Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-TC-025
Booth American Company )
d/b/a Bloomfield Cable TV ) CUID No. MI0929
) (Bloomfield)
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 97-1204 ("Prior
Order")2 filed with the Federal Communications Commission
("Commission") on July 11, 1997, by the local franchising
authority ("LFA") for the above-referenced community. In the
Prior Order, the Cable Services Bureau dismissed complaints filed
against the rates charged by the above-referenced operator
("Operator") for its cable programming services tier ("CPST") in
the community referenced above. In this Order, we deny the LFA's
Petition.
2. Under the provisions of the Communications Act3 that
were in effect at the time the referenced 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 19924 ("1992 Cable Act")
required the Commission to review CPST rates upon the filing of a
valid complaint by a subscriber or LFA. The Telecommunications
Act of 1996 ("1996 Act"),5 amended Section 623 of the
Communications Act and redefined a small cable operator as one
that "directly or through an affiliate, serves in the aggregate
fewer than 1 percent of all subscribers in the United States and
is not affiliated with any entity or entities whose gross annual
revenues in the aggregate exceed $250,000,000."6 In the 1996 Act,
Congress determined that, effective February 8, 1996, the
Commission shall not apply its CPST rate regulation rules,
promulgated under Sections 623(a), (b) and (c) of the
Communications Act,7 to a small cable operator in any franchise
area in which that operator services 50,000 or fewer
subscribers.8
3. In the Prior Order, the Cable Services Bureau found
that Operator fit the definition of "small cable operator" as
defined above. It dismissed all pending complaints, concluding
that small cable operators "could not effectively be restricted
from offsetting any possible prior years' liability against a
contemporaneous actual or putative rate increase."9 In light of
the Congressional finding that post-1996 CPST rate regulation for
small systems is unjustified, the Cable Services Bureau
determined that the expense associated with the rate regulation
process was not outweighed by this likely zero net benefit to
subscribers.10
4. In its Petition, the LFA argues that at the time the
Cable Services Bureau determined that Operator qualified as a
"small cable operator," Operator was anticipating a sale of its
Bloomfield system to MediaOne, a company that could not qualify
for "small cable operator" status. The LFA argues that because
of the sale, Operator's CPST rates will be subject to regulation
on a going forward basis. As a result, the LFA claims that
adjudication of the rate complaints will result in significant
benefit to subscribers. The LFA asserts that had the Commission
considered the pending sale of the Bloomfield system by Operator,
the Commission would not have found Operator to be a "small cable
operator" and would not have concluded that adjudication of the
complaints would not result in a net benefit to subscribers. We
disagree.
5. The Commission's jurisdiction over CPST rates is
complaint driven. Following the amendment of the definition of
"small cable operator" by the 1996 Act, the Cable Services Bureau
dismissed all pending complaints against all cable operators who
met the revised definition of "small cable operator". In this
case, the complaints in issue were filed on or before August 18,
1994, well before the anticipated sale of Operator's Bloomfield
system. At a time when the complaints were still pending,
Operator qualified as a "small cable operator" under the 1996
Act. Whether or not Operator's system in Bloomfield was later
acquired by an operator that did not meet the definition of
"small cable operator" does not change the determination that, at
the time the complaints were still pending, the Cable Services
Bureau lacked jurisdiction to review the complaints, using the
same test for "small cable operator" status that the Cable
Services Bureau applied at that time to all cable systems with
pending complaints. It would be unfair to apply a different
standard to Operator simply because of the possibility of a sale
of the Bloomfield system. It was also possible that, had the
Cable Services Bureau adjudicated the pending complaints,
Operator might have been able to offset its refund liability, if
any, with CPST rate increases, prior to the sale.
6. In the Prior Order, the Cable Services Bureau dismissed
only those complaints that were pending against Operator's CPST
rates. The Prior Order did not affect the LFA's ability to
review Operator's or its successor's basic tier rates. Nor did
the Prior Order prohibit the LFA from filing a complaint against
the CPST rates of Operator's successor, which it did not. We are
not persuaded by the LFA's arguments that the Cable Services
Bureau erred by dismissing the pending complaints against
Operator in the Prior Order.
7. Accordingly, IT IS ORDERED, pursuant to Sections 0.111,
0.311 and 1.106 of the Commission's rules, 47 C.F.R. §§ 0.111,
0.311 and 1.106, that the LFA's Petition for Reconsideration of
In the Matter of Booth American Company d/b/a Bloomfield Cable
TV, DA 97-1204, 12 FCC Rcd. 1711 (1997) IS DENIED.
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 Booth American Company d/b/a Bloomfield Cable
TV, DA 97-1204, 12 FCC Rcd 1711 (CSB 1997).
3 Communications Act, Section 623(c), as amended, 47 U.S.C. §
543(c)(1996).
4 Pub. L. No. 102-385, 106 Stat. 1460 (1992).
5 Pub. L. No. 104-104, 110 Stat. 56 (1996).
6 47 U.S.C. § 543(m)(2) (1996).
7 47 U.S.C. §§ 543(a) - (c) (1996).
8 47 U.S.C. § 543(m)(1) (1996). See also 47 C.F.R. § 76.1403(a)
(1998).
9 Prior Order at 4.
10 Id.