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X- X   l X-#Xj\  P6G;W XP# #&a\  P6G;/&P#Federal Communications Commission`~(#< DA 981747 ă  yxdddy  S- ĂՊ vK #X\  P6G;gP#Before the Federal Communications Commission  yO|"Washington, D.C. 20554 #Xj\  P6G;W XP#у  Sb-#&a\  P6G;/&P#In the Matter of hh,V)  S:- ` `  hh,V)  S-Marcus Cable Associates, L.P.hh,V) CUID No. IN0001 (Columbus)  S-` `  hh,V)  S-` `  hh,V)pp ` `  hh,V)  Sr-Petition for Reconsiderationhh,V)  S -x  ORDER ON RECONSIDERATION ă  S - Adopted: August 31, 1998 hh,VppReleased: September 2, 1998  S - By the Deputy Chief, Cable Services Bureau:  S -  # I. A. 1. a.(1)(a) i) a) I. 1. 1. a.(1)(a) i) a)1. ` ` In this Order we consider a Petition for Reconsideration ("Petition") filed by the operator  S-  ("Operator") for the community set forth above. We have issued an order ("Prior Order")q XJ-ԍ #X\  P6G;gP#See In the Matter of Marcus Cable Associates, DA 98340 (released February 23, 1998). which granted   complaints filed against the rates charged by Operator for its cable programming services tier ("CPST")   [in the community referenced above and found that a refund plan ("1994 Refund Plan") filed by Operator  Sj-  in response to another order ("1994 Order") was unacceptable.jyq {O-#X\  P6G;gP##X\  P6G;gP#э  See In the Matter of Sammons Communications, Inc., DA 95659 (released April 4, 1995). Operator filed its Petition against our   Prior Order on March 25, 1998 along with a revised refund plan ("1998 Refund Plan"). The Commission has received no opposition to the Petition.  S-  2.` ` The Communications Act q Xu-ԍ#X\  P6G;gP# Section 623(c) of the Communications Act of 1934, as amended, 47 U.S.C. Section 543(c) (1996).#Xj\  P6G;W XP# authorizes the Federal Communications Commission   ("Commission") 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  SR-  zof 1992|Rq X -ԍ #X\  P6G;gP#Pub. L. No. 102385, 106 Stat. 1460 (1992).| ("1992 Cable Act") required the Commission to review CPST rates upon the filing of a valid   complaint by a subscriber or LFA. If the Commission finds the rate to be unreasonable, it shall determine  S-  [the correct rate and any refund liability.tmq X$-ԍ #X\  P6G;gP#See 47 C.F.R. Section 76.957.t Operators must use the FCC Form 1200 series to justify their  S-  \rates for the period beginning May 15, 1994 using a benchmark showing.Z\ q {O&-#X\  P6G;gP#э 47 C.F.R. Section 76.922(b)(6); see Second Order on Reconsideration, supra at 4183, paras. 135138;  {Ob'-supra at 4190, n.136; see also Public Notice "Questions and Answers on Cable Television Rate Regulation" (April 26, 1994).Z Cable operators may also   yjustify rate increases based on the addition and deletion of channels, changes in certain external costs, and"B ,))II"  S-  inflation, by filing FCC Form 1210.lU yOh-#X\  P6G;gP#э 47 C.F.R. Section 76.922(d).l FCC Form 1210 must be filed at least 30 days before new rates   are scheduled to go into effect where the Commission has found the cable programming service rate to  S-  be unreasonable less than one year prior to the filing, or where there is a pending complaint against the  S-  yCPST rate.oXU yO-#X\  P6G;gP#э 47 C.F.R. Section 76.960.o Operators may alternatively justify adjustments to their rates on an annual basis using FCC   Form 1240 to reflect reasonably certain and quantifiable changes in external costs, inflation, and the  S8-  number of regulated channels that are projected for the twelve months following the rate change.l 8U yO -#X\  P6G;gP#э 47 C.F.R. Section 76.922(e).l Any  S-incurred cost that is not projected may be accrued with interest and added to rates at a later time.Y xU {O( -#X\  P6G;gP#э Id.Y  S-  3.` ` In the Prior Order, we found that Operator's 1994 Refund Plan did not comply with the   Nrequirements of our 1994 Order and we ordered Operator to refile its 1994 Refund Plan. We also   reviewed Operator's CPST rates effective May 15, 1994. Upon review of Operator's FCC Form 1200,   =filed to justify its CPST rates beginning May15, 1994, we adjusted Line A6 to $10.13 to correspond to  S -  the maximum permitted rate ("MPR") determined in our 1994 Order.  U yO-#X\  P6G;gP#э Information regarding the specific adjustments made to Operator's FCC Forms can be found in the public files for the abovereferenced community which are available in the Cable Services Bureau's public reference room, or through the Commission's copy contractor, International Transcription Services (ITS), 1231 20th Street  yO"-N.W., Washington, DC, 20036, or by calling ITS at (202) 8573800. We found Operator's CPST MPR  S -  of $9.12 to be reasonable.  U yO-#X\  P6G;gP#э This finding is 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 any 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. Because Operator's actual CPST rate was $10.47, \ U {Or-#X\  P6G;gP#э See 1994 Order, Appendix B. In its 1994 Refund Plan, Operator states that the "Commission found [in its 1994 Order] that [Operator's] actual monthly charge for its CPS tier was $10.47 per month (plus franchise fee)."  {O-1994 Refund Plan at p. 1. Operator further states that it "does not dispute these calculations or findings ..." Id.  however, we found   yOperator's CPST rate to be unreasonable for the period May 15, 1994 through June 30, 1994. However,   Operator elected to take advantage of the refund liability deferral period in accordance with the  S -  Commission's Rules.B\ U {O!-#X\  P6G;gP#э See Letter from Sandra K. Turley, Vice PresidentRegional Operations, Sammons Communications, Inc.,  {O!-to the Federal Communications Commission dated May 18, 1994. See also 47 C.F.R. Section 922(b)(6)(ii) (1996).B Accordingly, Operator did not incur refund liability for charging in excess of the   MPR calculated on its FCC Form 1200 for the period May 15, 1994 through June 30, 1994. However,   Operator did incur refund liability for charging a CPST rate of $10.47, for the period May 15, 1994   through June 30, 1994, which is above the MPR of $10.13 approved by the Commission on Operator's   .FCC Form 393. In addition, because Operator's actual CPST rate of $11.29, in effect from July 1, 1994"",>(>(II"   [through October 31, 1995, exceeded its FCC Form 1200 MPR, we found Operator's actual CPST rate of $11.29 to be unreasonable effective July 1, 1994 through June 30, 1995.  S-  p4.` ` Upon review of Operator's FCC Form 1210 covering the period March 31, 1994 to   June30, 1995, we found that Operator claimed an excessive inflation factor. Accordingly, we adjusted   Operator's inflation factor on Lines I5 (Inflation Adjustment Factor) and J5 (Inflation Adjustment Factor)   each from 1.0521 to 1.0215. These adjustments to Operator's FCC Form 1210 reduced Operator's MPR   lfrom $9.80 to $9.63. Because Operator's actual CPST rate continued to be $11.29, we found that  S-  Operator's CPST rate, effective July 1, 1995 through October 31, 1995, was unreasonable. On   zNovember !%J? Ԡ !%J? 1, 1995, Operator implemented a CPST rate of $9.80 to conform with its FCC Form 1210   filing. Because Operator's actual CPST rate of $9.80 exceeded its reduced MPR of $9.63, we found   Operator's actual CPST rate of $9.80, effective November 1, 1995 through May 31, 1996, to be   junreasonable. However, because Operator's rates had been adjusted to remove excess inflation, pursuant   to our "Public Notice: Cable Rates for Inflation Applied to Transition Rates," Operator did not incur  S -refund liability because of its excess inflation until April 1, 1996.g U yO8-#X\  P6G;gP#э 11 FCC Rcd 1151 (1995).g   S -  5.` ` Upon review of Operator's first FCC Form 1240 for the period June 1, 1996 through   May31, 1997, we adjusted Module A, Line A1 to reflect Operator's previous MPR of $9.63. The   adjustment to Line A1 required that we correct the inflation factor in Module C, Line C1 to 1.0208.   These adjustments reduced Operator's MPR from $11.65 to $11.32. Because Operator's actual CPST rate   of $11.65 exceeded its reduced MPR of $11.32, we found Operator's actual CPST rate of $11.65, effective June 1, 1996 through May 31, 1997 to be unreasonable.  Sh-  6.` ` Upon review of Operator's second FCC Form 1240 for the period June 1, 1997 through   May 31, 1998, we adjusted Module A, Line A1 to reflect Operator's previous MPR of $11.32. On   Operator's second FCC Form 1240, we found that the time period selected for performing trueup   adjustments incorrectly overlapped the timeperiod selected for trueup adjustments from Operator's first   FCC Form 1240. In addition, Operator incorrectly made trueup adjustments through to the effective date   of the increase. Therefore, we adjusted the trueup period in Operator's second FCC Form 1240 from 15  Sx-  months to 11 months.xxXU yOp-#X\  P6G;gP#э Operator selected a 15 month trueup period for its second FCC Form 1240 filing beginning March 1, 1996 through May 31, 1997 (12 months for Period 1 and 3 months for Period 2). Operator's trueup period in its second FCC Form 1240 filing overlapped by three months the selected trueup period from its first FCC Form 1240, which began July 1, 1995 and ended May 31, 1996. In addition, Operator ended its trueup period in its second FCC Form 1240 filing on the day before its projected period begins. Accordingly, we adjusted Operator's trueup period in its second FCC Form 1240 filing to begin on June 1, 1996 and end on April 30, 1997, thereby reducing Operator's trueup period from 15 months to 11 months. This adjustment reduced the number of months on Worksheet 1, True Up Period   1, from 12 months to 11 months and eliminated the three months that Operator had listed for True Up   >Period 2. Our adjustments to Worksheet 1 required that we revise Operator's inflation factors. As a   result, the inflation factor in Module C, Line C1 for the 11 month trueup period was corrected to 1.0202 and the current inflation factor in Module C, Line C3 was corrected to 1.0177.  S-  C7.` ` The reduction in the length of the trueup period resulted in a reduction to Line H2   (Revenue From MPR for Period 1), and in a corresponding reduction to Line I8 (TrueUp Segment for"`,>(>(II"   =the Projected Period). In total, our adjustments to Operator's FCC Form 1240 resulted in a reduction of   the MPR for the Projected Period to $12.11 (Line I9). Therefore, we found that Operator failed to   zdemonstrate that its June 1, 1997 rate of $13.36 for its CPST was not unreasonable. We also ordered   LOperator to file with us an accounting of its external costs in its revised trueup period, so that we could   compare the actual external costs for the permitted 11 month trueup period with the recovery of external costs afforded by the external cost segment for that period as calculated on Worksheet 7.  S-  8.` ` The first issue raised by Operator its Petition concerns Operator's 1994 Refund Plan.   Operator argues that it should be permitted to offset its past CPST overcharges with its past basic service   tier ("BST") undercharges. This is essentially the same argument advanced by Operator in its 1994 Refund  Sp-  Plan. We rejected this argument in the Prior Order and we reject it again now. The Commission has  SH -  yaddressed the issue of inter-tier offsets in Cencom Cable Income Partners ("Cencom").H U yO -#X\  P6G;gP#э In the Matter of Cencom Cable Income Partners II, L.P., FCC 97205 (released June 13, 1997). 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  S -  zRulemaking]f XU yO-#X\  P6G;gP#э 8 FCC Rcd 5631 (1993).f that cable operators should not balance low BST rates with CPST rates that exceed the  S -  maximum permitted rate for the tier."v U yO -#X\  P6G;gP#э Cencom at para. 22 (footnote omitted).v More recently, the Commission has affirmed its decision in  SZ-  LCencom by rejecting a cable operator's request to offset its overcharges on its BST with its undercharges  S4-  on its CPST.4xU {OL-#X\  P6G;gP#э Continental Cablevision of Massachusetts, Inc., d/b/a Continental Cablevision, FCC 98168, released July 23, 1998. Therefore, we will not allow Operator to offset its CPST overcharges with its BST   undercharges. Also, because Operator has had two opportunities to file a refund plan that complies with   our 1994 Order and has failed to do so, we will calculate the amount of refund due and order Operator to make refunds to its subscribers within 60 days of the release of this order.  Sl-  R9.` ` The second issue raised by Operator concerns the starting date of its CPST rate, as  SD-  ]calculated on its FCC Form 1200. We found Operator's CPST MPR of $9.12 to be reasonable. DU yO-#X\  P6G;gP#э This finding is 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 any 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.   Operator states that it did not implement its FCC Form 1200 until July 15, 1994 and not July 1, 1994,   as stated in the Prior Order. We accept Operator's contention in this issue and we will vacate this portion   of the Prior Order. Because Operator's actual CPST rate for the period May 15, 1994 through July 14,   1994 was $10.47, which was greater than the MPR of $10.13 approved in our Prior Order, Operator is   still liable for the amount charged subscribers above $10.13 for the period May 15, 1994 through July 14,  ST-  1994. In addition, because Operator's actual CPST rate of $11.29, in effect from July 15, 1994 through"T ,>(>(II"   [October 31, 1995, exceeded its FCC Form 1200 MPR, we find Operator's actual CPST rate of $11.29 to  S-be unreasonable effective July 15, 1994 through October 31, 1995. U yO@-#X\  P6G;gP#э Operator's FCC Form 1240, for the projected period June 1, 1996 through May 31, 1997, includes a trueup period which runs from July 1, 1995 to May 31, 1996. Therefore, any overcharges associated with Operator's CPST rates for that trueup period, for the community referenced above, have already been accounted for in Operator's CPST rate, effective June 1, 1996.   S-  10.` ` The third issue raised by Operator relates to our requirement, in the Prior Order, that   Operator recalculate its external cost segment as found on Worksheet 7 in its FCC Form 1240, for the   !projected period June 1, 1997 through May 31, 1998, ("1997 Form 1240") and to file with us an   jaccounting of its external costs in its revised trueup period, so that we could compare the actual external   costs for the permitted 11 month trueup period with the recovery of external costs afforded by the   external cost segment for that period as calculated on Worksheet 7. Operator has revised its 1997 Form   1240 to comply with the adjustment required on Worksheet 7, and has filed with us the required  Sp-  accounting. Upon review of Operator's revised 1997 Form 1240, we accept Operator's entry of $4.924   Mon Line I7 (External Costs Segment for Projected Period Worksheet 7). However, Operator did not   correctly calculate its Line F8 (TrueUp Segment For TrueUp Period 1) to take into account the other   revisions from our Prior Order. Therefore, we adjusted Line F8 to ($0.4898) in accordance with the FCC  S -  .Form 1240 instructions. U {O -#X\  P6G;gP#э See FCC Form 1240 Instructions at 18 (July 1996). This adjustment reduced Operator's MPR, effective June 1, 1997, to $12.24.   Because Operator was charging a CPST rate of $13.36, effective June 1, 1997, we find that Operator's CPST rate, effective June 1, 1997, was unreasonable.  S0-  11.` ` The final issue raised by Operator concerns its calculation of its 1998 Refund Plan, filed   to account for overcharges after July 15, 1994. Specifically, Operator contends that it should be permitted   zto engage in intertier offsetting when calculating this refund plan as well. We have already dealt with   this issue above; therefore, we deny Operator's request to engage intertier offsetting in its 1998 Refund  S-  Plan.hBU {Or-#X\  P6G;gP#э See para. 6 above.h Operator also contends that it should be permitted to account for its overcharges for the period   Lbeginning June 1, 1997 in its trueup calculations on its FCC Form 1240 for the projected period June !%J? Ԡ !%J? 1,  S@-  1998 to May 31, 1999.@U yO-#X\  P6G;gP#э Operator has attached an FCC Form 1240 for this projected period to its 1998 Refund Plan. The Prior Order requires Operator to "refund to subscribers in the franchise area   referenced above that portion of the amount paid in excess of the maximum permitted CPST rate of   j$12.11 per month (plus franchise fees), plus interest to the date of refund, for the period June 1, 1997 to  S-  the day before it reduces its rate to $12.11."hd U yO!-#X\  P6G;gP#э Prior Order at para. 24.h Operator argues that it should not be required to refund   all past overcharges through a single, onetime payment. Instead, Operator contends that we should accept   its "hybrid" refund plan which allows for some payment of refunds to subscribers, for the period prior to   June 1, 1997, while accounting for overcharges after June 1, 1997 in its trueup calculations on its next   =FCC Form 1240 filing. Section 76.961 of the Commission's rules requires operators to make refunds by   either "returning overcharges to those subscribers who actually paid the overcharges, either through direct" ,>(>(IIk"  S-  zpayment or as a specifically identified onetime credit to those subscribers' bills,"oU yOh-#X\  P6G;gP#э 47 C.F.R. Section 76.961(c)(1).o or by "means of a   [prospective percentage reduction in the unreasonable cable programming service tier rate . . . to cover the   =overcharge. This shall be reflected as a specifically identified, onetime credit on prospective bills to the  S-  class of subscribers that currently subscribe to the cable programming service . . . at issue."oXU yO-#X\  P6G;gP#э 47 C.F.R. Section 76.961(c)(2).o Once an   /order has been released requiring an operator to make such a refund, we will not allow an operator to   avoid making the refund, using one of the two methods required by the Commission's rules, by attempting  S-  to trueup its overcharges in its next FCC Form 1240.U {O -#X\  P6G;gP#э See In the Matter of Comcast Cablevision, DA 981015 (released May 29, 1998). Therefore, we reject Operator's argument and find its 1998 Refund Plan to be unacceptable.  S-  12.` ` Because Operator has been ordered to file refund plans to account for CPST overcharges   >calculated in both the Prior Order and the 1994 Order, and has failed to do so, we have calculated the   total refund amount due from Operator to the CPST subscribers in the community referenced above. Our   kcalculations take into account Operator's overcharges to subscribers for the period February 28, 1994   Lthrough June 30, 1995 and June 1, 1997 through May 31, 1998, including principal and interest, through  S -  to the date of refund. The total due from Operator to its CPST subscribers is $576,362.73 . We order Operator to refund this amount to its CPST subscribers within 60 days of the release of this order.  SX-   13.` ` Accordingly, IT IS ORDERED, pursuant to Section 1.106 of the Commission's rules, 47   /C.F.R. Section 1.106, that Operator's Petition for Reconsideration of In the Matter of Marcus Cable Associates, L.P., 13 FCC Rcd 10460 (1998), IS DENIED TO THE EXTENT INDICATED HEREIN.  S-  14.` ` IT IS FURTHER ORDERED, pursuant to Section 0.321 of the Commission's rules, 47   C.F.R. Section 0.321, that In the Matter of Marcus Cable Associates, L.P., 13 FCC Rcd 10460 (1998), IS AFFIRMED TO THE EXTENT INDICATED HEREIN.  S-  `15.` ` IT IS FURTHER ORDERED, pursuant to Section 0.32l of the Commission's rules, 47  S-  C.F.R. Section 0.321 that Operator's CPST rate of $10.47, effective May 15, 1994 through July 14, 1994,  S-in the community set forth above, IS UNREASONABLE.  Sx-  `16.` ` IT IS FURTHER ORDERED, pursuant to Section 0.32l of the Commission's rules, 47  SP-  C.F.R. Section 0.321 that Operator's CPST rate of $11.29, effective July 15, 1994 through October 31,  S(-1995, in the community set forth above, IS UNREASONABLE.  S-  17.` ` IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's rules, 47   C.F.R. Section 76.961, that Operator shall refund to subscribers in the franchise area referenced above that   portion of the amount paid in excess of the maximum permitted CPST rate of $10.13 per month (plus  S`-franchise fees), plus interest to the date of the refund, for the period May 15, 1994 through July 14, 1994.  S8-  S -  18.` ` IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's rules, 47   C.F.R. Section 76.961, that Operator shall refund to subscribers in the franchise area referenced above that" z,>(>(IIt""   >portion of the amount paid in excess of the maximum permitted CPST rate of $9.12 per month (plus  S-franchise fees), plus interest to the date of the refund, for the period July 15, 1994 through June 30, 1995.  S-  19.` ` IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's rules, 47   C.F.R. Section 76.961, that Operator shall refund to subscribers in the franchise area referenced above that   portion of the amount paid in excess of the maximum permitted CPST rate of $12.24 per month (plus  S-franchise fees), plus interest to the date of the refund, for the period June 1, 1997 through May 31, 1998.  S-  20.` ` IT IS FURTHER ORDERED, pursuant to Section 76.962 of the Commission's rules, 47 C.F.R. Section 76.962, that Operator's Refund Plans ARE NOT ACCEPTED.  SH -  21.` ` IT IS FURTHER ORDERED, pursuant to Section 76.961 of the Commission's rules, 47   C.F.R. Section 76.961, that Operator shall refund to subscribers in the franchise area referenced above the total amount of $576,362.73 within 60 days of the release of this Order.  S -  22.` ` IT IS FURTHER ORDERED, pursuant to Section 76.962 of the Commission's rules, 47   C.F.R. Section 76.962, that Operator file a certificate of compliance with the Chief, Cable Services  SX-Bureau, within 90 days of the release of this Order certifying its compliance with this Order. ` `  hh,FEDERAL COMMUNICATIONS COMMISSION ` `  hh,John E. Logan ` `  hh,Deputy Chief, Cable Services Bureau