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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

In the Matter of                        )  
                              )    File No. EB-02-TC-054
Battlefield Cable TV Company            )         
                              )    CUID  No.    GA0068  (Ft. 
Oglethorpe)
Petition for Reconsideration            ) 
Complaint Regarding                     )
Cable Programming Services Tier Rates        )
          

                        ORDER ON RECONSIDERATION
                       AND RATE ORDER

     Adopted:  Septemeber 4, 2002                      
Released:  September 6, 2002      

By the Chief, Enforcement Bureau:1

     1.   In  this   Order,  we  consider  a   petition  for 
reconsideration ("Petition") of Cable Services Bureau Order, 
DA  95-1035   ("Prior  Order"),2  filed  with   the  Federal 
Communications  Commission  ("Commission")   by  the  above-
referenced operator ("Operator").3   Operator also requested 
a stay  of the  Prior Order, which  was granted.4  The Prior 
Order resolved complaints filed against the rates charged by 
Operator for its cable programming services tier ("CPST") in 
the community referenced above through May14, 1994.  In the 
Prior  Order,  the Cable  Services  Bureau  stated that  its 
findings "do not  in any way prejudge  the reasonableness of 
the price for  CPS service after May 14, 1994  under our new 
rate  regulations."5   In  this  Order  we  deny  Operator's 
Petition, vacate the stay  and address the reasonableness of 
Operator's CPST rates beginning May 15, 1994.
 
             2.     Under    the     provisions    of    the 
Communications  Act6 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")7  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"),8  and  the 
Commission's  rules implementing  the legislation  ("Interim 
Rules"),9 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.10  If the Commission 
finds the  rate to be  unreasonable, it shall  determine the 
correct rate and any refund liability.11 

     3.   During the  first phase  of rate  regulation, from 
September 1,  1993 until  May 15,  1994, the  benchmark rate 
analysis and comparison with an operator's actual rates were 
calculated using the FCC  Form 393.12  The benchmark formula 
was  revised,  effective  May  15, 1994.13    Systems  first 
becoming subject to rate regulation  after May 15, 1994 were 
required  to justify  their  initial  regulated rates  using 
forms in the  FCC Form 1200 series.14  Systems against which 
rate  complaints  were  still pending  when  the  Commission 
revised its  benchmark formula were required  to recalculate 
their benchmark rates as of May  15, 1994 using the FCC Form 
1200.15  The   Commission's  rules  provide  for   a  refund 
liability deferral period, if  timely requested by Operator, 
beginning May  15, 1994  and ending July  14, 1994,  for any 
overcharges resulting  from Operator's calculation of  a new 
maximum  permitted rate  on the  FCC Form  1200.16  However, 
Operator  will  incur refund  liability  from  May 15,  1994 
through July 14, 1994 (or the date Operator restructures its 
rates, if sooner)  for any CPST rates charged  above the FCC 
Form 393 MPR approved by the Commission.17

     4.   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.18  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.19  Any  incurred 
cost that is not projected  may be accrued with interest and 
added to rates at a later time.20

     5.   In its  Petition, Operator  argues that  the Cable 
Services Bureau  erred in the  Prior Order when  it adjusted 
Operator's inflation  factor based  on the most  recent data 
available.  We  disagree.  This  issue was addressed  by the 
Commission  in   Cencom  Cable  Income  Partners   II,  L.P. 
("Cencom").21    In  Cencom,  the Commission  explained  its 
policy regarding refreshing inflation:

     The   Commission   is  charged   with   protecting 
     subscribers from  paying unreasonable  CPST rates, 
     while also providing system  operators with a fair 
     return.  Accurate  information, including accurate 
     inflation  information, is  central to  setting an 
     initial  regulated rate  that meets  the standard.  
     Thus, the  Commission requires  that data  used in 
     setting a rate be  refreshed with the most current 
     data  available when  an  operator's rates  become 
     regulated  and  are  justified.22   Because  final 
     inflation data  for the  period addressed  in rate 
     justifications  may   not  be  available   when  a 
     justification  is  filed, the  Commission  directs 
     operators to estimate inflation  by using the most 
     recently available inflation  data published on an 
     interim basis  in the Commerce "Survey  of Current 
     Business"  at Table  7.3,  Line  5.23  The  Bureau 
     practice when reviewing  rate justifications is to 
     verify that  the operator has used  this inflation 
     data.   The  Bureau  also determines  whether  the 
     other  information in  the  rate justification  is 
     correct,  and on  the basis  of the  inflation and 
     other  information  in  the  form,  including  any 
     corrections, whether the operator's rate meets the 
     statutory  requirement   that  the  rate   not  be 
     unreasonable.   The Bureau  does not  find a  rate 
     unreasonable   solely    because   more   accurate 
     inflation data has become available by the time it 
     makes its review.  This would churn rates, causing 
     significant  administrative expenses  to operators 
     and confusion to subscribers.   However, if a rate 
     is unreasonable on its face  or has to be adjusted 
     for reasons other than  the availability of a more 
     accurate  inflation  figure,   e.g.,  because  the 
     operator failed to  provide correct information in 
     its rate  justification or failed to  complete its 
     rate  justification  form  correctly,  the  Bureau 
     recalculates the maximum  permitted rate using the 
     most  accurate  inflation  information  available, 
     rather than earlier estimates.24  This practice is 
     consistent with  47 C.F.R.  76.922(b)  (9) (iii), 
     which provides:
     
        [I]f the  rates charged by a  cable operator 
        are  not justified by  an analysis based  on 
        the data available at  the time it initially 
        adjusted its rates,  the cable operator must 
        adjust  its  rates  in accordance  with  the 
        most accurate data available  at the time of 
        the analysis.
     
     [footnotes in original]

     6.   Because the Cable Services  Bureau's action in the 
Prior Order  is consistent with the  Commission's holding in 
Cencom, we  reject Operator's  argument and  deny Operator's 
Petition.  
     
     7.   Upon review  of Operator's amended FCC  Form 1200, 
we  accept  Operator's  calculated  maximum  permitted  rate 
("MPR")  of  $11.62.   Operator   elected  to  defer  refund 
liability   pursuant  to   the  Commission's   rules,25  and 
restructured its  rates on  July 1, 1994.    Therefore, from 
May 15, 1994 through June  30, 1994, Operator is responsible 
for refunding any charges in excess  of the FCC Form 393 MPR 
of $11.95,  approved in the Prior  Order. Because Operator's 
actual CPST rate  of $12.46, effective May  15, 1994 through 
June 30,  1994, exceeds its FCC  393 MPR of $11.95,  we find 
Operator's  actual CPST  rate of  $12.46, effective  May 15, 
1994  through June  30, 1994,  to be  unreasonable.  Because 
Operator's  actual CPST  rate of  $11.93, effective  July 1, 
1994 through  December 31, 1995,  exceeds its FCC  Form 1200 
MPR  of  $11.62, we  find  Operator's  actual CPST  rate  of 
$11.93, effective July 1, 1994 through December 31, 1995, to 
be unreasonable.

     8.   Upon review of Operator's  FCC Form 1210, covering 
the period July  1, 1994 through December 31,  1995, we find 
Operator's  calculated  MPR  of  $12.64  to  be  reasonable.  
Because  Operator's actual  CPST rate  of $11.93,  effective 
January 1, 1996, does not exceed  its MPR of $12.64, we find 
Operator's actual CPST rate  of $11.93, effective January 1, 
1996, to be reasonable.

     9.   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 DENIED.

     10.  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 stay of DA 95-1035, granted in Petitions for 
Stay of Action, DA 95-1795, 10  FCC Rcd 10591 (CSB 1995), IS 
VACATED.

     11.  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 $12.46, charged by Operator in 
the franchise area referenced above, effective September 10, 
1993 (the date the first  valid complaint was filed with the 
Commission) through June 30, 1994, IS UNREASONABLE.

     12.  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 $11.93, charged by Operator in 
the franchise area referenced  above, effective July 1, 1994 
through December 31, 1995, IS UNREASONABLE.

     13.  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 $11.93, charged by Operator in 
the franchise  area referenced  above, effective  January 1, 
1996, IS REASONABLE.

     14.  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 $11.95  per  month  (plus 
franchise fees),  plus interest to  the date of  the refund, 
for the period September 10,  1993 (the date the first valid 
complaint was  filed with  the Commission) through  June 30, 
1994. 
     
     15.  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 $11.62  per  month  (plus 
franchise fees),  plus interest to  the date of  the refund, 
for the period July 1, 1994 through December 31, 1995.

     16.  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.
  
     17.  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  complaint  referenced  herein against  the 
rates charged by Operator  in the community referenced above 
IS GRANTED.

                              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 Battlefield Cable Company, DA 95-1035, 10 
FCC Rcd 9335 (1995).
3  The term  "Operator" includes  Operator's successors  and 
predecessors in interest.
4 See Petitions  for Stay of Action, DA 95-1795,  10 FCC Rcd 
10591 (CSB 1995).
5 Prior Order at n. 1.
6 47 U.S.C. 543(c) (1996).
7 Pub. L. No. 102-385, 106 Stat. 1460 (1992).
8 Pub. L. No. 104-104, 110 Stat. 56 (1996).  
9 See Implementation  of Cable Act Reform  Provisions of the 
Telecommunications Act of 1996, 11 FCC Rcd 5937 1996).
10 See Section  76.956 of the Commission's  rules, 47 C.F.R. 
76.956.
11 See Section  76.957 of the Commission's  rules, 47 C.F.R. 
76.957.
12 See  Implementation of  Sections of the  Cable Television 
Consumer  Protection  and  Competition  Act  of  1992:  Rate 
Regulation,  8  FCC  Rcd  5631,  5755-56,  5766-67,  5881-83 
(1993). 
13 See  Implementation of  Sections of the  Cable Television 
Consumer  Protection  and  Competition  Act  of  1992:  Rate 
Regulation, 9 FCC Rcd 4119 (1994).
14 See Section 76.922 of the Commission's rules, 47 C.F.R.  
76.922.
15 Id.
16 See 47 C.F.R.  76.922 (b) (6) (ii).
17  47 C.F.R.  76.922 (b) (6) (ii). Se also Sections of the 
Cable Television Consumer Protection  and Competition Act of 
1992: Rate Regulation, MM Docket No. 92-266, Second Order on 
Reconsideration, Fourth  Report and Order, and  Fifth Notice 
of  Proposed Rulemaking,  9 FCC  Rcd 4119,  4183-4185 (1994) 
(the maximum  permitted rates determined under  Form 393 may 
apply from  May 15,  1994 until the  date that  the operator 
implemented its new rates, as determined under the Form 1200 
series.)
18  Id.
19  Id.
20  Id.
21  In the Matter of  Cencom Cable Income Partners II, L.P., 
FCC 97-205 (Released June 13, 1997).
22  See Third  Order on Reconsideration, 9 FCC  Rcd at 4349-
50;  FCC Form  393 at  11 Instruction  for Line  122--GNP-PI 
(Current)  (Aug.  1993).   The   Bureau  has  explained  the 
requirement  to use  current data  in Cable  Operators' Rate 
Justification  Filings,  Sections   76.945,  76.946  of  the 
Commissions  rules, 9  FCC Rcd  7752, 7754-55   3(8)  (Cab. 
Serv.  Bur. 1994)  ("Rate  Filings"); Nov.  10, 1993  Public 
Notice,   Answer  to   Question  No.   6  (in   filing  rate 
justifications, operators must refresh  data used in initial 
rates  with  most current  information  as  of the  date  of 
initial regulation); July 30,  1993 Public Notice, Answer to 
Question 10.
23  See FCC Form 393  at 11 Instruction for Line 122--GNP-PI 
(Current) (Aug. 1993).
24   See  Public  Notice, Cable  Services  Bureau  Announces 
Policy Regarding  Inflation Adjustment  on FCC Form  393, DA 
95-999 at 2 (Cab. Serv. Bur.  May 2, 1995).  The Bureau gave 
operators the  opportunity to  review and correct  errors in 
their  benchmark  rate  filings.    Operators  who  had  not 
previously  correctly  calculated the  inflation  adjustment 
factor  were directed  to use  the accurate  factors through 
June  30,  1994.   Public   Notice,  Cable  Services  Bureau 
Announces Optional  Procedures with Respect to  Pending Pre-
May 15 Benchmark  Cases, DA 94-1556 at 3-4  (Dec. 29, 1994).  
The Public  Notice listed  the inflation  adjustment factors 
through June 30, 1994.
25  See letter  dated June  13, 1994  from Gary  M. Steffen, 
Staff Accountant, Scripps Howard Cable Company.