*Pages 1--4 from Microsoft Word - 7846.doc* Federal Communications Commission DA 01- 771 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) CUID Nos. TX0043 (Bryan) Telecable Associates ) TX0044 (College Station) ) Complaint Regarding Cable Programming ) Services Tier Rates ) ORDER ON RECONSIDERATION Adopted: March 26, 2001 Released: March 28, 2001 By the Deputy Chief, Cable Services Bureau: 1. In this Order we reconsider our Order, DA 95- 544 (" Prior Order"), 1 concerning the cable programming services tier (" CPST") rates charged by the above- referenced operator (" Operator") 2 in the above- referenced communities. Our Prior Order resolved complaints through May 14, 1994 and found Operator’s CPST rates to be unreasonable. As we stated in our Prior Order, our findings "do not in any way prejudge the reasonableness of the price for CPS service after May 14, 1994 under our new rate regulations." 3 On April 24, 1995, Operator filed a timely application for review of our Prior Order. On August 7, 1996, Operator submitted documentation certifying that it qualified as a small cable operator eligible for deregulation pursuant to Section 623( m)( 2) of the Communications Act. 4 On December 6, 2000, Operator submitted a letter requesting that its previous certification be acted upon. 5 In this order, we grant Operator small cable operator status, vacate our Prior Order, dismiss any pending complaints and dismiss Operator’s application for review as moot. 2. Under the Communications Act, at the time the referenced complaints were filed, the Federal Communications Commission (" Commission") was authorized to review the CPST rates of cable systems not subject to effective competition to ensure that rates charged were not unreasonable. 6 The Cable Television Consumer Protection and Competition Act of 1992 (" 1992 Cable Act"), 7 and our rules in 1 In the Matter of Telecable Associates, Inc., 10 FCC Rcd 5454 (1995). 2 The term "Operator" includes Operator’s successor in interest. The current owner is Cox Communications, Inc. 3 First Order at n. 1. 4 Communications Act, Section 623( m)( 2), as amended, 47 U. S. C. §543( m)( 2) (1996). 5 See Letter dated December 6, 2000 to the Cable Services Bureau from Gary S. Lutzker, Counsel for Cox Communications, Inc. 6 47 U. S. C. §543( c) (1996). 7 Pub. L. No. 102- 385, 106 Stat. 1460 (1992). 1 Federal Communications Commission DA 01- 771 2 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 Telecommunications Act of 1996 (" 1996 Act"), 8 amended Section 623 of the Communications Act and redefined a small cable operator as one that "directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000." 9 In the 1996 Act, Congress determined that, effective February 8, 1996, the Commission shall not apply its CPST rate regulation rules, promulgated under Sections 623( a), (b) and (c) of the Communications Act, 10 to a small cable operator in any franchise area in which that operator services 50,000 or fewer subscribers. 11 3. Our review reveals that Operator qualified as a small cable operator pursuant to Section 623( m)( 2) of the Communications Act in the above- referenced communities. Because Operator served fewer than 50,000 subscribers in each of the franchise areas in which the communities listed above are located, the Operator's CPST rates in these communities have effectively been deregulated by the 1996 Act. Although the complaints against the Operator in these communities were filed prior to the passage of the 1996 Act, we conclude, given all of the circumstances presented including, in particular, the Congressional finding that post- 1996 CPST rate regulation is unjustified for systems of this size, that there is no likelihood that adjudication of these complaints through to the end of the process would result in a net rate benefit to subscribers. Accordingly, the complaints will be dismissed. 4. Normally, a finding that an operator qualifies as a small cable operator would not provide a basis to vacate a prior finding of liability. It would function only to dismiss that portion of a complaint that had not yet been resolved, such as Operator's CPST rates beginning May 15, 1994, a review of which was still pending when Operator certified its small cable operator status. We would, however, enforce any prior orders. The instant case differs from the normal situation because Operator filed a timely appeal of our Prior Order. Because we have determined, prior to a resolution of that appeal, that Operator is a small cable operator and not subject to the CPST rate regulation rules, we will vacate our Prior Order. Because we are vacating our Prior Order, we will also dismiss Operator's application for review, which has become moot. 5. Accordingly, IT IS ORDERED, pursuant to Section 1.106 of the Commission's rules, 47 C. F. R. §1.106, that Operator's application for review IS DISMISSED AS MOOT. 6. IT IS FURTHER ORDERED, pursuant to Section 0.32l of the Commission's rules, 47 C. F. R. §0.321, that In the Matter of Telecable Associates, Inc., DA 95- 544, 10 FCC Rcd 5454 (1995) IS VACATED. 8 Pub. L. No. 104- 104, 110 Stat. 56 (1996). 9 47 U. S. C. §543( m)( 2) (1996). 10 47 U. S. C. §§ 543( a) - (c) (1996). 11 47 U. S. C. §543( m)( 1) (1996). See also 47 C. F. R. §76.1403( a) (1998). 2 Federal Communications Commission DA 01- 771 3 3 Federal Communications Commission DA 01- 771 4 7. IT IS FURTHER ORDERED, pursuant to Section 0.32l of the Commission's rules, 47 C. F. R. §0.321, that the complaints referenced herein against the rates charged by Operator in the communities referenced above ARE DISMISSED. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau 4