Goto Section: 76.933 | 76.935 | Table of Contents
FCC 76.934
Revised as of October 1, 2008
Goto Year:2007 |
2009
Sec. 76.934 Small systems and small cable companies.
(a) For purposes of rules governing the reasonableness of rates charged by
small systems, the size of a system or company shall be determined by
reference to its size as of the date the system files with its franchising
authority or the Commission the documentation necessary to qualify for the
relief sought or, at the option of the company, by reference to system or
company size as of the effective date of this paragraph. Where relief is
dependent upon the size of both the system and the company, the operator
must measure the size of both the system and the company as of the same
date. A small system shall be considered affiliated with a cable company if
the company holds a 20 percent or greater equity interest in the system or
exercises de jure control over the system.
(b) A franchising authority that has been certified, pursuant to Sec. 76.910, to
regulate rates for basic service and associated equipment may permit a small
system as defined in Sec. 76.901 to certify that the small system's rates for
basic service and associated equipment comply with Sec. 76.922, the Commission's
substantive rate regulations.
(c) Initial regulation of small systems:
(1) If certified by the Commission, a local franchising authority may
provide an initial notice of regulation to a small system, as defined by
Sec. 76.901(c), on May 15, 1994. Any initial notice of regulation issued by a
certified local franchising authority prior to May 15, 1994 shall be
considered as having been issued on May 15, 1994.
(2) The Commission will accept complaints concerning the rates for cable
programming service tiers provided by small systems on or after May 15,
1994. Any complaints filed with the Commission about the rates for a cable
programming service tier provided by a small system prior to May 15, 1994
shall be considered as having been filed on May 15, 1994.
(3) A small system that receives an initial notice of regulation from its
local franchising authority, or a complaint filed with the Commission for
its cable programming service tier, must respond within the time periods
prescribed in Sec. Sec. 76.930 and 76.956.
(d) Statutory period for filing initial complaint: A complaint concerning a
rate for cable programming service or associated equipment provided by a
small system that was in effect on May 15, 1994 must be filed within 180
days from May 15, 1994.
(e) Petitions for extension of time: Small systems may obtain an extension
of time to establish compliance with rate regulations provided they can
demonstrate that timely compliance would result in severe economic hardship.
Requests for extension of time should be addressed to the local franchising
authority concerning basic service and equipment rates and to the Commission
concerning rates for a cable programming service tier and associated
equipment. The filing of a request for an extension of time to comply with
the rate regulations will not toll the effective date of rate regulation for
small systems or alter refund liability for rates that exceed permitted
levels after May 15, 1994.
(f) Small Systems Owned by Small Cable Companies. Small systems owned by
small cable companies shall have 90 days from their initial date of
regulation on a tier to bring their rates for that tier into compliance with
the requirements of Sections 76.922 and 76.923. Such systems shall have
sixty days from the initial date of regulation to file FCC Forms 1200, 1205,
1210, 1211, 1215, 1220, 1225, 1230, and 1240 and any similar forms as
appropriate. Rates established during the 90-day period shall not be subject
to prior approval by franchising authorities or the Commission, but shall be
subject to refund pursuant to sections 76.942 and 76.961.
(g) Alternative rate regulation agreements:
(1) Local franchising authorities, certified pursuant to Sec. 76.910, and small
systems owned by small cable companies may enter into alternative rate
regulation agreements affecting the basic service tier and the cable
programming service tier.
(i) Small systems must file with the Commission a copy of the operative
alternative rate regulation agreement within 30 days after its effective
date.
(ii) [Reserved]
(2) Alternative rate regulation agreements affecting the cable programming
service tier shall take into account, among other factors, the following:
(i) The rates for similarly situated cable systems offering comparable cable
programming services, taking into account similarities in facilities,
regulatory and governmental costs, the number of subscribers, and other
relevant factors;
(ii) The rates for cable systems, if any, that are subject to effective
competition;
(iii) The history of the rates for cable programming services of the system,
including the relationship of such rates to changes in general consumer
prices;
(iv) The rates, as a whole, for all the cable programming, cable equipment,
and cable services provided by the system, other than programming provided
on a per channel or per program basis;
(v) Capital and operating costs of the cable system, including the quality
and costs of the customer service provided by the cable system; and
(vi) The revenues received by a cable operator from advertising from
programming that is carried as part of the service for which a rate is being
established, and changes in such revenues, or from other considerations
obtained in connection with the cable programming services concerned. The
rate agreed to in such an alternative rate regulation agreement shall be
deemed to be a reasonable rate.
(3) Certified local franchising authorities shall provide a reasonable
opportunity for consideration of the views of interested parties prior to
finally entering into an alternative rate regulation agreement.
(4) A basic service rate decision by a certified local franchising authority
made pursuant to an alternative rate regulation agreement may be appealed by
an interested party to the Commission pursuant to Sec. 76.944 as if the decision
were made according to Sec. Sec. 76.922 and 76.923.
Note to paragraph(g)of Sec. 76.934: Small systems owned by small cable companies
must comply with the alternative rate agreement filing requirements of
Sec. 76.1805.
(h) Small system cost-of-service showings:
(1) At any time, a small system owned by a small cable company may establish
new rates, or justify existing rates, for regulated program services in
accordance with the small cable company cost-of-service methodology
described below.
(2) The maximum annual per subscriber rate permitted initially by the small
cable company cost-of-service methodology shall be calculated by adding
(i) The system's annual operating expenses to
(ii) The product of its net rate base and its rate of return, and then
dividing that sum by (iii) the product of
(A) The total number of channels carried on the system's basic and cable
programming service tiers and
(B) The number of subscribers. The annual rate so calculated must then be
divided by 12 to arrive at a monthly rate.
(3) The system shall calculate its maximum permitted rate as described in
paragraph (b) of this section by completing Form 1230. The system shall file
Form 1230 as follows:
(i) Where the franchising authority has been certified by the Commission to
regulate the system's basic service tier rates, the system shall file Form
1230 with the franchising authority.
(ii) Where the Commission is regulating the system's basic service tier
rates, the system shall file Form 1230 with the Commission.
(iii) Where a complaint about the system's cable programming service rates
is filed with the Commission, the system shall file Form 1230 with the
Commission.
(4) In completing Form 1230:
(i) The annual operating expenses reported by the system shall equal the
system's operating expenses allocable to its basic and cable programming
service tiers for the most recent 12 month period for which the system has
the relevant data readily available, adjusted for known and measurable
changes occurring between the end of the 12 month period and the effective
date of the rate. Expenses shall include all regular expenses normally
incurred by a cable operator in the provision of regulated cable service,
but shall not include any lobbying expense, charitable contributions,
penalties and fines paid one account of statutes or rules, or membership
fees in social service, recreational or athletic clubs or associations.
(ii) The net rate base of a system is the value of all of the system's
assets, less depreciation.
(iii) The rate of return claimed by the system shall reflect the operator's
actual cost of debt, its cost of equity, or an assumed cost of equity, and
its capital structure, or an assumed capital structure.
(iv) The number of subscribers reported by the system shall be calculated
according to the most recent reliable data maintained by the system.
(v) The number of channels reported by the system shall be the number of
channels it has on its basic and cable programming service tiers on the day
it files Form 1230.
(vi) In establishing its operating expenses, net rate base, and reasonable
rate of return, a system may rely on previously existing information such as
tax forms or company financial statements, rather than create or recreate
financial calculations. To the extent existing information is incomplete or
otherwise insufficient to make exact calculations, the system may establish
its operating expenses, net rate base, and reasonable rate of return on the
basis of reasonable, good faith estimates.
(5) After the system files Form 1230, review by the franchising authority,
or the Commission when appropriate, shall be governed by Sec. 76.933, subject to
the following conditions.
(i) If the maximum rate established on Form 1230 does not exceed $1.24 per
channel, the rate shall be rebuttably presumed reasonable. To disallow such
a rate, the franchising authority shall bear the burden of showing that the
operator did not reasonably interpret and allocate its cost and expense data
in deriving its annual operating expenses, its net rate base, and a
reasonable rate of return. If the maximum rate established on Form 1230
exceeds $1.24 per channel, the franchising authority shall bear such burden
only if the rate that the cable operator actually seeks to charge does not
exceed $1.24 per channel.
(ii) In the course of reviewing Form 1230, a franchising authority shall be
permitted to obtain from the cable operator the information necessary for
judging the validity of methods used for calculating its operating costs,
rate base, and rate of return. If the maximum rate established in Form 1230
does not exceed $1.24 per channel, any request for information by the
franchising authority shall be limited to existing relevant documents or
other data compilations and should not require the operator to create
documents, although the operator should replicate responsive documents that
are missing or destroyed.
(iii) A system may file with the Media Bureau an interlocutory appeal from
any decision by the franchising authority requesting information from the
system or tolling the effective date of a system's proposed rates. The
appeal may be made by an informal letter to the Chief of the Media Bureau,
served on the franchising authority. The franchising authority must respond
within seven days of its receipt of the appeal and shall serve the operator
with its response. The operator shall have four days from its receipt of the
response in which to file a reply, if desired. If the maximum rate
established on Form 1230 does not exceed $1.24 per channel, the burden shall
be on the franchising authority to show the reasonableness of its order. If
the maximum rate established on Form 1230 exceeds $1.24 per channel, the
burden shall be on the operator to show the unreasonableness of the order.
(iv) In reviewing Form 1230 and issuing a decision, the franchising
authority shall determine the reasonableness of the maximum rate permitted
by the form, not simply the rate which the operator intends to establish.
(v) A final decision of the franchising authority with respect to the
requested rate shall be subject to appeal pursuant to Sec. 76.944. The filing of
an appeal shall stay the effectiveness of the final decision pending the
disposition of the appeal by the Commission. An operator may bifurcate its
appeal of a final rate decision by initially limiting the scope of the
appeal to the reasonableness of any request for information made by the
franchising authority. The operator may defer addressing the substantive
rate-setting decision of the franchising authority until after the
Commission has ruled on the reasonableness of the request for information.
At its option, the operator may forego the bifurcated appeal and address
both the request for documentation and the substantive rate-setting decision
in a single appeal. When filing an appeal from a final rate-setting decision
by the franchising authority, the operator may raise as an issue the scope
of the request for information only if that request was not approved by the
Commission on a previous interlocutory appeal by the operator.
(6) Complaints concerning the rates charged for a cable programming services
tier by a system that has elected the small cable company cost-of-service
methodology may be filed pursuant to Sec. 76.957. Upon receipt of a complaint,
the Commission shall review the system's rates in accordance with the
standards set forth above with respect to basic tier rates.
(7) Unless otherwise ordered by the franchising authority or the Commission,
the system may establish its per channel rate at any level that does not
exceed the maximum rate permitted by Form 1230, provided that the system has
given the required written notice to subscribers. If the system establishes
its per channel rate at a level that is less than the maximum amount
permitted by the form, it may increase rates at any time thereafter to the
maximum amount upon providing the required written notice to subscribers.
(8) After determining the maximum rate permitted by Form 1230, the system
may adjust that rate in accordance with this paragraph. Electing to adjust
rates pursuant to one of the options set forth below shall not prohibit the
system from electing a different option when adjusting rates thereafter. The
system may adjust its maximum permitted rate without adjusting the actual
rate it charges subscribers.
(i) The system may adjust its maximum permitted rate in accordance with the
price cap requirements set forth in Sec. 76.922(d).
(ii) The system may adjust its maximum permitted rate in accordance with the
requirements set forth in Sec. 76.922(e) for changes in the number of channels
on regulated tiers. For any system that files Form 1230, no rate adjustments
made prior to the effective date of this rule shall be charged against the
system's Operator's Cap and License Reserve Fee described in Sec. 76.922(e)(3).
(iii) The system may adjust its maximum permitted rate by filing a new Form
1230 that permits a higher rate.
(iv) The system may adjust its maximum permitted rate by complying with any
of the options set forth in Sec. 76.922(b)(1) for which it qualifies or under an
alternative rate agreement as provided in paragraph (g) of this section.
(9) In any rate proceeding before a franchising authority in which a final
decision had not been issued as of June 5, 1995, a small system owned by a
small cable company may elect the form of rate regulation set forth in this
section to justify the rates that are the subject of the proceeding, if the
system and affiliated company were a small system and small company
respectively as of the June 5, 1995 and as of the period during which the
disputed rates were in effect. However, the validity of a final rate
decision made by a franchising authority before June 5, 1995 is not
affected.
(10) In any proceeding before the Commission involving a cable programming
services tier complaint in which a final decision had not been issued as of
June 5, 1995, a small system owned by a small cable company may elect the
form of rate regulation set forth in this section to justify rates charged
prior to the adoption of this rule and to establish new rates. For purposes
of this paragraph, a decision shall not be deemed final until the operator
has exhausted or is time-barred from pursuing any avenue of appeal, review,
or reconsideration.
(11) A system that is eligible to establish its rates in accordance with the
small system cost-of-service approach shall remain eligible for so long as
the system serves no more than 15,000 subscribers. When a system that has
established rates in accordance with the small system cost-of-service
approach exceeds 15,000 subscribers, the system may maintain its then
existing rates. After exceeding the 15,000 subscriber limit, any further
rate adjustments shall not reflect increases in external costs, inflation or
channel additions until the system has re-established initial permitted
rates in accordance with some other method of rate regulation prescribed in
this subpart.
Note: For rules governing small cable operators, see Sec. 76.990 of this
subpart.
[ 60 FR 35865 , July 12, 1995, as amended at 60 FR 52120 , Oct. 5, 1995; 62 FR 53576 , Oct. 15, 1997; 64 FR 35950 , July 2, 1999; 65 FR 53617 , Sept. 5, 2000;
67 FR 13235 , Mar. 21, 2002]
Effective Date Note: At 60 FR 52120 , Oct. 5, 1995, in Sec. 76.934, paragraph
(f) was revised. This paragraph contains information collection and
recordkeeping requirements and will not become effective until 30 days after
approval has been given by the Office of Management and Budget.
Goto Section: 76.933 | 76.935
Goto Year: 2007 |
2009
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