**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of ) File No. EB-02-TC-063

) CUID No. AR0037 (Fayetteville)

TCA Cable Partners )

)

Petition for Reconsideration )

**ORDER** **ON RECONSIDERATION**

**Adopted: September 30, 2002 Released: October 1, 2002**

By the Chief, Enforcement Bureau:[^1]

1\. In this Order we consider a petition for reconsideration
(\"Petition\") and request for stay of Order, DA 98-2506[^2] (\"Second
Order\"), filed with the Federal Communications Commission
(\"Commission\").[^3] The Second Order resolved a complaint against the
April 1, 1998 rate increase by the above-referenced operator
(\"Operator\")[^4] for its cable programming services tier (\"CPST\") in
the community referenced above. It also resolved a petition for
reconsideration of Order, DA 96-1936 (\"First Order\").[^5] In this
Order, we grant Operator's Petition in part, amend the Second Order and
calculate Operator\'s refund liability.

2\. Under the provisions of the Communications Act[^6] that were in
effect at the time the complaints were filed, the Commission is
authorized to review the 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\")[^7] 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
Telecommunications Act of 1996 (\"1996 Act\"),[^8] and the Commission\'s
rules implementing the legislation (\"Interim Rules\"),[^9] require that
a complaint against the CPST rate be filed with the Commission by an LFA
that has received more than one subscriber complaint.

3\. The filing of a valid complaint triggers an obligation upon the
cable operator to file a justification of its CPST rates.[^10] If the
Commission finds the rate to be unreasonable, it shall determine the
correct rate and any refund liability.[^11] Operators must use the FCC
Form 1200 series to justify rates for the period beginning May 15,
1994.[^12] Cable operators may justify quarterly rate increases based on
the addition and deletion of channels, changes in certain external costs
and inflation, by filing FCC Form 1210.[^13]

4\. In its Petition, Operator argues that it was entitled to an
additional month of inflation on its FCC Form 393. We agree. Our
adjustment increases Operator's FCC Form 393 maximum permitted rate
(\"MPR\") from \$12.97, established in the Second Order, to \$13.00.

5\. Operator also argues that it should be allowed to substitute
\$83,792 for the \$65,703 figure it originally inserted on Line 204
(Equipment Revenue (Monthly)) of Worksheet 2 of its FCC Form 393. In the
First Order, the Cables Services Bureau revised Line G5 (Total Equipment
Revenue as of 9/30/92) of Operator's FCC Form 1200 to match Line 204 of
Operator's FCC Form 393. In the Second Order, the Cable Services Bureau
reversed its decision, accepting Operator's argument that the
instructions for Line 204 of the FCC Form 393 and Line G5 of the FCC
Form 1200 are different, and allowed Operator its claim of \$83,792 on
Line G5 of its FCC Form 1200 rather than the \$65,703 figure reported by
Operator on Line 204 of its FCC Form 393.[^14]

6\. Now Operator reverses itself and argues that it should be allowed to
change the original FCC Form 393 entry to match its FCC Form 1200 entry.
We disagree. First, the proposed adjustment was not made on a timely
basis, as it was filed after the date of the First Order. Once an
operator has filed FCC Forms with the Commission, each of which requires
a signed certification statement that the information on the FCC Form is
true and correct, we are entitled to act upon that information.[^15]
Once we have released an order concerning those FCC Forms, we cannot
ordinarily allow an operator to submit additional FCC Forms on appeal
with information that should have been submitted with the original
certification, unless we have requested the additional information.[^16]
Furthermore, as the Cable Service Bureau stated in the Second Order, and
as Operator previously argued, the FCC Form 393 and FCC Form 1200
instructions are not identical. In requesting that we accept \$83,792 on
Line 204 of the FCC Form 393, Operator contradicts the FCC Form 393
instructions as well as its own previous argument. In support of its
argument, Operator cites the answer to Question 9 of a July 30, 1993
Public Notice[^17] that lists certain criteria that must be met if an
Operator is seeking to use the most recent monthly equipment figure as
opposed to the annual average monthly figure on the FCC Form 393.
However, Operator fails to satisfy any of the listed criteria, most
notably, that there must be no material difference in the result from
using the substituted figure.[^18] Therefore, we reject Operator's
argument.

7\. Based on our review of Operator's FCC Form 393, Operator's MPR is
\$13.00 for the period from September 13, 1993 (the date the first valid
complaint was filed with the Commission) through May 14, 1994. Because
Operator's actual CPST rate of \$13.22, effective September 13, 1993
through May 14, 1994, exceeds its MPR of \$13.00, we find Operator's
actual CPST rate of \$13.22, effective September 13, 1993 through May
14, 1994, to be unreasonable.

8\. In its Petition, Operator also argues that the Cable Services Bureau
used the wrong figure on Line I2a (Monthly Equipment Cost per
Subscriber) when revising Operator's FCC Form 1200 in the Second Order.
We agree that a clerical error was made and our revised FCC Form 1200
MPR of \$13.00 matches Operator's calculated MPR. Operator added a
channel on June 1, 1994. In the Second Order, the Cable Services Bureau
allowed Operator an additional \$0.29 for external costs associated with
the added channel. Therefore, Operator's MPR for the period from May 15,
1994 through May 31, 1994 is \$13.00 and \$13.29 for the time period
beginning June 1, 1994 through September 30, 1994. Because Operator's
actual CPST rate of \$13.22, effective May 15, 1994 through May 31,
1994, exceeds is MPR of \$13.00, we find Operator's actual CPST rate of
\$13.22, effective May 15, 1994 through May 31, 1994, to be
unreasonable. We find Operator's actual CPST rate of \$13.22, effective
June 1 through September 30, 1994, to be reasonable.

9\. Upon review of Operator's FCC Form 1210, covering the period April
1, 1994 through September 30, 1994, we revised Operator's methodology
for incorporating the external costs associated with the channel added
on June 1, 1994, which increased Operator's Line B10 (Current Ext. Costs
per Tier per Sub.) to \$2.5895.[^19] Despite our adjustment, which we
carried through Operator's subsequent filings, we accept Operator's
calculated MPR of \$13.57, effective October 1, 1994 through December
31, 1994. Because Operator's actual CPST rate of \$13.57, effective
October 1, 1994 through December 31, 1994, does not exceed its MPR, we
find Operator's actual CPST rate of \$13.57, effective October 1, 1994
through December 31, 1994, to be reasonable. Upon review of Operator's
next FCC Form 1210, we accept Operator's calculated MPR of \$15.01,
effective January 1, 1995. Because Operator's actual CPST rate of
\$15.01, effective January 1, 1995 through May 31, 1996, does not exceed
its MPR, we find Operator's actual CPST rate of \$15.01, effective
January 1, 1995 through May 31, 1996, to be reasonable.

10\. Upon review of Operator's FCC Form 1210 covering the period October
1, 1995 through December 31, 1995, we adjusted Line C14 (Previous Ext.
Costs per Tier per Sub.) to \$2.5895 to match Line D9 (Current Ext.
Costs per Subscriber) of Operator's previous revised FCC Form 1210. Our
adjustment reduced Operator's calculated MPR from \$17.36 to \$17.26.
Because Operator's actual CPST rate of \$17.36, effective June 1, 1996
through March 31, 1998, exceeds its revised MPR, we find Operator's
actual CPST rate of \$17.36, effective June 1, 1996 through March 31,
1998, to be unreasonable.[^20] Upon review of Operator's FCC Form 1210
covering the period from January 1, 1998 through March 31, 1998, we find
Operator's actual CPST rate of \$18.95, effective April 1, 1998, to be
reasonable.[^21]

11\. Due to our granting of Operator's Petition in part, the refund plan
that Operator submitted with its Petition is no longer applicable.
Therefore, we calculate Operator's refund liability as follows: For the
period from September 13, 1993 through May 31, 1994, we calculate an
overcharge of \$0.22 per month per subscriber. Operator\'s actual CPST
rate for this period was \$13.22 and its MPR was \$13.00. For the period
June 1, 1996 through March 31, 1998, we calculate an overcharge of
\$0.10 per month per subscriber. Operator\'s actual CPST rate for this
period was \$17.36 and its MPR was \$17.26. Our total calculation,
including interest on the overcharges through October 31, 2002, equals
\$109,984.00. Our calculation does not include franchise fees. We order
Operator to refund this amount, plus any additional interest accrued to
the date of refund, plus franchise fees, if any, and interest on the
franchise fee principal amount, to its CPST subscribers within 60 days
of the release of this Order. We dismiss Operator's request for stay as
moot.

12\. 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 AND DENIED IN PART
TO THE EXTENT INDICATED HEREIN.

13\. IT IS FURTHER ORDERED, pursuant to Section 1.106 of the
Commission\'s rules, 47 C.F.R. § 1.106, that In the Matter of TCA Cable
Partners d/b/a TCA Cable TV, DA 98-2506, 13 FCC Rcd 23577 (CSB 1998) IS
MODIFIED TO THE EXTENT INDICATED HEREIN and Operator's request for stay
IS DISMISSED.

14\. 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 the CPST rate of
\$13.22, charged by Operator in the community referenced above,
effective September 13, 1993 through May 31, 1994, IS UNREASONABLE.

15\. 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 the CPST rates
charged by Operator in the community referenced above, effective June 1,
1994 through May 31, 1996, ARE REASONABLE.

16\. 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 the CPST rate of
\$17.36, charged by Operator in the community referenced above,
effective June 1, 1996 through March 31, 1998, IS UNREASONABLE.

17\. 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 the CPST rate of
\$18.95, charged by Operator in the community referenced above,
effective April 1, 1998, IS REASONABLE.

18\. IT IS FURTHER ORDERED, pursuant to Sections 0.111, 0.311 and 76.962
of the Commission's rules, 47 C.F.R. §§ 0.111, 0.311 and §76.962, that
Operator shall refund to subscribers in the franchise area referenced
above the total amount of \$109,984.00, plus any additional interest
accruing between October 31, 2002 and the date of refund, plus franchise
fees, if any, and interest on the franchise fee principal amount within
60 days of the release of this Order.

19\. IT IS FURTHER ORDERED, pursuant to Sections 0.111, 0.311 and 76.962
of the Commission\'s rules, 47 C.F.R. §§ 0.111, 0.311 and §76.962, that
Operator file a certificate of compliance with the Chief, Enforcement
Bureau, within 90 days of the release of this Order certifying its
compliance with this Order.

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]: *In the Matter of TCA Cable Partners d/b/a TCA Cable TV*, DA
    98-2506, 13 FCC Rcd 23577 (CSB 1998).

[^3]: Operator originally filed an application for review, but requested
    that the application for review be treated as a petition for
    reconsideration. *See* letter dated April 17, 2002 from Steven J.
    Horvitz, counsel for Operator.

[^4]: The term \"Operator\" includes Operator\'s predecessors and
    successors in interest.

[^5]: *In the Matter of TCA Cable TV*, DA 96-1936, 11 FCC Rcd 15024 (CSB
    1996).

[^6]: 47 U.S.C. §543(c) (1996).

[^7]: Pub. L. No. 102-385, 106 Stat. 1460 (1992).

[^8]: Pub. L. No. 104-104, 110 Stat. 56 (1996).

[^9]: *See* *Implementation of Cable Act Reform Provisions of the
    Telecommunications Act of 1996*, 11 FCC Rcd 5937 1996).

[^10]: *See* Section 76.956 of the Commission\'s rules, 47 C.F.R.
    §76.956.

[^11]: *See* Section 76.957 of the Commission\'s rules, 47 C.F.R.
    §76.957.

[^12]: *See* Section 76.922 of the Commission\'s Rules, 47 C.F.R. §
    76.922.

[^13]: *Id.*

[^14]: The Cables Services Bureau concluded that \"\[t\]he instructions
    for FCC Form 1200, Line G5 require the entry of equipment revenue
    information 'for the last whole monthly billing period ending on or
    before September 30, 1992.' \[footnote omitted\] In contrast the
    relevant instructions for FCC Form 393 direct cable operators to
    calculate their 'monthly average equipment revenue \[using\] total
    revenues \... earned over the last fiscal year for the community
    unit.' \[footnote omitted\] Operator argues that the FCC Form 1200
    requires equipment revenue information from a particular month,
    while the FCC Form 393 requires an annual monthly average of
    equipment revenue. Therefore, Operator contends that it correctly
    entered September 1992 equipment revenue information on Line G5 of
    its FCC Form 1200, which the Bureau replaced with average annual
    equipment revenues derived from FCC Form 393. Upon consideration of
    Operator\'s Petition with respect to the adjustment of equipment
    revenue on Line G5 of FCC Form 1200, we find that Operator correctly
    followed the FCC Form 1200 instructions. Accordingly, we will grant
    Operator\'s Petition with respect to this issue and permit Operator
    to use the equipment revenue information that it entered on Line G5
    of its FCC Form 1200.\" Second Order at ¶¶ 7-8.

[^15]: *See In the Matter of Meredith Cable*, 14 FCC Rcd 9202 at ¶ 11
    (CSB 1999).

[^16]: *Id*. The cases cited by Operator in its Petition at p. 4, n. 11,
    for the proposition that the Commission must adhere to the same
    standard that it applies to local franchising authorities, that is,
    to allow timely corrections to submissions, are inapposite to the
    current situation. In those cases, the Commission stated that a
    local franchising authority should allow an operator a reasonable
    period of time to respond once a local franchising authority
    requests additional information.

[^17]: *See Public Notice*, *\"Cable Television Rate Regulation,
    Questions and Answers Relating to FCC Form 393\"* (released July 30,
    1993).

[^18]: *See id*. at Question 9 (\"[Question]{.underline}: Instructions
    for Worksheet 1, Line 104. When can a representative month be used
    and under what circumstances with respect to calculating monthly
    equipment revenue? [Answer]{.underline}: If there would be no
    material difference in result from using a representative month
    rather than the past fiscal year, and if the local franchising
    authority (or, where applicable, the FCC) finds it acceptable, the
    operator may use a representative month. The operator should attach
    a brief statement to Form 393 explaining why it is appropriate in
    that system's case.\") Indeed, had Operator sought to rely on the
    Public Notice, it had the opportunity and failed to do so in its
    initial filing.

[^19]: The Cable Services Bureau made this same adjustment in the Second
    Order at ¶ 15.

[^20]: These findings are based solely on the representations of
    Operator. Should information come to our attention that these
    representations were materially inaccurate, we reserve the right to
    take appropriate action. This Order is not to be construed as a
    finding that we have accepted as correct any specific entry,
    explanation or argument made by any party to this proceeding not
    specifically addressed herein. Information regarding the specific
    adjustments made to Operator\'s FCC Forms can be found in the public
    files for the above-referenced community which are available in the
    FCC Reference Information Center, Portals II, 445 12th Street, SW,
    Room CY-A257, Washington, DC, 20554. This document may also be
    purchased from the Commission\'s duplicating contractor, Qualex
    International, Portals II, 445 12th Street, SW, Room CY-B402,
    Washington, DC, 20554, telephone 202-863-2893, facsimile
    202-863-2898, or via e-mail qualexint@aol.com.

[^21]: In its Petition, Operator challenged an adjustment made to this
    last FCC Form 1210 by the Cable Services Bureau in the Second Order.
    Because we find Operator's actual CPST rate for this period to be
    reasonable, a resolution of the issue will not effect Operator's
    refund liability. Therefore we decline to address the merits of
    Operator's final argument.