footnote omitted] In contrast the relevant instructions for 
FCC  Form  393 direct  cable  operators  to calculate  their 
`monthly  average equipment  revenue [using]  total revenues 
...  earned over  the  last fiscal  year  for the  community 
unit.' [footnote omitted] Operator  argues that the FCC Form 
1200   requires  equipment   revenue   information  from   a 
particular month, while the FCC  Form 393 requires an annual 
monthly  average of  equipment revenue.  Therefore, Operator 
contends that it correctly  entered September 1992 equipment 
revenue information on  Line G5 of its FCC  Form 1200, which 
the Bureau  replaced with average annual  equipment revenues 
derived from FCC Form 393.  Upon consideration of Operator's 
Petition with respect to the adjustment of equipment revenue 
on Line G5 of FCC Form 1200, we find that Operator correctly 
followed  the FCC  Form 1200  instructions. Accordingly,  we 
will grant  Operator's Petition  with respect to  this issue 
and permit Operator to use the equipment revenue information 
that it  entered on Line G5  of its FCC Form  1200."  Second 
Order at  7-8.

15  See In the Matter  of Meredith Cable, 14 FCC Rcd 9202 at 
 11 (CSB 1999).

16 Id.  The cases cited by Operator in its Petition at p. 4, 
n. 11, for  the proposition that the  Commission must adhere 
to the  same standard that  it applies to  local franchising 
authorities,  that  is,  to   allow  timely  corrections  to 
submissions, are  inapposite to  the current  situation.  In 
those cases, the Commission  stated that a local franchising 
authority should  allow an  operator a reasonable  period of 
time to respond once  a local franchising authority requests 
additional information.

17  See Public  Notice, "Cable  Television Rate  Regulation, 
Questions and  Answers Relating  to FCC Form  393" (released 
July 30, 1993).

18  See  id.  at  Question 9  ("Question:  Instructions  for 
Worksheet 1, Line  104.  When can a  representative month be 
used   and  under   what  circumstances   with  respect   to 
calculating  monthly equipment  revenue?  Answer:   If there 
would  be no  material  difference in  result  from using  a 
representative month  rather than the past  fiscal year, and 
if the  local franchising  authority (or,  where applicable, 
the  FCC)  finds  it  acceptable, the  operator  may  use  a 
representative month.   The operator  should attach  a brief 
statement to  Form 393 explaining  why it is  appropriate in 
that system's  case.")  Indeed, had Operator  sought to rely 
on the Public  Notice, it had the opportunity  and failed to 
do so in its initial filing.

19 The Cable Services Bureau made this same adjustment in 
the Second Order at  15.

20 These findings are based solely on the representations of 
Operator.   Should information  come to  our attention  that 
these representations were materially inaccurate, we reserve 
the right to take appropriate  action.  This Order is not to 
be construed as  a finding that we have  accepted as correct 
any  specific entry,  explanation  or argument  made by  any 
party to this proceeding  not specifically addressed herein.   
Information  regarding  the  specific  adjustments  made  to 
Operator's FCC  Forms can be  found in the public  files for 
the above-referenced  community which  are available  in the 
FCC  Reference  Information  Center, Portals  II,  445  12th 
Street,  SW,  Room  CY-A257, Washington,  DC,  20554.   This 
document  may  also  be   purchased  from  the  Commission's 
duplicating  contractor, Qualex  International, Portals  II, 
445 12th  Street, SW,  Room CY-B402, Washington,  DC, 20554, 
telephone  202-863-2893, facsimile  202-863-2898, or  via e-
mail qualexint@aol.com.
21 In  its Petition, Operator challenged  an adjustment made 
to this last  FCC Form 1210 by the Cable  Services Bureau in 
the Second  Order.  Because  we find Operator's  actual CPST 
rate for this  period to be reasonable, a  resolution of the 
issue   will  not   effect   Operator's  refund   liability.  
Therefore  we decline  to address  the merits  of Operator's 
final argument.