Resolution 12660CITY OF ALAMEDA RESOLUTION NO. 12660
DISAPPROVING TCI'S RATES AND CHARGES FOR BASIC CABLE TV
SERVICE TIER FROM JULY 15, 1994 TO MARCH 31, 1995 AND
PRESCRIBING RATES AND CHARGES FOR SAME PURSUANT TO
SECTIONS 76.936, 76.940, 76.941 AND 76.942 FOR THE
RULES AND REGULATIONS OF THE FEDERAL COMMUNICATIONS
COMMISSION
WHEREAS, the Cable Television consumer Protection and
Competition Act of 1992 (the "1992 Cable Act") and the
regulations adopted pursuant thereto by the Federal
Communications Commission (the "FCC regulations") permit the City
of Alameda to regulate the cable television subscriber rates
charge by TCI Cablevision of Hayward ("TCI") for the basic
service tier and associated equipment. The FCC regulations
establish the guidelines, rules and regulations under which the
City may regulate such rates. Pursuant to these regulations, the
City of Alameda was certified by the FCC to regulate the basic
service tier on November 6, 1993. On this date, the City duly
notified TCI of this certifications and the rate regulation
authority granted thereby; and
WHEREAS, the City has adopted regulations with respect to
the basic service tier and associated equipment that are
consistent with the regulations prescribed by the Commission.
Furthermore, the City has adopted procedural laws and regulations
applicable to rate regulation proceedings which provide a
reasonable opportunity for consideration of the views of
interested parties; and
WHEREAS, on August 12, 1994, TCI filed with the City its FCC
Forms 1200, 1205, and 1215 purportedly showing the manner in
which TCI established its rates for the basic service tier.
After reviewing these forms in accordance with the FCC
regulations, the City determined that the Forms 1200, 1205, and
1215 submitted by TCI contained deficiencies and failed to
conform to the FCC regulations; and
WHEREAS, on August 29, 1994, the City issued an order
pursuant to Section 76.933 (b) of the Rules and Regulations of
the Federal communications Commission stating that it was unable
to determine based upon the material submitted by the Operator
that the existing or proposed rates were within the Commission's
permitted basic service tier charge or actual cost of equipment
and that the City was tolling the thirty-day deadline found in
Section 76.933(a) of the Commission's Rules and Regulations for
the purpose of requesting and/or considering additional
information or to consider the comments from interested parties
for an additional ninety days; and
WHEREAS, on September 13, 1994, the City gave TCI written
notice of the deficiencies found in the Forms 1200, 1205, and
1215 and the additional information required. With the ninety
day extension, the City had until December 5, 1994, to make a
final determination on TCI's initial rates for the basic service
tier and associated equipment; and
WHEREAS, due to the fact that the Form 1200 required
additional information from TCI Cablevision, the City and its
consultant were unable to conclude a rate determinations until
such time as all pertinent information could be gathered and
analyzed. Therefore, on November 14, 1994, The city issued an
accounting order pursuant to section 76.933 of FCC regulations;
and
WHEREAS, the City retained Communications Support Group
("CSG") the City's cable television consultant, to review the
Forms 1200, 1205, and 1215, the additional information submitted
by TCI, and TCI's records relevant thereto; and
WHEREAS, CSG reviewed the additional information provided by
TCI on February 27, 1995. The additional information and
documentation was used by CSG to determine a reasonable rate for
the purposes of making a rate decision; and
WHEREAS, the City has given proper notice of this hearing
pursuant to Section 76.935 of the Rules and Regulations of the
Federal Communications Commission and has provided a reasonable
opportunity for the consideration of the views of interested
parties. Moreover, the City has considered the views of
interested parties as expressed at this public hearing, as
continued form time to time.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the
City of Alameda that based upon the evidence submitted, including
but not limited to the Forms 1200, 1205, and 1215, submitted by
TCI, the staff and consultant reports, and all other written and
oral evidence received in connections with this matter, the City
Council hereby finds that the initial rate for the basic service
tier established by TCI is unreasonable and does not comply with
the FCC regulations for the following reasons:
a. As it pertains to TCI's full reduction rate
proposed in the From 1200, TCI failed to correctly use the Form
393 regulated rate as set by the City. According to FCC From
1200 instructions, if the operator is entitled to transition
relief and its rates are set at March 31, 1994 levels, the
operator must nonetheless reduce its rates if a local franchising
authority or the Commission later determines that those rates
were unlawfully high under Commission's initial benchmark
regulations.
b. Using the correct regulated rate as of March 31,
1994, the permitted full reduction rate for the basic service
tier is determined to be $9.22 per month, rather that the $9.57
rate established by TCI.
BE IT FURTHER RESOLVED that the City Council of the City of
Alameda hereby finds and determines that the proposed rate for
the basic service tier as identified on the FCC Form 1200 dated
August 5, 1994, is unreasonable within the meaning of the Section
76.941 in that said rates and charges do not comply with 47
U.S.C. Section 453 and Sections 76.922 and 76.923 of the Rules
and Regulations of the Commission for the reasons and grounds as
previously set forth herein, and the operator is hereby ordered
and directed to notice the prescribed change in rates with thirty
days from the City's adoption of this resolution and to implement
a basic service rate of $9.22 within sixty days from the City's
adoption of this resolution.
BE IT FURTHER RESOLVED by the City Council of the City of
Alameda that the Operator is hereby directed and ordered to
provide a Refund Plan ("Refund Plan') to the City within fifteen
(15) days of the date of this hearing, pursuant to which it
proposed to refund to subscribers rates and charges collected by
the Operator in excess of the rates and charges approved herein
between July 15, 1994 and March 31, 1995, along with such written
evidence and documentation demonstrating the reasonableness and
appropriateness of said Refund Plan under standards set forth in
Section 76.942 of the Rules and Regulations of the Commission.
BE IT FURTHER RESOLVED by the City Council of the City of
Alameda that should the Operator appeal this rate determination
of the City Council of the City of Alameda to the FCC pursuant to
Section 76.944 of the Rules and Regulations of the Commission,
the City Council does grant an automatic stay of the execution of
the refund ordered hereunder. Such stay does not constitute a
change in the effective date of implementation date of this
resolution. Nor does such stay, in any way, constitute a change
in the effective date or implementation date of this resolution.
Nor does such stay, in any way, constitute an endorsement of the
rates and charges in effect between July 15, 1994 and March 31,
1995.
BE IT FURTHER RESOLVED by the City Council of the City of
Alameda that the City Clerk is hereby directed to post a copy of
this resolution in such place or places as City Notices are
normally posted and to make copies of this written decision
available to the public at the office of the City Clerk during
normal business hours.
I, the undersigned, hereby certify that the foregoing Resolution
was duly and regularly adopted and passed by the Council of the
City of Alameda in regular meeting assembled on the 20th day of
June , 1995, by the following vote to wit:
AYES: Councilmembers DeWitt, Lucas, Nannix and
President Appezzato - 4.
NOES: None.
ABSENT: Councilman Arnerich - 1.
ABSTENTIONS: None.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the
official seal of said City this 21st day of June , 1995.
Ate
DiarLB. Felsch, City Clerk
City of Alameda