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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-02-TC-
012 )
Marcus Cable Partners, LP ) CUID No. WI0659
(Mishicot)
)
Refund Plan )
ORDER
Adopted: May 6, 2002 Released: May 8, 2002
By the Chief, Enforcement Bureau:1
1. In this Order we consider the
refund plan filed by the above-referenced operator ("Operator")2
in the above-referenced community pursuant to the Order, DA 97-
11403 ("Refund Order").4 Our review of Operator's refund plan5
reveals that the refund plan does not fulfill the requirements of
the Refund Order. Operator requests that we allow intra-tier
offsets across time periods when there is only one cable
programming services tier ("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.
2. Our review of the Refund Order and the record reveals
that a single complaint was filed against Operator's CPST rates
on November 22, 1993. In the Refund Order, the Cable Services
Bureau found that Operator justified its actual CPST rates
beginning October 1, 1994. As there were no valid complaints
received against Operator's CPST rates after October 1, 1994, we
calculate Operator's refund liability only for the period from
May 15, 1994 through September 30, 1994.
3. We calculate Operator's refund liability as follows:
For the period from May 15, 1994 through July 14, 1994, we
calculate an overcharge of $0.66 per month per subscriber; and
for the period from July 15, 1994 through September 30, 1994, we
calculate an overcharge of $0.10 per month per subscriber, in
accordance with the Refund Order. Our total calculation,
including three percent franchise fees and interest through
February 28, 2002, equals $3,088.38. We order Operator to refund
this amount, plus any additional interest accrued from February
28, 2002 to the date of refund, to its CPST subscribers within 60
days of the release of this Order.
4. Accordingly, IT IS 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.
5. 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 $3,088.38,
plus interest accruing from February 28, 2002 to the date of
refund, within 60 days of the release of this Order.
6. 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 The term "Operator" includes Operator's predecessors and
successors in interest.
3 See In the Matter of Marcus Cable Partners, LP, DA 97-1140, 12
FCC Rcd 23354 (CSB 1997).
4 The Refund 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.
5 Operator calculated a total refund liability of $2,863.00.