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@_"5@^.=M\\'==\|.=.3\\\\\\\\\\==|||\ppzpp=Qzfzpp\fppffG3GM\=\\Q\Q3\\33Q3\\\\GG3\QzQQGI2Ic.====IK=\\p\p\p\p\p\zzQpQpQpQpQ=3=3=3=3z\\\\\\\\\fQp\\\\fQ\p\p\p\p\zQzQzQpQpQpQ\\\\\\I\=\===\QzQf3fKz\z\\zpGpK\G\GN@.`\G\\\\\\39\7\7==ff\==\\=f=7t=eeee|oo.Ij|2Z\\yeCpj`vZefeloPpPj`e~~tro.=M\\'==\|.=.3\\\\\\\\\\==|||\ppzpp=Qzfzpp\fppffG3GM\=\\Q\Q3\\33Q3\\\\GG3\QzQQGI2Ic=\f\\=\===ff@\=G=zf.G\\\\2\=3\|=\Ie77=j`.=79\\ppppppzpppp====z|fp\\\\\\\zQQQQQ3333\\\\\\\e\\\\\Q\ S- X    S-l Federal Communications Commission`(#FCC 98124 ă  yxdddy #&J\  P6Q &P##&J\  P6Q &P#Q3 #&a\  P6G;RY&P##&J\  P6Q &P#Before the Federal Communications Commission  S-& Washington, D.C. 20554 ă In the Matter ofR) R) TCI Communications, Inc.R)  S-R)hCUID No. CA0589 (Oakland) Final Resolution of R) Cable Programming ServiceR) Rate ComplaintsR) R)  S -< ORDER TP  S -X` hp x (#%'0*,.8135@8:circumstances warrant such action. Agencies may depart from prior decisions so long as they have a" ,`(`(88S"  S- xrational basis for doing so and explain their reasoning.$  {Oh- x-ԍ National Conservative Political Action Comm. v. Federal Election Comm'n, 626 F.2d 953, 959 (D.C. Cir.  x1980) ("Agencies are under an obligation to follow their own regulations, procedures, and precedents, or provide a  {O- xwrational explanation for their departures"); Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (1970), cert.  {O- xxdenied, 403 U.S. 923 (1971) ("An agency's view of what is in the public interest may change . . . . But an agency  x;changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored . . . ." (footnotes omitted)).$ We believe that the refunds required by the  xLResolution strike an appropriate balance between maximizing the compensation due subscribers for past overcharges and minimizing delay and uncertainty in the payment of refunds.   x9. To the extent that adoption of the Resolution requires a waiver of any of our rules, we find  xthat such waiver will ensure the expeditious resolution of rate complaints while protecting consumers'  xstatutory interest in CPST rates that are not unreasonable. We recognize that our rules contemplate an  S- xadjudication of each CPST rate complaint pursuant to specific ratemaking standards.YF {O -ԍ See 47 C.F.R. 76.922, 76.950963.Y Contrary to the  xview expressed in the dissent, we do not see any indication that section 623(c)(1)(B)'s requirement that  xythe Commission establish rate resolution procedures by regulation was intended by Congress to preclude  xthe Commission from waiving those rate resolution procedures in appropriate circumstances. Indeed, our  xyrules expressly provide for the waiver of any provision of our rules for good cause shown. To the extent  xkthat we diverge from these rules by adopting this Resolution, we find good cause to waive these rules  S - xpursuant to Section 1.3 of our rules,  yOp- x/ԍ Section 1.3 of the Commission's rules provides: "Any provision of the rules may be waived by the Commission on its own motion . . . if good cause therefor is shown." 47 C.F.R 1.3. because strict compliance with our rules would not serve the public  S - xinterest under the circumstances before us.\ 0  {O- xԍ See Northeast Cellular Telephone Co., L.P. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990) ("The FCC may  xexercise its discretion to waive a rule where particular facts would make strict compliance inconsistent with the  {O2-public interest."); see also, WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969). We find that a waiver furthers the purpose of the rules  xbecause the Resolution effectively achieves the objectives of the 1992 Cable Act by ensuring the  x expeditious resolution of all pending rate complaints regarding the affected systems while protecting  xconsumers from unreasonable CPST rates through refunds. We further observe that the Commission's  S0-authority to resolve cases in an analogous manner has been affirmed in other contexts.0T  {O$- xԍ See New York State Dep't of Law v. FCC, 984 F.2d 1209, 1220 (D.C. Cir. 1993) (consent decree settling enforcement action upheld).   x10. Because TCI intends to provide the refunds to affected customers as expeditiously as  xpossible, it may not be possible for TCI to provide 30 days' notice of the refund as required. Accordingly,  xwe believe that on a onetime basis, waiver of advance notification requirements, limited strictly to  xproviding for refunds, are appropriate in this case because prompt implementation will serve the public  xinterest and will allow refunds to be issued immediately. Accordingly, we will grant a onetime waiver  S- xof the advance notice provisions of Sections 76.309(c)(3)(i)(B) and 76.964 of the Commission's rules,Z yOf&-ԍ 47 C.F.R. 76.309(c)(3)(i)(B) and 76.964.Zք  xin order to allow TCI to implement the Resolution expeditiously. In addition, we believe that in the">,`(`(884"  xlimited circumstances presented by this Resolution, state and local notice requirements would frustrate our  S- x effort.l {O@-ԍ  See City of New York et al v. FCC, 486 U.S. 57 (1988).l Thus, to facilitate rapid resolution of the complaints, we will preempt any local franchising  x\agreement or any state or local law or regulation that requires TCI to give 30 days' notice of rates and  x[service changes to subscribers, strictly for the purpose of issuing a credit to subscribers. Our decision in  xthis regard, is provided on a onetime basis and only to the extent that TCI is required to give advance  S8-notice for the purpose of issuing credits to subscribers as provided in the Resolution.8Z {O2-  Jԍ See Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992,  {O-  8 FCC Rcd 3652 (1993) (Preempting notice requirements); see also, Implementation of Sections of the Cable   ;Television Consumer Protection and Competition Act of 1992, 9 FCC Rcd 4119, 4184 n. 182 (1994) (Preempting   local and state requirements where application of the local and state provisions would serve to prevent a system from  yOV -bringing its rates into compliance with the new benchmark rules by the end of the refund deferral period).  S- V.xCONCLUSION AND ORDERING CLAUSES  S- ` x11.` ` For the reasons discussed above, we conclude that it is in the public interest to adopt the Resolution.  S - ` $x12.` ` We further conclude that the actual CPST rate in Oakland as of March 31, 1997 is not unreasonable as of March 31, 1997.  S - ` x13.` ` ACCORDINGLY, FOR THE REASONS SET FORTH ABOVE, IT IS ORDERED that the Resolution attached to this Order IS ADOPTED.  S0- ` x14.` ` IT IS FURTHER ORDERED that all CPST rate complaints against TCI in the community referenced above ARE GRANTED to the extent indicated herein, and DENIED in all other respects.  S- ` Cx15.` ` IT IS FURTHER ORDERED that all proceedings pending review before the Cable  xServices Bureau and the Commission with respect to rate complaints against the CPST rates of TCI in the  xcommunity referenced above, and which were filed between September 1993 through March 31, 1997, ARE RESOLVED TO THE EXTENT INDICATED HEREIN.  S- ` `x16.` ` IT IS FURTHER ORDERED that any local franchising agreement or any state or local  xlaw or regulation that requires TCI to give more than 30 days' notice of rates and service changes to  x.subscribers, strictly for the purpose of issuing a credit to subscribers in accordance with the Resolution, IS PREEMPTED.  S(- ` x17.` ` IT IS FURTHER ORDERED that waivers of 47 C.F.R. 76.309(c)(3)(i)(B) and 76.964,  xrequiring 30 days' notice of a rate or service change, strictly for the purpose of issuing credits to subscribers, ARE GRANTED.  S- ` x18.` ` IT IS FURTHER ORDERED that a waiver of 47 C.F.R. 76.922 and 76.95076.963, to the extent individual adjudication of CPST rate complaints is required thereby, IS GRANTED. "8,`(`(88 "  S- ` #x19.` ` IT IS FURTHER ORDERED that the Cable Services Bureau IS DELEGATED authority to oversee implementation of this Resolution.  S-x20.` ` IT IS FURTHER ORDERED that this Order is effective upon adoption. x x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@Magalie Roman Salas x` `  hh@Secretary " ,`(`(88 "  S-X` hp x (#%'0*,.8135@8:important, but they cannot overcome the clear letter of the law. Our paramount duty is to implement  SH - xthe law as written by Congress and enacted by the President not based on our own conceptions of  S - x\the most efficient and effective way to proceed. See Chevron v. Natural Resources Defense Council, 467  xU.S. 837, 84243 (1985) (where statutory language is clear, "that is the end of the matter," for the  S -agency "must give effect to the unambigously expressed intent of Congress").  B yO8- xԍThe "good cause" waiver in the item, see supra at 56, cannot cure this problem. Although the Commission  xcan waive compliance with its rules, it cannot waive compliance with section 623. Pursuant to that statutory  xprovision, any procedures employed by the Commission as an alternative to adjudication under our rules, even if those rules are waived, must still be set out by regulation. That is not the case here, as explained above.  S -  xSecond, I do not believe that the Commission has met its obligation under the Administrative  SX- xProcedure Act to engage in reasoned decisionmaking. Cf. Koch Gateway Pipeline Co. v. FERC, 136 F.3d 810,  x814 (D.C. Cir. 1998)("reasoned decisionmaking" requires "a process demonstrating the connection between  S- x0the facts found and the choice made"). In this item, there is virtually no explanation as to how the  xCommission arrived at the refund amount that it approves. There is no suggestion that any of the  S- xmandatory factors set out in the statute, see 47 USC section 623(c)(2)(A)(F), or the objective criteria  S- xin our regulations, see 47 CFR section 76.922, for measuring the reasonableness of rates were either considered or applied.   xThis lack of explanation as to methodology causes me to suspect that the number at which the  xCommission and the cable company have arrived has little do with actual rate analysis but more to do  xwith simple horsetrading. And due to this lack of explantion of the methodology or factors employed  xto calculate the refund, there is no way for complaining parties to know whether they have been given  xla fair deal or even what the terms of that deal are, much less for a court to review the rationality of  SP-the refund determination.XPB yO- xԍThe fact that relevant information may be publicly available does not establish the existence of reasoned  yOh - x<decisionmaking on the basis of this record in this proceeding. Our obligation is to point to record evidence to support our decision, and the Commission's order of resolution does not do that.  S-  #xThird, I am deeply concerned that the complainants were not party to the negotiations that  xproduced this "resolution." As I have made clear in other contexts, I believe that it is most unseemly,  xkif not illegal, when regulated entities and regulators go behind closed doors to hammer out settlements.  S- x>See, e.g., Third Order on Reconsideration, Revision of Universal Service Collection Amounts for 1998, FCC  xNo. 97411 (Dec. 16, 1997). I realize that the complainants and local franchising authorities had a chance"` +''88"  xto comment on the final agreement reached by the Commission and the cable company, but that  x\participation came at the eleventh hour, after the terms of the resolution had already been finalized as between the company and the Commission.   nxAs the Commission has observed in related proceedings, the complainants and local franchise  xauthorities were not deprived of any participation they would have been afforded in a traditional cable  S- x>rate adjudication. That is not the point: under a traditional proceeding, municipalities or complainants  S- xmay not have been able to participate beyond the point of submitting their complaint, but neither would  S- xlthe cable operator have been able to participate beyond the point of submitting their response. The  S- xproblem for complaining parties is not that they did not get additional participation per se but that  xcable operators were afforded greater participation rights than they were. Whether or not this amounts  SH - xto a violation of our ex parte rules, a process in which the heart of the negotiations are conducted without the participation of the complainants themselves is just not a fair process. x   oxI appreciate that these "resolutions" are efficient in that they dispose of large numbers of  xcomplaints in one fell swoop. The Commission saves itself a lot of timeconsuming work, and the cable  x\operator saves itself a lot of regulatory headaches and uncertainty. But it is the complainants, who were  SX- xnot a party to the negotiations that produced this resolution and who continue to object to its terms,  xthat seem to be getting the short end of this regulatory stick. However convenient global rate resolutions  xmight be for the Commission and for cable companies, they do not appear to be within the bounds of governing law. I therefore cannot sanction their use.  S-x` `  hh*@*h* x   xIn closing, I observe that the administrative burdens that drove the Commission to employ this  xcreative but legally flawed method of resolving consumer complaints are the sorry and inevitable by xproduct of rate regulation itself. The better method for avoiding the administrative disaster that would  xbe occasioned by individualized adjuducation of these backlogged complaints is simply to abolish rate  xregulation. That is, in part, precisely what Congress wisely recognized when it mandated that CPST  x!regulation cease in March of 1999. When that time comes, we will be free of the administrative and regulatory demons that haunt this item.