Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File Nos.                    |
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| FALCON CABLEVISION               | ) | CSB-A-0335                   |
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| Appeals of Local Rate Orders of  | * | CSB-A-0350                   |
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| the City of Cedartown, GA        | * | CSB-A-0357                   |
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| CUID GA0052                      | ) | CSB-A-0625                   |
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**CONSOLIDATED MEMORANDUM OPINION AND ORDER**

**Adopted: February 21, 2001 Released:** **February 23, 2001**

By the Deputy Chief, Cable Services Bureau:

# introduction

1.  Falcon Cablevision ("Falcon"), the franchised cable operator serving
    the City of Cedartown, GA ("City"), has appealed local rate orders
    adopted by the City on June 10, 1996,[^1] August 12, 1996,[^2]
    September 9, 1996,[^3] and April 19, 1999[^4] (respectively June
    1996, August 1996, September 1996, and April 1999 Rate Orders). The
    City opposed each of the appeals, and Falcon replied. Falcon also
    petitioned for a stay of the April 1999 rate order. The City opposed
    the petition, and Falcon replied.[^5] We are consolidating these
    appeals for administrative convenience in light of the common
    parties and related issues.

2.  Based upon our review of record, we are dismissing Falcon's appeal
    of the City's June 1996 Rate Order as untimely. We are granting
    Falcon's appeals of the City's August 1996, September 1996, and
    April 1999 Rate Orders with respect to the City's disallowance of
    programming cost increases and remanding the Rate Orders to the City
    for further consideration consistent with this Consolidated
    Memorandum Opinion and Order.

# background

3.  The Communications Act provides that, where effective competition is
    absent, cable rates for the basic service tier (\"BST\") are subject
    to regulation by franchising authorities.[^6] Rates for the BST
    should not exceed rates that would be charged by systems facing
    effective competition, as determined in accordance with Commission
    regulations for setting rates.[^7] Rates for regulated equipment and
    installation services on the customer\'s premises, the equipment
    basket, must be based on the operator\'s actual costs.[^8] Operators
    using the Commission's revised benchmark methodology for determining
    initial regulated BST rates filed FCC Form 1200.[^9] Operators
    adjust BST rates periodically for changes in inflation, the number
    of regulated channels, and external costs, including changes in the
    cost of programming.[^10] Operators using the quarterly rate
    adjustment method file as often as quarterly and at least annually
    on FCC Form 1210. Operators using the annual rate adjustment method
    file on FCC Form 1240. Operators adjust regulated cable equipment
    and installation rates with FCC Form 1205.

4.  Rate orders issued by franchising authorities may be appealed to the
    Commission pursuant to Commission rules.[^11] In ruling on appeals
    of local rate orders, the Commission will not conduct a *de novo*
    review, but instead will sustain the franchising authority\'s
    decision as long as a reasonable basis for that decision
    exists.[^12] The Commission will reverse a franchising authority\'s
    rate decision only if it determines that the franchising authority
    acted unreasonably in applying the Commission\'s rules. If the
    Commission reverses a franchising authority\'s decision, it will not
    substitute its own decision but instead will remand the issue to the
    franchising authority with instructions to resolve the case
    consistent with the Commission\'s decision on appeal.

# discussion

## June 1996 Rate Order

5.  The Commission's rules provide that a franchising authority
    disapproving a rate increase must issue a written decision and give
    public notice of the written decision, including releasing the text
    of the decision to the public.[^13] Any participant in the local
    rate proceeding may appeal the franchising authority's rate decision
    to the Commission within 30 days of the release of the text as
    computed under section 1.4(b) of the Commission's rules.[^14] In the
    instant case, the parties disagree as to what constitutes the
    release of the City's rate order and, depending on the release date,
    whether Falcon's appeal was timely.

6.  The City adopted a rate order addressing Falcon's BST and equipment
    rates on June 10, 1996.[^15] Falcon appealed to the Commission on
    July 15, 1996, claiming in a footnote that its appeal was timely
    because the City mailed a copy of its Rate Order to Falcon on June
    13, 1996.[^16] The City argues that Falcon's appeal was filed 35
    days after the release and asks that the appeal be dismissed as
    untimely. According to the City, copies of the Rate Order were
    released to the public on June 10, 1996 at the public Board of
    Commissioners meeting during which the Rate Order was adopted.[^17]
    This statement is verified by an affidavit from the City Manager
    declaring that the facts in the City's Opposition "are true and
    correct to the best of my knowledge."[^18].

7.  The Commission's rules require public notice but leave the method of
    giving public notice to local authorities.[^19] They also provide
    for counting the 30-day appeal period from the release of the text
    of the franchising authority's decision.[^20] There is no provision
    for tolling the release date if a franchising authority later mails
    a copy to the cable operator.[^21] Falcon makes no claim that
    applicable law or regulations were not followed in the City's
    release of its Rate Order. In its reply, it states only that it did
    not obtain a copy of the Rate Order on June 10^th^ because copies
    were unavailable, and that the normal process in Cedartown is to
    make copies available after the City Clerk and City Attorney have
    signed the order.[^22] It does not elaborate on these statements or
    offer verification. In light of the adoption date of June 10, 1996
    shown on the Rate Order and the City's verified assertion that
    copies were made available on the adoption date, we find that
    Falcon's appeal should have been filed on or before July 10, 1996,
    the thirtieth day after the public release of the Rate Order as
    computed under section 1.4(b). Because the appeal was filed July 15,
    1996, five days after the deadline, it is dismissed as
    untimely.[^23]

8.  Furthermore, even if we were to consider the merits of Falcon's
    appeal, we would not grant relief. Falcon argues that the City erred
    in starting the rate computation with the maximum permitted rate
    prescribed in its previous Rate Order, adopted February 12, 1996
    ("February 1996 Rate Order"),[^24] because that Rate Order was on
    appeal to the Commission. The Cable Services Bureau ("Bureau")
    dismissed that appeal as untimely,[^25] leaving the City's February
    1996 Rate Order in effect and rendering Falcon's argument moot.

9.  Falcon complains that the City used the wrong number for the number
    of regulated channels in its rate review, because it treated
    Falcon's seven-channel a la carte package as a regulated tier of
    service. The City previously found in its February 1996 Rate Order
    that Falcon had "moved seven channels from its cable programming
    tier to create a new package of channels called the 'Satellite
    Package,'" which was subject to rate regulation under the
    Commission's rules.[^26] Falcon's appeal of the February 1996 Rate
    Order conceded that Commission rulings allowed the City to treat the
    Satellite Package as a regulated tier, and Falcon did not challenge
    this treatment, although it did challenge the rate the City
    computed.[^27] Nonetheless, Falcon continued to exclude these
    channels from its channel count in its next rate form, dated
    February 15, 1996. The City continued to include the Satellite
    Package channels in the count of regulated channels in its June 1996
    Rate Order and also complained to the Commission about Falcon's
    rates for the Satellite Package and its other cable programming
    services tier ("CPST"). The Bureau resolved the complaint by finding
    that the Satellite Package was a regulated tier subject to rate
    regulation.[^28] Falcon did not seek further review. The Bureau
    order became final and serves as precedent here. The City reasonably
    included the channels from Falcon's Satellite Package in the number
    of regulated channels used in the Form 1210 rate calculation.
    Falcon's appeal of the channel count would be denied.

10. The City also disallowed the 1995 programming costs on Falcon's
    February 15, 1996 rate form pending receipt of supporting
    documentation from Falcon. Falcon stated it had entered into a
    satisfactory confidentiality agreement with the City and its
    consultant and asked for a remand of the relevant portion of the
    rate order to allow for further City review.[^29] Because the City
    addressed the programming costs in its August 1996 Rate Order, which
    is also before us, the remand request is moot.

11. Falcon also complains that the City's prescribed rate for certain
    converters was in error. Although conceding that its depreciation
    exceeded the net book value of the equipment, Falcon argues that the
    City failed to consider that the net book value can be increased by
    the amount of projected capitalized maintenance.[^30] Falcon has
    subsequently conceded that this argument was misplaced. In its
    October 1996 Appeal, it states it did not capitalize equipment
    maintenance after all but should have reported that its depreciation
    addressed in the City's June 1996 Rate Order reflected lost
    equipment.[^31] Its *post hoc* and unsupported argument comes too
    late for consideration.[^32] A franchising authority is reasonable
    in basing its decision on the information available from the
    operator at the time of its decision.[^33] Falcon's appeal of the
    prescribed converter rate would be denied.

## August 1996, September 1996, and April 1999 Rate Orders -- Programming Rates

12. In its August 1996 Rate Order, the City disallowed the entire amount
    of Falcon\'s proposed rate increase attributed to programming cost
    increases experienced in 1995, and carried this disallowance forward
    in its September 1996 Rate Order on Falcon's July 23, 1996
    Form 1240. Its decisions were based on its consultant\'s advice that
    Falcon\'s initial programming costs reflected in Form 1200 should
    have been stated at a higher amount and, therefore, that the net
    cost increase reflected in Form 1210 should have reflected this
    adjustment.[^34] The consultant could not quantify the difference
    because Falcon did not provide programming contract sections showing
    this amount. This disallowance is also reflected in the rates
    prescribed in the City's April 1999 Rate Order.[^35]

13. Falcon disagrees with the City\'s orders. Falcon explains that it
    calculated the programming costs in Form 1200 pursuant to the terms
    of contracts under which it was then operating, some of which had
    expired and were being renegotiated, and recorded precisely what it
    was paying on the relevant date.[^36] When it later negotiated
    contracts to replace expired contracts, its rates increased
    retroactively and it was required to make supplemental payments for
    programming carried during the preceding period. Falcon states that
    it uses a cash method for reporting programming costs on FCC forms
    and recorded only actual programming costs for the periods covered
    by the rate forms; it did not pass supplemental payments on to
    subscribers, but absorbed them instead. The City found that these
    adjusted programming costs were retroactive to the period covered by
    Form 1200, and that Falcon, therefore, did not experience these cost
    increases in the period covered by its Form 1210 and should not have
    included the increased costs in its rates. The City would have
    Falcon recalculate its programming costs for the period covered by
    Form 1200 to include the rate adjustments later agreed to with
    Falcon\'s program suppliers and then reduce the amount of the cost
    increase taken in Falcon\'s Form 1210 by this supplemental
    amount.[^37] The City would not balance this adjustment, however, by
    bringing forward the higher recalculated Form 1200 rate as the
    starting point for reviewing the Form 1210 rate. The City faulted
    Falcon for not providing information about the supplemental payments
    and disallowed all of the costs pending receipt of this information.
    It again disallowed these costs when reviewing Falcon\'s Form 1240.
    Falcon argues that the City\'s rulings on this issue are inequitable
    and must be reversed.

14. The Commission\'s rules allow cable operators to pass increases in
    programming costs through to subscribers.[^38] The calculation of
    these costs is governed by the Commission\'s forms. Form 1200 asks
    the operator to provide its programming costs as of the beginning
    date (the earlier of the initial date of regulation or February
    28, 1994) and adjusts those costs in Module B for any changes in
    programming costs that have not been passed through to subscribers
    as of March 31, 1994.[^39] Changes in costs incurred or recognized
    on the operator\'s books after March 31, 1994 belong in the forms
    provided for adjusting the operator\'s rates after March 31,
    1994.[^40] Although an operator may have been in negotiations
    regarding programming costs on the dates addressed in Form 1200,
    nothing in the Commission\'s rules requires the operator to redo
    Form 1200 when the negotiations are completed, even if the operator
    must make retroactive payments pursuant to a new programming
    contract, unless the programming cost increase was recognized on the
    operator\'s books on the beginning date or by March 31, 1994. The
    treatment recommended by the City's consultant and adopted by the
    City impermissibly denies Falcon recovery of programming costs to
    which it is entitled.[^41]

15. The City does not dispute Falcon\'s statement that it did not seek
    to recover the amount of the supplemental payments from subscribers.
    Thus, Falcon\'s agreement to make supplemental payments for the
    period during which negotiations were ongoing has no bearing on the
    treatment of the costs Falcon sought to recover in its Form 1210.
    The City's disallowance of costs in its August 1996 and September
    1996 Rate Orders pending receipt of supplemental cost information
    not relevant to its rate review was not reasonable.[^42] Falcon's
    appeals are granted with respect to the City's disallowance of
    Falcon's programming costs, and these cases are remanded for further
    action in accordance with this Consolidated Memorandum Opinion and
    Order.

16. Falcon and the County have also disagreed about the City's revisions
    to Falcon's true up costs in the September 1996 Rate Order and about
    the appropriate starting rate for computing future BST adjustments
    when the underlying BST rate is the subject of a pending appeal. In
    light of the decision herein, on remand the City should review the
    programming costs in Falcon's February 15, 1996 Form 1210, which it
    addressed in its August 1996 Rate Order, and carry the resulting
    rate adjustment forward through the Forms 1240 addressed in its
    September 1996 and April 1999 rate orders.[^43]

## September 1996 Rate Order -- Addressable Converters

17. The City found in its September 1996 Rate Order that, when
    calculating costs associated with installations and equipment
    maintenance in its Form 1205 dated June 18, 1996, Falcon
    over-depreciated addressable converters. The City prescribed a
    reduced monthly lease rate for these converters. On appeal, Falcon
    concedes that its provision for depreciation exceeded the net book
    value of the equipment, but argues that the City failed to take into
    consideration increases to the net book value for projected
    capitalized maintenance.[^44] In its reply, Falcon states it did not
    capitalize equipment maintenance after all but, instead, should have
    reported the loss of equipment on its books.[^45] It asserts an
    amount of alleged losses but makes no claim that this was timely
    raised below, and it tenders no support for these losses. The City
    argues that this reply should be dismissed as an untimely attempt to
    introduce a new adjustment because, before adopting its Rate Order,
    it asked Falcon whether any allocations or adjustments were made
    from the general ledger entry for current depreciation and was
    advised there were not.[^46]

18. The *First Order on Reconsideration*, which Falcon cites, states
    that lost converters should not require separate consideration in
    the calculation of rates, because depreciation rates may take into
    account a normal loss, and retirement of such lost equipment will
    adjust the plant balance.[^47] To the extent there is an unusual
    number of lost items not accounted for in depreciation rates, a
    reasonable adjustment may be made to recover the cost. "In such case
    the amount included for unusual losses should be noted and
    documented" so the franchising authority can assess the
    reasonableness of the adjustment.[^48] Falcon did not do this,
    although it has the burden of proving to the franchising authority
    that its rates are reasonable.[^49] Falcon's tender of a new,
    unsupported explanation for its over-depreciation of converters in
    its reply in this proceeding comes too late for Bureau
    consideration.[^50] Its appeal of the City's treatment of
    addressable converter depreciation is denied.

# ordering clauses

19. Accordingly, IT IS ORDERED that the Petition for Review of Rate
    Order filed by Falcon Cablevision on July 15, 1996 (File No.
    CSB-A-0335) IS DISMISSED.

20. IT IS FURTHER ORDERED that the Petition for Review of Rate Order
    filed by Falcon Cablevision on September 11, 1996 (File No.
    CSB-A-0350) IS GRANTED and the matter IS REMANDED to the City of
    Cedartown, Georgia for further action consistent with this
    Consolidated Memorandum Opinion and Order.

21. IT IS FURTHER ORDERED that the Motion for Leave to File Additional
    Pleading filed November 19, 1996 by the City of Cedartown, Georgia
    IS GRANTED.

22. IT IS FURTHER ORDERED that the Petition for Review of Rate Order
    filed by Falcon Cablevision on October 9, 1996 (File No. CSB-A-0357)
    IS GRANTED IN PART and DENIED IN PART and the matter IS REMANDED to
    the City of Cedartown, Georgia for further action consistent with
    this Consolidated Memorandum Opinion and Order.

23. IT IS FURTHER ORDERED that the Petition for Review of Rate Order
    filed by Falcon Cablevision on May 19, 1999 (File No. CSB-A-0625) IS
    GRANTED IN PART and DENIED IN PART and the matter IS REMANDED to the
    City of Cedartown, Georgia for further action consistent with this
    Consolidated Memorandum Opinion and Order.

24. IT IS FURTHER ORDERED that the Petition for Stay of Enforcement
    Pending Review filed by Falcon Cablevision on May 19, 1999 IS
    DISMISSED.

25. This action is taken pursuant to authority delegated by § 0.321 of
    the Commission's rules. 47 C.F.R. § 0.321.

FEDERAL COMMUNICATIONS COMMISSION

William H. Johnson

Deputy Chief, Cable Services Bureau

[^1]: The pleadings in File No. CSB-A-0335 are: Falcon Petition for
    Review of Rate Order (Jul. 15, 1996) ("Falcon July 1996 Petition");
    Opposition of Cedartown, Georgia to Petition for Review of Rate
    Order (Jul. 30, 1996) ("City July 1996 Opposition"); Falcon Reply to
    Opposition to Petition for Review (Aug. 8, 1996) ("Falcon August
    1996 Reply").

[^2]: The pleadings in File No. CSB-A-0350 are: Falcon Petition for
    Review of Rate Order (Sept. 11, 1996) ("Falcon September 1996
    Petition"); Opposition of Cedartown, Georgia to Petition for Review
    of Rate Order (Sept. 24, 1996) ("City September 1996 Opposition");
    Falcon Reply to Opposition to Petition for Review (Oct. 3, 1996)
    ("Falcon October 1996 Reply").

[^3]: The pleadings in File No. CSB-A-0357 are: Falcon Petition for
    Review of Rate Order (Oct. 9, 1996) ("Falcon October 1996
    Petition"); Opposition of the City of Cedartown, Georgia to Petition
    for Review of Rate Order of Falcon Cablevision (Oct. 23, 1996)
    ("City October 1996 Opposition"); Falcon Reply to Opposition to
    Petition for Review (Nov. 1, 1996) ("Falcon November 1996 Reply");
    City Motion for Leave to File Additional Pleading (Nov. 19, 1996);
    City Further Opposition to Petition for Review of Rate Order (Nov.
    19, 1996) ("City November 1996 Further Opposition").

[^4]: The pleadings in File No. CSB-A-0625 are: Falcon Petition for
    Review of Rate Order (May 19, 1999) ("Falcon May 1999 Petition");
    Opposition to Petition for Review of Rate Order (June 3, 1999)
    ("City June 1999 Opposition"); Falcon Reply (June 11, 1999) ("Falcon
    June 1999 Reply"); Falcon Petition for Stay of Enforcement Pending
    Review (May 19, 1999); City Opposition to Petition for Stay of
    Enforcement Pending Review (June 3, 1999); Falcon Reply to
    Opposition to Petition for Stay of Enforcement Pending Review (June
    11, 1999).

[^5]: In light of our action on the merits, the stay request is
    dismissed as moot.

[^6]: 47 U.S.C. § 543(a)(2).

[^7]: 47 U.S.C. § 543(b)(1); 47 C.F.R. § 76.922.

[^8]: 47 U.S.C. § 543(b)(3); 47 C.F.R. § 76.923(a)(2).

[^9]: *See Implementation of Sections of the Cable Television Consumer
    Protection and Competition Act of 1992: Rate Regulation*, Report and
    Order and Further Notice of Proposed Rulemaking, Second Order on
    Reconsideration, Fourth Report and Order, and Fifth Notice of
    Proposed Rulemaking, 9 FCC Rcd 4119 (1994) (\"*Second
    Reconsideration Order*\"); FCC Form 1200, Setting Maximum Initial
    Permitted Rates for Regulated Cable Services Pursuant to Rules
    Adopted February 22, 1994. Operators may also elect to justify rates
    with a cost-of-service showing.

[^10]: 47 C.F.R § 76.922(d), (e), (f).

[^11]: ^?^ 47 U.S.C. § 543(b)(5)(B); 47 C.F.R. § 76.944.

[^12]: ^?^ *Implementation of Sections of the Cable Television Consumer
    Protection and Competition Act of 1992: Rate Regulation*, Report and
    Order and Further Notice of Proposed Rulemaking, 8 FCC Rcd 5631,
    5731-32 (1993) (\"*Rate Order*\"), Third Order on Reconsideration, 9
    FCC Rcd 4316, 4346 (1994) (\"*Third Reconsideration Order*\").

[^13]: 47 C.F.R. § 76.936(b).

[^14]: 47 C.F.R. § 76.944(b); 47 C.F.R. § 1.4(b).

[^15]: The City reviewed Falcon's Form 1210 dated February 15, 1996 and
    its Form 1205 dated February 13, 1996. June 1996 Rate Order, first
    page, found at Falcon July 1996 Petition, Exhibit A.

[^16]: Falcon July 1996 Appeal at 1 n.1.

[^17]: City July 1996 Opposition at 2-3.

[^18]: *Id*., Affidavit of J. David Thompson, City Manager of the City
    of Cedartown (July 29, 1996).

[^19]: *See Falcon Classic Cable v. McCreary City, KY*, 15 FCC Rcd 5717,
    5718 para. 4 (Cab. Serv. Bur. 2000) (public notice under section
    76.936(b) should be given in a manner consistent with applicable
    local law or regulations governing a franchising authority's rate
    review).

[^20]: 47 C.F.R. § 76.944(b). *See Rate Order*, 8 FCC Rcd at 5730-31 &
    n.394, *Third Reconsideration Order*, 9 FCC Rcd at 4341.

[^21]: *See* *C4 Media Cable SE, L.P.,* 10 FCC Rcd 9431, 9431 para. 5
    (Cab. Serv. Bur. 1995).

[^22]: Falcon Reply at 1-2.

[^23]: *See Meredith/New Heritage Strategic Partners, L.P.*, 9 FCC Rcd
    6841 (1994).

[^24]: Resolution No. 2, 1996 ("February 1996 Rate Order"), *found at*
    Falcon Cablevision, Petition for Review of Rate Order ("Falcon March
    1996 Appeal"), File No. CSB-A-0300 (filed Mar. 29, 1996), Exhibit A.

[^25]: *Falcon Cablevision*, 12 FCC Rcd. 930, *reconsideration denied*
    12 FCC Rcd 4190 (Cab. Serv. Bur. 1997).

[^26]: February 1996 Rate Order at 4.

[^27]: Falcon March 1996 Appeal at 4.

[^28]: *Falcon Cablevision*, 11 FCC Rcd 17438, 17442 (Cab. Serv. Bur.
    1996).

[^29]: Falcon July 1996 Appeal at 4.

[^30]: *Id.* at 6.

[^31]: Falcon October 1996 Petition at 5. Falcon stated that both the
    June 10, 1996 and the September 9, 1996 Rate Orders were based on
    the same Form 1205. *Id*. at 6 n.6.

[^32]: *Falcon First Communications, L.P.*, 14 FCC Rcd 7277, 7282 (Cab.
    Serv. Bur. 1999). See discussion of depreciation adjustment in the
    September 1996 Rate Order, *infra*, paras. 17-18.

[^33]: 47 C.F.R. § 76.937(d); *Third Reconsideration Order*, 9 FCC Rcd
    at 4347-48.

[^34]: *See* Falcon September 1996 Petition, Exhibit A, August 1996 Rate
    Order, first page; *id.* Exhibit B, Letter from Don Schanding, Rate
    Analyst, Georgia Municipal Association to David Johnson, City
    Manager (July 24, 1996); Falcon October 1996 Petition, Exhibit A,
    September 1996 Rate Order, first page; *id.* Exhibit B, Letter from
    Schanding to Johnson (Aug. 22, 1996) at 1-2; City September 1996
    Opposition, third and fourth pages; City October 1996 Opposition at
    3.

[^35]: Falcon May 1999 Petition, Exhibit A.

[^36]: Falcon September 1996 Petition at 3-5; Falcon October 1996
    Petition at 4-5; Falcon October 1996 Reply at 2-5; Falcon November
    1996 Reply at 3-4.

[^37]: *See* n.34, *supra*.

[^38]: 47 C.F.R. § 76.922(d)(3), (e)(2)(ii), (f)*; see Rate Order*, 8
    FCC Rcd at 5788; *Second Reconsideration Order*, 9 FCC Rcd at
    4201-02, 4203 n.232.

[^39]: FCC Form 1200, Module B and instructions at 3, 4, 12-14.

[^40]: A cost is considered \"incurred\" for Form 1210 purposes when it
    is \"recognized on the books . . . during the previous quarter.\" Q
    & A released June 14, 1994, at Question 3. Form 1210 could be used
    for changes in external costs incurred by an operator starting April
    1, 1994 and could be filed as often as quarterly. *See* 47 C.F.R. §
    76.922(d)(1), (3)(iii).

[^41]: *Falcon First Communications, L.P.*, 14 FCC Rcd at 7291-92.

[^42]: *See id*.

[^43]: Falcon argued in its appeal of the City's April 1999 Rate Order
    that City had not explained the rationale for its decision. As
    pointed out in the City's June 3, 1999 Opposition, the consultant's
    report attached to the April 1999 Rate Order explained that the rate
    ordered therein was based on the rate previously ordered by the City
    in its September 1996 decision, which the consultant carried
    forward. The consultant also explained he made adjustments to the
    true up amount for each period to reflect that Falcon would be
    issuing refunds. Falcon May 1999 Petition, Exhibit B, Letter from
    Shandling to Johnson (Mar. 26, 1999) at 1 and n.1.

[^44]: Falcon October 1996 Petition at 5.

[^45]: Falcon November 1996 Reply at 5.

[^46]: City November 1996 Further Opposition at 2-3, verified by
    Affidavit of L. David Johnson, City Manager.

[^47]: *Implementation of Sections of the Cable Television Consumer
    Protection and Competition Act of 1992: Rate Regulation*, First
    Order on Reconsideration, Second Report and Order, and Third Notice
    of Proposed Rulemaking, 9 FCC Rcd 1164, 1199 (1993) ("*First Order
    on Reconsideration*").

[^48]: *Id*. at 1200 n.97.

[^49]: 47 C.F.R. § 76.937(a); *Rate Order*, 8 FCC Rcd at 5716. The
    burden is to show that the proposed rates comply with the statute
    and the Commission's implementing regulations.

[^50]: *See Falcon First Communications, L.P.*, 14 FCC Rcd at 7282.