[Federal Register Volume 62, Number 29 (Wednesday, February 12, 1997)]
[Rules and Regulations]
[Pages 6491-6496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3454]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[MM Docket No. 92-266; FCC 96-491]
Cable Television Consumer Protection and Competition Act of 1992
AGENCY: Federal Communications Commission.
ACTION: Final Rule.
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SUMMARY: In this Memorandum Opinion and Order, we adopt rule changes
responsive to the decision of the court in Time Warner Entertainment
Co. v. FCC, 56 F.3d 151 (D.C. Cir. 1995). In its decision, the court
considered rules adopted by the Commission to implement rate regulation
and related provisions of the Cable Television Consumer Protection and
Competition Act of 1992 (``1992 Cable Act''). The rules were largely
affirmed by the court. In five discrete areas, however, the court
reversed the Commission's implementing decisions and rules. The order
is intended to conform the rules to the court's decision.
DATES: The amendments to 47 CFR Sections 76.905 and 76.921 shall become
effective March 14, 1997, and the amendments to 47 CFR Sections 76.922
and 76.913 will become effective upon approval by the Office of
Management and Budget of the information collection requirements, but
no sooner than March 14, 1997. The Commission will publish a document
at a later date establishing this effective date. Written comments by
the public on the modified information collections are due April 14,
1997.
ADDRESSES: A copy of any comments on the information collections
contained herein should be submitted to Dorothy Conway, Federal
Communications Commission, Room 234, 1919 M Street, N.W., Washington,
DC 20554, or via the Internet to dconway@fcc.gov.
FOR FURTHER INFORMATION CONTACT: For additional information concerning
this rulemaking contact Meryl S. Icove or Hugh Boyle, Cable Services
Bureau, (202) 418-7200. For additional information concerning the
information collections contained in this rulemaking contact Dorothy
Conway at (202) 418-0217, or via the Internet at dconway@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Memorandum Opinion
and Order in MM Docket No. 96-266, FCC 96-491, adopted December 23,
1996 and released December 31, 1996. The complete text of this Order is
available for inspection and copying during normal business hours in
the FCC Reference Center (room 239), 1919 M Street, NW., Washington,
DC, and also may be purchased from the Commission's copy contractor,
International Transcription Services, Inc. (``ITS Inc.'') at (202) 857-
3800, 2100 M Street, NW., Suite 140, Washington, DC 20017.
PAPERWORK REDUCTION ACT: This rulemaking contains modified information
collections. The Commission, as part of its continuing effort to reduce
paperwork burdens, invites the general public to comment on the
information collections contained in this rulemaking, as required by
the Paperwork Reduction Act of 1995. Public comments are due April 14,
1997. Comments should address: (a) whether the proposed collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
OMB Approval Number: 3060-0561
Title: Section 76.913 Assumption of jurisdiction by the Commission.
Type of Review: Revision of existing collection.
Respondents: State, local and tribal governments.
Number of Respondents: 50.
Estimated Time Per Response: 8 hours.
Total Annual Burden: 400 hours.
Estimated costs per respondent: $500. Postage and stationery costs
are estimated at an average of $10 per petition. 50 petitions x $10 =
$500.
Needs and Uses: 76.913 permits local franchising authorities
(``LFAs'') that are unable to meet certification standards to petition
the Commission to regulate the rates for basic cable service and
associated equipment of their respective franchisees. The Commission
has amended its rules as follows: If the local franchising authority
lacks the resources to administer rate regulation, its petition no
longer must be accompanied by a demonstration that franchise fees are
insufficient to fund any additional activities required to administer
basic service rate regulation. Elimination of this requirement
constitutes a modified information collection; all other requirements
remain intact.
The information in the petitions is used by Commission staff to
identify situations where it should exercise jurisdiction over basic
service and equipment rates in place of a local franchising authority.
If the information were not collected, the basic cable rates of some
franchise areas not subject to effective competition would remain
unregulated in contravention of the goals of the 1992 Cable Act.
OMB Approval Number: 3060-0607.
Title: Section 76.922 Rates for Basic Service Tiers and Cable
Programming Tiers.
Type of Review: Revision of existing collection.
[[Page 6492]]
Respondents: Businesses and other for profit entities; State, local
and tribal governments.
Number of Respondents: 2,200 operators filing gap period rate
adjustments + 1,100 LFAs reviewing such adjustments + 25 small systems
opting for the streamlined rate reduction process + 600 headend upgrade
certifications = 3,925.
Estimated Time Per Response: 1-12 hours.
Total Annual Burden: 4,400 + 2,200 + 300 + 600 = 7,500 hours as
explained below.
76.922(d)(3)(vii) contains a one-time only information collection
requirement. We estimate that the average burden for operators to
supply gap period data on their next rate adjustment filing will be 2
hours per filing and that there will be approximately 2,200 such
filings made in the next year (1,100 filed with the Commission, 1,100
filed with LFAs). The burden to operators to file = 2,200 filings x 2
hours = 4,400 hours. The burden to LFAs to review this information is
estimated to be an average of 2 hours per filing, therefore 1,100
filings reviewed by LFAs x 2 hours = 2,200 hours.
76.922(b)(5) streamlined rate reduction process. We estimate that
25 systems per year use this process. The average burden for undergoing
all aspects of each streamlined rate reduction process (all rate
calculation, notice and reporting requirements) is estimated to be 12
hours per respondent. 25 systems x 12 hours = 300 hours.
76.922(e)(7) headend upgrade certification process. Qualifying
cable systems owned by small cable companies may certify their
eligibility to use the Commission's headend upgrade incentive. The
average burden to complete the certification process is estimated to be
1 hour. We estimate 600 certifications are currently filed per year.
600 certifications x 1 hour = 600 hours.
Estimated costs per respondent: $250 + $3,000 = $3,250 for all
respondents as explained as follows. There are no costs incurred for
gap period rate adjustments because they are made as part of regular
rate adjustment filings. Postage and stationery costs are estimated at
an average of $10 per each complete streamlined rate reduction process.
25 x $10 = $250. Postage and stationery costs are estimated at an
average of $5 per each headend upgrade certification. 600 x $5 =
$3,000.
Needs and Uses: 76.922(d)(3)(vii) has been amended to permit cable
operators to adjust their current permissible rates to reflect the
rates the operators would currently be charging if they had been
permitted to include increases in external costs occurring between
September 30, 1992 and their initial date of regulation (this period of
time is also referred to as the ``gap period'') reduced by inflation
increases already received with respect to those costs. The increase in
rates due to external cost changes that occurred during the gap period
shall be reflected in the cable operator's next rate adjustment filing
in accordance with the Commission's current rules. The burden imposed
by reporting gap period cost data is reported under this OMB control
number 3060-0607 for the following reasons: 1) to avoid confusing this
requirement as being an additional filing requirement, 2) because it is
a temporary one-time only information collection, and 3) because
neither of the Commission's cable rate adjustment forms [FCC Form 1210
approved under OMB control number 3060-0595 and FCC Form 1240 approved
under OMB control number 3060-0601] have been modified to furnish this
data.
All other information collection requirements contained in 76.922
and reported under this OMB control number 3060-0607 remain intact.
Those requirements are found in 76.922(b)(5) (Streamlined rate
reduction process) and 76.922(e)(7) (Headend upgrades).
76.922(b)(5) provides that an eligible small system that elects to
use the streamlined rate reduction process must implement the required
rate reductions and provide written notice of such reductions to local
subscribers, the local franchising authority (``LFA''), and the
Commission.
76.922(e)(7) permits qualified small systems and small systems
owned by small multiple system operators to increase rates to recover
the actual cost of the headend equipment required to add up to seven
channels to Cable Programming Service Tiers (``CPSTs'') and single-tier
systems, not to exceed $5,000 per additional channel. These rate
increases may occur between January 1, 1995 and December 31, 1997, as a
result of additional channels offered on those tiers after May 14,
1994. In order to recover costs for headend equipment pursuant to this
paragraph, systems must certify to the Commission their eligibility to
use this paragraph, and the level of costs they have actually incurred
for adding the headend equipment and the depreciation schedule for the
equipment.
Synopsis of Order
1. In this Memorandum Opinion and Order, we adopt rule changes
responsive to the decision of the court in Time Warner Entertainment
Co. v. FCC, 56 F.3d 151 (D.C. Cir. 1995). In its decision, the court
considered rules adopted by the Commission to implement rate regulation
and related provisions of the Cable Television Consumer Protection and
Competition Act of 1992 (``1992 Cable Act''). The rules were largely
affirmed by the court. In five discrete areas, however, the court
reversed the Commission's implementing decisions and rules. First, the
court concluded that the Commission construed the term ``effective
competition'' too narrowly in terms of the entities that could be
counted as providing direct competition to existing cable operators.
Second, the Commission erred in concluding that the requirement for a
uniform rate structure applies to all systems, including those facing
effective competition and not otherwise subject to rate regulation
under the statute. Third, the Commission's conclusion that the
statute's tier buy-through provision applies to systems subject to
effective competition was found to conflict with the structure and the
language of the statute. Fourth, the Commission was found to have
exceeded its authority by establishing a presumption that franchising
authorities seeking to cede the basic rate regulation function to the
Commission could themselves fund rate regulation locally if they were
collecting franchise fees. Fifth, the court vacated the Commission's
rules relating to so-called gap period external costs. The following
sections address each of these findings in relation to our previous
decisions and rules.
2. Effective Competition. The 1992 Cable Act defined three types of
systems that are subject to ``effective competition'' and therefore
exempt from rate regulation: low penetration systems, competing
provider systems, and municipal systems.\1\ Effective competition
resulting from a competing provider exists if the franchise area is--
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\1\ The definition of effective competition is found in 47 CFR
Sec. 543(l)(1). The Telecommunications Act of 1996 amends Section
543(l)(1) by adding a subsection (D), which contains a fourth test
for effective competition. See Telecommunications Act of 1996,
Section 301(b)(3). The Commission has incorporated this new test
into its rules. See 47 CFR Sec. 76.905(b)(4). See also
Implementation of Cable Act Reform Provisions of the
Telecommunications Act of 1996, Order and Notice of Proposed
Rulemaking (``Cable Act Reform''), CS Docket No. 96-85, FCC 96-154
(released April 9, 1996), 11 FCC Rcd 5937 (1996), 61 FR 19013 (April
30, 1996); 47 CFR Sec. 76.1401. All references herein to Section
543(l)(1) do not include this amendment.
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(i) served by at least two unaffiliated multichannel video
programming distributors each of which offers
[[Page 6493]]
comparable video programming to at least 50 percent of the households
in the franchise area; and
(ii) the number of households subscribing to programming services
offered by multichannel video programming distributors other than the
largest multichannel video programming distributor exceeds 15 percent
of the households in the franchise area * * *.
On review, the court concluded that, although the Commission's
definition of competing providers was theoretically sound, it
conflicted with the plain language of the statute, and Congress did not
limit the 15% threshold in Section 543(l)(1)(B)(ii) to those cable
systems that satisfy the requirements of Section 543(l)(1)(B)(i).
3. In response to the court's decision we are amending the rules
relating to the definition of effective competition as reflected below.
With this change in place, a demonstration of ``competing provider''
effective competition requires only evidence that the franchise area is
served by at least two unaffiliated multichannel video programming
distributors each of which offers comparable video programming to at
least 50% of the households in the franchise area and that the number
of households subscribing to programming services offered by
multichannel video programming distributors other than the largest
multichannel video programming distributor exceeds 15% of the
households in the franchise area.
4. Uniform Rate Structure. Section 543(d) 2 provides:
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\2\ Section 301(b)(2) of the Telecommunications Act of 1996
amends Section 543(d). All references herein to Section 543(d) do
not include this amendment.
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A cable operator shall have a rate structure, for the provision of
cable service, that is uniform throughout the geographic area in which
cable service is provided over its cable system.
The Commission initially determined that the focus of this uniform
rate structure provision was properly ``on regulated systems in
regulated markets,'' that is, systems that did not face effective
competition as defined by the 1992 Cable Act. On reconsideration,
however, the Commission decided that the uniform rate structure
provision applied not only to regulated systems, but also to systems
subject to effective competition and otherwise exempt from rate
regulation under the 1992 Cable Act. The Commission reasoned that the
harms targeted by the uniform rate provision--``charging different
subscribers different rates with no economic justification and unfairly
undercutting competitors' prices''--exist equally in areas where
``effective competition'' exists.
5. The court concluded the latter interpretation conflicts with the
language and legislative purpose of the 1992 Cable Act. Because it
found that Section 543(d) regulates rates within the meaning of Section
543(a)(2), the court concluded that the Commission's uniform rate
structure regulation was contrary to the statute insofar as it applied
to cable operators subject to ``effective competition.'' The court
stated that, by requiring competitive systems to charge uniform rates,
the Commission undermined a hallmark purpose of the 1992 Cable Act,
which is to allow market forces to determine the rates charged by cable
systems that are subject to ``effective competition'' as defined by
Congress.
6. Section 310(b)(2) of the Telecommunications Act of 1996 amended
Section 543(d) by adding, inter alia, the following language to the end
of that section:
This subsection does not apply to (1) a cable operator with respect
to the provision of cable service over its cable system in any
geographic area in which the video programming services offered by the
operator in that area are subject to effective competition, * * *.
The Commission has amended its rules to reflect this statutory
amendment, and in so doing has complied with the court's decision with
respect to the uniform rates requirement.
7. Tier Buy-through. In an order, the Commission concluded that the
tier buy-through provision applies not only to regulated systems, but
also to systems subject to ``effective competition'' and thus not
subject to rate regulation under the 1992 Cable Act. The court found
that the Commission's interpretation of the tier buy-through provision
was not permissible under the 1992 Cable Act. In response to the
court's decision, we are amending our rules as reflected in below to
provide that the tier buy-through requirement applies only to systems
not subject to effective competition.
8. Franchising Authorities/Franchise Fees. The Commission,
reasoning that some franchising authorities might wish to have basic
rates regulated but lack the legal power or resources to do so at the
local level, concluded that its general mandate to ``ensure that the
rates for the basic service tier are reasonable'' empowered it to
regulate basic rates upon the request of such franchising authorities.
Rather than requiring these franchising authorities to file a
certification application that was intended to be denied in order to
establish their lack of power or resources, the Commission decided to
allow the authorities affirmatively to request federal regulation of
basic rates. However, the Commission decided to require a showing that
the franchising authority could not afford to regulate when a
franchising authority that collects franchise fees claims financial
incapacity. The Commission established a presumption that franchising
authorities receiving franchise fees have the resources to regulate and
required any franchising authority seeking to have the Commission
exercise jurisdiction over basic rates to rebut this presumption with
evidence showing why the proceeds of the franchise fees could not be
used to cover the cost of rate regulation.
9. The court concluded, however, that the Commission erred in
establishing this presumption because the presumption implies that the
franchising authority must use any available franchise fees for
purposes of rate regulation. In response to the court's decision, we
will no longer establish a relationship between the franchising
authority's ability to regulate and its franchise fee collection. The
Commission will continue, however, to exercise authority over the basic
tier in response to a franchising authority's request only when
justified by a franchising authority's financial or legal inability to
proceed on its own. We are amending our rules as reflected below to
incorporate the court's decision regarding franchising authorities
requests for Commission assumption of jurisdiction.
10 External Costs Treatment. The court held that the Commission's
decision to preclude a rate adjustment designed to recover changes in
external costs increases resulting from the period between September
30, 1992 and an operator's initial date of regulation was arbitrary and
capricious. In response to the court's decision, we are amending our
rules to permit operators to adjust their current permissible rates to
reflect the rates the operators would currently be charging if they had
been permitted to include increases in external costs occurring between
September 30, 1992 and their initial date of regulation reduced by
inflation increases already received with respect to those costs.
11. The operator will calculate an adjustment which will be
incorporated into a Form 1210 or Form 1240, and which will be added to
the operator's rate. To calculate the adjustment, the operator will use
information from a previously filed Form 1200. A more detailed
explanation of how to make the
[[Page 6494]]
adjustment is provided below. The general methodology is as follows:
the operator should calculate and subtract (a) the ``average monthly
external cost per subscriber per tier as of September 30, 1992, as
adjusted for inflation through the initial date of regulation'' from
(b) the ``average monthly external cost per subscriber per tier as of
the initial date of regulation.'' To determine (a), the operator would
increase the average monthly external cost per subscriber per tier as
of September 30, 1992 by the same inflation factor as was applied in
the calculation of initial maximum permitted rates. The difference
between (a) and (b) is the allowed adjustment. When using Form 1210 or
Form 1240 to reflect these adjustments, the operator shall disclose
that the adjustment has been included in rates and shall provide its
calculations.
Final Regulatory Flexibility Act Analysis.
12. As required by Section 603 of the Regulatory Flexibility Act, 5
U.S.C. Sec. 603 (RFA), an Initial Regulatory Flexibility Analysis
(IRFA) was incorporated in the Notice of Proposed Rulemaking in MM
Docket 92-266 and in several further notices of proposed rulemaking.
The Commission therein sought written public comments on the proposals,
including comments on the IRFAs, and addressed these comments in
previous orders. See, e.g., 8 FCC Rcd 5631, 5978 (1993), 58 FR 29736
(May 21, 1993); 9 FCC Rcd 1164, 1253 (1993), 58 FR 46718 (September 2,
1993); 9 FCC Rcd 4119, 4249 (1994), 59 FR 17943 (April 15, 1994). This
FRFA thus addresses the impact of regulations on small entitities only
as adopted or modified in the action and not as adopted or modified in
earlier stages of this rulemaking proceeding. The Commission's Final
Regulatory Flexibility Analysis (FRFA) conforms to the RFA, as amended
by the Contract with America Advancement Act of 1996 (CWAAA), Public
Law No. 104-121, 110 Stat. 847.
13. Need and Purpose for Action: This action is taken to conform
the Commission's rules to the court's decision in Time Warner
Entertainment Co. v. FCC, 56 F.3d 151 (D.C. Cir. 1995).
14. Summary of Issues Raised by the Public Comments in Response to
the Initial Regulatory Flexibility Analysis: This order is adopted in
direct response to a judicial remand and has been adopted without a
further notice and comment cycle.
15. Description and Estimate of the Number of Small Entities
Impacted: Cable Systems: SBA has developed a definition of small
entities for cable and other pay television services, which includes
all such companies generating less than $11 million in revenue
annually. This definition includes cable system operators, closed
circuit television services, direct broadcast satellite services,
multipoint distribution systems, satellite master antenna systems and
subscription television services. According to the Census Bureau, there
were 1,323 such cable and other pay television services generating less
than $11 million in revenue that were in operation for at least one
year at the end of 1992. The Commission has developed its own
definition of a small cable system operator for the purposes of rate
regulation. Under the Commission's rules, a ``small cable company,'' is
one serving fewer than 400,000 subscribers nationwide. Based on our
most recent information, we estimate that there were 1,439 cable
operators that qualified as small cable system operators at the end of
1995. Since then, some of those companies may have grown to serve over
400,000 subscribers, and others may have been involved in transactions
that caused them to be combined with other cable operators.
Consequently, we estimate that there are fewer than 1,439 small entity
cable system operators that may be affected by the decisions and rules
adopted in this Memorandum Opinion and Order. The Communications Act
also contains a definition of a small cable system operator, which is
``a cable operator 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.'' The Commission
has determined that there are 61,700,000 subscribers in the United
States. Therefore, we found that an operator serving fewer than 617,000
subscribers shall be deemed a small operator, if its annual revenues,
when combined with the total annual revenues of all of its affiliates,
do not exceed $250 million in the aggregate. Based on available data,
we find that the number of cable operators serving 617,000 subscribers
or less totals 1,450. Although it seems certain that some of these
cable system operators are affiliated with entities whose gross annual
revenues exceed $250,000,000, we are unable at this time to estimate
with greater precision the number of cable system operators that would
qualify as small cable operators under the definition in the
Communications Act.
16. Municipalities: The term ``small governmental jurisdiction'' is
defined as ``governments of * * * districts, with a population of less
than fifty thousand.'' There are 85,006 governmental entities in the
United States. This number includes such entities as states, counties,
cities, utility districts and school districts. We note that any
official actions with respect to cable systems will typically be
undertaken by LFAs, which primarily consist of counties, cities and
towns. Of the 85,006 governmental entities, 38,978 are counties, cities
and towns. The remainder are primarily utility districts, school
districts, and states, which typically are not LFAs. Of the 38,978
counties, cities and towns, 37,566 or 96%, have populations of fewer
than 50,000. Thus, approximately 37,500 ``small governmental
jurisdictions'' may be affected by the rules adopted in this Memorandum
Opinion and Order.
17. Reporting, Recordkeeping, and Other Compliance Requirements:
The rules do not establish any filing requirements. However, an
operator choosing to adjust its rates to account for changes in its
external costs as permitted by the rule adopted here will have to make
additional calculations in conjunction with the filing of its form. The
franshising authority will review these calculations in conjunction
with its review of the form. The rule will not require any additional
special skills beyond any which are already needed in the cable rate
regulatory context.
18. Steps Taken to Minimize the Economic Impact on Small Entities
and Significant Alternatives Rejected: The rule changes adopted in this
Order are required by the court's decision, and, if anything, they
result in decreasing the regulatory burdens on cable operators. If the
revised interpretation of the statutory definition of effective
competition results in a system being subject to effective competition,
then the system will not be subject to rate regulation. The amendment
to the tier buy-through rule provides more flexibility for cable
systems subject to effective competition. The requirement that the
Commission not establish a relationship between the franchising
authority's ability to regulate and its franchise fee collection may
simplify the franchising authority's request that the Commission assume
jurisdiction. The cable operator may choose whether or not to adjust
its rate to account for changes in external costs as permitted by the
rule. If a system is regulated and it chooses to adjust its rate, it
can do so the next time it is scheduled to file a form.
[[Page 6495]]
19. Report to Congress: The Commission shall send a copy of this
Final Regulatory Flexibility Analysis, along with this Memorandum
Opinion and Order, in a report to Congress pursuant to the Small
Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
Sec. 801(a)(1)(A). A copy of this FRFA will also be published in the
Federal Register.
20. Accordingly, it is ordered that, pursuant to the authority
contained in Section 4(i) and (j) and 303 of the Communications Act of
1934, as amended, and the Cable Television Consumer Protection and
Competition Act of 1992, Public Law No. 102-385, Part 76 of the
Commission Rules, 47 CFR Part 76, IS AMENDED as set forth below.
21. It is further ordered that the amendments to 47 CFR Sections
76.905 and 76.921 shall become effective March 14, 1997, and the
amendments to 47 CFR Sections 76.922 and 76.913 will become effective
upon approval by the Office of Managment and Budget of the information
collection requirements, but no sooner than March 14, 1997.
List of Subjects in 47 CFR Part 76
Cable television.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Part 76 of Chapter I of Title 47 of the Code of Federal Regulations
is amended as follows:
PART 76--CABLE TELEVISION SERVICE
1. The authority citation for Part 76 continues to read as follows:
Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a,
307, 308, 309, 312, 315, 317, 325, 503, 521, 522, 531, 532, 533,
534, 535, 536, 537, 543, 544, 544a, 545, 548, 552, 554, 556, 558,
560, 561, 571, 572, 573.
2. Section 76.905 is amended by revising paragraph (f) to read as
follows:
Sec. 76.905 Standards for identification of cable systems subject to
effective competition.
* * * * *
(f) For purposes of determining the number of households
subscribing to the services of a multichannel video programming
distributor other than the largest multichannel video programming
distributor, under paragraph (b)(2)(ii) of this section, the number of
subscribers of all multichannel video programming distributors that
offer service in the franchise area will be aggregated.
* * * * *
3. Section 76.913 is amended by revising paragraph (b)(1) to read
as follows:
Sec. 76.913 Assumption of jurisdiction by the Commission.
* * * * *
(b) * * *
(1) The franchising authority lacks the resources to administer
rate regulation.
* * * * *
4. Section 76.921 is revised to read as follows:
Sec. 76.921 Buy-through of other tiers prohibited.
(a) No cable system operator, other than an operator subject to
effective competition, may require the subscription to any tier other
than the basic service tier as a condition of subscription to video
programming offered on a per channel or per program charge basis. A
cable operator may, however, require the subscription to one or more
tiers of cable programming services as a condition of access to one or
more tiers of cable programming services.
(b) A cable operator not subject to effective competition may not
discriminate between subscribers to the basic service tier and other
subscribers with regard to the rates charged for video programming
offered on a per-channel or per-program charge basis.
(c) With respect to cable systems not subject to effective
competition, prior to October 5, 2002, the provisions of paragraph (a)
of this section shall not apply to any cable system that lacks the
capacity to offer basic service and all programming distributed on a
per channel or per program basis without also providing other
intermediate tiers of service:
(1) By controlling subscriber access to nonbasic channels of
service through addressable equipment electronically controlled from a
central control point; or
(2) Through the installation, noninstallation, or removal of
frequency filters (traps) at the premises of subscribers without other
alteration in system configuration or design and without causing
degradation in the technical quality of service provided.
(d) With respect to cable systems not subject to effective
competition, any retiering of channels or services that is not
undertaken in order to accomplish legitimate regulatory, technical, or
customer service objectives and that is intended to frustrate or has
the effect of frustrating compliance with paragraphs (a) through (c) of
this section is prohibited.
5. Section 76.922 is amended by revising paragraph (f)(4) to read
as follows:
Sec. 76.922 Rates for the basic service tier and cable programming
services tiers.
* * * * *
(f) * * *
(4) The starting date for adjustments on account of external costs
for a tier of regulated programming service shall be the earlier of the
initial date of regulation for any basic or cable service tier or
February 28, 1994. Except, for regulated FCC Form 1200 rates set on the
basis of rates at September 30, 1992 (using either March 31, 1994 rates
initially determined from FCC Form 393 Worksheet 2 or using Form 1200
Full Reduction Rates from Line J6), the starting date shall be
September 30, 1992. Operators in this latter group may make adjustment
for changes in external costs for the period between September 30,
1992, and the initial date of regulation or February 28, 1994,
whichever is applicable, based either on changes in the GNP-PI over
that period or on the actual change in the external costs over that
period. Thereafter, adjustment for external costs may be made on the
basis of actual changes in external costs only.
* * * * *
This attachment will not be published in the Code of Federal
Regulations.
Attachment
This adjustment may be made only to rates set under the
benchmark methodology on the basis of rates in effect at September
30, 1992 (using either March 31, 1994 rates initially determined
from FCC Form 393 Worksheet 2 or using Form 1200 Full Reduction
Rates from Line J6). This is a one-time adjustment to rates and may
be made on a FCC Form 1210 or FCC Form 1240. To adjust such rates to
include fully the change in external costs occurring between
September 30, 1992 and the initial date of regulation or February
28, 1994, whichever is earlier, the operator will make the
adjustments pursuant to the procedure outlined below.
Step 1. Identify the average external cost per subscriber per
tier as of the initial date of regulation or February 28, 1994, as
applicable.
This information is found on Line B7 of Form 1200.
Step 2. Identify the average monthly external cost per
subscriber per tier as of September 30, 1992.
This should be calculated using the same methodology used to
determine the external cost per subscriber per tier on the initial
date of regulation, and the operator shall therefore follow the
instructions for Lines B2 through B7 on FCC Form 1200. In such case
``Beginning Date'' shall be considered to be September 30, 1992 for
purposes of following these instructions.
[[Page 6496]]
Step 3. Determine the inflation factor applied in the
calculation of initial maximum permitted rates to adjust for
inflation for the period from September 30, 1992 to the initial date
of regulation or February 28, 1994, as applicable.
If the rates being adjusted were determined on FCC Form 1200
based on rates in effect on September 30, 1992 under the FCC Form
1200 Full Reduction Methodology (i.e., the rates on both Line I18
and Line J6 of FCC Form 1200), the inflation factor applied is 3%.
In determining Full Reduction Rates on FCC Form 1200, the September
30, 1992 rates were adjusted to September 30, 1993 (on Line G10)
using 3%.
If the rates being adjusted were determined on FCC Form 1200
based on rates current at March 31, 1994 but initially determined on
FCC Form 393 from September 30, 1992 rates (under the Worksheet 2
methodology), the inflation factor applied from September 30, 1992
to the initial date of regulation is the factor found on Line 401 of
FCC Form 393. This is the factor used by the operator initially to
set rates using FCC Form 393, unless a corrected factor was ordered
by a regulatory authority. If the factor was corrected, the
regulator-ordered factor for Line 401 shall be used.
Step 4. Adjust the amount from Step 2 by the factor identified
in Step 3.
Step 5. Subtract the amount calculated in Step 4 from the amount
determined in Step 1, i.e., from the average monthly external cost
per subscriber per tier as of the initial date of regulation. The
resultant amount is the permanent adjustment--a one-time average
monthly per subscriber per tier adjustment to the operator's maximum
permitted rate.
Step 6. Complete FCC Form 1210 or FCC Form 1240 in accordance
with Commission rules and procedures for the applicable form, but
include the adjustment calculated in Step 5.
If a FCC Form 1210 is used, the resultant adjustment amount from
Step 5 should be added to the amount on Line J8 (Aggregate Full
Reduction Rate) or, if transition rates are being adjusted, the
adjustment should be added to the amounts on Lines I8 (Updated
Transition Rate per Tier) and J8.
If a FCC Form 1240 is used, the resultant adjustment amount from
Step 5 should be added to Line H9 (Maximum Permitted Rate for
Projected Period).
Along with the FCC Form 1210 or FCC Form 1240 adjusted, the
operator shall disclose that the adjustment has been included in
rates and shall provide its calculations of the adjustment amount.
The operator shall provide the level of external cost adjustment
disclosure shown in Module B, Line B2 through B14 of FCC Form 1200,
except that it shall also disclose the adjustment for inflation
applied to the average monthly external cost per subscriber per tier
as of September 30, 1992.
[FR Doc. 97-3454 Filed 2-11-97; 8:45 am]
BILLING CODE 6712-01-P
