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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 ) ) Mark Twain Cablevision, L.P. ) CUID No. NM0064 (Espanola) ) ) Order Dismissing Rate Complaints ) ORDER Adopted: March 25, 1998 Released: March 30, 1998 By the Chief, Financial Analysis and Compliance Division, Cable Services Bureau: 1. In this Order we dismiss the complaints against the rates that the above-captioned operator ("Operator") was charging for its cable programming services tier ("CPST") in its cable system in the community set forth above. We have determined that in the relevant franchise area the cable operator provides cable service to fewer than 50,000 subscribers and that Operator fits the definition of a "small cable operator" as defined in Section 623(m)(2) of the Communications Act of 1934, as amended ("Communications Act") and the Commission's rules thereunder. 2. The Communications Act authorizes the Federal Communications Commission ("Commission") to review the CPST rates of cable systems not subject to effective competition to ensure that rates charged are not unreasonable on receipt of a complaint as to such rates and to determine correct rates and any refund liability. Throughout the rate regulation process initiated by the 1992 Cable Act, special attention has been given to the needs of small cable systems. 3. In the Telecommunications Act of 1996 ("1996 Act"), Congress amended Section 623 of the Communications Act and redefined a small cable operator as one that "directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000." The Commission's rules currently define one percent of all cable subscribers in the United States as equivalent to 617,000 subscribers. The Commission's rules also define an affiliated entity as one which "holds a 20 percent or greater equity interest, passive or active, in the operator or exercises de jure or de facto control over the operator." In the 1996 Act, Congress determined that, effective February 8, 1996, the Commission shall not apply its CPST rate regulation rules, promulgated under Sections 623(a), (b) and (c) of the Communications Act, to a small cable operator in any franchise area in which that operator services 50,000 or fewer subscribers. 4. Our review reveals that Operator is a small cable company pursuant to Section 623(m)(2) of the Communications Act. Because Operator serves fewer than 50,000 subscribers in the franchise area in which the community listed above is located, the Operator's CPST rates in this community have effectively been deregulated by the 1996 Act. The complaint against the Operator in this community was filed prior to the passage of the 1996 Act. We conclude, given all of the circumstances presented including, in particular, the Congressional finding that post-1996 CPST rate regulation is unjustified for systems of this size, that there is no likelihood that adjudication of this complaint through to the end of the process would result in a net rate benefit to subscribers. To the contrary, this process would engage the resources of both the private parties involved and the Commission, while the system operator, in light of Section 623(m), could not effectively be restricted from offsetting any possible prior years' liability against a contemporaneous actual or putative rate increase. Accordingly, the complaint will be dismissed. We find this course of action not only consistent with Section 623 but necessary to implement the Congressional intent embodied in the small company provisions of the 1996 Act and to avoid futile adjudications. 5. Accordingly, IT IS ORDERED, pursuant to Sections 4(i), 4(j), 303(r) and 623(m) of the Communications Act of 1934, as amended, 47 U.S.C. Sections 154(i), 154(j) 303(r) and 543(m), that the complaints against the CPST rates charged by Operator in the community referenced above ARE DISMISSED. 6. This action is taken pursuant to delegated authority under Section 0.321 of the Commission's rules, 47 C.F.R. Section 0.321. If any section, subsection, paragraph, sentence, clause or phrase of this Order is declared invalid for any reason, the remaining portions of this Order shall be severable from the invalid part and shall remain in full force and effect. FEDERAL COMMUNICATIONS COMMISSION Elizabeth W. Beaty Chief, Financial Analysis and Compliance Division Cable Services Bureau