******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 CLASSIC CABLE ) v. ) McCREARY COUNTY, KY ) ) Appeal of Rate Resolution by ) McCreary County, KY ) MEMORANDUM OPINION AND ORDER Adopted: March 25, 1998 Released: March 27, 1998 By the Acting Chief, Cable Services Bureau: I. INTRODUCTION 1. Pursuant to Section 76.944 of the Commission's rules, Falcon Classic Cable ("Falcon"), the franchised cable operator serving McCreary County, Kentucky ("County"), has appealed a rate order adopted by the County as the local franchising authority ("LFA"). The Appeal challenges a McCreary County Fiscal Court Resolution ("Rate Resolution") that rescinded Falcon's planned October 1, 1996 rate increase. Falcon argues that it filed its Appeal on time and that the County unreasonably denied the increase by asserting that Falcon failed to provide requested financial records. The County filed a Response and Falcon submitted a Reply. II. BACKGROUND 2. Under the Communications Act, the Commission reviews appeals of rate orders issued by local cable franchising authorities ("LFA"). When considering appeals, the Commission will not conduct a de novo review, but instead will sustain the LFA's decision as long as it did not act unreasonably in applying federal rules. If the Commission reverses an LFA's decision, it will not substitute its own judgment, but will remand the case with instructions to resolve it consistent with the decision. 3. Under the Commission's regulations, when an LFA rejects an operator's proposed rate increase, the LFA must release its decision in writing. An operator must file any appeal of the decision with the Commission within 30 days of the release of the text of the LFA's decision. The Commission has viewed this 30-day limit very strictly, and will accept a late pleading only when the petitioner can show good cause by citing 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. 4. An operator has the burden of proving that its rate increase conforms with FCC rules. Meeting this burden requires submitting the appropriate forms and responding to requests for supporting information. III. FACTS AND PLEADINGS 5. On June 28, 1996, Falcon submitted FCC Forms 1205 and 1240 to the County to support a rate increase. The County responded with a request for more information and answers to several questions. Falcon supplied the information the County sought, except that the operator did not produce financial records limited to McCreary County only. In a September 11 letter to Falcon, the County reported that it voted against the rate increase because of Falcon's failure to produce the records. Falcon responded with a September 17 letter that asked for a separate, written decision and that stated Falcon's intention to implement its rate increase on October 1 unless it received "a properly filed rate order." On September 23, the County sent a copy of the Rate Resolution to Falcon by certified mail, but Falcon did not receive it until October 22. Falcon filed its Appeal on November 19, more than 30 days after the County passed the Rate Resolution, but within 30 days of receiving a copy. 6. Falcon argues that its Appeal was on time because the 30-day filing period did not begin until Falcon received a copy of the Rate Resolution. The County responds that nothing in the FCC regulations tolls the start of the 30-day period until an operator receives a copy or has actual notice of an order. The County also contends that Falcon admits that it received notice of the Rate Resolution on or before September 17, two months before filing the Appeal. 7. Falcon asserts that the request for financial records covering only McCreary County (versus records covering all of Falcon's systems) is "unreasonable and unwarranted" and creates an undue burden on such a small system. Falcon claims that the County's decision was not a substantive decision on the rates, and the LFA "was obligated to make a decision on the best information available to it even if it believed that some data was not properly substantiated." McCreary County did not respond to this argument. IV. DISCUSSION 8. McCreary County complied with the Commission's rules regarding the release of written rate orders, and Falcon has not otherwise demonstrated good cause for waiving the filing rules. Section 76.936 of Commission regulations requires an LFA to issue a written decision when it denies an operator's rate increase. The rule also requires the LFA to give public notice of the decision, which includes releasing the text of the order. The County voted against Falcon's proposed rate increase on September 10 "in a duly assembled session" of the County's legislative body. The McCreary County Executive signed and dated the Rate Resolution, and, assuming Kentucky state law was followed, the Executive published its decision in the local newspaper. Falcon has not argued otherwise. 9. Falcon overstates the requirements of Section 76.936 by asserting that an affected cable operator must receive a copy of the order before the 30 day appeal period begins. The rule only demands the public release of a written order. Falcon therefore had 30 days after publication of the Rate Resolution to file its Appeal. The precise publishing date is not clear from the pleadings, but several dates are clear: the Rate Resolution is dated September 10, the County's letter to Falcon informing the operator of the rejection is dated September 11, and Falcon acknowledged the rejection of the rate increase in its September 17 letter requesting a copy. It is reasonable to conclude that publication, and therefore release, of the Rate Resolution was near this time. In any case, Falcon submitted its November 19 Appeal more than 60 days later. 10. The Commission may accept late-filed pleadings in some circumstances: (1) when something beyond the control of the petitioning party has intervened, and (2) if the party could have taken no corrective action. These circumstances are limited. For example, in the Meredith / New Heritage Strategic Partners rate appeal, the Commission found that filing merely four minutes late was no excuse, even though the petitioner's computer malfunctioned. In the Falcon Cablevision (Cedartown) rate appeal, the Commission refused to excuse a late-filer who expected to settle with its LFA. The Commission held that the failure of the negotiations was foreseeable, so the operator should have sought an extension of time to file. In this case, while Falcon had no control over the post office's delivery, it knew of the County's ruling and could have followed its request for a copy of the Rate Resolution with a phone call or another letter. 11. The burden of moving forward with a rate appeal lies with the petitioner. Since Falcon has not met this burden and has not shown good cause for the late filing, we dismiss the Appeal. V. ORDERING CLAUSE 12. Accordingly, IT IS ORDERED that the Appeal IS DENIED. 13. This action is taken by the Acting 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 John E. Logan Acting Chief, Cable Services Bureau