10 FCC Red No. 23 Federal Communications Commission Record DA 95-2253
Before the
Federal Communications Commission 
Washington, D.C. 20554
CUID No. OK0063 
(Bartlesville)
In the Matter of
Donrey Cablevision, 
A General Partnership
Benchmark Filing to Support 
Cable Programming Service Price
MEMORANDUM OPINION AND ORDER
Adopted: October 30,1995; Released: November 8, 1995
By the Chief, Cable Services Bureau:
1. Here we consider complaints about the price that the 
above-captioned operator ("Operator") was charging for its 
cable programming service ("CPS") tier in the community 
referenced above. Operator has chosen to attempt to justify 
its price through a benchmark showing on FCC Form 393. 
This Order addresses the reasonableness of Operator's price 
only through May 14, 1994. At a later date we will issue a 
separate order addressing the reasonableness of the price 
after that date. 1
2. Under the Cable Television Consumer Protection and 
Competition Act of 1992,2 and our rules implementing it, 
47 C.F.R. Part 76, Subpart N, the Commission must review 
CPS prices upon the filing of a valid complaint. The filing 
of a valid complaint triggers an obligation on behalf of the 
cable operator to file a justification of its CPS prices.3 Un 
der our rules, an operator may attempt to justify its prices 
through either a benchmark showing or a cost-of-service 
showing.4 In either case, the operator has the burden of 
demonstrating that its CPS prices are not unreasonable.5
3. The Commission's original rate regulations took effect 
on September 1, 1993.6 The Commission subsequently re 
vised its rate regulations effective May 15, 1994.7 Operators
with valid CPS complaints filed against them prior to May 
15, 1994 must demonstrate that their CPS prices were in 
compliance with the Commission's initial rules from the 
time the complaint was filed through May 14, 1994, and 
that their prices were in compliance with the revised rules 
from May 15, 1994 forward.8 Operators attempting to jus 
tify their prices for the period prior to May 15, 1994 
through a benchmark showing must complete and file FCC 
Form 393.9 Generally, to justify their prices for the period 
beginning May 15, 1994 through a benchmark showing, 
operators must use the FCC Form 1200 series. 10
4. The first valid complaint in the franchise area which 
is the subject of this Order was completed and served on 
Operator on October 8, 1993 and received by the Commis 
sion on October 14, 1993. Operator filed FCC Form 393 in 
response; Operator has also filed amended and supplemen 
tal Form 393 filings, most recently on June 24, 1994.
5. Operator asserts that its monthly CPS tier price of 
$13.35 (plus franchise fee) is justified by its benchmark 
filing because its price is equal to or lower than the maxi 
mum permitted charge of $14.00 per month (plus franchise 
fee), as calculated in the filing. Upon review of Operator's 
Form 393 filing, we have found that it has not correctly 
calculated its maximum permitted price, and it is therefore 
appropriate to make the following adjustment to Operator's 
calculations in Form 393: Operator's Form 393, Part II, 
Worksheet 1, Line 104 entry does not represent its current 
monthly equipment revenue as of the initial date of regula 
tion. Since Operator restructured its rates, including its 
equipment rates, on September 1, 1993, the monthly equip 
ment cost figure it entered on Line 34 of Step G of Part III 
should have been close or identical to its Line 104 entry. 11 
However, Operator's entry on Line 104 differed substan 
tially from its entry on Line 34. We therefore adjust Line 
104 to equal the amount entered on Line 34, which results 
in a change in Line 110 from 0.616 to 0.575.
6. Upon review of the record herein, and having incor 
porated the adjustment discussed above, we conclude that 
Operator has failed to justify the rate it was charging 
during the period in question. Operator's showing justifies 
a maximum reasonable CPS tier price of $13.00 per month 
(plus franchise fee) for the period from October 14, 1993 
to May 14, 1994. 12
1 The findings in this Order do not in any way prejudge the 
reasonableness of the price for CPS service after May 14, 1994 
under our new rate regulations. However, to the extent Oper 
ator has sought to take advantage of the refund deferral period 
under the Second Order on Reconsideration, Fourth Report 
and Order, and Fifth Notice of Proposed Rulemaking, MM 
Docket No. 92-266, FCC 94-38, 9 FCC Red 4119 (1994) ("Second 
Order on Reconsideration"), the maximum permitted CPS price 
determined herein might also apply from May 15, 1994 until the 
date on which Operator implemented its CPS price under the 
new regulations. See para. 3, infra. Further, to the extent that 
the price as of March 31, 1994 is found to be excessive, a 
reduction in Operator's price for the period after May 14, 1994 
may be required to reflect the fact that Operator's price during 
the earlier period, which is used as the starting point to cal 
culate its price for the prospective period, was unreasonable. See 
47 C.F.R. § 76.922(b)(4)(C).
2 Pub. L. No. 102-385, 106 Stat. 1460 (1992); Communications 
Act, § 623(c), as amended, 47 U.S.C. § 543(c) (1993).
3 47 C.F.R. § 76.956.
4 47 C.F.R. § 76.956(b).
5 Id.
6 Order in MM Docket No. 92-266, Implementation of Sections
of the Cable Television Consumer Protection and Competition
Act of 1992: Rate Regulation, FCC 93-372, 58 Fed. Reg. 41042
(Aug. 2, 1993).
' 47 C.F.R. § 76.922(b).
8 See Second Order on Reconsideration, 9 FCC Red at 4190,
paras. 150-152.
' Id.
10 47 C.F.R. § 76.922(b)(6); see also Second Order on Reconsi 
deration, 9 FCC Red at 4189 n.195.
11 See Questions and Answers on Completion of FCC Form 
393 and Associated Filing Requirements, Question and Answer 
No. 7 (released Nov. 10, 1993) ("where operators have 
restructured equipment rates as of September 1, 1993 in accor 
dance with our regulations ... operators will enter on Line 104 
the same, or nearly the same number as on Line 301."). 
12 This finding is based solely on the representations of Oper 
ator and the modifications described herein. Should information
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DA 95-2253 Federal Communications Commission Record 10 FCC Red No. 23
7. Accordingly, IT IS ORDERED, pursuant to Section 
0.321 of the Commission's Rules, 47 C.F.R. § 0.321, that 
the complaint referenced herein against the cable program 
ming service price charged by Operator in the franchise 
area referenced in the caption, and all other complaints in 
this franchise related to the same price, ARE GRANTED 
TO THE EXTENT INDICATED HEREIN.
8. IT IS FURTHER ORDERED, pursuant to Section 
76.961 of the Commission's Rules, 47 C.F.R. § 76.961, that 
Operator shall refund to subscribers in the franchise area 
referenced in the caption that portion of the amount paid 
for cable programming service for the period from October 
14, 1993" to May 14, 1994 which exceeded the maximum 
price of $13.00 per month (plus franchise fee), plus interest 
to the date of the refund.
9. IT IS FURTHER ORDERED that Operator shall 
promptly determine the overcharges to CPS subscribers for 
the stated period, and shall within 30 days of the release of 
this Order file a report with the Chief, Cable Services 
Bureau, stating the cumulative refund amount so deter 
mined (including franchise fees and interest), describing 
the calculation thereof, and describing its plan to imple 
ment the refund within 60 days of Commission approval of 
the plan.
10. IT IS FURTHER ORDERED, pursuant to Section 
76.922(b)(4)(C) of the Commission's Rules, 47 C.F.R. § 
76.922(b)(4)(C), that Operator shall, within 30 days of the 
release of this Order, revise its Form 1200 filing with 
respect to the franchise area referenced in the caption, for 
the period beginning May 15, 1994, to reduce the monthly 
charge per tier as of March 31, 1994 for Tier 2 (Line A6b) 
to equal the maximum permitted price of $13.00 (plus 
franchise fee). 14
11. IT IS FURTHER ORDERED that Operator shall 
place into effect, within 30 days after its submission of the 
revised Form 1200 filing required above, a price that re 
flects the reduction in the CPS rate determined in this 
Order.
FEDERAL COMMUNICATIONS COMMISSION
Meredith J. Jones
Chief, Cable Services Bureau
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.
13 Our jurisdiction to order a refund dates from the earliest 
date a valid complaint is filed with the Commission. 47 C.F.R. § 
76.96 l(b).
14 We reserve the right to make further adjustments to Oper 
ator's price for the period after May 14, 1994, upon completion 
of our review of Operator's Form 1200 filing.
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