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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of: ) ) FALCON CABLEVISION ) ) Reconsideration of Appeal ) of Local Rate Order of the ) City of Cedartown, Georgia ) MEMORANDUM OPINION AND ORDER Adopted: April 7, 1997 Released: April 9, 1997 By the Chief, Cable Services Bureau: I. INTRODUCTION 1. Falcon Cablevision ("Falcon"), the franchised cable system serving the City of Cedartown, Georgia (the "City"), has filed a petition for reconsideration of the Cable Services Bureau's (the "Bureau") decision in Falcon Cablevision. In that decision, the Bureau dismissed Falcon's appeal of a rate order issued by the City on the grounds that Falcon had not filed its appeal with the Commission within thirty days of the City's release of the text of its rate order, as required under  76.944(b) of the Commission's rules. The City filed an opposition to this petition. II. STANDARD OF REVIEW 2. Under our rules, rate orders adopted by local franchising authorities may be appealed to the Commission. In ruling on appeals of local rate orders, the Commission will not conduct a de novo review, but instead will sustain the franchising authority's decision as long as there is a reasonable basis for that decision. The Commission will reverse a franchising authority's decision only if it is determined that in rendering its local rate order the franchising authority acted unreasonably in applying the Commission's rules. If the Commission reverses a franchising authority's decision, it will not substitute its own decision, but instead will remand the issue to the franchising authority with instructions to resolve the case consistent with the Commission's decision on appeal. Petitions for reconsideration of actions by the Commission or by its designated authority that rely on facts not previously presented may only be granted if consideration of the facts relied upon is in the public interest, or if the facts were unknown to petitioner until after the last opportunity to present them (and they could not through the exercise of ordinary due diligence have been learned prior to such opportunity), or if the facts relate to events which have occurred or to circumstances which have changed since the last opportunity to present such matters. III. ISSUE A. Contentions of the parties 3. On March 29, 1996, Falcon filed an appeal of a cable rate order adopted by the City on February 12, 1996. On the same day, Falcon also filed a Motion To Accept Late-Filed Petition For Review Of Rate Order. In that Motion, Falcon contends that while a petition for review of the City's rate order was due on March 13, 1996, at that time the parties had a good faith belief that a settlement had been reached regarding all of the outstanding rate matters. Falcon states that as a result at that time it made a conscious decision not to file an appeal from the rate order. Falcon further states that it sent the City's representative a letter on March 12, 1996 confirming the terms of the agreement, and that the City responded to this letter on March 19, 1996 with questions on the settlement terms. According to Falcon, at the end of the week of March 17, 1996, it became apparent that the parties would not reach a settlement. 4. Falcon states that it was unforeseeable that it and Cedartown would not be able to reach an agreement. Falcon cites to the Bureau's decision in Meredith/New Heritage Strategic Partners, L.P., contending that the Commission has discretion to accept late-filed materials upon a showing of good cause. Falcon contends that good cause exists here and that the equities in this case dictate acceptance of its petition because it was attempting to settle its differences with Cedartown without involving the Commission. Falcon states that it "chose not to file a protective appeal since that would have been an indication that it did not trust Cedartown and its consultant." 5. The City agrees with Falcon that during the thirty day period following release of its rate order, the parties were attempting to reach a settlement. However, the City states that because no agreement had been reached at the time the appeal petition was due, Falcon should have filed its petition within the prescribed thirty day period. The City maintains that Falcon has not shown good cause for filing its petition late. The City also argues that, pursuant to Section 1.106(b)(2) of the Commission's rules, Falcon has not met the requirements for filing a petition for reconsideration because Falcon does not rely on any new facts learned after the time Falcon filed its initial petition. The City also asserts that none of the information presented by Falcon relates to events that occurred, or to facts that changed, since Falcon filed its initial petition. B. Discussion 6. As an initial matter, we note that in its Rate Order, the Commission stated that cable operators and franchising authorities do not have the latitude to settle rate cases. Settlement agreements based on factors outside the record of the rate proceeding are not allowed, since this potentially could bargain away subscribers' statutory protections against unreasonable rates. In its Third Recon. Order, the Commission explained that parties in a rate-setting procedure may stipulate to particular facts, or even to the final rate level itself, provided that there is some support for each stipulation; the parties clearly articulate the basis for each stipulation; and the stipulation itself does not circumvent the Commission's rate regulations. In this latter situation, in order to preserve its right to appeal a rate order in the event there is no resolution, a party should file an extension of time to file an appeal. 7. Thus, we hold that in the present situation, the appropriate course of action here was for Falcon to have sought an extension of time to file an appeal, despite the fact that it thought it had resolved its disputes with the City. While it is true that the Commission allowed petitioner to file a rate appeal one day late in Meredith/New Heritage Strategic Partners, L.P., in that decision the Commission also noted that in the future to establish good cause for filing a late pleading, "the petitioning party must cite the intervention of something beyond the control of the party which could not have been foreseen and for which no corrective action could have been taken." We hold that Falcon has not shown good cause here. The fact that Falcon and the City ultimately were unable to resolve their dispute was not unforeseeable and Falcon should have sought an extension of time in which to file its appeal. IV. ORDERING CLAUSES 8. Accordingly, in view of the foregoing, IT IS ORDERED that the petition for reconsideration filed by Falcon Cablevision IS DENIED. 9. This action is taken by the Chief, Cable Services Bureau, pursuant to authority delegated by  0.321 of the Commission's Rules. 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION Meredith J. Jones Chief, Cable Services Bureau