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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-
02-TC-014
)
Comcast Cablevision of the South ) CUID No.
KY0640 (Hardin County)
)
Petition for Reconsideration )
ORDER
Adopted: July 16, 2002 Released: July 17,
2002
By the Chief, Enforcement Bureau:1
1. In this Order, we consider a petition for
reconsideration ("Petition") of Cable Services Bureau Order,
DA 96-1843 ("Prior Order"),2 filed with the Federal
Communications Commission ("Commission") by the above-
referenced operator ("Operator").3 Operator also included a
refund plan with its petition. The Prior Order resolved a
complaint filed against Operator's February 1, 1996 rate
increase for its cable programming services tier ("CPST") in
the community referenced above. In this Order we grant
Operator's Petition in part and modify the Prior Order.
2. Under the provisions of the
Communications Act4 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")5 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"),6 and the
Commission's rules implementing the legislation ("Interim
Rules"),7 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.8 If the Commission
finds the rate to be unreasonable, it shall determine the
correct rate and any refund liability.9
3. Operators must use the FCC Form 1200 series to
justify rates for the period beginning May 15, 1994.10
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.11
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.12 Any incurred
cost that is not projected may be accrued with interest and
added to rates at a later time.13
4. In the Prior Order, the Cable Services Bureau
reduced Operator's maximum permitted rate ("MPR") because
Operator made a clerical error and claimed external costs
incurred in January 1996 in its FCC Form 1210 covering the
period April 1, 1995 through December 31, 1995. Because the
Cable Services Bureau did not have the information necessary
to determine what portion of the external costs increase was
attributable to the period under review, it denied all
external costs increases for that period. In its Petition,
Operator provides a breakdown of its external costs increase
and argues that it should be entitled to the external costs
increase attributable to the period under review. Operator
made another clerical error when it filed its FCC Form 1200
and FCC Form 1210s to justify its February 1, 1996 CPST rate
increase. It included all of its inflation factor
adjustments in the second FCC Form 1210. The Cable Services
Bureau denied part of the adjustment as being untimely
taken. Operator argues that it could have included part of
the adjustment in its first FCC Form 1210, which would have
been acceptable because both FCC Form 1210s were generated
to support the February 1, 1996 CPST rate increase,
Operator's CPST was not regulated prior to February 1996 and
Operator's CPST rate in effect prior to the February 1, 1996
increase could have included the inflation adjustment in
issue. We are persuaded that the external costs adjustment
and the inflation factor adjustment were clerical errors and
not substantive errors and we find Operator's argument to be
compelling on both issues. Therefore, we grant Operator's
Petition in part to that extent.
5. Upon review of Operator's FCC Form 1200 and
subsequent filings, taking into account the additional
inflation and external costs adjustments, we calculate a
revised MPR of $12.40 for the period February 1, 1996
through March 31, 1996. We will allow Operator to claim the
additional external costs increase beginning April 1, 1996
and we find Operator's calculated MPR of $12.99 to be
reasonable, effective April 1, 1996. Because Operator's
actual CPST rate of $13.09 exceeds its revised MPRs, we find
Operator's actual CPST rate of $13.09 to be unreasonable,
effective February 1, 1996 through November 7, 1996 (the
release date of the Prior Order). However, the Prior Order
noted that Operator intended to reduce its CPST rate to
$12.99 effective November 1, 1996, and to refund to CPST
subscribers $0.10 per month plus interest for the period
February 1, 1996 through October 31, 1996. To the extent
Operator reduced its rates to $12.99 or refunded $0.10 per
month per subscriber or both, Operator may include this
calculation in its refund plan, but must provide
documentation of its actual rate charged, and certify that
it has provided the refunds. We modify the Prior Order
accordingly.
6. 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 TO THE EXTENT INDICATED HEREIN.
7. 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 Telescripps Cable Company, DA
96-1843, 11 FCC Rcd 14518 (CSB 1996) IS MODIFIED 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 the CPST rate of $13.09, charged by Operator in
the community referenced above, effective February 1, 1996
through November 7, 1996 IS UNREASONABLE.
9. IT IS FURTHER ORDERED, pursuant to Section 76.961
of the Commission's rules, 47 C.F.R. § 76.961, that Operator
shall refund to subscribers in the community referenced
above that portion of the amount paid in excess of the
maximum permitted CPST rate of $12.40 per month (plus
franchise fees), plus interest to the date of the refund,
for the period February 1, 1996 through March 31, 1996.
10. IT IS FURTHER ORDERED, pursuant to Section 76.961
of the Commission's rules, 47 C.F.R. § 76.961, that Operator
shall refund to subscribers in the community referenced
above that portion of the amount paid in excess of the
maximum permitted CPST rate of $12.99 per month (plus
franchise fees), plus interest to the date of the refund,
for the period April 1, 1996 through November 7, 1996.
11. IT IS FURTHER ORDERED that Operator shall promptly
determine the overcharges to CPST subscribers for the stated
periods, and shall within 30 days of the release of this
Order, file a report with the Chief, Enforcement Bureau,
stating the cumulative refund amount so 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.
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 See In The Matter of Telescripps Cable Company, DA 96-
1843, 11 FCC Rcd 14518 (CSB 1996).
3 The term "Operator" includes Operator's successors and
predecessors in interest.
4 47 U.S.C. §543(c) (1996).
5 Pub. L. No. 102-385, 106 Stat. 1460 (1992).
6 Pub. L. No. 104-104, 110 Stat. 56 (1996).
7 See Implementation of Cable Act Reform Provisions of the
Telecommunications Act of 1996, 11 FCC Rcd 5937 1996).
8 See Section 76.956 of the Commission's rules, 47 C.F.R.
§76.956.
9 See Section 76.957 of the Commission's rules, 47 C.F.R.
§76.957.
10 See Section 76.922 of the Commission's rules, 47 C.F.R.
§76.922.
11 Id.
12 Id.
13 Id.