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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