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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-02-TC-
113
)
Century Communications Corporation ) CUID No. CO0030
(Colorado Springs)
)
Petition for Reconsideration )
ORDER
Adopted: October 30, 2002 Released: October 31,
2002
By the Chief, Enforcement Bureau:1
1. In this Order, we consider a petition for
reconsideration ("Petition") of Cable Services Bureau Order, DA
02-408 ("Prior Order"),2 filed with the Federal Communications
Commission ("Commission") by the above-referenced operator
("Operator").3 In the Prior Order, the Cable Services Bureau
found that Operator's refund plan, filed in response to Cable
Services Bureau Order, DA 99-300 ("Refund Order"),4 did not
fulfill the requirements of the Refund Order. The Cable Services
Bureau calculated Operator's refund liability for the period from
May 15, 1994 through March 31, 1995, plus interest through March
31, 2002. The Prior Order required Operator to refund the total
amount of $819,847.60, plus interest accruing from March 31, 2002
to the date of refund, plus franchise fees, if any, and interest
on the franchise fees. In this Order we grant Operator's
Petition in part and modify the Prior Order.
2. Under the provisions of the Communications
Act5 that were in effect at the time the complaint was filed, the
Commission is authorized to review the cable programming services
tier ("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 filing of a valid complaint triggers an obligation upon the
cable operator to file a justification of its CPST rates.7 If
the Commission finds the rate to be unreasonable, it shall
determine the correct rate and any refund liability.8
3. In its Petition, Operator states that it has filed a
petition for effective competition with the Commission and based
on that filing, the Prior Order should be vacated. However, even
if the Commission were to find that Operator is subject to
effective competition in the franchise area referenced above in
the year 2002, that finding would not affect Operator's refund
liability for the period from May 15, 1994 through March 31,
1995, a period when Operator was subject to CPST regulation.
Secondly, Operator asserts that the revenue figures submitted
with its refund plan have been confirmed. However, it was the
methodology that Operator used that was found to be unacceptable
in the Prior Order. Operator is unable to provide a breakdown of
CPST subscribers who paid the excessive CPST rate and those that
may have received a promotional rate. Without that evidence, we
cannot determine the subscriber count needed to calculate the
overcharges for the period under review. However, we will reduce
the subscriber count used in the refund calculation to the
maximum number of subscribers that could have received the CPST
service at the full rate in light of the total revenue figure
provided for the CPST. In addition, our review of the record
reveals that Operator was entitled to the refund liability
deferral period provided by the Commission's rules.9
4. As a result of the refund deferral period and the
changes in subscriber counts, we reduce Operator's total refund
liability from $819,847.60 to $645,644.25 as of March 31, 2002.
On May 16, 2002, Operator certified that it refunded $456,436.50
to subscribers during the month of April 2002. Therefore,
Operator's total remaining refund liability equals $189,207.75 as
of March 31, 2002, plus interest accruing from March 31, 2002 to
the date of refund, plus franchise fees, if any, and interest on
the franchise fees. We modify the Prior Order accordingly.
5. 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.
6. 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 Century Communications Corporation, DA 02-
408, 17 FCC Rcd 3483 (CSB 2002) IS MODIFIED TO THE EXTENT
INDICATED HEREIN.
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 Century Communications Corporation, DA
02-408, 17 FCC Rcd 3483 (CSB 2002).
3 The term "Operator" includes Operator's successors and
predecessors in interest.
4 See In The Matter of Century Colorado Springs Partnership d/b/a
Colorado Springs Cablevision, DA 99-300, 14 FCC Rcd 2787 (1999).
5 47 U.S.C. §543(c) (1996).
6 Pub. L. No. 102-385, 106 Stat. 1460 (1992).
7 See Section 76.956 of the Commission's rules, 47 C.F.R.
§76.956.
8 See Section 76.957 of the Commission's rules, 47 C.F.R.
§76.957.
9 The Commission's rules provide for a refund liability deferral
period, if timely requested by an operator, beginning May 15,
1994 and ending July 14, 1994, for any overcharges resulting from
the operator's calculation of a new maximum permitted rate on its
FCC Form 1200. See 47 C.F.R. § 76.922(b)(6)(ii). However, an
operator will incur refund liability from May 15, 1994 through
July 14, 1994 for any CPST rates charged above the FCC Form 393
maximum permitted rate. Our review of the FCC Form 393 reveals
that Operator did not charge in excess of its maximum FCC 393
rate between May 15, 1994 and July 14, 1994. See also In the
Matter of Colorado Springs Cablevision, Inc., DA 950757, 10 FCC
Rcd 10810 (1995) (finding Operator's CPST rates to be reasonable
through May 14, 1994).