*Pages 1--3 from Microsoft Word - 4390.doc*
Federal Communications Commission DA 00- 2388
Before the
Federal Communications Commission
Washington, D. C. 20554
In the Matter of ) CUID Nos. CA0019 (Modesto)
) CA0670 (Stanislaus)
Cable One, Inc. )
)
Petition for Reconsideration )
and Refund Plans )
ORDER ON RECONSIDERATION
AND REFUND PLAN ORDER
Adopted: October 19, 2000 Released: October 23, 2000
By the Deputy Chief, Cable Services Bureau:
1. In this Order we consider a petition for reconsideration (" Petition") of our Order, DA 98- 54
(" Second Order"), 1 filed with the Federal Communications Commission (" Commission") by the above-referenced
operator (" Operator"). 2 We also consider refund plans filed in response to our Order, DA 95-1071
(" First Order"), 3 which resolved complaints against Operator's cable programming services tier
(" CPST") rates in effect in the above- referenced communities prior to May 15, 1994 (" Refund Plan I") and
our Second Order, which resolved complaints against CPST rates in effect beginning May 15, 1994
(" Refund Plan II"). In this Order, we grant Operator’s Petition in part, modify our Second Order and
dismiss Operator’s Refund Plan II as moot. We also find Operator’s Refund Plan I to be unacceptable and
order Operator to pay refunds in the amount we have calculated plus franchise fees and interest.
2. Under the Communications Act, 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. 4 The
Cable Television Consumer Protection and Competition Act of 1992 (" 1992 Cable Act"), 5 and our rules in
effect at the time the complaints were filed, required the Commission to review CPST rates upon the filing
of a valid complaint by a subscriber or local franchising authority. The filing of a valid complaint triggers
1 In the Matter of Post- Newsweek Cable, Inc., DA 98- 54, 13 FCC Rcd 10213 (1998).
2 On July 3, 1997, the Federal Communications Commission received notification, pursuant to 47 C. F. R. § 76.400,
of a change in operator to Cable One, Inc.
3 In the Matter of Post- Newsweek Cable, Inc., DA 95- 1071, 10 FCC Rcd 9839 (1995).
4 47 U. S. C. §543 (c) (1996).
5 Pub. L. No. 102- 385, 106 Stat. 1460 (1992).
1
Federal Communications Commission DA 00- 2388
2
an obligation upon the cable operator to file a justification of its CPST rates. 6 If the Commission finds the
rate to be unreasonable, it shall determine the correct rate and any refund liability. 7
3. We first review Operator’s Refund Plan I. 8 Our review of Operator’s refund plan reveals that
Operator improperly attempted to offset its CPST refund liability with undercharges for equipment used to
receive the basic services tier (" BST"). Because Operator did not file a petition for reconsideration or an
application for review of the First Order, this issue has not been properly placed before the Commission in
accordance with the Commission's rules. 9 A refund plan is not a substitute for the reconsideration and
review process and issues raised in refund plans will not be considered. 10 However, we note that the
Commission has addressed the issue of inter- tier offsets in Cencom. 11 In Cencom, the Commission
determined that such inter- tier offsets are "inconsistent with the Commission’s conclusion in the
[Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992,
Rate Regulation, MM Docket 92- 266, Report and Order and Further Notice of Proposed Rulemaking 12 ]
that cable operators should not balance low BST rates with CPST rates that exceed the maximum
permitted rate for the tier." 13 We will not accept Operator’s Refund Plan I and will order Operator to pay
refund liability as follows. For the community of Stanislaus, CUID No. CA0670, we calculate refund
liability in the amount of $4, 757.27, which includes interest through August 31, 2000. For the community
of Modesto, CUID No. CA0019, we calculate refund liability in the amount of $42,089.50, which includes
interest through August 31, 2000. We will order Operator to pay that amount plus franchise fees plus
interest through the date of payment. 14
4. In our Second Order, we ordered Operator to pay refunds for charges in excess of $8. 92 in
Modesto, CUID No. CA0019, and $8.90 in Stanislaus, CUID No. CA0670 for the period from May 15,
1994 through July 14, 1994. Operator was charging a rate of $9.02 in both communities. On February 17,
1998, Operator filed its Petition and Refund Plan II. In its Petition, Operator argues that the refund
amount ordered in our Second Order is de minimis. We agree. Because we find the total overcharge for
the period under review to be de minimis, we find that it would not be in the public interest to order a
6 47 C. F. R. §76.956.
7 47 C. F. R. §76.957.
8 The First Order required Operator to determine the overcharges to cable programming service tier (" CPST")
subscribers for the period stated in the Refund Order and file a report with the Chief, Cable Services Bureau,
stating the cumulative refund amount determined (including franchise fees and interest), describing the calculation
thereof, and describing its plan to implement the refund within 60 days of Commission approval of the plan.
9 See Sections 1.101 - 1.120 of the Commission's Rules, 47 C. F. R. §§ 1.101 - 1.120.
10 See also, In the Matter of Marcus Cable Associates, L. P., 12 FCC Rcd 19526 (1997).
11 See In the Matter of Cencom Cable Income Partners II, LP, 12 FCC Rcd 7948 (1997).
12 8 FCC Rcd 5631 (1993).
13 Cencom at ¶ 22 (footnote omitted).
14 We calculated a principal amount of $3,145.70 for CA0670 and $27,853.15 for CA0019.
2
Federal Communications Commission DA 00- 2388
3
refund. Therefore, we will grant Operator’s Petition in part and modify our Second Order. Because our
resolution of this issue disposes of Operator’s refund liability for the Second Order, we will dismiss
Operator’s Refund Plan II as moot.
5. Accordingly, IT IS ORDERED, pursuant to Section 76.962 of the Commission’s rules, 47
C. F. R. § 76.962, that Operator's Refund Plan I, filed in response to DA 95- 1071, In the Matter of Post-Newsweek
Cable, Inc., 10 FCC Rcd 9839 (1995), IS NOT APPROVED, and that Operator shall pay to
subscribers the refund amount of $42,089.50 for the community of Modesto, CUID No. CA0019 and the
refund amount of $4,757.27 for the community of Stanislaus, CUID No. CA0670, plus franchise fees, plus
interest through the date of payment, within 60 days of the date of this Order.
6. IT IS FURTHER ORDERED, pursuant to Sections 0.321 and 76.962 of the Commission's
rules, 47 C. F. R. § 0.321 and § 76.962, that Operator file a certificate of compliance with the Chief, Cable
Services Bureau, within 90 days of the release of this Order certifying its compliance with this Order.
7. IT IS FURTHER ORDERED, pursuant to Section 1.106 of the Commission’s rules, 47
C. F. R. § 1.106, that Operator’s Petition for Reconsideration IS GRANTED IN PART and Operator’s
Refund Plan II IS DISMISSED AS MOOT.
8. IT IS FURTHER ORDERED, pursuant to Section 0.321 of the Commission’s rules, 47
C. F. R. § 0.321, that In the Matter of Post- Newsweek Cable, Inc., DA 98- 54, 13 FCC Rcd 10213 (1998),
IS MODIFIED TO THE EXTENT INDICATED HEREIN.
FEDERAL COMMUNICATIONS COMMISSION
William H. Johnson
Deputy Chief
Cable Services Bureau
3