**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Suburban Cable TV Co., Inc. ) CUID No. PA2278 (Newtown Township)

)

)

)

Order Dismissing Complaint )

**ORDER**

**Adopted: January 14, 1999 Released: January 22, 1999**

By the Acting Chief, Financial Analysis and Compliance Division, Cable
Services Bureau:

1\. In this Order we dismiss a complaint[^1] against the rate that the
above-captioned operator (\"Operator\") was charging for its cable
programming services tier (\"CPST\") in the community referenced above
because the complaint is procedurally defective. Under the
Communications Act,[^2] the Federal Communications Commission
(\"Commission\") is authorized to review the CPST rates of cable systems
not subject to effective competition to ensure that rates charged are
not unreasonable.

2\. The procedures established with the Implementation of the
Telecommunications Act of 1996 (\"1996 Act\")[^3] provide that a local
franchising authority (\"LFA\") must file a valid CPST complaint with
the Commission within 180 days of the effective date of the rate
increase.[^4] Section 76.1402(b) of the Commission\'s rules require that
\"\[b\]efore filing a rate complaint with the Commission, the local
franchise authority must first give the cable operator written notice,
including a draft FCC Form 329, of the local franchise authority\'s
intent to file the complaint. The local franchise authority must give an
operator a minimum of 30 days to file with the local franchise authority
the relevant FCC forms that must be filed to justify a rate increase . .
. .\"[^5] In this instance, the Township of Newton (\"Township\") filed
a complaint against Operator\'s April 1, 1998 CPST rate increase with
the Commission on September 25, 1998. The Township, however, did not
serve Operator with a draft complaint in such a manner as to give
Operator the opportunity to file its response within 30 days and struck
that part of its FCC Form 329 which requires that it certify that it
gave the Operator the notice required under the Commission\'s rules.
Consequently, the Township\'s complaint was returned as invalid.[^6]

3\. On November 5, 1998, the Township refiled its complaint along with a
letter stating that Sections 76.954 and 76.955[^7] of the Commission\'s
rules allows a local franchise authority (\"LFA\") to file a defective
complaint, provided it makes the minimum showing required and then cure
the defective complaint by refiling a corrected complaint within 30 days
of the Commission\'s dismissal notice. On November 16, 1998, the
Commission received in response to the complaint a motion to dismiss
(\"Motion\") filed by Operator. In that Motion, Operator asserts that
the complaint should be dismissed because Newton failed to comply with
Section 76.1402(b).

4\. We find that by filing its CPST complaint on the 177th day after
Operator\'s rate increase went into effect, without any notice to
Operator, the Township violated Section 76.1402. Section 76.1402
requires an LFA to give a cable operator at least 30 days to file a
timely response, within the 180 days the LFA has to file a complaint
with the Commission. Had the Township filed its defective complaint with
the Commission earlier in the 180-day period, so that it could be cured
and so that Operator could timely respond, before the 180-day period
ended, then the Township\'s reliance on Sections 76.954 and 76.955 could
be justified. By waiting until the last four days possible to file its
complaint, the Township ensured that its complaint could only be
dismissed with prejudice.

5\. Accordingly, IT IS ORDERED, pursuant to Section 623(a)(2)(A) and (B)
of the Communications Act of 1934, as amended, 47 U.S.C. Section
543(a)(2)(A) and (B), that the complaint against the CPST rates charged
by Operator in the community referenced above IS DISMISSED WITH
PREJUDICE and the motion to dismiss filed by Operator IS GRANTED.

6\. This action is taken pursuant to delegated authority under Section
0.321 of the Commission\'s rules, 47 C.F.R. § 0.321.

FEDERAL COMMUNICATIONS COMMISSION

Margaret M. Egler

Acting Chief, Financial Analysis and Compliance Division

Cable Services Bureau

[^1]:     ^?^ The complaint was originally filed with the Commission on
    September 25, 1998, returned by the Commission on October 5, 1998
    and later refiled with the Commission on November 5, 1998.

[^2]:     ^?^ Communications Act of 1934, Section 623(c), *as amended*,
    47 U.S.C. Section 543(c) (1996).

[^3]:     ^?^ Pub. L. No. 104-104, 110 Stat. 56 (1996).

[^4]:     ^?^ *See* 47 C.F.R. Section 76.1402.

[^5]:     ^?^ 47 C.F.R. Section 76.1402(b).

[^6]:     ^?^ On October 6, 1998 and again on October 21, 1998 the
    Commission notified the LFA of the return of its complaint because
    it failed to meet the established procedures. *See* Letter to
    Rothman Gordon from Gary Remondino, Cable Services Bureau, October
    6, 1998.

[^7]:     ^?^ 47 C.F.R. Sections 76.954, 76.955.