FOR FCC RECORD ONLY $//Armstrong Utilities, Inc., Elkton, MD, MO&O, DA95-163//$ $/76.922 Rates for Cable Programming Service tier/$ $/benchmark cable rates/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 95-163 In the Matter of: ) ) Armstrong Utilities, Inc. ) CUID Nos. MD0162, OH0142, OH0188, Elkton, Maryland ) OH0603, OH0883, and Orrville, Ohio ) PA2687 Youngstown, Ohio ) Austintown, Ohio ) Medina, Ohio ) Sarver, Pennsylvania ) ) Request to Deny Jurisdiction ) MEMORANDUM OPINION AND ORDER Adopted: February 6, 1995 Released: February 8, 1995 By the Chief, Cable Services Bureau: 1. In this Order we dismiss complaints against the price Armstrong Utilities, Inc. ("Armstrong") was charging for its cable programming service ("CPS") tier on the ground that the complaints concern rates that are outside the jurisdiction and authority of this Commission. As explained below, the Commission regulates rates for CPS only, and then only upon filing of a valid complaint. Our review reveals that the complaints filed against Armstrong while asserting that they challenge CPS rates, challenge only rates for basic service, not for CPS. These complaints therefore do not trigger the Commission's jurisdiction, and they are accordingly dismissed. 2. The Cable Television Consumer Protection and Competition Act of 1992 ("Cable Act of 1992") distinguishes among basic cable service, premium cable service, and cable programming service; this Commission regulates rates only for cable programming service. The basic service tier includes (at a minimum) the broadcast signals distributed by the cable operator along with any public, educational, and governmental ("PEG") access channels that the local franchising authority requires the cable operator to carry. At the cable operator's discretion, this basic service tier may also include additional program services. Except in limited circumstances, the Commission does not have jurisdiction over rates for the basic service tier, and cannot act upon complaints concerning rates for that tier. Premium cable service consists of channels that are paid for individually (per-channel), such as Home Box Office ("HBO") and CineMax. Channels for which the operator charges a per- channel or per-program rate are not subject to rate regulation. CPS includes all video programming distributed over the system that is not on the basic service tier and for which the operator does not charge on a per-channel or per-program basis. Rates for CPS tiers are subject to regulation by the Commission in response to a valid complaint. 3. The filing of a complaint regarding CPS rates that is not returned by the Commission establishes our jurisdiction and triggers the operator's obligation to provide rate justification. The complaints noted here were accepted for filing after preliminary review. Armstrong subsequently filed a response to the complaints stating that they concern basic, not CPS, rates. Armstrong argues that challenges against rates for basic service should be submitted to the appropriate local franchising authority rather than to the Commission. 4. The complaints under consideration here were filed with this Commission on FCC Forms 329. FCC Form 329 is used by subscribers or local franchising authorities wishing to lodge with the Commission a complaint about an operator's CPS rates. The form is entitled "Cable Programming Service Rate Complaint." While it is designed for use in challenging upper tier rates, the form itself does not explain or define basic tier, premium, or cable programming services tier, but simply uses the term `cable programming services' or `CPS.' It is thus possible that a complainant might complete such a complaint form, and might check the box which states that "this complaint challenges the operator's CPS rates," without actually having distinguished or understood the difference between basic tier rates, premium service rates, and CPS tier rates. 5. We have examined the complaints and Armstrong's response, and we conclude that the complaints challenge only basic rates, not CPS rates. Although the complainants have checked the box indicating that the rates challenged are CPS rates, and that these rates violate the Commission's rules, the specific information provided by the complainants indicates that only basic rates are actually at issue. When only basic rates are being challenged, the complaint should properly be brought to the attention of the local franchising authority in the first instance, and not filed with this Commission. If the complaints do in fact challenge CPS rates, the complainants should file a petition for reconsideration providing information adequate to support their challenge. 6. Accordingly, IT IS ORDERED, pursuant to Section 623(a)(2)(A) and (B) of the Communications Act of 1934, as amended, 47 U.S.C. 543(a)(2)(A) and (B), that the complaints listed in Appendix A against the cable programming service price charged by Armstrong Utilities, Inc. ARE DISMISSED. 7. This action is taken pursuant to delegated authority under Section 0.321 of the Commission's Rules, 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION Meredith J. Jones Chief, Cable Services Bureau APPENDIX A Complainant's Name CUID No. Date Filed 1. Cecil County Government MD01622/25/94 Elkton, Maryland 2. City of Orrville OH0142 2/25/94 Orrville, Ohio 3. Boardman Township Trustees OH018810/13/93 Youngstown, Ohio 4. Scott BurinOH01889/17/93 Youngstown, Ohio 5. Alice S. CourtneyOH0188 12/14/93 Youngstown, Ohio 6. Austintown Township TrusteesOH060310/12/93 Austintown, Ohio 7. Medina Township OH0883 10/13/93 Medina, Ohio 8. Edward W. PrusickPA2687 1/27/94 Sarver, Pennsylvania