[Federal Register Volume 61, Number 123 (Tuesday, June 25, 1996)]
[Rules and Regulations]
[Pages 32707-32709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16104]



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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76

[CS Docket No. 96-57; FCC 96-257]


Telecommunications Act of 1996

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Commission issues this Report and Order to implement 
Section 623(a)(7)(A) of the Communications Act of 1934, as amended 
(``Communications Act''). The Report and Order is necessary to fulfill 
the statutory requirement in Section 301(j) of the Telecommunications 
Act of 1996 (``1996 Act'') that the Commission allow cable operators to 
aggregate, on a franchise, system, regional, or company level, their 
equipment costs into broad categories regardless of the equipment's 
level of functionality. In the Report and Order, the Commission also 
issues final rules.

EFFECTIVE DATE: July 25, 1996.

FOR FURTHER INFORMATION CONTACT: Tim J. Bellamy, Cable Services Bureau, 
(202) 418-7200.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Report and Order 
in CS Docket No. 96-57, FCC 96-257, adopted June 6, 1996 and released 
June 7, 1996. The complete text of this Report and Order is available 
for inspection and copying during normal business hours in the FCC 
Reference Center (room 239), 1919 M Street N.W., Washington, DC, and 
also may be purchased from the Commission's copy contractor, 
International Transcription Services, Inc. (``ITS Inc.'') at (202) 857-
3800, 2100 M Street N.W., Suite 140, Washington, DC 20017. This Report 
and Order contains modified information collection requirements 
approved by OMB under control number 3060-0703 for use through June 30, 
1999.

Synopsis of Report and Order

    1. In this Report and Order, the Commission amends its rules to 
implement Section 301(j) of the 1996 Act which adds a new Section 
623(a)(7) to the Communications Act. Section 301(j) of the 1996 Act 
requires the Commission to allow cable operators to aggregate, on a 
franchise, system, regional, or company level, their equipment costs 
into broad categories regardless of the varying levels of functionality 
of the equipment within each such broad category. That section also 
provides that ``[s]uch aggregation shall not be permitted with respect 
to equipment used by subscribers who receive only a rate regulated 
basic tier.''

Discussion

A. Equipment Aggregation

    2. Section 301(j) of the 1996 Act requires the Commission to allow 
regulated operators to aggregate ``their [customer] equipment costs 
into broad categories, such as converter boxes, regardless of the 
varying levels of functionality of the equipment within each such broad 
category.'' The Commission concludes, and amends its rules accordingly, 
that Congress intended to permit operators to aggregate equipment costs 
into broad categories, limited only by the requirement that equipment 
so aggregated be of the same type. The language in Sections 76.923 (f) 
and (g) of the Commission's rules that requires separate charges for 
each significantly different type of remote control device, converter 
box, and other customer equipment was eliminated. The ``primary 
purpose'' test, proposed in the Notice of Proposed Rulemaking 
(``NPRM''), 61 FR 13803 (March 28, 1996), for categorizing equipment 
will not be used, nor will it be incorporated into our rules. The term 
``level of functionality'' is not further defined.
    3. Under the rules adopted in this Report and Order, there are 
three types of customer equipment: converter boxes, remote controls and 
inside wiring. Consistent with this fact, the Commission concluded that 
costs of equipment used in the installation of initial and additional 
outlets may be aggregated into the same broad category, inside wiring. 
In addition, the Commission will maintain a flexible approach with 
respect to categorization of new technology. Operators also have the 
flexibility to average some equipment of the same type, but not all 
equipment of that type. In other words, operators may choose how 
broadly to categorize equipment if they choose to do so at all.
    4. Though the Commission tentatively concluded otherwise in the 
NPRM, Section 76.923(l) of the Commission's rules, which permits cost 
aggregation specifically for small cable systems is not eliminated. The 
Commission believes eliminating that section might increase regulatory 
burdens on some smaller cable systems, a result Congress did not 
intend.

[[Page 32708]]

B. Organizational Levels

    5. Section 76.923(c) of the Commission's rules is amended to 
specifically permit operators to aggregate its customer equipment costs 
at the organizational level of its choosing, namely, the franchise, 
system, regional, or company level. To the extent that current 
Commission rules permit cost aggregation of equipment only in a manner 
consistent with an operator's practices on April 3, 1993, that date 
restriction is eliminated. Such a restriction might have improperly 
prevented an operator from aggregating costs at higher organizational 
levels, as specifically permitted in the 1996 Act.
    6. The Commission concludes that Congress intended that 
installation be subsumed under its general statutory reference to 
equipment and that the same cost aggregation rules apply to both. Cable 
operators are therefore permitted to aggregate installation costs at 
the same organizational level at which the operator aggregates its 
equipment costs. In addition, because Commission rules require 
equipment rates to be based on actual cost, those rules are amended to 
state that equipment and installation rates must be set at the same 
organizational level at which an operator chooses to aggregate its 
costs.

C. Basic-Only Subscriber Equipment

    7. The 1996 Act prohibits ``[s]uch aggregation * * * with respect 
to equipment used by subscribers who receive only a rate regulated 
basic service tier.'' The Commission concludes that Congress was 
concerned that basic-only subscribers not subsidize the costs of 
equipment used by subscribers taking services in addition to basic. The 
Commission further concludes that costs of equipment used by basic-only 
subscribers may not be aggregated into broad categories. An operator is 
permitted, however, to aggregate the costs of equipment used by basic 
service-only customers at the same organizational level at which the 
operator chooses to aggregate its other costs. Section 76.923(c) of the 
Commission's rules is amended accordingly. As an alternative, for 
purposes of establishing equipment rates for basic-only subscribers, an 
operator may assume that all basic-only subscribers use equipment that 
is the lowest level and least expensive model of equipment offered by 
the operator, even if some basic-only subscribers actually have higher 
level, more expensive equipment. Because there is not always one type 
of equipment which may be deemed ``basic-only equipment,'' the 
Commission shall also permit an operator to aggregate costs of types of 
equipment used by non-basic-only subscribers with other non-basic-only 
equipment when setting rates for non-basic-only subscribers, even if 
the same type of equipment is also used by basic-only subscribers.

D. Equipment Rates Jurisdiction and Review

    8. Local franchising authorities affected by the new cost 
aggregation rules will continue to review the equipment and 
installation rates and supporting aggregated cost data as part of the 
review of the cable operators' rate justifications for basic rates, 
with the operator retaining the right to appeal the local rate order to 
the Commission.

E. FCC Form 1205

    9. Because of the Commission's conclusions and revisions to its 
rules, FCC Form 1205 is modified accordingly.

Procedural Provisions

A. Final Regulatory Flexibility Analysis

    10. Pursuant to Section 603 of the Regulatory Flexibility Act, the 
Commission has prepared the following final regulatory flexibility 
analysis (``FRFA'') of the expected impact of these proposed policies 
and rules on small entities. The Commission's final regulatory 
flexibility analysis under the Regulatory Flexibility Act indicates 
that the rule changes adopted in the Report and Order will not cause a 
significant economic impact on a substantial number of small business 
entities, as defined by Section 601(3) of the Regulatory Flexibility 
Act and that any impact will be to give operators new, less burdensome 
options to comply with our rules. The Commission is committed to 
reducing the regulatory burdens on small cable operators whenever 
possible, consistent with our other public interest responsibilities. 
The Secretary shall send a copy of this Report and Order to the Chief 
Counsel for Advocacy of the Small Business Administration in accordance 
with Section 603(a) of the Regulatory Flexibility Act, 5 U.S.C. 
Sections 601, et seq. (1981).
    11. The Commission issues this Report and Order to effectuate the 
changes needed to permit cable operators to aggregate equipment costs 
into broad categories and at the organizational level of their choice, 
as required by Section 301(j)) of the 1996 Act.
    12. Objective. To implement Section 301(j) of the 1996 Act.
    13. Legal Basis. Action adopted in this Report and Order is 
contained in Section 301(j) of the 1996 Act.
    14. Description, Potential Impact and Number of Small Entities 
Affected. The rule changes in this Report and Order will not have a 
significant effect on a substantial number of small entities. The rule 
changes provide all regulated entities with new options and do not 
require them to change the methodology by which they currently justify 
equipment rates. Thus, any economic impact of the rule changes will be 
positive.
    15. Reporting, Recordkeeping and Other Compliance Requirements. 
None.
    16. Federal Rules which Overlap, Duplicate of Conflict with these 
Rules. None
    17. Any Significant Alternatives Minimizing Impact on Small 
Entities and Consistent with Stated Objectives. None.

C. Paperwork Reduction Act

    18. Final Paperwork Reduction Act of 1995 Analysis. This Report and 
Order has been analyzed with respect to the Paperwork Reduction Act of 
1995 and found to contain modified information collection requirements 
on the public. The information collection requirements contained herein 
have been approved by the Office of Management and Budget under control 
number 3060-0703 for use through June 30, 1999.

Ordering Clauses

    19. Accordingly, it is ordered, pursuant to Sections 4(i), 4(j) and 
623(a) of the Communications Act of 1934, as amended, 47 U.S.C. 
Secs. 154(i), 154(j) and 543, the rules, requirements and policies 
discussed in this Report and Order are adopted and Sections 76.923(a), 
(c), (f), (g) and (m) of the Commission's rules, 47 CFR 
Secs. 76.923(a), (c), (f), (g) and (m), are amended as set forth below.
    20. It is further ordered that the requirements and regulations 
established in this decision shall become effective July 25, 1996.
    21. It is further ordered that the Secretary shall send a copy of 
this Report and Order, including the Final Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of the Small Business 
Administration in accordance with paragraph 603(a) of the Regulatory 
Flexibility Act, Public Law No. 96-354, 94 Stat. 1164, 5 U.S.C. 
Secs. et seq. (1981).

List of Subjects in 47 CFR Part 76

    Cable television.


[[Page 32709]]


Federal Communications Commission.
William F. Caton,
Acting Secretary.

Rule Changes

    Part 76 of Title 47 of the Code of Federal Regulations is amended 
as follows:

PART 76--CABLE TELEVISION SERVICE

    1. The authority citation for Part 76 continues to read as follows:

    Authority: 47 U.S.C. Secs. 151, 152, 153, 154, 301, 302, 303, 
303a, 307, 308, 309, 312, 315, 317, 325, 503, 521, 522, 531, 532, 
533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 552, 554, 556, 
558, 560, 561, 571, 572, 573.

    2. Section 76.923 is amended by revising paragraphs (a), (c), (f), 
(g) and (m) to read as follows:


Sec. 76.923  Rates for equipment and installation used to receive the 
basic service tier.

    (a) Scope. (1) The equipment regulated under this section consists 
of all equipment in a subscriber's home, provided and maintained by the 
operator, that is used to receive the basic service tier, regardless of 
whether such equipment is additionally used to receive other tiers of 
regulated programming service and/or unregulated service. Such 
equipment shall include, but is not limited to:
    (i) Converter boxes;
    (ii) Remote control units; and
    (iii) Inside wiring.
    (2) Subscriber charges for such equipment shall not exceed charges 
based on actual costs in accordance with the requirements set forth in 
this section.
* * * * *
    (c) Equipment basket. A cable operator shall establish an Equipment 
Basket, which shall include all costs associated with providing 
customer equipment and installation under this section. Equipment 
Basket costs shall be limited to the direct and indirect material and 
labor costs of providing, leasing, installing, repairing, and servicing 
customer equipment, as determined in accordance with the cost 
accounting and cost allocation requirements of Sec. 76.924, except that 
operators do not have to aggregate costs in a manner consistent with 
the accounting practices of the operator on April 3, 1993. The 
Equipment Basket shall not include general administrative overhead 
including marketing expenses. The Equipment Basket shall include a 
reasonable profit.
    (1) Customer equipment. Costs of customer equipment included in the 
Equipment Basket may be aggregated, on a franchise, system, regional, 
or company level, into broad categories. Except to the extent indicated 
in paragraph (c)(2) of this section, such categorization may be made, 
provided that each category includes only equipment of the same type, 
regardless of the levels of functionality of the equipment within each 
such broad category. When submitting its equipment costs based on 
average charges, the cable operator must provide a general description 
of the averaging methodology employed and a justification that its 
averaging methodology produces reasonable equipment rates. Equipment 
rates should be set at the same organizational level at which an 
operator aggregates its costs.
    (2) Basic service tier only equipment. Costs of customer equipment 
used by basic-only subscribers may not be aggregated with the costs of 
equipment used by non-basic-only subscribers. Costs of customer 
equipment used by basic-only subscribers may, however, be aggregated, 
consistent with an operator's aggregation under paragraph (c)(1) of 
this section, on a franchise, system, regional, or company level. The 
prohibition against aggregation applies to subscribers, not to a 
particular type of equipment. Alternatively, operators may base its 
basic-only subscriber cost aggregation on the assumption that all 
basic-only subscribers use equipment that is the lowest level and least 
expensive model of equipment offered by the operator, even if some 
basic-only subscribers actually have higher level, more expensive 
equipment.
    (3) Installation costs. Installation costs, consistent with an 
operator's aggregation under paragraph (c)(1) of this section, may be 
aggregated, on a franchise, system, regional, or company level. When 
submitting its installation costs based on average charges, the cable 
operator must provide a general description of the averaging 
methodology employed and a justification that its averaging methodology 
produces reasonable equipment rates. Installation rates should be set 
at the same organizational level at which an operator aggregates its 
costs.
* * * * *
    (f) Remote charges. Monthly charges for rental of a remote control 
unit shall consist of the average annual unit purchase cost of remotes 
leased, including acquisition price and incidental costs such as sales 
tax, financing and storage up to the time it is provided to the 
customer, added to the product of the HSC times the average number of 
hours annually repairing or servicing a remote, divided by 12 to 
determine the monthly lease rate for a remote according to the 
following formula:
[GRAPHIC] [TIFF OMITTED] TR25JN96.006

Where, HR=average hours repair per year; and UCE=average annual unit 
cost of remote.

    (g) Other equipment charges. The monthly charge for rental of 
converter boxes and other customer equipment shall be calculated in the 
same manner as for remote control units. Separate charges may be 
established for each category of other customer equipment.
* * * * *
    (m) Cable operators shall set charges for equipment and 
installations to recover Equipment Basket costs. Such charges shall be 
set, consistent with the level at which Equipment Basket costs are 
aggregated as provided in Sec. 76.923(c). Cable operators shall 
maintain adequate documentation to demonstrate that charges for the 
sale and lease of equipment and for installations have been developed 
in accordance with the rules set forth in this section.
* * * * *
[FR Doc. 96-16104 Filed 6-24-96; 8:45 am]
BILLING CODE 6712-01-P