Loading...
R-9741 ATTACHMENT A City Council Meeting: January 22, 2002 Santa Monica, CA RESOLUTION NO. 9741 (City Council Series) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA ADOPTING A RATE ORDER REGARDING THE BASIC CABLE SERVICE TIER AND THE EQUIPMENT AND INSTALLATION RATES FOR CENTURY-TCI CALIFORNIA, L.P. (D/B/A ADELPHIA COMMUNICATIONS CORPORATION) THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES RESOLVE AS FOLLOWS: WHEREAS, the City of Santa Monica (the "City") became certified to regulate basic cable service rates and associated charges as of October 7, 1993, and has followed regulations prescribed by the Federal Communications Commission ("FCC") for the regulation of the basic service tier and associated equipment, installation, services and charges (the "FCC Rules"); and WHEREAS, Century-TCI California, L.P. (the "Company") submitted FCC Forms 1240 and 1205 to the City on February 22, 2001 for the basic cable service tier and equipment and installation, and a supplemental Form 1205 dated April 23, 2001 (collectively, the "Rate Filings"); and 1 WHEREAS, the Company implemented its basic service tier adjustment on July 1, 2001, and its equipment and installation rate adjustments on August 1, 2001 both adjustments subject to the City's right to adopt a rate order and order rate refunds; and WHEREAS, the City issued a public notice seeking written comments from interested parties on the Company's proposed rates, and the Rate Filings were made available for public inspection in order to obtain comment from any interested party; and WHEREAS, the City staff has made a recommendation to the City Council ("Council") regarding the Company's rates based on: (a) information contained in the Rate Filings; (b) the assumed accuracy of that information; (c) comments, evidence and information from interested parties; (d) the draft rate report prepared by the City's financial consultant; (e) the Company's comments on the draft rate report; and (f) the financial consultant's final rate report ("Final Report"); and WHEREAS, the Company has the burden of proving by a preponderance of evidence that its rates for the basic service tier, equipment and installations are reasonable under the FCC Rules, 47 C.F.R. 9 76.937(a); and WHEREAS, the FCC Rules permit a franchising authority to disallow a cost where an operator has failed to meet its burden under FCC Rules to demonstrate the 2 reasonableness of its rates, see, g.g., In re TCI Cablevision of St. Louis, Inc., DA 97- 2099 (FCC Cable Services Bureau, reI. Sept. 29, 1997); and WHEREAS, FCC Rules permit a franchising authority to establish maximum permitted rates for equipment and installations based on the "best information available" where a cable operator fails to meet its burden of proving that its proposed rates are reasonable, 47 C.F.R. 9 76.937(c); and WHEREAS, the Company's Form 1205 establishes a rate for "Downgrade to Basic"; and WHEREAS, the FCC Rules state that "[d]owngrade charges that are the same as, or lower than, upgrade charges are evidence of the reasonableness of such downgrade charges"; 47 CFR 9 76.980; and WHEREAS, the Company's rate card includes a charge of $29.00 for both the "Trip Charge" and "Downgrade to Basic"; and WHEREAS, the Company states that the Downgrade to Basic requires a "truck roll plus the installation of a trap on the pole at the customer's home"; and 3 WHEREAS, the Company does not have a specific charge for the upgrade to a service, but states that it charges a "Trip Charge" for, among other things, converter installation and removal of pay service traps; and WHEREAS, the Company has failed to meet its burden of explaining why the charge for a service upgrade requiring the installation of a trap and a truck roll is significantly lower than the charge for a service downgrade requiring the removal of a trap and a truck roll; and WHEREAS, the Company claims that it takes on average one hour to downgrade service to basic by undertaking a truck roll and removing a trap from a pole; and WHEREAS, the Company claims that it takes on average one hour to initially install cable in a home that has never been wired for cable; and WHEREAS, the Company has failed to meet its burden of explaining why it is reasonable to assume that it takes the same amount of time to downgrade to basic service as it does to do the initial install of cable service in an unwired home; and WHEREAS, the City concludes that the maximum permitted rate for a "Trip Charge" established herein is also a reasonable charge for a downgrade to the basic 4 tier that is not effected solely by coded entry on a computer terminal or by other similarly simple methods; and WHEREAS, the Company indicated on its Rate Form that it would charge $24.24 for the basic service tier, but the Company's rate card indicates a rate of $25.24 for the basic service tier; and WHEREAS, both the Form 1240 and rate card rates for the basic service tier are below the maximum permitted rate of $29.02 and, thus, are permissible rates under the FCC Rules; and WHEREAS, the FCC Rules permit cable operators to aggregate, on a company level, equipment costs "into broad categories," 47 C.F.R. 9 76.923(c)(1); and WHEREAS, the FCC Rules treat remote control devices as a broad equipment category, 47 C.F.R. 9 76.923(a)(1); and WHEREAS, the Company's rate card establishes a $0.79 rate for a univeral remote control device; and WHEREAS, the FCC Form 1205 does not include a calculation for a universal remote control device in the amount of $0.79; and 5 WHEREAS the Company states that the "universal remote charge of $0.79 included on the Adelphia rate card is not correct" and that "[t]his amount should be $0.25"; and WHEREAS, the Company chose to consolidate its rates for categories of equipment pursuant to 47 C.F.R. 9 76.923(a)(1), and calculated a maximum permitted rate of $0.35 for remote control devices; and WHEREAS, the City concludes that $0.35 is a reasonable maximum permitted rate for a universal remote control device; and WHEREAS, the Company's Form 1205 includes a rate of $0.90 for a "lease of additional outlets"; and WHEREAS, the FCC Rules require that costs for installations be unbundled from the costs of the basic service tier, equipment and other installations, 47 C.F.R. 9 76.923; and WHEREAS, the Company has not met its burden of showing that the rate for "lease of additional outlets" is reasonable under the FCC Rules; and 6 WHEREAS, the Company does not include a charge for "lease of additional outlets" on its rate card and has informed the City that it does not impose such a charge in Santa Monica; and WHEREAS, the Council has considered the City staff's recommendations and the reasons therefore; has received and considered comments from the public; has reviewed and hereby adopts (and by this reference incorporates herein), as appropriate and to the extent not inconsistent with this Rate Order, the findings, assumptions and other information set forth in the financial consultant's Final Report; and WHEREAS, the Company acquired control of the cable system in Santa Monica from Century Communications Corp. without the approval of the City; and WHEREAS, the Company and the City are in the process of attempting to resolve issues related to the Company's unapproved acquisition of control of the cable system and to other unapproved transfers of control of the cable system; 7 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES RESOLVE AS FOLLOWS: SECTION 1. The maximum permitted rates on and after July ,2001 for the basic service tier, and on and after August 1, 2001 for the equipment and installation charges set forth below are as follows: Maximum Permitted Rate 1 Basic Service Tier $29.02 Equipment & Installation: Hourly Service Charge Unwired Homes Prewired Homes Underground Burial Relocate Service Trip Charge Downgrade to Basic (Non-Addressable) Additional Connections (initial) Additional Connections (separate) Changing Tier (Addressable) Transfer Non-Pay Reconnect Remote Control Device (Addressable Remote Control Device (Universal) Remote Control Device (Digital) Converter Box (Addressable) Converter Box (Non-Addressable) Converter Box (Digital) Lease of Additional Outlets 44.66 44.66 33.50 78.16 33.50 29.92 29.92 22.33 33.50 2.00 33.50 33.50 .35 .35 .35 4.65 .97 4.65 .00 The rates set forth in this Paragraph shall remain in effect until the date in 2002 the Company is permitted by the FCC Rules to adjust such rates pursuant to its next FCC Form 1240 and Form 1205 rate filings. All rates listed in this Rate Order exclude franchise fees. 8 SECTION 2. The Company shall refund that portion of the rates (plus interest) paid by subscribers for the basic service tier and equipment and installations described in Paragraph 1 to the extent such rates exceed the rates approved in Paragraph 1. The Company shall not offset refunds by the amount of any discounts provided to subscribers on the basic service tier, equipment and installation rates subject to this Rate Order. The refund period shall run from the date the Company implements the refunds required by this Rate Order back to July 1,2001 for the basic service tier and August 1, 2001 for equipment and installations. With respect to each affected subscriber entitled to a refund, the Company shall implement the refunds within sixty (60) days after the date of this Rate Order. SECTION 3. Within five (5) days after the date of this Rate Order, the Company shall submit a written plan to the City Manager which, at a minimum, shall set forth the Company's method of providing refunds to subscribers (plus interest), if any, pursuant to Paragraphs 1 and 2; identifies the basis for the calculation of the amount of refunds; identifies the amount of the refund; identifies the applicable interest rate and explains how it was calculated; provides the actual rates charged subscribers for equipment and installations each month during the refund period; and explains how the rate refunds ordered herein shall be implemented. Such plan is subject to the City Manager's review and approval. The Company's obligation to submit such plan shall not affect the Company's obligation to implement rate refunds, as set forth in Paragraphs 1 and 2. 9 SECTION 4. In the event any of the Company's current rates are above the level set forth in Paragraph 1, the Company shall adjust such rates to the levels set forth in Paragraph 1 within 60 days after the date of this Order. SECTION 5. The Company may not increase the rates for any of the items listed in Paragraph 1, nor may the Company institute new charges for other types of service, equipment or installations associated with the basic service tier which are not listed in said Paragraph, without first complying with applicable law or regulation, including the FCC Rules. SECTION 6. Within five (5) days after the date of this Rate Order, the Company shall identify in writing the actual rate for the basic service tier it has charged subscribers for each month since June 30, 2001. SECTION 7. Nothing in this Rate Order prohibits the Company from submitting a supplemental rate filing for lease of additional outlets for review by the City that satisfies the Company's burden of demonstrating that the rate is permissible under the FCC Rules, and that the costs attributable to such lease rate have been unbundled from the basic service tier, equipment and other installations. SECTION 8. Nothing in this Rate Order prohibits the Company from submitting with its 2002 rate filing a proposed rate for Downgrade to Basic for review by 10 the City that satisfies the Company's burden of demonstrating that the rate is permissible under the FCC Rules. SECTION 9. The Council reserves the right to modify this Rate Order if, at any time, it determines that information the Company provided to the City is incorrect in any material manner. SECTION 10. The City Manager is ordered to mail a copy of this Rate Order to the Company, provide appropriate public notice of this Rate Order, and make a copy of this Rate Order available to any person upon request. SECTION 11. The City Clerk shall certify to the adoption of this Resolution, and thenceforth and thereafter the same shall be in full force and effect. SECTION 12. The City's adoption and approval of this Resolution shall not be interpreted as a waiver by the City of any legal rights it may have with respect to the Company's unapproved acquisition of control of the cable system in the City of Santa Monica from Century Communications Corp. or with respect to any other unapproved transfers of control of the cable system. APPROVED AS TO FORM: (} 11 Adopted andappro-Jed Ibis ~ of ~, 2OIt2. I, Maria M. Stewart, City Clerk of the City of Santa Monica, do hereby certify that the foregoing Resolution No. 9741 (CCS) was duly adopted at a meeting of the Santa Monica City Council held on the 22nd of January, 2002, by the following vote: Ayes: Council members: O'Connor, Bloom, Mayor Pro Tem McKeown, Mayor Feinstein Noes: Council members: None Abstain: Council members: None Absent: Council members: Holbrook, Genser, Katz ATTEST: ~..:)~ ...... Maria Stewart, City Clsrk