Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * | DA 99-891                    |
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| FALCON FIRST COMMUNICATIONS,     | ) | CSB-A-0296                   |
| L.P.                             | * |                              |
|                                  | * | CSB-A-0334                   |
| Appeals of Local Rate Orders     |   |                              |
|                                  | * | CSB-A-0351                   |
| of Whitfield County, Georgia     | * |                              |
|                                  | ) | CSB-A-0466                   |
| CUID GA0317                      | * |                              |
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MEMORANDUM OPINION AND ORDER ON REVIEW

**Adopted: August 7, 2000** **Released: August 11, 2000**

By the Commission:

1.  Pursuant to 47 C.F.R. § 1.115, Whitfield County, Georgia ("the
    County") has filed an application for review of the Cable Services
    Bureau's Memorandum Opinion and Order, DA 99-891 (released May
    13, 1999) ("*Bureau Order*"),[^1] in the above-captioned proceeding.
    The County is the local franchising authority. The franchisee,
    Falcon First Communications, L.P., ("Falcon") has opposed the
    application.

2.  The County's February 1996 local rate order concluded that Falcon
    had excluded home wire maintenance from its equipment basket
    calculations on FCC Form 1205, the form for calculating equipment
    and installation costs. The County calculated a value for the home
    wiring maintenance expense, which it added to Falcon's costs shown
    on the unbundling worksheet included in FCC Form 1205. Falcon's
    appeal challenged this treatment and sought to explain apparent
    inconsistencies between its explanations to the County below and in
    its Commission appeal about its treatment of the home wiring
    expense. The *Bureau Order* found that the record was insufficient
    to determine how Falcon had treated the expense in its rate form.
    Because expenses may have been added twice, once by the operator and
    again by the County, a remand was required to resolve this factual
    question.[^2] The *Bureau Order* also found that the County's
    calculation was not reasonable, even if Falcon had not included wire
    maintenance expenses in its rate form, because the County used the
    wire maintenance charge it had rejected as the basis for calculating
    a value for home wire expenses.[^3] A franchising authority revising
    an operator's rate calculations is expected to use the revision
    consistently throughout its review of the operator's rate form.

3.  The County seeks review of the *Bureau Order* only insofar as it
    allows Falcon to justify its treatment of home wiring maintenance
    expenses in its rate form. It argues that the Commission will remand
    a local rate decision only if it is unreasonable and that, based on
    Falcon's statements to the County prior to adoption of the local
    rate order, the County reasonably determined that Falcon excluded
    its home wire maintenance expenses from its equipment basket. Falcon
    opposes the application, arguing that it admitted a lack of clarity
    in its responses to the County below but did not change its position
    on appeal.

4.  As correctly stated in Bureau precedent, the Commission ordinarily
    will not consider factual material presented for the first time in
    an appeal if the operator had adequate opportunity to present it in
    the proceeding below.[^4] In this case, however, the County's
    calculation of home wire maintenance expenses was determined to be
    unreasonable for a reason separate and apart from the factual
    dispute about whether Falcon had already included the expenses in
    its rate form. Because the County must review the expenses on remand
    in any event, having the detailed information required by the
    *Bureau Order* should not impose an undue burden on the County or
    prevent a timely issuance of an order on remand, and it will make a
    more informed County review possible. The *Bureau Order* treated
    this issue appropriately.

5.  Accordingly, pursuant to 47 C.F.R. § 1.115, IT IS ORDERED THAT the
    Petition for Review filed by Whitfield County, Georgia on June 14,
    1999 IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: 14 FCC Rcd 7277 (Cab. Serv. Bur. 1999).

[^2]: *Bureau Order* at para. 16.

[^3]: *Bureau Order* at para. 17.

[^4]: *See, e.g., Telerama, Inc.*, 11 FCC Rcd 17369, 17375 para. 12
    (Cab. Serv. Bur. 1996) (Euclid, OH) (having failed to provide a
    justification when the issue was before the franchising authority,
    operator is not entitled to have corrected information considered by
    the Commission on appeal); *Falcon Cablevision*, 11 FCC Rcd 10511,
    10519 para. 17 (Cab. Serv. Bur. 1996) (Thousand Oaks, CA) (same);
    *TCI Cablevision of Galesburg, Inc.*, 10 FCC Rcd 3346, 3347 para. 9
    (Cab. Serv. Bur. 1995) (franchising authority reasonable in not
    reopening record to consider late-filed information).