**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | CSB-A-0692                   |
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| Frontiervision Operating         | ) | CSB-A-0693                   |
| Partners                         | * |                              |
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| Order Setting Basic Service      |   |                              |
| Rates                            | * |                              |
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| Winchester, KY (KY0079)          | ) |                              |
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| Frontiervision Operating         | * |                              |
| Partners, L.P.                   |   |                              |
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| d/b/a/ Adelphia                  | * |                              |
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| Order Setting Basic Service      | * |                              |
| Rates                            | * |                              |
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| Mt. Sterling, KY (KY0066)        | * |                              |
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+----------------------------------+---+------------------------------+

MEMORANDUM OPINION AND ORDER

**Adopted: November 8, 2004** **Released: November 15, 2004**

By the Commission:

# INTRODUCTION

1.  On November 10, 2003, the Cities of Mt. Sterling and Winchester,
    Kentucky ("the Cities"), filed an Application for Review
    ("Application") of a Media Bureau ("Bureau") Order that granted
    appeals of local rate orders filed by Frontiervision Operating
    Partners and Frontiervision Operating Partners, L.P. (collectively,
    "Adelphia"), the franchised cable operators in those cities.[^1] The
    Order held that Adelphia had effected a permissible increase in
    Basic Service Tier ("BST") rates and that the Cities had erred in
    attempting to block them. On November 24, 2003, Adelphia filed an
    Opposition to Application for Review ("Opposition"). After reviewing
    the record in this case and for the following reasons, we deny the
    Cities' Application for Review.

2.  This case came to the Bureau as two appeals of local rate orders
    based on very similar facts. In each City, Adelphia filed a Form
    1240 in late March 2002, to be effective on July 1 of that year.
    Each Form was imprecise about Adelphia's intentions. Specifically,
    each Form justified a Maximum Permitted BST Rate ("MPR") higher than
    Adelphia was currently charging; stated as its "Rate Structure as of
    July 1, 2002" the rate it was currently charging; stated that the
    "Service Rate Change" as of July 1, 2002, would be zero; and left
    blank Line I10 in the Form for "Operator Selected Rate for Projected
    Period."[^2] In other words, in each city Adelphia proposed a
    specific MPR and purported to justify it, but was silent about
    precisely when and how much it would raise the rates it actually
    charged its BST customers (its "actual rates"). Since neither City
    took any action on the Form filed with it, Adelphia was authorized
    to raise its rates on July 1, 2002.[^3]

3.  Adelphia did not, however, raise its actual rates for many months.
    Instead, towards the end of the twelve-month period covered by its
    Forms, Adelphia notified the Cities that it would shortly raise its
    actual rates to its previously justified MPR. Each City thereupon
    ordered Adelphia not to raise its actual rates, and to instead
    charge the BST rates it had been charging.[^4] Adelphia appealed
    both orders to the Bureau, which ruled in favor of Adelphia. The
    Bureau would have sustained the decisions of the Cities rejecting
    the rate increases so long as the Cities provided a rational basis
    for doing so.[^5] The Cities did not. We now affirm the Bureau
    decision.

# DISCUSSION

4.  The Cities claim that the Order erred in its analysis of the
    Commission's rules and its conclusion that Adelphia is not confined
    to changing its actual rates only at the end of the initial 90‑day
    review period.[^6] The Cities make no attempt to support this claim,
    however. We find no error in the Bureau's analysis of this subject.

5.  The Cities appear to believe that they were entitled to do nothing
    when presented with Adelphia's imprecise Forms, but that their
    inaction somehow prohibited Adelphia's later rate increases. The
    Cities dispute the Bureau's conclusion that they should have found
    the Forms \"facially incomplete,\" tolled their review process, and
    demanded that Adelphia fill in Line I10.[^7] The Cities argue that
    the Bureau's Order in this respect was in conflict with established
    Commission policy and case precedent,[^8] involved application of a
    policy that should be revised,[^9] and contained prejudicial
    procedural error.[^10]

6.  The Bureau's Order is not inconsistent with established Commission
    policy. We agree with the Cities, as did the Bureau's Order,[^11]
    that they were entitled to receive completed Forms 1240 from the
    operator. Operators are obligated to fill out their rate forms in
    their entirety. We also agree with the Bureau's Order that, when
    they did not, the appropriate remedy was for the Cities to insist on
    Forms with Line I10 filled in; it was not enough for the Cities to
    do nothing in the unexpressed belief that the Forms' incompleteness
    made them ineffective or somehow implied that Adelphia's actual
    rates would remain unchanged.[^12]

7.  The Cities also claim that the Bureau Order conflicts with its
    decision in *CoxCom, Inc.* The Bureau's decision in *CoxCom* states
    that "the franchising authority and subscribers \[must\] have notice
    of the actual rate being implemented."[^13] The Cities appear to
    believe that the "notice" referenced is a completed Form 1240. As
    the footnote accompanying the quoted words in *CoxCom, Inc.*, show,
    however, the "notice" refers to a mailing to customers (and in some
    cases the franchising authority) and not a Form 1240.[^14] Adelphia
    appears to have given the mailed notice of the rate increase that
    our rules require.[^15]

8.  The Cities next claim that the Bureau Order contained prejudicial
    procedural error by shifting the burden of proof from Adelphia to
    the Cities.[^16] We disagree. The only problem with Adelphia's Forms
    was that they were incomplete because they did not specify an
    Operator Selected Rate. Section 76.933(g) of our rules provides that
    the Cities could have tolled their review of the Forms and asked
    Adelphia to complete them.[^17] Once Adelphia did so, the tolling
    would end and the review process would begin again. The Cities
    cannot now claim that Adelphia's notice of its intention to raise
    rates left the Cities with too little time to review Adelphia's
    Forms.[^18] Our rules are premised upon timely review by the
    franchising authority. Here, none occurred.

9.  Finally, the Cities argue that the Bureau, by stating that Adelphia
    could not raise its rates until April or May 2004, "effectively
    permitted Adelphia's incomplete \[Form\] 1240 to remain operational
    for a period of 22-23 months and thus avoid the annual rate filing
    requirements in contravention of 47 CFR § 76.922."[^19] Our rules
    require, with exceptions not material here, that "at least twelve
    months must pass before the . . . next annual adjustment."[^20]
    Since Adelphia had implemented a rate adjustment in April 2003 (in
    Winchester) and in May 2003 (in Mt. Sterling), the Bureau stated
    that another increase would not be permitted until one year had
    passed. Our rules do not explicitly require the annual filing of
    Form 1240s when no rate increase is sought by the operator (except
    in the event of lowered costs, which is not the case here).[^21]
    More broadly, we see no harm to consumers that Adelphia's BST rates
    were unchanged for nearly two years.

# ORDERING CLAUSES

10. Accordingly, **IT IS ORDERED** that the Application for Review filed
    on November 10, 2003, by the Cities of Mt. Sterling and Winchester,
    Kentucky, of the Media Bureau's Order released on October 10, 2003,
    **IS DENIED.**

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: *Frontiervision Operating Partners* ("Order"), 18 FCC Rcd 20416
    (2003).

[^2]: Order ¶¶ 6-9; Opposition to Appeal of Local Rate Order filed with
    the Bureau by City of Winchester on July 10, 2003, Attachment II,
    Exhibit 1; Opposition to Appeal of Local Rate Order filed with the
    Bureau by City of Winchester on July 10, 2003, Attachment II,
    Exhibit 1.

[^3]: Order ¶¶ 6, 8 (citing 47 C.F.R. § 76.933(g)(2)).

[^4]: *Id.* ¶¶ 7, 9.

[^5]: *Implementation of Sections of the Cable Television Consumer
    Protection and Competition Act, 9 FCC Rcd 4316, 4346 (1994) ¶81.*

[^6]: Application at 2.

[^7]: Order ¶ 15.

[^8]: 47 C.F.R. § 1.115(b)(2)(i).

[^9]: 47 C.F.R. § 1.115(b)(2)(iii). The Application does not explicitly
    state any arguments in support of a revision of Commission policy,
    nor does it explain the apparent inconsistency in the Cities'
    arguments challenging the Bureau Order as both an application of and
    a violation of Commission policy.

[^10]: 47 C.F.R. § 1.115(b)(2)(v).

[^11]: Order ¶ 15.

[^12]: The Application is less than clear about exactly how the Cities
    interpreted the Forms. At different places, the Application
    describes the Forms as "incomplete" and "misleading" (Application at
    3) on the one hand, and "clear that the actual rate being
    implemented was" not changing on the other hand. Application at 4
    (internal quotation marks deleted).

[^13]: Application at 4, quoting *CoxCom, Inc.,* 17 FCC Rcd 7931,
    7936‑37 (2002) ¶ 14, *application for review denied*, 18 FCC Rcd
    6941 (2003).

[^14]: *CoxCom, Inc.,* 17 FCC Rcd at 7937 n.45, citing 47 C.F.R. §§
    76.933(g)(3), 76.1603(b-d).

[^15]: Opposition at 3 n.6; Appeal of Mt. Sterling Local Rate Order,
    Attachment 3, Draft City of Mt. Sterling Order at 1-2; Appeal of
    Winchester Local Rate Order, Attachment 3, Draft City of Winchester
    Order at 1-2.

[^16]: Application at 5.

[^17]: 47 C.F.R. § 76.933(g), cited in Order ¶ 15.

[^18]: Application at 5.

[^19]: *Id.* at 3.

[^20]: 47 C.F.R. § 76.922(e)(1).

[^21]: 47 C.F.R. § 76.922 (e)(2)(ii)(B).