**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | DA 01-268                    |
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| MARCUS CABLE ASSOCIATES, L.L.C.  | ) | File No. CSB-A-0659          |
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| d/b/a Charter Communications     | * | File No. CSB-A-0660          |
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| Appeals of the Local Rate Orders | * | File No. CSB-A-0664          |
| of the                           | * |                              |
|                                  | ) | File No. CSB-A-0665          |
| City of Burbank, CA, CUID No.    | * |                              |
| CA0178                           | * |                              |
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| Appeals of the Local Rate Orders | * |                              |
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| City of Glendale, CA, CUID No.   | * |                              |
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CONSOLIDATED MEMORANDUM OPINION AND ORDER

**Adopted: April 23, 2001** **Released: April 25, 2001**

By the Deputy Chief, Cable Services Bureau:

# introduction

1.  Before the Commission is a petition for partial reconsideration of
    the Consolidated Memorandum Opinion and Order in *Marcus Cable
    Associates* ("*Consolidated Order*"),[^1] which was filed by the
    Cities of Burbank, California and Glendale, California ("Cities")
    and opposed by Marcus Cable Associates, d/b/a Charter Communications
    ("Charter"), the franchised cable operator serving Burbank and
    Glendale, California.[^2] Also before the Commission are appeals of
    local rate orders issued by each of the Cities in response to the
    *Consolidated Order*, and requests for emergency stays of these rate
    orders, filed by Charter and opposed by the Cities.[^3] Because of
    the commonality of issues in these matters, we are consolidating
    them for administrative convenience.

# petition for reconsideration

2.  Charter had appealed local rate orders issued by each of the Cities,
    arguing that the Cities had improperly reduced Charter's rates for
    its wire maintenance plan ("WMP") and ordered refunds beyond the
    refund period permitted by section 76.933(g)(2) of the Commission's
    rules.[^4] The *Consolidated Order* denied Charter's appeal with
    respect to the rates for its WMP, but remanded the Cities' refunds
    orders to the extent they ordered refunds beyond the period
    established by section 76.933(g)(2). The Cities had argued when
    opposing the appeals that the refund period in section 76.933(g)(2)
    is inapplicable because Charter had not filed a Form 1205 for the
    WMP or provided a rate justification in response to the Cities'
    request for justification. The *Consolidated Order* found that the
    Cities were aware of Charter's WMP when reviewing Charter's previous
    rate form, had requested a rate justification from Charter during
    that review, but did not pursue the matter further within the period
    established for ordering refunds on Charter's previous rate filing.

3.  The Cities argue on reconsideration that they had exercised
    regulatory forbearance at the Charter's request but had no
    opportunity to advise the Commission of this fact as Charter's
    factual argument was made in its Reply. They seek reconsideration
    pursuant to section 1.106 of the Commission's rules so that relevant
    facts not previously presented can be considered.[^5] According to
    the Cities, they learned of the WMP during discussions in late 1998
    relating to the transfer of control of Charter. At that time Charter
    had asserted the deregulated status of the WMP and asked for
    regulatory forbearance so that it could seek a clarifying opinion
    from the Commission regarding the regulatory status of a whole house
    wiring plan. While Charter's request for Commission clarification
    was pending, Charter responded to the Cities' status requests by
    stating its belief that a response would be shortly forthcoming and
    renewing its request for regulatory forbearance. The Cities argue
    that Charter should not now benefit from the forbearance it
    requested.

4.  In opposing reconsideration, Charter questions why the Cities would
    have forborne action on Charter's WMP pending Commission
    clarification if, as their rate orders found, Charter's plan was not
    marketed in Burbank and Glendale as the kind of plan described in
    the clarification request. Charter also questions the assumption in
    the Cities' petition that the refund period intended by the
    *Consolidated Order* extends back to the date Charter filed its rate
    form. It seeks clarification that the refund period should not
    extend beyond the beginning of the rate period covered by the rate
    form under review.

5.  We are denying reconsideration. The *Consolidated Order* held that
    the Cities were not reasonable in using their review of Charter's
    rate form for the rate year starting June 1, 2000 to order refunds
    for a prior rate period.[^6] As noted in the *Consolidated Order*,
    the Cities could have timely acted on the WMP for the prior rate
    period even if Charter was not forthcoming with a justification for
    the rate. Although the Cities argue on reconsideration that they
    forbore from timely action during the prior period at Charter's
    suggestion, this forbearance does not require a different result,
    for parties cannot unilaterally waive the jurisdictional deadlines
    in the Commission's rules.[^7] That the Commission might not have
    acted on Charter's clarification request before the deadline was
    foreseeable; that Charter's WMP might not have fallen within the
    scope of the request could have been considered within the time for
    acting on Charter's rates for the prior rate period. Absent an
    extension of the deadline for acting from the Commission, which was
    not sought, or fraudulent conduct on the operator's part, which is
    not alleged here, the deadlines in section 76.933(g) govern, and the
    refund period for rates reviewed during the annual review process
    begins with the effective date of the rates under review. Section
    76.933(g)(2), which governs the review process, does not provide for
    refunds extending back to the previous rate period.[^8]

# appeals

6.  Each of the Cities adopted a resolution conditionally amending its
    earlier resolution in response to the *Consolidated Order*. These
    remand resolutions order Charter to make refunds of amounts
    collected for the WMP in excess of the prescribed rates subsequent
    to March 1, 2000 and to prepare a separate accounting of the
    potential refund liability for the period from September 15, 1998 to
    February 29, 2000, pending a ruling on the Cities' petition for
    reconsideration.[^9] Charter argues that the refund periods exceed
    the period permitted by section 76.933(g) of the Commission's rules
    in that they extend beyond the effective date of Charters 2000
    rates, June 1, 2000. We agree. As stated in paragraph 5, *supra*,
    and in *Time Warner Communications*,[^10] the refund period for
    rates reviewed during the annual review process begins with the
    effective date of the rates under review, not the filing date of the
    rate forms. The operator's previous rates remain in effect during
    the 90 day period provided by section 76.933(g) for reviewing
    proposed rates in advance of their effectiveness. Ordering refunds
    for rates charged during a rate period not before the Cities was not
    reasonable and requires a remand. On remand, the Cities are to
    review the refund periods in accordance with this Consolidated
    Memorandum Opinion and Order.

# Ordering clauses

7.  Accordingly, IT IS ORDERED that Consent Motion for Extension of Time
    filed by Marcus Cable Associates, L.L.C. d/b/a Charter
    Communications on February 21, 2001 IS GRANTED.

8.  IT IS FURTHER ORDERED that the Motion to Reconsider, in Part,
    Consolidated Memorandum Opinion and Order filed by the Cities of
    Burbank and Glendale, California on February 9, 2001 IS DENIED.

9.  IT IS FURTHER ORDERED that the Appeal of Local Rate Order filed by
    Marcus Cable Associates, L.L.C. d/b/a Charter Communications on
    March 22, 2001 (Burbank, CA, File No. CSB-A-0664) IS GRANTED and
    Burbank Resolution No. 25,934 IS REMANDED to the City of Burbank,
    California for further action consistent with this Consolidated
    Memorandum Opinion and Order.

10. IT IS FURTHER ORDERED that the Appeal of Local Rate Order filed by
    Marcus Cable Associates, L.L.C. d/b/a Charter Communications on
    March 22, 2001 (Glendale, CA, File No. CSB-A-066) IS GRANTED and
    Glendale Resolution No. 01-32 IS REMANDED to the City of Glendale,
    California for further action consistent with this Consolidated
    Memorandum Opinion and Order.

11. IT IS FURTHER ORDERED that the Request for Emergency Stay of Local
    Rate Order (Burbank) and the Request for Emergency Stay of Local
    Rate Order (Glendale) filed by Marcus Cable Associates, L. L.C.
    d/b/a Charter Communications on April 6, 2001 ARE DISMISSED.

12. This action is taken pursuant to authority delegated by section
    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]: DA 01-268 (Cab. Serv. Bur. rel. Feb. 1, 2001) (File Nos.
    CSB-A-0659, CSB-A-0660).

[^2]: Cities Motion to Reconsider, in Part, Consolidated Memorandum
    Opinion and Order (Feb. 9, 2001) ("Petition" or "Petition for
    Reconsideration"); Charter Consent Motion for Extension of Time
    (Feb. 21, 2001); Charter Opposition to Motion to Reconsideration, in
    Part, Consolidated Memorandum Opinion and Order (Feb. 28, 2001)
    ("Charter Opposition").

[^3]: Charter Appeal of Local Rate Order (Mar. 22, 2001) ("Charter
    Burbank Appeal"); Charter Appeal of Local Rate Order (Mar. 22, 2001)
    ("Charter Glendale Appeal"); Cities Opposition to Appeals of Local
    Rate Orders (Apr. 2, 2001); Charter Consolidated Reply to Opposition
    to Appeals of Local Rate Orders (Apr. 9, 2001); Charter Request for
    Emergency Stay of Local Rate Order (Apr. 6, 2001) (Burbank); Charter
    Request for Emergency Stay of Local Rate Order (Apr. 6, 2001)
    (Glendale). In light of our action on the merits, the stay requests
    are dismissed as moot.

[^4]: 47 C.F.R. § 76.933(g)(2).

[^5]: 47 C.F.R. § 1.106.

[^6]: Both the Burbank and the Glendale rate orders refer to Charter's
    rate forms filed March 1, 2000. *See* Cities Opposition to Appeals
    of Local Rate Orders, File Nos. CSB-A-0659, CSB-A-0660, filed Dec.
    28, 2000, Exhibits, A, B, Findings B.

[^7]: *See Falcon Cablevision*, 12 FCC Rcd 4190, 4192 (Cab. Serv. Bur.
    1997). Section 76.933(g) of the Commission's Rules, 47 C.F.R. §
    76.933(g), provides for tolling the deadlines when a franchising
    authority is confronted with a facially incomplete rate
    justification, provided that, to toll the deadline for issuing a
    decision, the date on which rates can go into effect if no decision
    is issued, and the period for which refunds are payable, "the
    franchising authority or its designee must notify the operator of
    the incomplete filing within 45 days of the date the filing is
    made."

[^8]: *Time Warner Communications*, DA 01-825 ¶ 11 (Cab. Serv. Bur. rel.
    Apr. 3, 2001).

[^9]: Charter Burbank Appeal, Attachment A, Burbank Resolution No.
    25,934, p.3; Charter Glendale Appeal, Attachment A, Glendale
    Resolution No. 01-32, pp.3-4.

[^10]: DA 01-825 ¶ 11.