Cable Television Act of 1992

Federal RegisterApr 15, 1994

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[MM Docket No. 93-215, CS Docket No. 94-28; FCC 94-39]

Cable Television Act of 1992

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Commission has adopted a Report and Order and a Further

Notice of Proposed Rulemaking establishing rules to implement the cost

of service alternative to the primary benchmark/price cap approach to

setting regulated cable service rates. The Further Notice of Proposed

Rulemaking (FNPRM) segment may be found elsewhere in this Federal

Register. The Report and Order sets forth regulatory requirements to

govern cost-of-service showings for cable operators who elect to

justify rates above levels determined under benchmark/price cap

requirements. The Report and Order, summarized here, adopts a

regulatory model based on the cost-of-service formulation that permits

cable operators to recover reasonable operating expenses and a fair

return on investment, while protecting consumers from unreasonably high

rates. Although the Report and Order adopts requirements designed to be

consistent with the Commission's telephone ratebase/rate of return

formula, the requirements are simpler and easier to administer than the

telephone model and can accommodate individual case review. The Report

and Order establishes (1) procedural and filing requirements for cost-

of-service showings; (2) rules for determining the cable operator's

ratebase; (3) rules for determining the appropriate level of

recoverable expenses; (4) an interim overall return of 11.25% on

ratebase; (5) accounting and cost allocation requirements; (6)

accounting and cost allocation requirements for external cost

treatment; (7) requirements for affiliated transactions; (8)

streamlined filing requirements for small systems; (9) streamlined

filing requirements for network upgrades; (10) procedures for emergency

rate review based on a showing of special circumstances; and (11) an

experimental Upgrade Incentive Plan.

EFFECTIVE DATE: May 15, 1994.

FOR FURTHER INFORMATION CONTACT:

JoAnn Lucanik (202) 416-1163; Paul D'Ari (202) 416-1166; John Adams

(202) 416-1165.

SUPPLEMENTARY INFORMATION: The text of this document is available for

inspection and copying during normal business hours in the FCC

Reference Center (Room 239), 1919 M Street, NW., Washington, DC 20554,

and may be purchased from the Commission's copy contractor,

International Transcription Service, (202) 857-3800, 2100 M Street,

NW., Washington, DC 20037.

Synopsis of the Report and Order

The Commission began its implementation of the 1992 Cable Act with

an initial Notice of Proposed Rulemaking (Notice of Proposed Rulemaking

in CC Docket No. 93-215, FCC 93-353, 58 FR 40762, released July 30,

1993), and established initial rules to implement the Cable Act of 1992

in the Rate Order.\1\ The Commission adopted a benchmark and price cap

approach to serve as the primary regulatory mechanism for setting

initial regulated rates and for governing rates on a going forward

basis. The Commission also concluded in the Rate Order that the

benchmark/price cap framework might not produce fully compensatory

rates in all cases, and accordingly decided to permit cable systems to

establish rates based on costs pursuant to individual cost-of-service

showings. The cost-of-service approach was to serve as a backup to the

benchmark/price cap mechanism which a cable operator could invoke if it

believed that the maximum rate under the benchmark/price cap formula

would not enable the operator to recover costs that it reasonably

incurred in the provision of regulated cable services.

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\1\Implementation of Sections of the Cable Television Consumer

Protection and Competition Act of 1992, Rate Regulation, Notice of

Proposed Rulemaking in MM Docket No. 92-266, 58 FR 48, released

January 4, 1993; (NPRM); Report and Order and Further Notice of

Proposed Rulemaking, 58 FR 29736, released May 21, 1993 (Rate

Order); Second Further Notice of Proposed Rulemaking in MM Docket

No. 92-266, 58 FR 41042, released August 18, 1993 (Second Notice);

First Reconsideration Order, Second Report and Order, and Third

Further Notice of Proposed Rulemaking in MM Docket No. 92-266, 58 FR

4678, released Sept. 29, 1993 (First Rates Reconsideration); Third

Report and Order in MM Docket No. 92-266, 58 FR 60141, released

November 15, 1993.

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The Rate Order concluded that the use of the benchmark/price cap

approach as the primary regulatory mechanism, and the use of a cost-of-

service safety valve as a supplemental mechanism, for regulating cable

services is fully consistent with the applicable statutory

requirements. However, the record in MM Docket 92-266 did not provide

sufficient information to allow for development of detailed cost-of-

service rules for the cable industry. Accordingly, the Commission

indicated that general cost of service principles would apply for cost-

of-service showings for the time being, and the present proceeding was

initiated by issuing a Notice of Proposed Rulemaking that invited

comment on the adoption of cost-of-service goals and rules, and on the

role that a cost-based approach to ratemaking should play in our

regulation of cable service rates.\2\

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\2\Notice of Proposed Rulemaking in MM Docket No. 93-215, FCC

93-353, 58 FR 40762, released July 30, 1993 (Notice).

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This Report and Order establishes rules implementing a cost of

service alternative to our primary benchmark and price cap approach to

setting regulated cable service rates.\3\ In this Report and Order the

following regulatory requirements to govern cost-of-service showings

are adopted:

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\3\In a separate decision, the Commission is adopting

significant modifications to the benchmark and price cap approach to

setting regulated cable service rates. Implementation of Sections of

the Cable Television Consumer Protection and Competition Act of

1992: Rate Regulation, MM Docket 92-266, Second Order on

Reconsideration, Fourth Report and Order, and Fifth Notice of

Proposed Rulemaking, FCC 94-38 (Benchmark Order).

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The regulatory requirements adopted in the Report and Order are on

an interim basis, pending completion of cost studies of the cable

industry as described elsewhere in the FNPRM. The interim rules, which

apply only in cases where the cable operator elects to rely on a cost-

of-service showing rather than on benchmark/price cap requirements,

will apply to rates charged or to be charged after the effective date

of the cost rules; general cost of service principles will govern rates

in effect prior to the effective date of these rules. Thus, to the

extent that a franchising authority's examination of basic rates

relates to both periods, it would apply the appropriate rules to each

period. The Commission will take a similar approach to resolve cable

programming complaints that cover both periods. Subsequent cable

programming service complaint proceedings or basic tier proceedings

relating to rates while the interim rules remain effective will be

determined in accordance with the interim rules if the cable operator

elects to justify rates as cost-based. If the permanent rules differ

from the interim rules, the permanent rules will apply to proceedings

relating to rates after their effective date.

Cost of Service Rates Effective

The Report and Order requires that the rate established in a cost-

of-service proceeding is the permitted rate, even if it is lower than

the rate that would have been determined under the benchmark/price cap

approach. Once a rate is established through a cost-of-service

proceeding, the rate will be governed by the price cap mechanism.

(1) Procedural and Filing Requirements

Two year interval and election by cable operator only. The Report

and Order requires that after setting initial regulated rates under

either the benchmark or cost-of-service approach, absent a special

showing, operators may not file a cost-of-service showing to justify a

new rate for two years. This two-year period will be measured from the

effective date of the rates set in a local or Commission decision. The

Report and Order finds that a period of two years is a reasonable

frequency limitation and will adequately reflect changes in both cost

and revenue. A two-year period will also allow for the development of

regulatory stability, and the reduction of regulatory burdens. This

approach will lessen the administrative burdens of duplicative cost-of-

service showings, while furnishing operators a reasonable opportunity

to recoup the costs of providing regulated cable services. Although the

rules adopted in the Report and Order do not foreclose a cable

operator's presenting new cost-of-service data to justify a rate that

exceeds the capped rate after a two-year period, multiple cost-of-

service showings should be rare, since future adjustments to rates are

provided for under the price cap mechanism. The Commission may find it

reasonable, following a cost-of-service showing, to set rates that

include a scheduled reduction or other adjustment; or may establish

rates that are not expected to change, other than under the price cap,

pending subsequent cost-of-service showings.

The Report and Order does not allow for local franchising

authorities to initiate cost-of-service proceedings or general data

collections. Any benefits that might be derived from such a provision

would be outweighed by the cost, and could conflict with the statutory

requirement to minimize the administrative burdens of rate regulation.

Moreover, the primary benchmark/price cap approach to setting rates

will assure that rates for regulated cable service are reasonable.

Accordingly, the election to choose to set rates pursuant to a cost-of-

service showing remains with the cable operator, the Report and Order

does not provide for local authorities to initiate cost of service

regulation.

Presumptive standards. While the rules adopted in the Report and

Order are of general applicability, the rules establish presumptive

standards that operators may seek to overcome in individual

proceedings. Thus, in certain circumstances, as described further in

the Report and Order, operators can present evidence seeking to justify

higher rates than would otherwise be permitted under the cost rules.

This provision assures that application of the cost rules will not

adversely impact the cable industry, and achieves the goal of assuring

that cable operators can recover reasonable costs of providing service

in high cost areas. Thus, the cost of service alternative provides a

safeguard for the industry from possible adverse effects in individual

cases of the primary, benchmark/price cap approach and from any adverse

effects resulting from general applicability of the cost rules.

Cost of service form. The Report and Order adopts the use of a

uniform cost of service form. Use of a form will lessen administrative

burdens for industry and regulators by providing uniformity in

presentation and review of cost information. The cost of service form

will provide a clear standard for the cost support required from

operators, and permit easy comparison with previously filed

information. The Report and Order adopts a general cost of service form

and a simplified cost of service form for small systems; operators

seeking to justify rates based on cost of service are required to use

one of these two forms. Form 1220 is the general cost of service form

in hard copy; Form 1225 is the simplified version of the cost of

service form, for small systems, in hard copy. The forms are being

released as separate documents. Operators may attach additional

worksheets to explain form entries or unusual circumstances. In

addition, cable operators must submit with their cost of service form,

FCC Forms 1200, 1210, 1211, and 1215 to show the rate that will be

permitted under the benchmark/price cap approach.

For purposes of evaluating proposed rates in pending cost-of-

service proceedings for the period that commences after the effective

date of these new cost rules, the Report and Order requires that all

cable operators with pending cost-of-service proceedings for any

regulated tier file the cost of service forms that are being adopted

with this Report and Order by July 14, 1994.

(2) Rules for Determining Ratebase

The Report and Order adopts the used and useful and prudent

investment standards to govern amounts that may be included in the

ratebase. The used and useful and prudent investment standards allow

into the ratebase portions of plant that directly benefit the

ratepayer, and exclude any imprudent, fraudulent, or extravagant

outlays.

Valuation of ratebase at original cost. The Commission considered

various approaches to determining the value of plant included in the

ratebase, including: Market value, original cost, replacement cost,

reproduction cost, a combination of these approaches, and other

approaches that were proposed by commenters. The Report and Order notes

that under applicable judicial precedent, regulators have wide

discretion to select a methodology for purposes of valuating ratebase,

provided that the end result is reasonable, and the approach selected

should be the one that best implements the goals for cost-based rates

of cable service.

The Report and Order concludes that an original cost approach is

most likely to produce fair and reliable valuations of plant in

service, and allows the best opportunity for balancing operators'

reasonable recovery of costs with consumers' payment of rates that

reflect only costs reasonably incurred in providing regulated service.

The Report and Order goes into considerable detail addressing the other

methods proposed by commenters for valuation of the ratebase, and finds

that none of the other valuation approaches provides the same

reliability and fairness as the original cost valuation approach.

For purposes of the cable cost-of-service rules, the Report and

Order defines original cost as the actual money cost (or the money

value of any consideration other than money) of property at the time it

was first used to provide cable service. Costs for both constructed and

purchased systems will be subject to scrutiny by the appropriate

regulatory authority to determine whether the investment was prudent

and the plant is used and useful.\4\

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\4\The regulator may examine whether the construction costs were

reasonable, whether plant is operating at a reasonable level of

capacity, and whether costs are properly apportioned between

regulated and nonregulated activities. In this respect the

Commission requires operators subject to regulation under section

623 of the Communications Act, 47 U.S.C. 543, to keep, maintain and

protect records subject to regulations adopted in this Report and

Order for a period of not less than 5 years. The Commission has

authority to take this action under sections 4(i) and 623 of the

Communications Act, 47 U.S.C. 4(i) and 543.

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The Report and Order notes that original cost is the normal, now

traditional method used for public utility valuation, and is the method

this Commission has long used for telephone companies. By relying on

actual expenditures rather than speculative or contentious valuation

methods, original cost is far more likely to achieve the desired

result: Reasonable rates for customers, a fair opportunity for a

reasonable return for operators, and reduce administrative burdens. The

practical benefits of original cost valuation in general are that it is

less administratively burdensome on all involved, and well understood.

Thus, unlike the other valuation approaches, original cost does not

require estimates of current values that may be difficult or expensive

to determine, and that are in any event likely to be largely matters of

opinion. Unlike market-based valuation methods, it does not present the

problem of circularity, where the valuation method chosen itself

affects the value that the market is likely to place on the system. It

is also not constantly changing as the economy, technology, and

customer needs change. Original cost valuation is also recognized and

defined, and used for financial accounting purposes, as part of

Generally Accepted Accounting Principles (GAAP). Indeed, it has been

the Commission's policy in recent years to bring its regulatory

accounting into conformance with GAAP as far as possible.\5\ Use of

original cost for cable systems will help implement this policy and

minimize regulatory accounting burdens.

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\5\See, e.g., Revision of Uniform System of Accounts, Classes A,

B, and C Telephone Companies, CC Docket No. 78-196, Report and

Order, 51 FR 43498, Dec. 2, 1986. Continuing this Commission's

reliance on GAAP, the Commission directs that GAAP shall generally

apply in our regulation of cable rates, unless specifically noted

otherwise.

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The Report and Order took note of the numerous comments arguing

that original cost is often simply unascertainable, and found that

there is validity in this argument in some cases for purchased systems.

The Report and Order acknowledges that use of an estimated original

cost when actual original cost is not available is provided for under

telephone regulation, 47 CFR 32.2000(b)(2)(ii). Because this approach

creates the need for individual scrutiny not only of the estimated

original cost but also of underlying ``particulars,'' this is not a

preferred alternative to original cost for cable services regulation.

However, the Report and Order determines that in the event that an

operator does not possess adequate records of original cost, the

operator will be permitted to estimate original cost. The operator will

be required to show the basis for the estimate with supporting

documentation. In addition, the Report and Order permits valuation of

tangible plant in service at the book value recorded by the operator at

the time of acquisition, if the operator can demonstrate that book

value approximates original cost. All cost showings for acquired

systems must include the book value of tangible plant in service as

recorded at the time of acquisition, as required on Forms 1220 and

1225.

The Report and Order recognizes that original cost valuation, like

any valuation methodology, has theoretical limitations--in this case,

that it is a backward-looking approach to costs. However, these

limitations do not prevent it from being a practical, workable

foundation for establishing the value of tangible plant in service. To

the extent that use of original cost for computing the ratebase affects

the risks that investors may assign to cable systems, the Report and

Order takes account of such risks in determining a reasonable rate of

return that will allow the system to operate successfully and attract

the necessary capital. Thus, in setting the rate of return, the

Commission has adopted a rate toward the high end of the zone of

reasonable returns, as a cautious approach to assure continued

incentives for future investment.

Accumulated start-up loses. The Report and Order concludes that

some accumulated start-up losses, to the extent that they reflect

operating losses in the early years of the system, should be included

in the ratebase. These losses could be considered to meet the used and

useful standard in that it is frequently necessary for businesses

during a start-up phase to sustain a period of losses prior to

profitability. As such, the losses benefit customers because it is

necessary for the operator to incur them in order to bring future

service to subscribers. There is a concern, however, that current

customers not be burdened with excessive or unreasonable costs from

previous periods of operation; that cable operators' recovery of these

costs not be unlimited in time, especially after the losses have been

recouped; and that subscribers not pay for losses incurred in

expectation of recovery of future supra-competitive profits.

The Report and Order relies on Financial Accounting Statements

Board Standard No. 51 (``FASB 51'') which suggests that a two-year

period is a reasonable and representative start-up time for cable

systems. Based on the record, the Report and Order determines that this

period would permit recovery of losses necessary for start-up of a

cable system, and that a subscriber base is likely to be well

established by the end of the second year of operation. Therefore, an

allowance is made for recovery in the ratebase of accumulated start-up

losses that are equal to the lesser of the first two years of operating

costs or accumulated losses incurred until the system reaches the end

of its prematurity stage as defined by FASB 51. The Commission believes

that losses incurred during this period are most directly linked to the

creation of the system that is currently providing services to

subscribers.

Cable operators are, of course, free to make a showing that

demonstrates the appropriateness of a practical adjustment to this rule

in light of their particular circumstances. Operators are also free to

present evidence to rebut disallowance of other accumulated losses. In

challenging this or any presumptive disallowance, the operator must

present detailed evidence demonstrating that the cost has produced a

tangible benefit for subscribers that would not have existed but for

the cost; and that the relevant plant is used and useful in the

provision of regulated cable service, and represents a prudent

investment. The operator may present evidence that allowance is

necessary for compensatory rates. In making its determination, the

regulatory authority should take into account the effect that allowance

of these will have on the operator's rates in comparison to rates that

would have developed in a competitive environment, and whether

allowance of these costs will produce reasonable rates.

The Report and Order finds that these accumulated start-up losses

may be included in the ratebase, and the operator may earn on them the

reasonable rate of return as defined below. However, these accumulated

losses must be amortized over a reasonable period. The Report and Order

finds that presumptively this amortization period should not be longer

than fifteen years. The Report and Order requires the cable operator to

submit detailed evidence of the effect the amortization period has on

rates in comparison to competitive rates of similar systems. The Report

and Order allows the regulatory authority, after careful scrutiny, to

revisit the amortization period if it will produce unreasonable rates.

The Report and Order holds that, unless otherwise provided by this

Commission, amortization, for purposes of the rules adopted in this

proceeding, shall be computed on the straight-line method, i.e., equal

amounts shall be recovered in each year of the amortization period.

This approach has been applied successfully in common carrier

regulation; see 47 CFR Sec. 32.2000(h). Finally, recovery of these

costs is permitted only to the extent that they are recorded on the

company's books as such. The amortization of allowed start-up losses

must begin at the end of the prematurity phase of operation, and should

generally be completed during the service life of the longest-lived

depreciable assets.

Other losses. The Report and Order concludes that other losses are

presumptively excluded from the ratebase: These include continuing

operating losses after the system reaches maturity (for these purposes

a system reached maturity as defined by FASB 51, i.e., presumptively

within two years), and accumulated losses associated with amortization

of disallowed goodwill or interest expenses associated with disallowed

goodwill. This treatment is appropriate because these costs presumably

benefited past subscribers, or were incurred in the expectation of

monopoly profits or profits from nonregulated activities, and thus

should not be borne by current and future subscribers.

Cable operators have the opportunity of making a showing to

overcome this presumption. Such a showing would demonstrate that these

costs benefit both current and future ratepayers, and that they were

prudently invested in plant that is used and useful in the provision of

regulated services. Operators may also present evidence that allowance

is necessary to produce compensatory rates.

Treatment of intangibles. The Report and Order addresses the

treatment of intangibles in the ratebase. In instances where there is a

lack of effective competition, as in the period prior to the adoption

of the Cable Act of 1992, the Report and Order finds that acquisition

prices are likely to include amounts paid in expectation of supra-

competitive profits and growth premiums for unregulated services.

Traditional principles of ratemaking and the policies embodied in the

Cable Act of 1992 also warrant disallowance of costs that do not

represent reasonable costs of providing regulated services to

customers, equivalent to the costs that would be incurred under

competition. This generally includes acquisition costs recorded as

goodwill. The Report and Order makes clear that disallowance of these

costs, contrary to some parties' assertions, is not a penalty but part

of the normal and proper balancing of the interests of investors and

ratepayers.

However, the Report and Order finds that operators are correct in

pointing out that some intangible costs do represent cost of providing

service that are legitimately included in the operator's ratebase or

revenue requirement. This is true whether the operator is an original

owner or a purchaser of an established system. Further, such allowance

is consistent with the Commission's Part 32 rules, which allow

telephone companies to recover intangible costs related to ``organizing

and incorporating the company, original costs of franchise rights,

patent rights, and other intangible property having a life of more than

one year.'' (47 CFR 32.2690). These costs produce assets that provide

benefits to subscribers and are reasonably recoverable from

subscribers.

To balance investors' and ratepayers' interests fairly, the Report

and Order holds that in some cases intangible costs are presumptively

allowed in the ratebase. Intangible costs that are generally reasonable

costs of providing service, that would be incurred under competition,

and that are used and useful in the provision of regulated services,

are properly recoverable in rates. In some cases intangible costs may

be included in the ratebase; in other cases, they may be treated as an

expense, and amortized over a period of years. The Report and Order

holds that other intangible costs, including goodwill, will be

presumptively excluded.

Organizational costs. The Report and Order finds that

organizational costs are presumptively allowed into the ratebase to the

extent they are prudently invested and are useful in the provision of

regulated cable service. Organizational costs typically consist of the

cost of organizing and incorporating the company. They will ordinarily

have been incurred by the entity originally providing cable service in

the franchise area in question. These organizational costs should

represent costs that benefit customers, in that they must necessarily

be incurred for the entity to be able to provide service. See 47 CFR

32.2690. The Report and Order however presumptively disallows from this

category stock given to the organizer the value of which is in excess

of reasonable salary.

The Report and Order allows operators to continue to recover their

capitalized organizational costs based on GAAP through amortization

over a reasonable period, subject to scrutiny by the appropriate

regulatory authority as to the reasonableness of rates produced by the

recovery period. However, the Report and Order notes that it is not

necessarily the case that the time period until renewal of a franchise

is the appropriate capitalization period for organizational costs,

because generally there is an expectation of franchise renewal.

Proponents of some period other than the franchise period should

support their proposal.

Franchise costs. The Report and Order concludes that the original

costs associated with a government franchise are allowed into the

ratebase if the costs: (1) Are associated with the costs of winning the

franchise; and (2) in the case of purchased systems, are costs that

were directly borne by the seller. The Report and Order finds that

these costs are presumptively allowed to the extent they are prudently

invested and are useful in the provision of regulated cable service.

The Report and Order notes that original costs of government franchises

are often allowed into the ratebase under traditional cost-of-service

principles, because they must necessarily be incurred for the entity to

be able to provide service. (See 47 CFR 32.2690). The Report and Order

holds that operators will be allowed to continue to recover their

capitalized franchise right based on GAAP through amortization over a

reasonable period, subject to scrutiny by the appropriate regulatory

authority as to the reasonableness of rates produced by the recovery

period.

Customer lists. The Report and Order finds that customer lists,

too, are presumptively allowed into the ratebase, to the extent that

they reflect costs capitalized during prematurity, as defined by FASB

51, and are prudently invested and useful in the provision of regulated

cable service. Operators will be allowed to continue to recover these

costs through amortization over a reasonable period based on GAAP,

subject to scrutiny by the appropriate regulatory authority as to the

reasonableness of rates produced by the recovery period.

Acquisition costs. The issue of whether the acquisition costs of

cable systems should be considered or accepted for computing ratebases

and revenue requirements overlaps to a degree with the question of the

plant valuation method that should apply. But the Report and Order

emphasizes that the two matters are distinct, especially under the

particular circumstances presented by the reimposition of cable service

rate regulation by the Cable Act of 1992. Regardless of the valuation

method that might be applied now and in the future, the issue cable

operators raise is whether the cost-of-service methodology should

recognize the prices paid for cable systems in the past, especially

during the period when systems were unregulated. The Report and Order

concludes that the prices paid for cable systems, especially during the

period when those systems possessed market power, are not a reliable or

reasonable basis for ratemaking, and that excess acquisition costs, or

``goodwill'', are therefore from ratebase.

The Report and Order defines ``goodwill'' as the portion of plant

purchase price that cannot be assigned specifically to identifiable

property acquired and that is not recorded on the operators' books of

account as accumulated losses, subscriber lists, franchise rights,

patent rights or organizational costs. The Report and Order concludes

that ``goodwill,'' including going-concern value, should be

presumptively disallowed from the ratebase because it is likely to

represent expectations of supra-competitive profits and other outlays

that should not be borne by regulated service customers.

The Report and Order recognizes the importance and controversy that

this issue generates, both for operators and customers, because many

cable systems changed hands during the years when cable service was

essentially unregulated, and in many cases the prices paid exceeded the

original cost or the book value of the purchased cable system's

tangible assets. These costs to the buyer, termed ``excess acquisition

costs,'' are generally recorded as ``goodwill''. The Report and Order

addresses the many arguments made by cable operators for recognition of

acquisition costs for computing costs of service. Cable operators

claim, variously, that the price paid is either a measure of the fair

value of the system, or the proper valuation for assets brought into

regulation, or a proper exception to the usual valuation rules to

recognize the need for a transition tailored to the characteristics of

the cable industry, or a constitutional requirement to prevent

confiscation.

The Report and Order sustains the Commission's belief that the

prices paid for cable systems, especially during the period when those

systems possessed market power, are not a reliable or reasonable basis

for ratemaking, and that their use is not required or supported by

public utility practice, the purposes of the Cable Act of 1992, or the

Constitution. The Report and Order notes that on the FCC's own analysis

conducted as part of the development of governing rates set under the

benchmark approach, and the study submitted in support of the use of

acquisition prices, the Kolbe/Vitka Study, by Viacom, one of the

largest cable operators, in reaching the conclusion that acquisition

prices often include some expectation of supra-competitive profits that

the market power of cable systems operating in a less than fully

competitive environment could expect to generate. The Report and Order

notes that the magnitude of this expectation probably varied over time,

increased by the growing list of cable channels that could be obtained

only by subscribing to cable service, and discounted by investors'

assessment of the risks of competitive entry and re-regulation. Buyers

and sellers negotiating acquisition prices clearly took into account

the competitive status of cable systems and their consequent market

power. Individual investors purchasing shares in cable companies no

doubt also included this factor.

The Report and Order further notes that it is likely that

acquisition prices included assessments of the profits that might be

gained from emerging cable services that remain unregulated but could

be expected to experience more rapid growth and penetration than those

services that were made subject to regulation. Premium services such as

HBO and Showtime, pay-preview services, interactive services such as

home shopping, and other offerings all represent newer sources of

profit with greater potential for expansion. System prices can

reasonably be expected to include the potential earnings for these

actual and planned offerings. Moreover, it is certainly possible that

even arm's-length transactions resulted in prices that were simply too

high; transactions were based upon overly optimistic projections of

growth, the direction of the economy, and the buyer's ability to reduce

operating costs or increase the value to customers. The Report and

Order finds that acceptance of these prices as a fair measure of the

value of the facilities used to provide regulated services would

require customers for those services to act as guarantors of the

recovery of those prices, regardless of how inflated they might have

been. Such allowance would not be appropriate or reasonable or in the

public interest.

The Report and Order points out that traditionally, such excess

acquisition costs have been partly or wholly excluded from the ratebase

of regulated concerns, because these costs are seen as inappropriate

costs for ratepayers to bear. (E.g., 47 CFR 32.2005, 32.2007; San Diego

Land & Town Co. v. National City, 174 U.S. 739, 757-758 (1899); Simpson

v. Shepard (Minnesota Rate Cases), 230 U.S. 352, 454 (1913)). This is

because these costs typically benefit the seller, not the ratepayer;

they do not contribute to the plant supporting regulated service. The

Report and Order also notes that disallowance of goodwill for monopoly

cable systems is consistent with findings of the United States Tax

Court in Tele-Communications, Inc. v. Commissioner of Internal Revenue,

95 T.C. No. 36 (1990).

The Report and Order holds that the decision to disallow

acquisition costs, to the extent they include capitalized supra-

competitive profits, is consistent with, if not indeed compelled by,

the theory and purposes of the Cable Act of 1992. The Act does not

instruct the consideration of acquisition costs or the prices

individual shareholders paid for cable companies before the adoption of

the Act. The language and legislative history of the Cable Act of 1992

demonstrate a primary concern with preventing the undue market power of

cable operators subject to neither regulation nor effective competition

from setting supra-competitive rates. The Report and Order concludes

that allowance of the acquisition price of cable systems as part of the

costs of service would present a substantial probability of passing on

to customers costs that reflect neither the costs of providing service

nor the costs that would be incurred under competition.

Operating efficiencies provide rebuttable presumption. The Report

and Order recognizes that there may be sales of cable systems, as some

commenters claim, that benefit subscribers by generating operating

efficiencies that are unobtainable by the seller. The Report and Order

finds that it is appropriate to consider whether these efficiency gains

warrant inclusion of some part of the goodwill in the rate calculation.

However, in any such case, the Report and Order requires that the

operator clearly rebut the presumption against including goodwill by

demonstrating the nature and value of the net efficiency gains and,

most importantly, that these gains resulted in concrete, tangible

benefits to subscribers, especially in the form of better and more

varied regulated services. Efficiency gains that permitted the buyer to

improve its margins but did not benefit subscribers will not lay the

foundation for allowing goodwill to be included in the rates

subscribers pay.

The Report and Order requires that operators wishing to overcome

the presumption that goodwill is excluded from inclusion in the

ratebase demonstrate that allowance of these costs will result in

reasonable rates, that the costs are the result of an arm's-length

transaction, and that the goodwill has produced for subscribers

concrete benefits that would not have been realized otherwise. To the

extent that the operator seeks to justify rates above competitive

levels based on inclusion of goodwill, there is a heavy presumption

against inclusion of these costs. Operators making such a showing will

be required to show the nature of each cost they are seeking to justify

for inclusion in the ratebase, and should provide all pertinent data

relating to the acquisition. At a minimum, this includes the purchase

price of plant, its book value, a description of plant, the effect on

subscribers, the results of a valuation study, and the results of any

request for franchise approval.

The Report and Order provides that in reviewing such showings, the

franchising authority or the Commission is to scrutinize the extent to

which inclusion of these costs will produce rates above competitive

levels. To the extent that they do, the operator will need to

demonstrate why its particular situation justifies inclusion of these

costs in the ratebase.

Plant under construction. The Report and Order adopts the

capitalization method to govern ratemaking treatment of plant under

construction. The capitalization method is the traditional method for

considering plant under construction. Under this approach, plant under

construction is excluded from the ratebase, but the operator calculates

an allowance for funds used during construction (AFUDC) and includes

this allowance in the cost of construction. As construction is

completed and the plant is placed into service, the cost of

construction (including AFUDC) is included in the ratebase and

recovered through depreciation. This method has been used by various

regulatory authorities to provide reasonable rates for utilities.

Further, this method will allow operators to recover interest from the

construction period only after the plant is placed in service. Interest

is to be computed at prime rate or at the operator's demonstrated cost

of the funds used for the construction. AFUDC is allowed only to the

extent the related costs are not already included in start-up losses.

Cash working capital. The Report and Order adopts a presumption of

a zero allowance for cash working capital. The Report and Order finds

that cable subscribers are generally billed in advance for regulated

cable services, and billed in arrears for nonregulated services such as

pay-per-view. Cable operators generally pay vendors, employees, and

taxing authorities in arrears. The Report and Order also notes that it

is possible, where receipts lead outlays, to establish a negative cash

working capital allowance. Given these circumstances, the Report and

Order finds it appropriate to adopt a presumption that a zero allowance

is needed to support the regulated cable services. A cable operator may

rebut the presumption by establishing that its operations do not fit

the industry mold, and that it requires the establishment of a cash

working capital allowance.

Excess capacity. The Report and Order concludes that operators are

allowed to include in the ratebase any excess capacity that will be

used within a twelve-month period. As with start-up losses, recovery of

these costs is allowed only to the extent that they are recorded on the

company's books as such. The amortization of allowed costs must begin

at the end of the prematurity phase of operation, and should generally

be completed during the service life of the longest-lived depreciable

assets. This will generally be no longer than fifteen years.

The Report and Order notes that the price cap adjustment and

network upgrade plans (discussed below) make adequate provision for the

addition of channels and capacity. Thus, while there is an allowance in

the ratebase for any facilities that are not currently used and useful,

but will be used and useful within one year, if they are included in

the ratebase, they may not in any part be reflected in annual operating

expenses or in any price cap adjustment. This will assure that no

double or excessive recovery of costs, and no double payment for

capacity, can occur.

Cost overruns. The Report and Order determines that cost overruns

should be presumptively disallowed from the ratebase. Subscribers

should not bear the burden for unnecessary, extravagant, or imprudent

expenses, which cost overruns may be. At the same time, however, the

Report and Order recognizes that cable operators should be able to

recover the costs of overruns that have occurred through no fault of

the operator. Therefore, cable operators may overcome this presumption

on a case-by-case basis by showing that the costs were prudently

invested. In reviewing such showing, factors that will be considered

include whether the overrun was preventable, who was responsible for

the overrun, and whether including the overrun in the ratebase will

produce reasonable rates.

Premature abandonments. The Report and Order finds that the cost of

premature abandonments should be a recoverable operating expense rather

than an element in the ratebase. In removing prematurely abandoned

plant from the ratebase, a cable operator must bring plant to full

recovery before retiring it. Plant that has never entered into service

cannot be retired and expensed, but is disallowed. To retire plant, the

operator must remove both plant and accumulated depreciation reserve

from the balance sheet. Once the plant is retired, an operator may

amortize the unrecovered investment (i.e., the original cost less

accumulated depreciation) over a term equal to the remainder of the

original expected life.

(3) Rules for Determining Recoverable Expenses

Operating expenses. The Report and Order permits recovery of all

operating expenses normally incurred by cable operators in the

provision of regulated cable service. Thus cable operators may recover

fully the reasonable costs of providing regulated service, and

subscribers are protected from paying rates that reflect costs not

reasonably associated with regulated services. The Report and Order

affirms the decision to exclude from recovery those operating expenses

and other costs unrelated to the provision of regulated cable service.

Generally, costs incurred in the provision of regulated cable service

are recoverable if legitimate and reasonable. The Report and Order

directs that the Commission and local franchising authorities review

operating expenses in each cost showing to assure that they are in

conformance with the cost standards.

The Report and Order also adopts the tentative conclusion that

certain special expenses (47 CFR 76.924 (f) and (g)) are presumptively

excluded from recovery as not reasonably related to the provision of

regulated cable services. Cable subscribers should not be responsible

for reimbursing cable operators for unreasonable costs. Further, the

Report and Order concludes that GAAP should guide the determination of

what costs are to be expensed and what capitalized.

Depreciation. The Report and Order declines to adopt the tentative

conclusion to prescribe depreciation rates. The Report and Order finds

that prescription of depreciation rates is unnecessary, at least

pending completion of the cost study and analysis that the Cable Bureau

is to undertake. See, FNPRM elsewhere in this Federal Register.

Further, the Report and Order finds that a depreciation prescription

requirement would impose unjustified burdens without providing a

balancing benefit to subscribers. Instead, the Report and Order directs

regulators to monitor industry depreciation practices closely, and to

review depreciation showings in individual cost proceedings carefully

to assure that these depreciation practices are reasonable. In

addition, the Report and Order notes that the Commission and local

franchising authorities will examine depreciation practices of

operators in individual cases to assure that resulting rates are

reasonable.

Taxes. The Report and Order develops a method of income tax

treatment that permits recovery of income taxes regardless of the form

of ownership of the regulated cable service enterprise. The Report and

Order maintains the principle that taxes related to the provision of

regulated service may be recovered from subscribers, but taxes on

dividends paid to owners may not. The Report and Order affirms the

tentative conclusion that Chapter C corporations will be allowed to

include in annual expense calculations all taxes on the provision of

regulated cable service. For other ownership forms of cable operators--

subchapter S corporations, partnerships, sole proprietors--the income

tax allowance is to be determined as follows: The permitted rate of

return on the ratebase is first calculated; this amount is adjusted to

remove any portion of the previous year's distributions after

adjustment for capital contributions and interest paid; the resulting

sum, the amount retained in cable operations, will constitute the cable

operator's earnings subject to the income tax calculation. The allowed

income tax will be calculated by applying the grossed-up federal and

state statutory corporate tax rates (as opposed to individual tax

rates) to the amount calculated as subject to the income tax

calculation, regardless of the actual business form. The calculated tax

amount may then be included in calculating the total revenue

requirement.

The Report and Order notes that while traditional cost-of-service

regulation allows for recovery of allowable tax expense on an annual

basis, it is possible that cable rates set by cost of service will not

be reviewed, nor any further cost support submitted, for a substantial

period of time. Retained earnings depend closely upon the cable

system's current financial requirements. Because this is a showing the

Commission does not intend to revisit, proposed tax expense in a cable

cost-of-service showing should incorporate an adjustment of retained

earnings to reflect likely changes. The following illustration of tax

calculation methodology adjusts retained earnings over a three-year

period:

------------------------------------------------------------------------

Year 1 Year 2 Year 3

------------------------------------------------------------------------

1. Ratebase...................... 1000000 1000000 1000000

2. Allowed Return (@ 11%)........ 110000 110000 110000

3. Less Interest Expense......... (10000) (10000) (10000)

4. Tax Gross-up:

5.Allowed Taxable Return......... 100000 100000 100000

6.Distributions.................. 50000 25000 160000

7.Capital Contributions.......... 0 25000 10000

8. Amount Subject to Tax calc.... 50000 100000 (50000)

9. Tax allowed at corp. rate (@

estimate 34% grossed up)........ 25758 51515 (25758)

10. Revenue Requirement:

11.Allowed Return................ 110000 110000 110000

12.Tax Allowed................... 25758 51515 (25758)

13.Expenses...................... 500000 500000 500000

14. Total Revenue Requirement.... 635758 662515 584242

15. Cumulative Tax Allowed:

16.Beginning Balance............. 0 25758 77273

17.Current Provision............. 25758 51515 (25758)

18.Ending Balance\6\............. 25758 77273 51515

------------------------------------------------------------------------

\6\Explanation of terms and calculations:

1. Line 3: An eleven percent rate of return is used only for purposes of

illustration.

Line 6: A portion of distributions made must be associated with the

provision of regulated cable services.

Line 7: A portion of contributions made must be associated with the

provision of regulated cable services.

Line 8: Tax allowed is determined by subtracting distributions from

allowed return and adding the amount of capital contributions. The

amount of contributions added shall be no more than the amount of

distributions for the period, however.

Line 9: The rate used in this illustration is a federal tax rate grossed

up as follows: (.34/(1-.34))=.51515)

2. Lines 8-9 of Year 3 demonstrate that, where distributions offset the

total of allowed return and capital contributions, the amount subject

to the tax calculation may be negative. In effect, this calculation

would require operators to pay back to subscribers the tax benefits

associated with earnings that had been achieved previously but were

distributed in the current period. Since no annual adjustment will be

made, this offset should be reflected in an operator's one-time

showing.

The Report and Order does not require the three-year calculation

shown above. However, it does require that cost-of-service showings

that include a tax allowance show some calculation of likely changes in

retained earnings.

The Report and Order also adopts the Commission's tentative

conclusion that cable operators may include state and federal taxes,

such as property and sales taxes, incurred on the provision of

regulated cable service as an operating expense regardless of business

form.

Test year methodology. The Report and Order adopts the use of an

adjusted historic test year. The test year may be adjusted for ``known

and measurable'' changes that have occurred by the time the rates take

effect. The Report and Order further finds that the historic test year

should be the operator's fiscal year. Thus, cost-of-service showings

must be based upon the operator's most recently completed fiscal year.

In the case of a cost-of-service showing arising in response to a

complaint, the fiscal year should be the one most recently completed at

the time of the filing of the complaint. In the case of new systems,

for which no historic data are available, projected data may be used,

but careful scrutiny shall be paid to the assumptions used.

(4) Use of Unitary 11.25% Rate of Return

A major component of the ratemaking methodology for cable operators

that elect cost-of-service regulation is the rate of return those

operators will be given an opportunity to earn on their allowed

ratebase. The Report and Order prescribes an interim, overall rate of

return of 11.25% for use in cable cost-of-service proceedings.

Uniform rate of return. The Report and Order finds that the record

confirms that the burden of establishing an individualized rate of

return for each cable operator that elects cost-of-service regulation

would be substantial. Such an undertaking would require cable operators

to present, and franchising authorities or the Commission to review,

analyses of matters such as the risks individual cable systems

encounter in providing regulated cable service and the sources of

capital available to finance those risks. Not persuaded that it is

necessary for cable operators and regulators to undertake such analyses

to ensure that cable operators can attract the capital needed to

provide regulated cable service, the Report and Order defines a uniform

rate of return for use by all cable operators in cost-of-service

showings.

Presumptive. The Report and Order acknowledges that some cable

operators may believe that the overall rate of return is inadequate to

compensate them for the risks they encounter in providing regulated

cable service. Similarly, consumers may find this overall rate

excessive, given the individual operator's specific circumstances. To

ensure the reasonableness of all rates set in cable cost-of-service

proceedings, the Report and Order states that parties to such

proceedings are not foreclosed from attempting to justify different

rates of return. Parties that seek rates of return different from the

prescribed interim rate of return, or any subsequently prescribed rate

of return, bear a heavy burden. In particular, each cable operator

seeking a higher rate of return is required to show exceptional facts

and circumstances that make its cost of capital for regulated cable

services exceed the prescribed rate of return, and must demonstrate

that those facts and circumstances will persist. All necessary

supporting information shall be included in the challenging cable

operator's initial cost-of-service showing. Similarly, local

franchising authorities may collect and consider evidence that the

operator's cost of capital for the individual system is lower than the

prescribed rate. The Commission will review all evidence relied upon by

local franchising authorities in setting rates of return different from

the prescribed rate.

General methodology. The Report and Order determines to use the

weighted average cost of capital as the methodology for establishing

the rate of return. The Report and Order describes in detail each of

the components: Cost of equity, cost of debt, and capital structure.

This weighted average cost of capital approach assumes a post-tax

return on equity.

In applying this methodology, an estimate of the cost of the

capital contributing to the provision of regulated cable service is

required, since most cable companies have diverse operations. The

record provided no company which engaged only in provision of regulated

cable service. Thus, the Commission selected surrogate firms to

represent the risks of regulated cable for capital analysis.

The Report and Order notes that the surrogate firms must operate a

levels of risks comparable to those of regulated cable service in order

to be consistent with the fundamental goal of determining the return

required to compensate investors for the perceived risks of regulated

cable service and to attract capital to that service. In choosing

surrogate firms, recognition is given to the limitations imposed by the

available information. Because different kinds of information are

available with regard to cost of equity, cost of debt, and capital

structure, each of these components of the overall cost of capital is

addressed separately.

Cost of equity. The Report and Order espouses the principle that

the ideal cost of equity estimate should accurately reflect investor

expectations as to the returns, in terms of both capital gains and

dividends, investors will earn. Since investor expectations are not

directly measurable, a variety of indirect methods are used. The Report

and Order reviews the methods used by commenters in this proceeding,

which fall into three categories: risk premium, discounted cash flow

(DCF), and comparable earnings. Commenters submitted four studies,

using the capital asset pricing model (CAPM) version of the risk

premium method, one study relying upon the DCF method to analyze the

Standard & Poors 400 (S&P 400), and one applying the comparable

earnings methodology. In Attachment D to the Report and Order, these

three methods of estimating the cost of equity are described and

analyzed.

The Report and Order concludes that the DCF methodology will be

applied to the S&P 400 to develop the cost of equity for companies

providing regulated cable service. The Report and Order and the

separate attachment present the basis for rejecting commenters'

arguments against use of the DCF methodology and against the use of the

S&P 400 as a surrogate, and rejects other approaches suggested in the

cost of equity studies by commenters. Thus, the Report and Order

affirms the tentative proposal in the Notice to apply the DCF method to

the companies composing the S&P 400. (Notice at  52).

The DCF method, like the other methods the parties advocate,

requires an assessment of the risks of regulated cable service in

comparison to those of the chosen surrogate. The record provides little

definitive analysis of the risks of regulated cable service and thus

does not make clear which specific subgroup of the S&P 400 regulated

cable most resembles in terms of risks. Given the paucity of the

record, the Report and Order determines that the S&P 400 should be

viewed broadly and a broad zone of reasonableness for the cost of

equity should be defined. Based on the Vander Weide analysis, estimates

for the cost of equity for regulated cable service are between 11.80%

(the midpoint of the DCF cost of equity estimates for the first

quartile of the S&P 400) and 15.11% (the midpoint of the DCF cost of

equity estimates for the third quartile). The Report and Order finds

that these estimates provide reasonable outside bounds for the cost of

equity for regulated cable service, approximately 12% and 15%. The

Report and Order adopts use of this range, in combination with other

elements of the weighted average cost of capital, to develop a zone of

reasonable rates of return for regulated cable service.

Cost of debt. The record on the cost of debt includes compilations

of debt costs for specific cable operators. The information is both

industry-specific and concrete. The Report and Order concludes that it

appropriate to rely on this information, instead of S&P 400 data, as a

surrogate for the cost of debt for regulated cable service, because it

is industry-specific and provides a sufficient basis for estimating

that cost of debt. Thus, the tentative conclusion to rely on the cost

of debt of the surrogate is rejected.

The cost of debt found by Vander Weide for six cable companies was

7.8%. AUS found an 8.5% cost of debt based on 1992 data and notes it

would be lower with more recent data. Several parties suggest higher

debt costs, but provide no supporting documentation. Adelphia's SEC

Form 10K for 1993 states that its floating note interest rates ranged

from LIBOR plus 1.0% to LIBOR plus 1.5%. Its March 31, 1993 average

debt rate was 8.65%. TCI's SEC Form 10K for 1991 states 55% of its debt

was fixed rate, with an average cost of 9.9% and 45% percent was

variable rate, floating at the prime rate. The prime rate on February

18, 1994, was 6% and LIBOR was 3.56% (90 day) and 3.75% (180 day).

The Report and Order computes the range for the average cost of

fixed rate debt established by this information for the most recently

available period (1992-93) as 7.8% to 8.65%. The Report and Order

determines that the reasonable estimate of the cost of debt for cable

is 8.5%. In addition to reflecting historical debt costs, this rate

allows for an increase in the cost of floating rate debt above current

rates.

Capital structure. The Report and Order addresses the

recommendations of commenters that provided analysis of the capital

structure for the cable industry as requested in the Notice. The Report

and Order notes the difficulty encountered in evaluating current cable

industry practices. The Report and Order evaluates the proposals for

establishing a capital structure and discusses in detail the problems

arising with each proposal. The Report and Order further notes that the

long-term average capital structure of the industry is not clear at

this time. Thus, instead of adopting a single capital structure, the

Report and Order finds that a capital structure range, for use in the

determination of the overall cost of capital for regulated cable

operations, is appropriate. Based on the record, the Report and Order

determines that a wide range of capital structures, extending from 40%

debt to 70% debt, is justified, and is consistent with the range for

cost of equity estimates and the cost of debt.

Overall cost of capital. The Report and Order reviews

recommendations for establishing an overall cost of capital, and

reflects on requirements of The Cable Act of 1992 that the cable rate

regulations provide cable operators the opportunity to earn ``a

reasonable profit'' while ``protecting subscribers * * * from rates * *

* that exceed what would be charged * * * if such cable system were

subject to effective competition.'' 46 U.S.C. 623(b)(2)(C)(vii) and

(b)(1), respectively. Companies regulated under this standard must be

allowed an opportunity to earn a return sufficiently high to maintain

financial integrity and attract new capital. At the same time, the

prescribed return must not produce rates that are unreasonable. The

courts have recognized that there is a zone of reasonableness within

which reasonable rates may fall, and that regulatory agencies have

broad discretion to select a return within that zone.

Given this standard, the Report and Order develops its

determination of a reasonable range for the cost of equity for

regulated cable service, cost of debt, and a reasonable range for the

capital structure. The following table combines all these elements and

presents the overall cost of capital implied by these ranges.

Calculation of Overall Rate of Return Debt Portion of Capital Structure

------------------------------------------------------------------------

In percent

---------------------------

40 50 60 70

------------------------------------------------------------------------

Equity estimate (in percent):

12...................................... 10.6 10.3 9.9 9.6

13...................................... 11.2 10.8 10.3 9.9

14...................................... 11.8 11.3 10.7 10.2

15...................................... 12.4 11.8 11.1 10.5

---------------------------

Average............................... 11.5 11.0 10.5 10.0

------------------------------------------------------------------------

Debt Cost: 8.50 percent.

No particular weight is given to any one cell in this table.

Instead, consideration is given to the averages that are produced, as

shown on the last row. Based on these averages, the Report and Order

finds that the overall cost of capital for regulated cable service lies

within a ``zone of reasonableness'' of 10.0% to 11.5%.

The Report and Order notes the concerns in selecting a rate within

this zone, since the record is less than perfect. Also, the risks of

regulated cable operations are not known with certainty, since those

risks are dependent in part on the cost-of-service rules and principles

adopted in this Order and on the revised benchmark methodology.

Additionally, there is a recognized desire to encourage infrastructure

development. Thus, the Report and Order determines that prescribing a

return toward the upper end of the zone of reasonableness will enable

cable operators to attract the capital needed to provide regulated

cable service and to expand their regulated offerings. Based on these

considerations, the Report and Order prescribes an overall cost of

capital of 11.25%.

Interim rate. The Report and Order notes that the rate of return

prescription is an interim one. The FNPRM (published elsewhere in this

Federal Register) seeks information on the relative risks of cable

operations given recent actions by the FCC, and further analysis of S&P

400 companies' costs of capital.

(5) Accounting and Cost Allocation Requirements

Existing requirements. Under existing rules, regulated cable

operators are required to maintain their accounts in accordance with

GAAP. 47 CFR 76.924(b). They are also required to maintain their

accounts in a manner that will allow for identification of appropriate

costs and application of cost assignment and cost allocation procedures

necessary for rate adjustments to reflect changes in external costs and

for cost-of-service showings. 47 CFR 76.924(c). In addition, for

accounting purposes, cable operators are generally required to

aggregate expenses and revenues at either the franchise, system,

regional or company level in a manner consistent with the practices of

the operator as of April 3, 1993. 47 CFR 76.924(d). (The initial rules

erroneously identified this date as April 3, 1992. The rules adopted

with this Report and Order correct this error). Costs associated with

franchise fees, franchise requirements, local taxes, and local

programming must be identified at the franchise level. Id.

Interim summary level accounts. The Report and Order adopts an

interim summary accounting system for use by cable operators that elect

cost of service regulation. This interim summary account system will be

required until a permanent system of accounts is in place. Cable

operators that elect cost of service regulation shall identify costs in

55 summary level accounts contained in FCC Form 1220. This form

requires that cost-of-service showings include a balance of broad

summary level investment, expense, and revenue categories.

The Report and Order expresses concern that even this summary

accounting approach may be burdensome for some small systems. In order

to provide further relief to small systems, the summary level of

accounts that small operators are required to report as a part of the

cost of service filings are aggregated further. The Report and Order

thus, adopts the requirement that small cable system operators may

identify their costs in FCC Form 1225, which contains 32 summary level

accounts.

Filing instructions. With regard to the level at which these

accounting requirements apply, the Report and Order requires that cable

operators electing cost-of-service regulation identify all amounts

associated with each revenue and cost category, as provided for in FCC

Forms 1220 and 1225, at the franchise, system, regional and/or company

level, depending upon the organizational level at which the operator

identified revenues and costs for accounting purposes as of April 3,

1993. (Sec. 76.924(c)). The FNPRM (published elsewhere in this Federal

Register) will provide for cost studies to explore the extent to which

operators should be permitted or required to report average costs at

levels different than those in effect on April 3, 1993.

Further, the Report and Order requires cable operators to provide

any additional financial data and explanations reasonably requested by

franchising authorities and the FCC to substantiate cost-of-service

showings or other related proceedings. Where a reasonable response is

not forthcoming, franchising authorities and the Commission are

authorized to make such disallowance as are appropriate, pending the

presentation of convincing evidence by cable operators.

Cost allocation requirements. The Report and Order finds that it is

necessary to require allocation of costs to nonregulated service

categories to help ensure that the allocation of costs to regulated

services is fair and reasonable in relation to the allocation of costs

to nonregulated services. The current rules require that costs be

allocated among the basic service tier and each tier of cable

programming service. 47 CFR 76.924(e)(2). The Report and Order amends

the rule to require that, in addition to the basic and cable

programming service tiers, cable operators shall allocate costs to

nonregulated programming service activities, other cable activities,

and non-cable activities.

The Report and Order requires that, after revenues and costs are

identified at the appropriate organizational level(s), cable operators

shall allocate costs among the equipment basket (47 CFR 76.923(d)) and

the following service cost categories: Basic service, cable programming

services, nonregulated cable programming services, other cable

activities and non-cable activities. These allocations shall be used

for cost-of-service showings and for allocating external costs. For the

purpose of allocating their costs and revenues among the service cost

categories and the equipment basket in cost-of-service proceedings,

cable operators shall use FCC Form 1220 or FCC Form 1225 (for use by

small cable system operators).

The Report and Order also requires direct assignment of all costs,

to the extent possible, among the equipment basket and the service cost

categories. Direct assignment applies when costs are incurred

exclusively to support the equipment basket or a specific service cost

category. For example, most programming charges from program suppliers

relate to specific programming. Those charges should therefore be

directly assigned to the tier on which the programming is offered. In

making this determination, the Report and Order modifies the existing

requirement that, with a few exceptions, cost categories identified at

the franchise level be generally allocated to the basic tier based on

the ratio of channels in the basic tier to the total number of channels

offered in the franchise area, and that costs allocated to each tier of

cable programming be based on the ratio of channels in each cable

programming services tier to the total number of channels offered in

the franchise area. The Report and Order finds that when direct

assignment is possible, it is preferable to a standard allocator

because, while cost allocation provides an estimate of the origination

of certain costs, direct assignment is simpler to apply, and more

accurately reflects cost causality.

The Report and Order requires that cable operators allocate among

the service cost categories and the equipment basket any costs that

cannot be directly assigned, using methodologies that are consistent

with the procedures in Sec. 76.924(f)(5). These procedures require

that, when direct assignment is not possible, operators must first

attempt to allocate costs through direct analysis of their origin. 47

CFR 76.924(f)(5)(i). Where direct analysis is not possible, operators

must attempt to establish cost-causative linkage to other costs

directly assigned or allocated by direct analysis. 47 CFR

76.924(f)(5)(ii). Finally, where no direct or indirect linkage can be

made, operators are required to allocated on the basis of the totals of

all costs directly assigned and allocated using direct assignment,

direct analysis and indirect linkage. 47 CFR 76.924(f)(5)(iii). The

Report and Order requires the Commission and local franchising

authorities to review the allocators proposed by cable operators on a

case-by-case basis to determine whether the allocators achieve

reasonable results.

The Report and Order maintains the current requirement that cable

operators allocate costs that were identified at higher levels to the

franchise level on the ratio of the total number of subscribers at the

franchise level to the total number of subscribers served at the higher

level. 47 CFR 924(e)(1). The Report and Order amends the rule, however,

to specify the particular procedures that must be followed for

allocating costs to the franchise level. First, recoverable costs that

have been aggregated at the highest organizational level at which costs

have been identified are allocated to the next (lower) organizational

level at which recoverable costs have been identified on the basis of

the ratio of the total number of subscribers served at the lower level

to the total number of subscribers served at the higher level. Second,

this procedure is repeated at every organizational level at which

recoverable costs have been identified, until all costs have been

allocated to the franchise level.

(6) Accounting and Cost Allocation Requirements for External Costs

Definition. External costs are categories of costs that cable

operators may pass through to subscribers without a cost-of-service

showing under our price cap rules. Such costs include retransmission

consent fees, other programming costs, taxes, franchise fees, and costs

of other franchise requirements. See Sec. 76.922(d)(3).

Treatment for rate adjustments. To provide for a readily

ascertainable basis for proposed external cost adjustments, the

accounting and cost allocation rules adopted in this Report and Order

will apply to external cost calculations. The Report and Order requires

that the following external costs be identified at the franchise level:

Franchise requirements, franchise fees, local taxes and local

programming. Cable operators are required to identify all other

external costs at the franchise, system, regional and/or company level,

depending upon the organizational level at which they identified costs

for accounting purposes as of April 3, 1993. These costs shall be

identified on FCC Form 1210. After external costs have been identified

at the appropriate organizational level(s), cable operators are

required to allocate such costs among the service cost categories and

the equipment basket in the manner specified for cost-of-service

showings.

With respect to the specific requirements for allocating certain

external costs, the Report and Order requires that the costs of

programming and retransmission consent be allocated to the service cost

category on which the signal or programming is offered. The phrase

``tier'' on which the programming or broadcast signal at issue is

offered'' is replaced with the phrase ``service cost category in which

the programming or broadcast signal at issue is offered.'' See

Sec. 76.924(f)(1) (emphasis added). The Report and Order also requires

that the costs of public, educational, and governmental access channels

carried on the basic tier be directly assigned to basic service cost

category where possible. The Report and Order modifies the allocation

requirements for franchise fees. Under the current rule, ``franchise

fees shall be allocated among equipment and installations, program

service tiers and subscribers in a manner that is most consistent with

the methodology of assessment of franchise fees by local authorities.''

Consistent with the treatment of Sec. 76.924(f)(1), the phrase

``program service tiers'' is replaced with the phrase ``service cost

categories.'' See Sec. 76.924(f)(2). While the franchise fee should be

allocated among the equipment basket and the service cost categories as

the rules currently require, the rules should not list subscribers as a

category to which such costs should be allocated. The equipment basket

and the service cost categories are the only appropriate categories for

allocation purposes. As already noted, the cost of franchise fees must

be identified at the franchise level.

The Report and Order also modifies existing rules to require that,

to the extent possible, all external costs be directly assigned among

the service cost categories. When direct assignment is possible, it is

preferable to a standard allocator because it is simpler to apply and

it more accurately reflects cost causality. For those external costs

that cannot be directly assigned, the Commission requires that cable

operators propose specific allocators that reasonably allocate costs

among the service cost categories and the equipment basket. The

Commission and franchising authorities shall review the allocators

proposed by cable operators on a case-by-case basis and determine

whether the allocators achieve reasonable results.

For the purpose of establishing external costs at the franchise

level, the Report and Order retains the current requirement that cable

operators allocate costs that were identified at higher levels to the

franchise level on the ratio of the total number of subscribers at the

franchise level to the total number of subscribers served at the higher

level. However, the Report and Order amends the rules to specify the

particular procedures that must be followed for allocating costs to the

franchise level in the case of adjustments to external costs as well as

cost of service regulation.

(7) Requirements for Affiliate Transactions

The report and Order adopts rules for affiliate transactions that

will apply to cable operators who either elect cost-of-service

regulation or seek to adjust benchmark/price cap rates for affiliated

programming costs. For those operators electing to use the benchmark/

price cap approach, the affiliate transaction rules will only be

applicable to affiliate transactions involving programming. In Docket

No. 92-266, under price caps, cable operators may pass-through

affiliated programming costs that exceed inflation as long as the

prices charged to the affiliated cable system operators reflect either

prevailing company prices offered in the marketplace to third parties

(where the affiliated program supplier has established such prices) or

the fair market value of programming. First Order on Reconsideration at

114.

Under the rules adopted in the Report and Order, cable operators

that elect cost-of-service regulation or who seek to adjust benchmark/

price cap rates for affiliated programming costs shall be required to

apply valuation methods that are similar to those telephone companies

are now required to apply. Although the rules for telephone companies

specify the manner of accounting for affiliates transactions, the

affiliate transaction rules adopted for cable operators in this Report

and Order do not impose accounting requirements. The affiliate

transaction rules adopted with this Report and Order merely set the

limits for inclusion of investment and expense in rates set on a cost-

of-service basis. They will also govern external cost treatment of

programming cable operators purchase from affiliates. These methods

distinguish between asset transfers and the provision of services.

When a cable operator sells assets to an affiliate or buys assets

from an affiliate, the assets shall be valued at the asset provider's

prevailing company price, if the provider has sold the same kind of

asset to a substantial number of third parties at a generally available

price. Absent a prevailing company price, the cable operator shall

value the asset at the higher of net book cost and estimated fair

market value when the regulated cable system is the seller, and at the

lower of net book cost and estimated fair market value when the

regulated cable system is the buyer.

When a cable operator sells services to an affiliate or buys

services from an affiliate, the services shall be valued at the

provider's prevailing company price, if the provider has sold the same

kind of service to a substantial number of third parties at a generally

available price. When the provider has established no prevailing

company price, the cable operator must value the service at the service

provider's cost.

In determining the prevailing company price, the Report and Order

requires that it be based on the price at which the provider has sold

the same kind of asset or service to a substantial number of third

parties at a generally available price. In determining the cost of both

assets and services, cable operators shall apply the costing methods

and the rate of return adopted in the Report and Order for cable cost-

of-service showings, to the extent applicable, and shall otherwise use

reasonable costing methods. Where there is no prevailing company price,

affiliate transactions must be carefully scrutinized to ensure that

costs are calculated accurately and, for asset transfers, that fair

market value is estimated properly. Therefore, cable operators must be

prepared to demonstrate that any affiliated transactions costs they

claim as regulated costs reflect the cost-of-service methodologies

adopt with the Report and Order.

For the purpose of evaluating affiliate transactions that involve

programming, the Report and Order determines to classify programming as

an asset. Hence, for the purpose of establishing initial costs for

programming purchased by a cable operator from an affiliate, the cost

of the programming shall equal the provider's prevailing company price,

if the provider has sold the same kind of programming to a substantial

number of third parties at a generally available price. Absent a

prevailing company price, the cost of the programming shall equal the

lower of the provider's net book cost and the programming's estimated

fair market value. Except to the extent that they are relevant for

estimating fair market value, the Report and Order does not allow for

the establishment of affiliate prices by reference to the prices

independent suppliers charge third parties for the same or similar

products.

The Report and Order applies the rules adopted in the program

access proceeding to define affiliated programmers. Rate Order, 8 FCC

Rcd at 5788, n.601, citing Implementation of Sections 12 and 19 of the

Cable Television Consumer Protection and Competition and Diversity Act

of 1992--Development of Competition and Diversity in Video Programming

Distribution and Carriage, Report and Order, FCC 93-178, 58 FR 27658,

released May 11, 1993. Under those rules, an affiliated programmer is a

programmer with an ownership interest of five percent or more,

including general partnership interests, direct ownership interests,

and stock interests in a corporation where such stockholders are

officers or directors or who directly or indirectly own five percent or

more of the outstanding stock, whether voting or nonvoting. Such

interests include limited partnership interests of five percent.

The Report and Order requires cable operators to provide detailed

disclosure of affiliate transactions so that the Commission and

franchising authorities can ensure that affiliate transactions are

treated consistent with the limits of this Report and Order. Where

cable operators have not demonstrated that their affiliate transactions

meet the requirements of the affiliate transaction rules, disallowances

shall be made by the Commission and franchising authorities.

(8) Streamlined Filing and Review for Small Systems

The Report and Order acknowledges Congress' directive under the

Cable Act of 1992 to reduce the administrative burdens of, and costs of

compliance with, cable regulations for small cable systems. 47 U.S.C.

623(i). The Report and Order adopts an abbreviated cost of service form

for use by small systems, Form 1225. This will reduce the

administrative burdens of cost showings for small system operators,

while retaining the necessary regulatory oversight and assurance of

reasonable rates. The Report and Order further requires that

information provided on the abbreviated cost of service form be

certified by the operator as correct; it will be subject to audit by

the local franchising authority and by the Commission.

Independent small systems and small systems operated by small MSO's

may use Form 1225. Small MSO's are those multiple system operators that

(1) Serve 250,000 subscribers or less, (2) own only small systems with

less than 10,000 subscribers, and (3) have an average system size of

1,000 or fewer subscribers. This is the same standard of eligibility

that the Commission adopts for other small system administrative relief

in the Benchmark/price cap Order, which is summarized elsewhere in the

Federal Register.

However, The Report and Order does not allow use of this form for

small operators affiliated with larger systems. The Report and Order

adopts the same affiliation standards employed for small system

administrative relief generally. Use of the small system relief form

(Form 1225) is not permitted by companies in which a larger company

holds more than a 20 percent equity interest (active or passive) or

over which a larger company exercises actual working control (such as

through a general partnership or majority voting shareholder interest).

This affiliated standard also governs eligibility for the use of the

abbreviated summary level accounts for small systems.

Finally, the Report and Order notes that while all cable companies

that choose to make cost-of-service filings should be subject to the

uniform accounting requirements as proposed here, at least in

abbreviated form, such accounting requirements may increase the

administrative burden on small operators to the point of hardship, and

small operators may be unlikely to require the same level of regulatory

oversight as larger entities. Thus, in our Further Notice, comment is

sought on whether to exempt small systems and/or small operators from

these requirements entirely. The Commission also is adopting reduced

accounting requirements for small systems.

(9) Streamlined Filing Requirements for Network Upgrades

The Report and Order concludes that an abbreviated cost-of-service

showing for network upgrades, with safeguards, provides an appropriate

way to implement the goals of the Cable Act of 1992, to promote the

availability of diverse cable services and facilities, encourage

economically justified upgrades, and reduce regulatory burdens, while

ensuring reasonable rates for regulated services.

The Report and Order notes that for many systems, this option will

be unnecessary or inapplicable. The benchmark/price cap mechanism is

already based on the rates of competitive systems, including those with

upgraded networks. The rates charged by those systems presumably

recover their capital costs. The benchmark also includes factors

reflecting the number of channels a system furnishes to customers.

Nevertheless, there may be cases where the benchmark rates do not

provide sufficient revenue to attract capital for upgrades because of

unusual costs associated with capital improvements. For these cases the

abbreviated cost-of-service showing should provide the ability to

attract the capital needed for the upgrade.

The abbreviated cost of service showing for network upgrades is

available only for significant upgrades requiring added capital

investment, such as expansion of band width capability and conversion

to fiber optics, and for system rebuilds. Normal improvements and

expansions of service will remain subject to the usual rate review

process. The Report and Order finds that to justify an increase in the

rates for regulated services, the operator will be required to

demonstrate that the capital investment actually will benefit

subscribers through improvements in the regulated services subject to

the rate increase. The Report and Order also holds that, except to the

extent provided by our AFUDC policy, the upgrade rate increase should

not be assessed on customers until the upgrade is complete and

providing these benefits to customers of the regulated services. This

is consistent with the general cost-of-service standard that only used

and useful property should be included in the ratebase. Any costs that

are not used and useful, will be deducted from total cost. Issues of

allowable costs can be resolved if raised by comparison with costs of

similar systems and, in particular, systems subject to competition.

To assure that the upgrade rate increase is justified by higher

costs, the Report and Order requires that the operator bear the burden

of demonstrating the amount of the net increase in costs, taking into

account current depreciation expense, likely changes in maintenance and

other costs, changes in revenues, and expected economies of scale. The

Report and Order requires that the operator must also allocate the net

increase in costs in conformance with the cost allocation rules for

cost-of-service showings, to assure that only costs allocable to

regulated services are imposed on subscribers to those services.

The Report and Order explains that the permitted rate (based upon

the showing of the net increase in allowable costs associated with the

capital improvement) would be provided in two elements. The first

element is the benchmark rate, as governed by the Rate Order and the

price cap. The second element is the capital improvement add-on. The

sum of these two elements yield the maximum allowable rate that might

be charged to subscribers. The capital improvement add-on is not

adjusted for inflation but is a fee charged over the useful life of the

improvement determined in accordance with our cost-of-service

requirements.

The Report and Order delegates to the Cable Services Bureau the

development of appropriate forms for these abbreviated showings.

(10) Hardship Rate Relief for Operators

The Report and Order recognizes that, in extraordinary cases, the

cable industry may face special problems as it moves into a regulated

environment, and that it is conceivable that the particular

circumstances of an operator could be such that the practical result of

applying any of these rate options could still be to threaten the

financial health of the operator and its continued ability to provide

cable service.

The Report and Order addresses this possibility, and notes that the

Commission will consider the need for special rate relief for operators

in individual cases. To demonstrate eligibility for such extraordinary

relief, the operator should establish that the rates permitted by the

benchmark/price cap and cost-of-service mechanisms undermine the

financial health of the operator so that it is unable to attract

capital and maintain credit necessary to operate, despite prudent and

efficient management. The operator should also establish that the

resulting rates, though higher than those justified by the operator's

costs, will nevertheless not be unreasonable or exploitative of

customers. For example, the operator should demonstrate that the rates

are not excessive in comparison with similarly situated systems,

particularly systems subject to competition.

The Report and Order requires that this hardship showing must be

made for the MSO level, or in any event at the highest level of the

operator's cable system organization. The operator should provide all

information and legal authority on which it seeks to rely, and all

factors it believes the Commission should consider, to demonstrate that

the end result of the other ratesetting options available to it would

place the operator in financial difficulty warranting rate relief, and

that on balance this relief would not result in unreasonable rates for

customers. If the operator makes an adequate initial showing of facts

which, if proved, might warrant rate relief, the Commission will

subsequently provide the operator with an opportunity to prove the

facts alleged and demonstrate that, balancing the relevant interests of

investors and ratepayers, rate relief is warranted.

(11) Experimental Upgrade Incentive Plan

The Report and Order determines that the goal of promoting

economically justified system upgrades, as well as the goals of the

Cable Act and of this proceeding, would be furthered by development of

an incentive regulation approach to upgrading cable services, similar

to the incentive plans implemented for telephone carriers. The Report

and Order outlines the incentive approach as follows. Basically, an

operator would be permitted to enter into a ``social contract'' with

its customers under which the operator would be given substantial

flexibility in setting rates for new regulated services it introduces,

such as new service tiers offering additional program channels. In

exchange, customers would be guaranteed that rates for current services

would be kept stable and reasonable, no higher than rates before the

contract takes effect or the benchmark/price cap rate (which might

include adjustments for inflation and external cost changes), and that

this would purchase at least the same program channels, or channels of

equivalent value to customers. The operator would also commit to

otherwise maintaining or improving its service quality. The contract

would be effective for a term of years and would be overseen by this

Commission, and reviewed before the end of the term.

The Report and Order notes that a plan such as this, which protects

the rates and quality of current cable service tiers, while providing

profit incentives for operators to introduce new and improved regulated

services, may help carry out the purposes of the Cable Act while also

being fair to customers of current services, less burdensome on cable

operators and those responsible for their regulation, and more likely

to encourage worthwhile investments to upgrade cable service.

The Report and Order contemplates that this plan will generate a

strong incentive for the operator to undertake only upgrades that are

economically justified and that best meet customer needs, and to make

such upgrades in the most efficient manner possible. In order to profit

from the planned upgrade, an operator must provide customers with

additional or upgraded services they want to buy. Marketplace forces,

not this Commission, will determine which services succeed. A properly

designed incentive plan for system upgrades should help achieve other

goals. It should, for example, help encourage operators to provide

additional tiers of services. An incentive regulation plan should also

reduce regulatory burdens, even below those likely under the add-on

rate proposal. Regulatory review should only encompass whether the

operator is continuing to offer existing services at rates no higher

and quality no lower than the operator contracted to provide. The

Commission would not expect to investigate complaints regarding rates

for additional regulated services unless they were clearly outside a

wide range of reasonable rates, as evidenced, for example, by similar

systems.

Offering substantial rate flexibility may also be appropriate to

encourage operators to take the entrepreneurial risk of investing in

the upgrades needed to offer such services, while replicating

competitive marketplace forces. In competitive markets, entrepreneurs

offering new and improved services can hope to reap above-market

profits for some period, at least until competitors catch up, but also

take the risk that the services will not succeed in the marketplace.

Permitting cable operators to take the risks and to keep the rewards of

introducing new and improved services, at least for a reasonable

period, should have similar benefits when applied to cable operators.

The Report and Order notes that additional services will be

indirectly regulated by the price cap on current regulated services.

The added services and capabilities must effectively compete with the

other regulated services, whose rates are limited by regulation.

Customers are likely to subscribe to and pay for the added services and

capabilities only if they offer additional value at a reasonable price,

in comparison to those offered by current tiers.

The Report and Order observes that to generate an incentive plan

that is effective in encouraging operators to invest in worthwhile

upgrades, but also fair to customers, the rate limits on existing

services and the rate flexibility for new services would apply for a

substantial period, but would be subject to eventual review. For

instance, in the case of telephone companies, an initial review is made

during the fourth year of the price cap incentive plan. In view of the

initial start-up issues for any incentive plan for cable operators, a

longer period is probably desirable, both to permit operators to

understand and respond to the plan and to assure strong efficiency

incentives. Thus, the Report and Order proposes that the Commission

review the plan in the fifth year of operation.

The Report and Order adopts the Upgrade Incentive Plan on an

experimental basis. Cable systems that commit to meet the basic

obligations of freezing rates for current services that have been

adjusted to benchmark/price cap or cost of service levels, or

conforming their rates to the price cap, and maintaining programming

and service quality that is at least as valued by customers as that

offered currently, will be permitted substantial rate flexibility in

the rates they might wish to introduce for additional regulated

services and capabilities for a term of years, up to five years, from

the acceptance of the plan. These experimental plans will then be

monitored and reviewed no later than the fifth year to evaluate their

performance.

To gain experience with this approach, the Report and Order states

that the Commission will consider proposals from cable operators that

will implement the Upgrade Incentive Plan on an experimental case-by-

case basis, for a limited term of years. Cable operators wishing to

participate should submit a proposal to the Commission's Cable Services

Bureau outlining a proposal and explaining how it would implement the

objectives outlined here. The proposal should also be accompanied by a

written statement by any certified franchising authority with

jurisdiction over cable systems affected by the plan of its views

concerning the proposed agreement.

Regulatory Flexibility Analysis

Final Regulatory Flexibility Analysis for the Report and Order

Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C.

Sections 601-12, the Commission's final analysis with respect to the

Report and Order is as follows:

Need and purpose of this action: The Commission, in compliance with

sections 3 and 14 and those portions of section 9 of the Cable

Television Protection and Compliance Act of 1992 (the Act) pertaining

to rate regulation, adopts rules and procedures intended to ensure

cable subscribers of reasonable rates for cable services with minimum

regulatory and administrative burdens on cable entities.

Summary of issues raised by the public comments in response to the

Initial Regulatory Flexibility Analysis (IRFA): The Chief Counsel for

Advocacy of the United States Small Business Administration (``Office

of Advocacy'') offers several remarks in response to the IRFA. The

Office Advocacy expresses concern that numerous small cable operators

cannot operate profitably, if at all, under the constraints imposed by

the benchmark. It agrees with the Commission that some other process

must be developed to permit small cable operators to demonstrate the

reasonableness of rates. The Office of Advocacy believes the

Commission's experience with regulation of common carriers may prove

beneficial in developing mechanisms that balance the need for

exactitude with administrative simplicity.

First, the Office of Advocacy opines that the 1,000 subscriber

standard in the 1992 Act does not provide an adequate definition of

small operator. It recommends defining small cable operators at those

with less than $7.5 million in gross revenues, a standard roughly

equivalent to 20-25,000 subscribers. Within this category it recommends

separate tiers at 1,000, 3,500, and 10,000 subscribers.

Second, the Office of Advocacy commends the Commission for its

compliance with the Regulatory Flexibility Act and its extensive

examination of alternative regulatory regimes. It supports the

Commission's proposal to streamline cost of service showings for

smaller firms, if a relatively simple form can be developed to show

what these costs are. It also supports the Commission's proposal of an

abbreviated cost showing for significant capital expenditures. The

Office of Advocacy also suggests that the Commission consider use of

average cost schedules, maintained by an organization of cable

operators to provide the same functions for the cable industry that the

National Exchange Carrier Association performs for local telephone

companies. It opposes use of 1986 rates adjusted for inflation and

productivity as an alternative.

Third, the Office of Advocacy also supports considering exemptions

for small cable operators, provided certain principles are maintained,

including a Commission finding that exempt operators' rates are

reasonable.

The Commission also is adopting its proposals for streamlined cost

of service studies for small companies, based on a simplified form, and

abbreviated cost of service showings for significant capital

expenditures. The Commission is also seeking the information needed to

consider development of average cost schedules. The Upgrade Incentive

Plan that the Commission is adopting on an experimental basis, and

seeking comment on, may also be an attractive alternative form of

regulation, with substantially reduced administrative burdens, for

small operators.

The Commission agrees with the Office of Advocacy that we must

ensure that rates for regulated services are reasonable for all cable

operators. We are also willing to consider proposals for pooling cable

system costs and revenues in a manner similar to that employed for

small telephone companies. It is unclear to us, however, that cable

operators are sufficiently interested in such an approach to make its

adoption worthwhile. Our consideration of average cost schedule

approaches in the Further Notice may provide insight on this matter.

The Commission has also considered the other comments and proposals

regarding small cable operators, as we discuss in more detail in the

body of the Report and Order. For example, in response to a proposal in

comments from Small Systems, we have broadened the definition of small

systems for purposes of the cost of service mechanisms to include MSOs

with 250,000 or fewer subscribers, who do not own any system with more

than 10,000 subscribers, and whose average system size is 1,000

subscribers or less. Interested persons will also have the opportunity

to submit further comments on these interim rules in the Further Notice

so that we may consider appropriate revisions before these rules become

final.

Paperwork Reduction Act

The proposal contained herein has been analyzed with respect to the

Paperwork Reduction Act of 1980 and found to impose a new or modified

information collection requirement on the public. Implementation of any

new or modified requirement will be subject to approval by the Office

of Management and Budget as prescribed by the Act.

Ordering Clauses

Accordingly, It is ordered That, pursuant to sections 4(i), 4(j),

612, 622(c) and 623 of the Communications Act of 1934, as amended, 47

U.S.C. 154(i), 154(j), 532, 542(c) and 543, the rules, requirements,

and policies discussed in the foregoing Report & Order are adopted, and

that part 76 of the Commission's rules, 47 CFR part 76, is amended as

set forth below.

It is further ordered that, the rules, policies, and requirements

adopted herein shall be effective May 15, 1994.

It is further ordered That, the Secretary shall send a copy of this

Report and Order, including the certification, to the Chief Counsel for

Advocacy of the Small Business Administration in accordance with

paragraph 603(a) of the Regulatory Flexibility Act. Public Law 96-354,

94 Stat. 1164, 5 U.S.C. 601 et seq. (1981).

It is further ordered That authority is delegated to the Chief,

Cable Services Bureau to conduct cost studies in conjunction with this

proceeding and to develop forms necessary and appropriate to implement

this Order.

It is further ordered Pursuant to sections 4(i) 4(j), 623(b), and

623(c) of the Communications Act, 47 U.S.C. 154(i), 154(j), 543 (b) and

(c), that the Upgrade Incentive Plan described herein is adopted on an

experimental basis. Authority is delegated to the Chief, Cable Services

Bureau to implement this plan.

List of Subjects in 47 CFR Part 76

Cable television.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

Rule Changes

Part 76 of title 47 of the CFR is amended as follows:

PART 76--CABLE TELEVISION SERVICE

1. The authority citation for part 76 continues to read as follows:

Authority: Secs. 2, 3, 4, 301, 303, 307, 308, 309, 48 Stat., as

amended, 1064, 1065, 1066, 1081, 1082, 1083, 1084, 1085, 1101: 47

U.S.C. 152, 153, 154, 301, 303, 307, 308, 309, 532, 533, 535, 542,

543, 552, as amended, 106 Stat. 1460.

2. Section 76.922 is amended by adding paragraphs (g) through (k)

to read as follows:

Sec. 76.922 Rates for the basic service tier and cable programming

services tiers.

* * * * *

(g) Cost of service charge. (1) For purpose of this section, a

monthly cost-of-service charge for a basic service tier or a cable

programming service tier is an amount equal to the annual revenue

requirement for that their divided by a number that is equal to 12

times the average number of subscribers to that tier during the test

year, except that a monthly charge for a system or tier in service less

than one year shall be equal to the projected annual revenue

requirement for the first 12 months of operation or service divided by

a number that is equal to 12 times the projected average number of

subscribers during the first 12 months of operation or service. The

calculation of the average number of subscribers shall include all

subscribers, regardless of whether they receive service at full rates

or at discounts.

(2) A test year for an initial regulated charge is the cable

operator's fiscal year preceding the initial date of regulation. A test

year for a change in the basic service charge that is after the initial

date of regulation is the cable operator's fiscal year preceding the

mailing or other delivery of written notice pursuant to Sec. 76.932. A

test year for a change in a cable programming service charge after the

initial rate of regulation is the cable operator's fiscal year

preceding the filing of a complaint regarding the increase.

(3) The annual revenue requirement for a tier is the sum of the

return component and the expense component for that tier.

(4) The return component for a tier is the average allowable test

year ratebase allocable to the tier adjusted for known and measurable

changes occurring between the end of the test year and the effective

date of the rate multiplied by the rate of return specified by the

Commission or franchising authority.

(5) The expense component for a tier is the sum of allowable test

year expenses allocable to the tier adjusted for known and measurable

changes occurring between the end of the test year and the effective

date of the rate.

(6) The ratebase may include the following:

(i) Prudent investment by a cable operator in tangible plant that

is used and useful in the provision of cable services less accumulated

depreciation. Tangible plant in service shall be valued at the actual

money cost (or the money value of any consideration other than money)

of property at the time it was first used to provide cable service. The

actual money cost of plant may include an allowance for funds used

during construction at the prime rate or at the operator's actual cost

of funds used during construction. Cost overruns are presumed to be

imprudent investment in the absence of a showing that the overrun

occurred through no fault of the operator.

(ii) An allowance for start-up losses, if any, that is equal to the

lesser of the first two years of operating costs or accumulated losses

incurred until the system reached the end of its prematurity stage as

defined in Financial Accounting Standards Board Standard 51 (``FASB

51'') less straight-line amortization over a reasonable period not

exceeding 15 years that commences at the end of the prematurity phase

of operation. FASB 51 is available from: Financial Accounting Standards

Board, 401 Merritt 7, P.O. Box 5116, Norwalk, CT 06856-5116.

(iii) Intangible assets less amortization that reflect the original

costs prudently incurred by a cable operator in organizing and

incorporating a company that provides regulated cable services,

obtaining a government franchise to provide regulated cable services,

or obtaining patents that are used and useful in the provision of cable

services.

(iv) The cost of customer lists if such costs were capitalized

during the prematurity phase of operations less amortization.

(v) An amount for working capital to the extent that an allowance

or disallowance for funds needed to sustain the ongoing operations of

the regulated cable service is demonstrated.

(vi) Other intangible assets to the extent the cable operator

demonstrates that the asset reflects costs incurred in an activity or

transaction that produced concrete benefits or savings for subscribers

to regulated cable services that would not have been realized otherwise

and the cable operator demonstrates that a return on such an asset does

not exceed the value of such a subscriber benefit.

(vii) The portion of the capacity of plant not currently in service

that will be placed in service within twelve months of the end of the

test year.

(7) Deferred income taxes shall be deducted from items included in

the ratebase.

(8) Allowable expenses may include the following:

(i) All regular expenses normally incurred by a cable operator in

the provision of regulated cable service, but not including any

lobbying expense, charitable contributions, penalties and fines paid on

account of violations of statutes or rules, or membership fees in

social, service, recreational or athletic clubs or organizations.

(ii) Reasonable depreciation expense attributable to tangible

assets allowable in the ratebase.

(iii) Reasonable amortization expense for prematurely abandoned

tangible assets formerly includable in the ratebase that are amortized

over the remainder of the original expected life of the asset.

(iv) Reasonable amortization expense for start-up losses and

capitalized intangible assets that are includable in ratebase.

(v) Taxes other than income taxes attributable to the provision of

regulated cable services.

(vi) An income tax allowance.

(h) Network upgrade rate increase. (1) Cable operators that

undertake significant network upgrades requiring added capital

investment may justify an increase in rates for regulated services by

demonstrating that the capital investment will benefit subscribers.

(2) A rate increase on account of upgrades shall not be assessed on

customers until the upgrade is complete and providing benefits to

customers of regulated services.

(3) Cable operators seeking an upgrade rate increase have the

burden of demonstrating the amount of the net increase in costs, taking

into account current depreciation expense, likely changes in

maintenance and other costs, changes in regulated revenues and expected

economies of scale.

(4) Cable operators seeking a rate increase for network upgrades

shall allocate net cost increases in conformance with the cost

allocation rules as set forth in Sec. 76.924.

(5) Cable operators that undertake significant upgrades shall be

permitted to increase rates by adding the benchmark/price cap rate to

the rate increment necessary to recover the net increase in cost

attributable to the upgrade.

(i) Hardship rate relief. A cable operator may adjust charges by an

amount specified by the Commission for the cable programming service

tier or the franchising authority for the basic service tier if it is

determined that:

(1) Total revenues from cable operations, measured at the highest

level of the cable operator's cable service organization, will not be

sufficient to enable the operator to attract capital or maintain credit

necessary to enable the operator to continue to provide cable service;

(2) The cable operator has prudent and efficient management; and

(3) Adjusted charges on account of hardship will not result in

total charges for regulated cable services that are excessive in

comparison to charges of similarly situated systems.

(j) Cost of service showing. A cable operator that elects to

establish a charge, or to justify an existing or changed charge for

regulated cable service, based on a cost-of-service showing must submit

data to the Commission or the franchising authority in accordance with

forms established by the Commission. The cable operator must also

submit any additional information requested by franchising authorities

or the Commission to resolve questions in cost-of-service proceedings.

(k) Subsequent cost of service charges. No cable operator may use a

cost-of-service showing to justify an increase in any charge

established on a cost-of-service basis for a period of 2 years after

that rate takes effect, except that the Commission or the franchising

authority may waive this prohibition upon a showing of unusual

circumstances that would create undue hardship for a cable operator.

3. Section 76.924 is amended by revising paragraphs (b) (c), (d),

(e), and (f), redesignating paragraph (g) as paragraph (j), and adding

new paragraphs (g) and (i) to read as follows:

Sec. 76.924 Cost accounting and cost allocation requirements.

* * * * *

(b) Accounting requirements. Cable operators electing cost-of-

service regulation or seeking rate adjustments due to changes in

external costs shall maintain their accounts:

(1) in accordance with generally accepted accounting principles;

and

(2) in a manner that will enable identification of appropriate

investments, revenues, and expenses.

(c) Accounts level. Except to the extent indicated below, cable

operators electing cost of service regulation or seeking adjustments

due to changes in external costs shall identify investments, expenses

and revenues at the franchise, system, regional, and/or company

level(s) in a manner consistent with the accounting practices of the

operator on April 3, 1993. However, in all events, cable operators

shall identify at the franchise level their costs of franchise

requirements, franchise fees, local taxes and local programming.

(d) Summary accounts. (1) Cable operators filing for cost-of-

service regulation, other than small operators, as defined by

Sec. 76.922(b)(5)(i), shall report all investments, expenses, and

revenue and income adjustments accounted for at the franchise, system,

regional and/or company level(s) to the summary accounts listed below:

(i) Ratebase:

(A) Net Working Capital.

(B) Headend.

(C) Trunk and Distribution Facilities.

(D) Drops.

(E) Customer Premises Equipment.

(F) Construction/Maintenance Facilities and Equipment.

(G) Programming Production Facilities and Equipment.

(H) Business Offices Facilities and Equipment.

(I) Other Tangible Assets.

(J) Accumulated Depreciation.

(K) Plant Under Construction.

(L) Organizational and Franchise Costs.

(M) Subscriber Lists.

(N) Capitalized Start-up Losses.

(O) Goodwill.

(P) Other Intangibles.

(Q) Accumulated Amortization.

(R) Deferred Taxes.

(ii) Operating Expenses:

(A) Cable Plant Employee Payroll.

(B) Cable Plant Power Expense.

(C) Pole Rental, Duct, Other Rental for Cable Plant.

(D) Cable Plant Depreciation Expense.

(E) Cable Plant Expenses--Other.

(F) Plant Support Employee Payroll Expense.

(G) Plant Support Depreciation Expense.

(H) Plant Support Expense--Other.

(I) Programming Activities Employee Payroll.

(J) Programming Acquisition Expense.

(K) Programming Activities Depreciation Expense.

(L) Programming Expense--Other.

(M) Customer Services Expense.

(N) Advertising Activities Expense.

(O) Management Fees.

(P) General and Administrative Expenses.

(Q) Selling General and Administrative Depreciation Expenses.

(R) Selling General and Administrative Expenses--Other.

(S) Amortization Expense--Franchise and Organizational Costs.

(T) Amortization Expense--Customer Lists.

(U) Amortization Expense--Capitalized Start-up Loss.

(V) Amortization Expense--Goodwill.

(W) Amortization Expense--Other Intangibles.

(X) Operating Taxes.

(Y) Other Expenses (Excluding Franchise Fees).

(Z) Franchise Fees.

(AA) Interest on Funded Debt.

(BB) Interest on Capital Leases.

(CC) Other Interest Expenses.

(iii) Revenue and Income Adjustments:

(A) Advertising Revenues.

(B) Other Cable Revenue Offsets.

(C) Gains and Losses on Sale of Assets.

(D) Extraordinary Items.

(E) Other Adjustments.

(2) Small operators, as defined by Sec. 76.922(b)(5)(i), that file

for cost of service regulation shall report all investments, expenses,

and revenue and income adjustments accounted for at the franchise,

system, regional and/or company level(s) to the following summary

accounts:

(i) Ratebase:

(A) Net Working Capital.

(B) Headend, Trunk and Distribution System and Support Facilities

and Equipment.

(C) Drops.

(D) Customer Premises Equipment.

(E) Production and Office Facilities, Furniture and Equipment.

(F) Other Tangible Assets.

(G) Accumulated Depreciation.

(H) Plant Under Construction.

(I) Goodwill.

(J) Other Intangibles.

(K) Accumulated Amortization.

(L) Deferred Taxes.

(ii) Operating Expenses:

(A) Cable Plant Maintenance, Support and Operations Expense.

(B) Programming Production and Acquisition Expense.

(C) Customer Services Expense.

(D) Advertising Activities Expense.

(E) Management Fees.

(F) Selling, General and Administrative Expenses.

(G) Depreciation Expense.

(H) Amortization Expense--Goodwill.

(I) Amortization Expense--Other Intangibles.

(J) Other Operating Expense (Excluding Franchise Fees).

(K) Franchise Fees.

(L) Interest Expense.

(iii) Revenue and Income Adjustments:

(A) Advertising Revenues.

(B) Other Cable Revenue Offsets.

(C) Gains and Losses on Sale of Assets.

(D) Extraordinary Items.

(E) Other Adjustments.

(3) Cable operators shall not be required to report their

investments, expenses and revenues to the summary accounts listed in

paragraphs (d)(1) and (d)(2) of this section for purposes of adjusting

rates based on changes in their external costs.

(e) Allocation to service cost categories.

(1) For cable operators electing cost-of-service regulation,

investments, expenses, and revenues contained in the summary accounts

identified in paragraph (d) of this section shall be allocated among

the Equipment Basket, as specified in Sec. 76.923, and the following

service cost categories:

(i) Basic service cost category. The basic service category, shall

include the cost of providing basic service as defined by

Sec. 76.901(a). The basic service cost category may only include

allowable costs as defined by Secs. 76.922(g) through 76.922(k).

(ii) Cable programming services cost category. The cable

programming services category shall include the cost of providing cable

programming services as defined by Sec. 76.901(b). This service cost

category shall contain subcategories that represent each programming

tier that is offered as a part of the operator's cable programming

services. All costs that are allocated to the cable programming service

cost cateogry shall be further allocated among the programming tiers in

this category. The cable programming service cost category may include

only allowable costs as defined in Sec. 76.922(g) through 76.922(k).

(iii) Nonregulated cable programming services cost category. The

nonregulated cable programming service cost category shall include the

cost of providing video programming that is not carried on either the

basic service tier or a cable programming service tier. It includes

video programming that is offered.

(A) On a pay-per-channel basis;

(B) On a pay-per-program basis; or

(C) As any combination of multiple channels of pay-per-channel or

pay-per-program video programming offered on a multiplexed or time-

shifted basis so long as the combined service consists of commonly-

identified video programming and is not bundled with any regulated tier

of service.

(iv) Other cable activities service cost category. The other cable

activities service cost category shall include the cost of providing

all cable services that are not included in the basic service, cable

programming services, or nonregulated cable programming services

categories. Other cable activities include leased commercial access,

billing and collection services, studio and nonregulated equipment

engineering and rental services, sale of nonregulated equipment, and

maintenance of nonregulated equipment sold to customers.

(v) Non-cable activities service cost category. The noncable

service cost category shall include the cost of providing all

activities of a cable operator that are not related to the provision of

cable services.

(2) Cable operators seeking an adjustment due to changes in

external costs identified in FCC Form 1210 shall allocate such costs

among the equipment basket, as specified in Sec. 76.923, and the

following service cost categories:

(i) The basic service category as defined by paragraph (e)(1)(i) of

this section;

(ii) The cable programming services category as defined by

paragraph (e)(1)(ii) of this section;

(iii) The nonregulated cable programming services cost category as

defined by paragraph (e)(1)(iii) of this section;

(iv) The other cable activities service costs category as defined

by paragraph (e)(1)(iv) of this section; and

(v) The non-cable activities service cost category as defined by

paragraph (e)(1)(v) of this section.

(f) Cost allocation requirements. (1) Allocations of investments,

expenses and revenues among the service cost categories and the

equipment basket shall be made at the organizational level in which

such costs and revenues have been identified for accounting purposes

pursuant to Sec. 76.924(c).

(2) Costs of programming and retransmission consent fees shall be

directly assigned or allocated only to the service cost category in

which the programming or broadcast signal at issue is offered.

(3) Costs of franchise fees shall be allocated among the equipment

basket and the service cost categories in a manner that is most

consistent with the methodology of assessment of franchise fees by

local authorities.

(4) Costs of public, educational, and governmental access channels

carried on the basic tier shall be directly assigned to the basic tier

where possible.

(5) All other costs that are incurred exclusively to support the

equipment basket or a specific service cost category shall be directly

assigned to that service cost category or the equipment basket where

possible.

(6) Costs that are not directly assigned shall be allocated to the

service cost categories in accordance with the following allocation

procedures:

(i) Wherever possible, common costs for which no allocator has been

specified by the Commission are to be allocated among the service cost

categories and the equipment basket based on direct analysis of the

origin of the costs.

(ii) Where allocation based on direct analysis is not possible,

common costs for which no allocator has been specified by the

Commission shall, if possible, be allocated among the service costs

categories and the equipment basket based on indirect, cost-causative

linkage to other costs directly assigned or allocated to the service

cost categories and the equipment basket.

(iii) Where neither direct nor indirect measures of cost allocation

can be found, common costs shall be allocated to each service cost

category based on the ratio of all other costs directly assigned and

attributed to a service cost category over total costs directly or

indirectly assigned and directly or indirectly attributable.

(g) Cost identification at the franchise level. After costs have

been directly assigned to and allocated among the service cost

categories and the equipment basket, cable operators that have

aggregated costs at a higher level than the franchise level must

identify all applicable costs at the franchise level in the following

manner:

(1) Recoverable costs that have been identified at the highest

organizational level at which costs have been identified shall be

allocated to the next (lower) organizational level at which recoverable

costs have been identified on the basis of the ratio of the total

number of subscribers served at the lower level to the total number of

subscribers served at the higher level.

(2) Cable operators shall repeat the procedure specified in

paragraph (g)(1) of this section at every organizational level at which

recoverable costs have been identified until such costs have been

allocated to the franchise level.

* * * * *

(i) Transactions and affiliates. Adjustments on account of external

costs and rates set on a cost-of-service basis shall exclude any

amounts not calculated in accordance with the following:

(1) Charges for assets purchased by or transferred to the regulated

activity of a cable operator from affiliates shall equal the invoice

price if that price is determined by a prevailing company price. The

invoice price is the prevailing company price if the affiliate has sold

a substantial number of like assets to nonaffiliates. If a prevailing

company price for the assets received by the regulated activity is not

available, the changes for such assets shall be the lower of their cost

to the originating activity of the affiliated group less all applicable

valuation reserves, or their fair market value.

(2) The proceeds from assets sold or transferred from the regulated

activity of the cable operator to affiliates shall equal the prevailing

company price if the cable operator has sold a substantial number of

like assets to nonaffiliates. If a prevailing company price is not

available, the proceeds from such sales shall be determined at the

higher of cost less all applicable valuation reserves, or estimated

fair market value of the asset.

(3) Charges for services provided to the regulated activity of a

cable operator by an affiliate shall equal the invoice price if that

price is determined by a prevailing company price. The invoice price is

the prevailing company price if the affiliate has sold like services to

a substantial number of nonaffiliates. If a prevailing company price

for the services received by the regulated activity is not available,

the charges of such services shall be at cost.

(4) The proceeds from services sold or transferred from the

regulated activity of the cable operator to affiliates shall equal the

prevailing company price if the cable operator has sold like services

to a substantial number of nonaffiliates. If a prevailing company price

is not available, the proceeds from such sales shall be determined at

cost.

(5) For purposes of Sec. 76.924(i)(1) through 76.924(i)(4), costs

shall be determined in accordance with the standards and procedures

specified in Sec. 76.922 and paragraphs (b) and (d) of this section.

[FR Doc. 94-9078 Filed 4-14-94; 8:45 am]

BILLING CODE 6712-01-M

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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