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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554
                                 
                              )
In the Matter of                        )    File No. EB-02-
TC-094                                                 )    
Time Warner Communications              )    CUID        No.  
NY0887 (Fairport Village)          
                              )              
Petition for Reconsideration            )

                    
                     ORDER ON RECONSIDERATION
                                 

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

By the Chief, Enforcement Bureau:1

     1. In   this   Order  we   consider   a  petition   for 
reconsideration and  an amendment to the  petition (together 
"Petition")  of Order,  DA 97-1867  ("Prior Order"),2  filed 
with the Federal Communications Commission ("Commission") by 
the above-referenced operator ("Operator").3 The Prior Order 
resolved  a complaint  against  Operator's  January 1,  1997 
cable  programming  services  tier ("CPST")  rate  increase, 
found Operator's  CPST rate  to be unreasonable  and ordered 
refunds for  the period from  January 23, 1997 (the  date of 
the filing  of the  first valid complaint)  through December 
31, 1997.  Operator's refund  liability was held in abeyance 
pending  resolution  of  its  appeal of  the  Uniform  Rates 
Order.4  In this Order, we grant Operator's Petition in part 
and order refunds.

      2.  Under  the provisions  of the  Communications Act5 
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")6 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"),7 
and  the  Commission's  rules implementing  the  legislation 
("Interim Rules"),8  required that  a complaint  against the 
CPST rate  be filed with the  Commission by an LFA  that has 
received more than one  subscriber complaint.  The filing of 
a  valid complaint  triggers  an obligation  upon the  cable 
operator to file a justification of its CPST rates.9  If the 
Commission  finds  the rate  to  be  unreasonable, it  shall 
determine the correct rate and any refund liability.10 

     3.   Operators  must use  the FCC  Form 1200  series to 
justify  rates  for the  period  beginning  May 15,  1994.11  
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.12  
Operators may justify  their rates on an  annual basis using 
an  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.13  Any  incurred 
cost that is not projected  may be accrued with interest and 
added to rates at a later time.14

     4. In  its Petition,  Operator asserts  that it  should 
not have  to initiate  any refunds until  its appeal  of the 
Uniform Rates Order is resolved.  Operator's application for 
review of the  Uniform Rates Order was denied  on August 16, 
1999.15  Therefore,  that portion of Operator's  Petition is 
now moot.   In addition, Operator included  amended FCC Form 
1240s with its Petition.   Operator asserts that the amended 
FCC   Form  1240s   are  consistent   with  the   bifurcated 
methodology  approved  by  the  Cable  Services  Bureau  for 
Operator  following the  Commission's adoption  of the  Time 
Warner   Social  Contract.16   We   agree  that   Operator's 
methodology is  consistent with  prior Cable  Service Bureau 
orders,17 and  we accept  Operator's amended FCC  Form 1240s 
through  1997. Upon  review of  Operator's amended  FCC Form 
1240s,  we accept  Operator's  calculated maximum  permitted 
rate ("MPR") of $22.15,  effective January 1, 1997.  Because 
Operator's actual CPST rate of $22.47, effective January 23, 
1997 through  December 31, 1997, exceeds  its calculated MPR 
of $22.15,  we find Operator's  actual CPST rate  of $22.47, 
effective January 23, 1997 through  December 31, 1997, to be 
unreasonable.18 

     5.   Operator did not file  a refund plan.  Rather than 
calculating  its  refund  liability  for  1997,  the  period 
reviewed in  the Prior Order, Operator  submitted additional 
FCC Form 1240s  covering the period January  1, 1998 through 
December 31, 1998, which  purport to true-up Operator's 1997 
refund liability.   We have not  reviewed the 1998  FCC Form 
1240s, and there is no  pending complaint requiring us to do 
so. We will not accept FCC  Form 1240s filed subsequent to a 
released order  simply to  allow an  Operator to  attempt to 
true-up refund liability and avoid the payment of refunds.19  
In  addition, the  Bureau  does not  have  the resources  to 
review additional filings made  subsequent to the release of 
an  order.  We  cannot assume  that Operator  calculated its 
1998 FCC Form 1240s accurately.   A review of the additional 
filing might reveal  errors were made in  the calculation of 
the 1998 rate.  We therefore reject Operator's 1998 FCC Form 
1240s.

     6.   We  calculate   Operator's  refund   liability  as 
follows:   For  the period  from  January  23, 1997  through 
December 31, 1997,  we calculate an overcharge  of $0.32 per 
month per  subscriber, in  accordance with this  Order.  Our 
total calculation, including interest through July 31, 2002, 
equals $7,915.00.  We order  Operator to refund this amount, 
plus franchise fees and any additional interest accrued from 
July 31, 2002 to the date of refund, to its CPST subscribers 
within 60 days of the release of this Order.

     7.   Accordingly,  IT IS  ORDERED, pursuant  to Section 
1.106 of  the Commission's  rules, 47  C.F.R.   1.106, that 
Operator's Petition  for Reconsideration IS GRANTED  IN PART 
TO THE EXTENT INDICATED HEREIN.

     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 In the Matter  of Time Warner Communications, DA 
97-1867, 12 FCC Rcd 23757  (1997), IS MODIFIED TO THE EXTENT 
INDICATED HEREIN.

     9.   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 $22.47, charged by Operator in 
the community  referenced above, effective January  23, 1997 
through December 31, 1997, IS UNREASONABLE.

     10.  IT IS FURTHER ORDERED,  pursuant to Section 76.962 
of the Commission's rules, 47 C.F.R.  76.962, that Operator 
shall refund to subscribers in the franchise area referenced 
above the  total amount  of $7,915.00, plus  franchise fees, 
plus any interest accruing from July 31, 2002 to the date of 
refund, within 60 days of the release of this Order.

          11.  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 In the  Matter of Time Warner  Communications, DA 97-1867, 
12 FCC Rcd 23757 (CSB 1997).
3 The  term "Operator" includes Operator's  predecessors and 
successors in interest.
4 In  Re Petition of Time  Warner Cable, DA 98-1219,  13 FCC 
Rcd 12185 (CSB 1998).
5 47 U.S.C. 543(c) (1996).
6 Pub. L. No. 102-385, 106 Stat. 1460 (1992).
7 Pub. L. No. 104-104, 110 Stat. 56 (1996).  
8 See Implementation  of Cable Act Reform  Provisions of the 
Telecommunications Act of 1996, 11 FCC Rcd 5937 1996).
9 See  Section 76.956 of  the Commission's rules,  47 C.F.R. 
76.956.
10 See Section  76.957 of the Commission's  rules, 47 C.F.R. 
76.957.
11 See Section  76.922 of the Commission's  rules, 47 C.F.R. 
76.922.
12 Id.
13 Id.
14 Id.
15 See  In the Matter of  Time Warner Cable, FCC  99-217, 14 
FCC Rcd 13760 (1999).
16  See In the Matter of Social Contract for Time Warner, 11 
FCC Rcd 2788 (1996).
17 See, e.g. In the Matter of Time Warner Cable, DA 98-1826, 
13 FCC Rcd 19534 (CSB 1998).
18 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.
19 See, e.g.,  In the Matter of Cableone, DA  02-522, 17 FCC 
Rcd 4300 (CSB 2002).