53572 Federal Register / Vol. 62, No. 199 / Wednesday, 15, 1997 / Rules and Regulations treat its tax as a broad-based and FEDERAL COMMUNICATIONS administrative burdens and the cost of uniform health care-related tax. A State COMMISSION compliance for cable systems with 1,000 application be approved if the State or fewer subscribers. In the Small established that, among other things, the 47 CFR Part 76 System Order, the Commission tax is generally redistributive. We [MM Docket Nos. 92±266 and 93±215; FCC extended small system rate relief to established in the regulation the waiver 97±339] small cable systems owned by small criteria under which we will determine cable companies. The Small System whether a tax, that does not meet the Small Cable Television Systems; Rate Order defines a small system as any statutory defined broad-based or Regulation system that serves 15,000 or fewer subscribers, and it defines a small cable uniform requirements, is generally AGENCY: Federal Communications company as a cable operator that serves redistributive. Commission. a total of 400,000 or fewer subscribers As published, the regulation at 42 ACTION: Final rule. over all of its systems. CFR 433.68(e)(2)(iv) contains an error in 3. In addition to adopting the new the percentage amount necessary to SUMMARY: The Commission has adopted categories of small systems and small demonstrate that a State tax that varies, a Fourteenth Order on Reconsideration cable companies, the Small System based exclusively on regional variations, denying two petitions seeking Order introduced a form of rate reconsideration of the rules adopted for and enacted and in effect prior to regulation known as the small system small cable television systems governing , 1992, is generally cost of service methodology. This rates charged for regulated cable redistributive and can be considered to approach, which is available only to services in the Sixth Report and Order small systems owned by small cable meet the criteria for waiver of the and Eleventh Order on Reconsideration uniform tax requirement. companies, follows general principles of in MM Docket Nos. 92–266 and 93–215, cost of service rate regulation. An List of Subjects in 42 CFR Part 433 FCC 95–195. The Commission also eligible cable operator may establish a adopted minor clarifications to the rate maximum permitted rate for regulated Administrative practice and rules. cable service equal to the amount procedure, Child support, Claims, Grant EFFECTIVE DATE: October 15, 1997. necessary to cover its operating programs—health, Medicaid, Reporting FOR FURTHER INFORMATION CONTACT: Julie expenses plus a reasonable return on its and recordkeeping requirements. Buchanan, Cable Services Bureau, (202) prudent investment in the assets used to Accordingly, 42 CFR part 433 is 418–7200. provide that service. The small system corrected by making the following SUPPLEMENTARY INFORMATION: The cost of service methodology differs both procedurally and substantively from the correcting amendment: following is a synopsis of the Commission’s Fourteenth Order on standard cost of service methodology PART 433ÐSTATE FISCAL Reconsideration in MM Docket Nos. 92– available to cable operators generally. 4. To implement the small system cost ADMINISTRATION 266 and 93–215, adopted , of service rules, we designed FCC Form 1997 and released October 1, 1997. The 1230, a simplified one-page form, for 1. The authority citation for part 433 full text of this decision is available for use exclusively by operators eligible for continues to read as follows: inspection and copying during normal these rules. This form is more business hours in the FCC Reference Authority: Secs. 1102, 1137, 1902(a)(4), streamlined than Form 1220 used for Center (Room 239), 1919 M Street, NW., 1902(a)(18), 1902(a)(25), 1902(a)(45), 1902(t), cost of service showings by larger Washington, DC 20554, and may be 1903(A)(3), 1903(d)(2), 1903(d)(5), 1903(o), operators. To use Form 1230, the purchased from the Commission’s copy 1903(p), (1903(r), 1903(w), 1912, and 1919(e) operator must calculate five items of contractor, International Transcription of the Social Security Act (42 U.S.C. 1302, data pertaining to the system in Services, Inc., (202) 857–3800, 1231 1320b–7, 1396a(a)(4), 1396a(a)(18), question: annual operating expenses, 1396a(a)(25), 1396a(a)(45), 1396a(t), 20th Street, NW., Washington, DC net rate base, rate of return, channel 1396b(a)(3), 1396b(d)(2), 1396a(d)(5), 20036. count and subscriber count. Once these 1396b(i), 1396b(o), 1396b(p), 1396b(r), Synopsis variables are calculated, the form 1396b(w), and 1396k.) generates the maximum per channel rate I. Introduction the operator may charge for regulated § 433.68 [Corrected] 1. On May 5, 1995, the Commission service. Although subject to regulatory 2. In § 433.68, paragraph (e)(2)(iv), adopted the Sixth Report and Order and review, this rate is presumed reasonable remove the percentage ‘‘0.85’’ and add Eleventh Order on Reconsideration in if it is no more than $1.24 per channel. in its place ‘‘0.70’’. MM Docket Nos. 92–266 and 93–215, 5. When applicable, the presumption FCC 95–196, 60 FR 35854 ( 12, of reasonableness effectively exempts (Catalog of Federal Assistance Program No. 1995) (‘‘Small System Order’’), thereby eligible cable operators from many of 93.778, Medical Assistance Program) modifying the rules governing rates the proof burdens that apply under our Dated: , 1997. charged for regulated cable services by standard cost of service rules. For Neil J. Stillman, certain smaller cable systems. In this example, eligible small cable companies Deputy Assistant Secretary for Information order, we address petitions for have greater discretion than larger Resources Management. reconsideration of the Small System operators in determining how to allocate [FR Doc. 97–27194 Filed 10–9–97; 4:00 pm] Order. costs between regulated and BILLING CODE 4120±01±M unregulated services and between II. Background various levels of regulated services. 2. Section 623(i) of the Similarly, qualifying cable operators Communications Act of 1934, as using Form 1230 are not subject to the amended (‘‘Communications Act’’), presumption of unreasonableness that requires that the Commission design otherwise attaches when an operator rate regulations to reduce the seeks a rate of return higher than Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations 53573

11.25%. As noted, an eligible operator rules governing the information that a ‘‘would probably * * * [show] that enjoys the presumption of franchising authority may seek in corrections should be made to the reasonableness with respect to these and conjunction with its review of a Form operators’ calculations in a large other factors only if the maximum 1230 are overly restrictive. The New percentage of cases.’’ In support of this permitted rate claimed on Form 1230 Jersey Board also objects to having to prediction, GMA states that ‘‘several’’ does not exceed $1.24 per channel. If bear the burden of showing the cable operators using FCC Form the rate exceeds $1.24 per channel, the unreasonableness of the rate sought by 1220 have overstated the value of the cable operator still may use Form 1230, the operator if that rate does not exceed intangible assets in their ratebases. In but is subject to the same presumptions $1.24 per regulated channel. As a result addition, GMA states that the that apply in a standard cost of service of the above, the New Jersey Board Commission found calculation or showing. As with other rate-setting contends it will be ‘‘precluded from allocation errors in each of the nine cost procedures, a cost of service showing establishing whether the cable of service cases that we had addressed involving Form 1230 is subject to operator’s subscribers are being charged as of the date GMA filed its petition. review by the cable operator’s local a reasonable rate,’’ assuming the GMA cites three specific cost of service franchising authority and/or by the operator meets the small system and cases in which the Cable Services Commission. small cable company definitions. The Bureau (‘‘Bureau’’) made adjustments to 6. With respect to the effective date of New Jersey Board also asserts the correct such errors. On this basis, GMA the small system rules, we directed alleged unfairness of applying the small argues that ‘‘there is a strong possibility franchising authorities to apply the system cost of service rules to the that there are errors’’ in the Form 1220s small system cost of service approach to pending case in light of the resources from which we gleaned the cost data to rate cases pending as of the release date that the Board already has expended in establish the presumptively reasonable of the Small System Order because the the case. Along with its petition for rate of $1.24 per channel. record demonstrated that the pre- reconsideration, the New Jersey Board 11. We believe that the rate-setting existing rules were imposing a also filed a motion for stay of the Small mechanism we adopted in the Small significant burden on small systems. System Order to the extent it mandates System Order reflects a reasoned The Small System Order was released application of the new rules to pending judgment as to the method for on 5, 1995. cases. establishing the rates that an eligible small system may charge for regulated III. Petitions for Reconsideration IV. Discussion services. Neither GMA nor any other 7. Two parties seek reconsideration of 9. Neither petition challenges our party challenges this mechanism. GMA the Small System Order and a number determination that some measure of objects only to the input data that of other parties oppose the petitions. In regulatory relief is appropriate for small produced the standard of $1.24 per one petition, the Georgia Municipal systems owned by small cable regulated channel against which the Association (‘‘GMA’’) requests that we companies. The petitioners do not rates of eligible small systems are repeal the small system cost of service dispute our conclusion that such measured. We determined in the Small rules in their entirety. In the alternative, systems face proportionately higher System Order, however, that a more GMA urges the Commission to lower the operating and capital costs than larger comprehensive review of small system maximum amount of $1.24 per channel cable entities. Likewise, the petitioners cost data was not necessary to ensure at which an operator may set rates and do not contest that our standard cost of that our small system rules were still be entitled to a presumption of service rules may place ‘‘an inordinate properly tailored to the conditions faced reasonableness. In support of its hardship’’ on smaller systems ‘‘in terms by such systems. petition, GMA questions the accuracy of of the labor and other resources that 12. GMA does not challenge our the underlying cost data that we used to must be devoted to ensuring finding that small systems owned by set the $1.24 per channel rate. In compliance.’’ Therefore, the petitions small cable companies were in need of addition, GMA claims that the new give us no reason to reconsider our immediate relief. GMA suggests that the rules will increase burdens on decision to establish for eligible small Form 1220 filings on which we relied franchising authorities and lead to systems a form of rate regulation that were so facially inaccurate that we unreasonable rates for regulated cable lessens some of the substantive and should have conducted a further services. GMA also cites examples of procedural burdens that otherwise analysis of small system cost data. We what it claims are cable operators would apply. Because the petitions raise disagree. This approach would have abusing the small system rules. separate issues, we will resolve the delayed implementation of measures for 8. The New Jersey Board of Public merits of each petition individually. which there was an immediate need and Utilities (‘‘New Jersey Board’’) seeks would have imposed additional reconsideration of the Small System A. The GMA Petition administrative responsibilities (i.e., Order to the extent it permits 10. GMA challenges the presumption having to respond to Commission application of the small system rules to of reasonableness that arises when an inquiries concerning small system costs) rate cases that were pending as of the eligible small system uses Form 1230 to on the very entities that we found were release date of the order. In support of justify a regulated rate that does not the most burdened by regulation. its petition, the New Jersey Board exceed $1.24 per channel. As noted 13. GMA fails to persuade us that the describes the possible impact of the above, we established $1.24 per channel benefits of further analysis of small small system rules upon a rate case that as the appropriate cut-off based on cost system cost data would have was pending before it when the data previously submitted to the outweighed the administrative costs and Commission released the Small System Commission by small cable companies delay that such analysis would have Order on June 5, 1995. According to the seeking to establish regulated rates for entailed. While GMA does not dispute New Jersey Board, the cable operator in their small systems by using Form 1220 that such costs and delay would have that case has given notice of its intent in accordance with our standard cost of been both inevitable and extremely to attempt to justify its proposed rate service rules. GMA asserts that a careful burdensome, it fails to factor these increase by filing FCC Form 1230. The review of the Form 1220s that we relied considerations into its discussion. GMA New Jersey Board complains that the on to set the $1.24 per channel rate bases its request for reconsideration on 53574 Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations the fact that the Bureau found allocation standards that we have found notice of its intent to attempt to justify or calculation errors in the cost of inappropriate for those systems. its proposed rate increase by filing FCC service cases it cites. However, the Because GMA’s argument relies on Form 1230. impact of the Bureau’s adjustments in overly restrictive standards, we find that 20. The New Jersey Board contends the cited cases are overstated by GMA it has not raised a material issue with that under the small system cost of and do not undermine the formulation respect to the reliability of those filings. service rules, Service Electric might be of the $1.24 standard. 17. In addition to its specific able to justify the rate increase it sought 14. The Bureau decisions cited by challenge to the per channel rate of in its initial showing to the Board or, GMA were based on general cost of $1.24, GMA recites several potentially, an even greater increase. service principles and not under the ‘‘experiences’’ of Georgia franchising According to the New Jersey Board, the interim rules the Commission adopted authorities that purport to show that the rules governing the information that a in 1994. As of the time of small system rules ‘‘are unfair to those franchising authority may seek in those filings, we had directed cost of franchising authorities who have conjunction with its review of Form service operators to justify their rates in invested a substantial amount of time 1230 are so restrictive that it will be accordance with traditional cost of and money in the rate regulation ‘‘difficult if not impossible to challenge’’ service principles generally applicable process.’’ GMA further complains that the rate the operator seeks to justify. The in the field of utility rate regulation. these examples prove that ‘‘the rules are New Jersey Board also notes that under After seeking and reviewing further unfair to subscribers, because some the small system cost of service rules, public comment, we subsequently cable operators will increase rates well the burden is on the franchising adopted more refined cost of service beyond the level which subscribers authority to show the unreasonableness rules better tailored for use in the cable would pay if competition existed.’’ of the rate sought by an eligible small service context. At the same time, we These conclusory allegations do not system if that rate does not exceed $1.24 designed Form 1220 for use in refute the specific findings or analyses per regulated channel. The New Jersey accordance with the new rules. The cost set forth in the Small System Order and Board asserts that this ‘‘unprecedented’’ data used in the Small System Order do not state a basis for us to reconsider shift in the burden of proof will were gleaned from Form 1220s filed by that order. Furthermore, franchising ‘‘necessitate the use of Board and State small systems pursuant to cost of authorities had no reasonable reliance resources not usually required’’ in order service rules adapted specifically for use interest in our rules remaining to establish the unreasonableness of the by cable operators. The specificity of the unchanged. As for practices of the rate sought by the cable operator. new rules, combined with the individual operators identified in the 21. Based on the above, the New uniformity of presentation required by GMA petition, we do not believe it is Jersey Board argues that it will be Form 1220, makes the latter appropriate for us to make specific ‘‘precluded from establishing whether submissions inherently more reliable findings in this context regarding the Service Electric’s subscribers are being than the earlier submissions cited by propriety of those practices. To the charged a reasonable rate,’’ assuming GMA. Thus, the errors in the filings extent cable operators fail to abide by the operator meets the small system and relied on by GMA do not suggest the our rules, local franchising authorities small cable company definitions. The likelihood of material inaccuracies in may take appropriate action. New Jersey Board also asserts the the subsequent Form 1220 filings. This 18. For the reasons stated above, we alleged unfairness of applying the small is particularly true given the nature of hereby deny GMA’s petition for system cost of service rules to the the errors in the cases cited by GMA. In reconsideration. pending case in light of the resources that it already has expended in the case. each case, the errors were so minor that B. The New Jersey Board Petition the Bureau found that the rates actually 22. As an initial matter, we note that being charged by the cable operator 19. The New Jersey Board objects to the petition seeks reconsideration of a were nevertheless justified and denied the Small System Order to the extent it Commission rule of general the complaint. requires local franchising authorities to applicability based solely on the 15. We further note that in the Small permit eligible systems to use the small potential effect of that rule on a single System Order, we decided that system cost of service methodology in rate case affecting approximately 3,000 standards applicable to cable systems cases pending as of the date the Small cable subscribers. The Commission is generally were inappropriate for small System Order was released. In support charged with structuring a national systems owned by small cable of its petition, the New Jersey Board framework of rate regulation. A broader companies. In particular, we decided describes the potential impact of the and more representative showing of the that eligible small systems should be Small System Order upon a rate case rule’s impact is necessary for us to given more regulatory leeway than pending before it. That case involves the review the merits of a particular rule or larger cable entities because small rates charged by Service Electric Cable regulatory approach. systems face disproportionately higher TV of Hunterdon (‘‘Service Electric’’). 23. Further, the New Jersey Board operating costs, capital costs, and Service Electric filed a standard cost of fails to refute the underlying analysis regulatory compliance costs. In fact, service showing with the New Jersey supporting our decision to apply the with respect to eligible small systems, Board on , 1994. Pursuant to that new rules to pending cases. We adopted we relaxed the very standards that had showing, Service Electric sought to this approach based upon our balancing caused the Bureau to make the increase its monthly rates from $21.00 of various factors. With respect to rate adjustments described in the cost of to $26.31 for its 60-channel basic service regulation, Congress specifically service cases cited by GMA. tier. That case was pending when the directed us to reduce the administrative 16. GMA does not dispute that we Commission released the Small System burdens and ease the costs of should be less restrictive in applying Order on June 5, 1995, although the staff compliance for smaller systems. In the cost of service principles to small of the New Jersey Board had negotiated Small System Order, we concluded that systems owned by small cable a tentative settlement with Service our then existing rules ‘‘have companies. Yet it invites us to question Electric that was subject to the approval significantly burdened small systems.’’ cost information submitted by such of the New Jersey Board. Before such We designed the small system cost of systems by applying the stricter approval occurred, Service Electric gave service rules to remedy this problem. Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations 53575

Having determined small systems’ need demand from the operator, effectively regardless of the amount. We believe for immediate relief, we deemed it in will preclude it from determining that having made the determination that the public interest to provide such relief whether a particular rate is reasonable. rates at or below $1.24 per channel may accordingly. We believe that it is We disagree. by presumed reasonable, we should appropriate to apply a new rule to 27. We understand the frustration of shift the burden of proof to the pending cases where the new rule the New Jersey Board with respect to its franchising authority when the operator serves to alleviate an existing restriction prior expenditure of resources in seeks to justify rates that do not exceed on regulated parties, as the small system accordance with the standard cost of that amount. The New Jersey Board does cost of service rules did by creating an service rules. We note, however, that not contest this analysis and therefore additional method for eligible systems those expenditures were made with we have no basis to reconsider our to justify their rates. In addition, were notice of the possibility that we would decision. pending cases not made subject to the modify the rules governing small 30. For these reasons, we hereby deny new rules, subscribers in some areas systems. Unfortunately, rule changes the New Jersey Board’s Petition. The might have received refunds when the and rule modifications sometimes lead New Jersey Board presents the same pending cases were decided, followed to inefficiencies and disruptions for arguments in its Motion for Stay as it immediately by rate hikes when the both the regulator and the regulated. We does in its Petition. Therefore, for the systems put new rates into effect are forced to balance these factors same reasons that we deny its Petition, prospectively in accordance with the against the impact of delaying we also deny the New Jersey Board’s small system cost of service implementation of the new rule. Since Motion for Stay. the Service Electric case is the only methodology. Applying the new small C. Other Matters system rules to pending cases avoids matter in which a franchising authority this confusing ‘‘roller-coaster’’ result. has articulated this concern, we cannot 31. On our own motion, we clarify 24. We decided that the small system conclude that the problem is so one aspect of our rule that allocates the cost of service rules would not affect significant to require us to reconsider burden of establishing whether the rate final decisions of local franchising our prior decision. We do not believe claimed by a cable operator under the authorities made before the release of that the Small System Order will result small system cost of service the Small System Order. In these cases, in squandered resources even in the methodology is reasonable. As the public interest, and in particular the Service Electric case. The efforts already discussed above, the current rule states: interests of administrative finality, expended by the New Jersey Board in ‘‘If the maximum rate established on dictated that the final decision of a local amassing data and making factual Form 1230 does not exceed $1.24 per franchising authority should not be determinations will not have been channel, the rate shall be rebuttably subject to reconsideration or appeal wasted since they are relevant when the presumed reasonable.’’ Thus, the under the small system rules. New Jersey Board decides the rate case current wording of the rule suggests that 25. By seeking reconsideration, the in accordance with the small system the burden depends on the maximum New Jersey Board suggests, implicitly, rules. rate permitted by Form 1230, not on the that we erred in finding a need for 28. More generally, we disagree with rate that the operator intends to charge. immediate relief. Yet it offers no the New Jersey Board’s characterization Such an interpretation would create an arguments or evidence to refute this of the permissible scope of information anomaly where an operator determines finding and thus presents no basis to requests that a franchising authority that its maximum permitted rate is reconsider it. The New Jersey Board’s may make when reviewing Form 1230. above $1.24 per regulated channel, but statement of a policy preference cannot The Small System Order expressly does not actually intend to charge more overcome the evidence concerning the recognizes the right of franchising than $1.24. We did not intend for the plight of smaller systems that was before authorities to obtain ‘‘the information operator to have the burden of us when we adopted the Small System necessary for judging the validity’’ of overcoming all of the presumptions we Order. As James Cable Partners and the filing. No information has been generally found to be inappropriate for Rifkin and Associates, Inc. argues, it submitted to indicate that anything eligible small systems, if the actual rate makes no sense ‘‘to complete pending more than what this rule permits is the operator seeks to charge is within cases under pre-existing criteria that do necessary. the zone of what we presume to be not embody the policy and statutory 29. We further find that the New reasonable. To eliminate this potential concerns that led to the adoption of the Jersey Board has failed to raise a valid confusion, we hereby clarify that the Small System Order in the first place.’’ argument against imposing the burden presumption of reasonableness shall Likewise, the New Jersey Board does not of proof on the franchising authority apply as long as the actual rate to be dispute the ‘‘roller-coaster’’ effect on when the rate in question does not charged does not exceed $1.24 per rates that would result if the new rules exceed $1.24 per channel. What it terms regulated channel, regardless of whether were not applied to pending cases. an ‘‘unprecedented shift in the burden the maximum permitted rate, as 26. The New Jersey Board contends of proof’’ is the logical extension of our calculated on Form 1230, exceeds that that application of the small system determination that rates at or below amount. The burden shall shift back to rules to the pending Service Electric $1.24 per regulated channel appear the operator once it seeks to actually case will result in a waste of the reasonable. The New Jersey Board does raise rates above the $1.24 per channel resources it already has expended in not challenge the analysis by which we threshold. that case. It objects to our decision to arrived at the rate of $1.24 per channel. 32. We also take this opportunity to place on the franchising authority the While not disputing that rates at or correct three editing errors that burden of proving the unreasonableness below $1.24 per channel can be appeared in the rules appendix to the of a proposed rate that does not exceed presumed reasonable, the New Jersey Small System Order. These corrections $1.24 per regulated channel. The New Board would ignore this finding in do not amend the substance of the rules Jersey Board suggests that the individual rate proceedings and in any way. presumption of reasonableness that will continue to place upon the cable 33. In the Small System Order, we attach to such a rate, coupled with the operator the burden of establishing the provided for the treatment of a small limitations on the information it can reasonableness of its requested rate, system that properly sets its rates in 53576 Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations accordance with the small system cost Regulatory Enforcement Fairness Act of § 76.922 Rates for the basic service tier of service methodology, but later 1996. and cable programming services tiers. experiences a change in its status, either 37. The Commission will send a copy * * * * * because the system exceeds the 15,000- of this certification, along with this (b) * * * subscriber cap for a small system or order, in a report to Congress pursuant (5) Streamlined rate reductions. (i) because the operator exceeds the to the Small Business Regulatory Upon becoming subject to rate 400,000-subscriber threshold for a small Enforcement Fairness Act of 1996, 5 regulation, a small system owned by a cable company. While the text of the U.S.C. 801(a)(1)(A), and to the Chief small cable company may make a order explained the regulatory effect of Counsel for Advocacy of the Small streamlined rate reduction, subject to such a transition, the accompanying Business Association, 5 U.S.C. 605(b). the following conditions, in lieu of rules did not. Here we amend the rules establishing initial rates pursuant to the consistent with the text of the Small VI. Ordering Clauses other methods of rate regulation set System Order. forth in this subpart: 38. Accordingly, It Is Ordered that, 34. As discussed above, the Small pursuant to the authority granted in * * * * * System Order provided for the sections 4(i), 4(j), 303(r), and 623 of the 3. Section 76.934 is amended by application of the small system cost of Communications Act of 1934, as revising paragraphs (h)(5)(i) and (h)(9) service rules to cases pending as of the amended, 47 U.S.C. 154(i), 154(j), and by adding paragraph (h)(11) to read release date of the order if the cable 303(r), and 543, the petitions for as follows: operator in question met the subscriber reconsideration filed by the Georgia threshold criteria as of the release date § 76.934 Small systems and small cable Municipal Association and the New companies. and as of the date the system became Jersey Board of Public Utilities, and the subject to rate regulation. The rules * * * * * Motion for Stay filed by the New Jersey (h) * * * appendix inadvertently referred to the Board of Public Utilities, are denied. effective date, instead of the release (5) * * * date, of the Small System Order for 39. It Is Further Ordered that, (i) If the maximum rate established on purposes of this rule. We hereby revise pursuant to the authority granted in Form 1230 does not exceed $1.24 per the text of § 76.934(h)(9) of our rules to sections 4(i), 4(j), 303(r), and 623 of the channel, the rate shall be rebuttably conform it with our intent as set forth Communications Act of 1934, as presumed reasonable. To disallow such in the Small System Order. amended, 47 U.S.C. 154(i), 154(j), a rate, the franchising authority shall 35. Due to an editing error, the rules 303(r), and 543, 76.922 and 76.934 of bear the burden of showing that the appendix to the Small System Order did the Commission’s rules, 47 CFR 76.922 operator did not reasonably interpret not accurately indicate that we were and 76.934, are amended as set forth and allocate its cost and expense data in revising the eligibility criteria for below. deriving its annual operating expenses, streamlined rate reduction to 40. It Is Further Ordered that the its net rate base, and a reasonable rate incorporate the new small system and Commission shall send a copy of this of return. If the maximum rate small cable company definitions Fourteenth Order on Reconsideration, established on Form 1230 exceeds $1.24 established in the Small System Order. including the Final Regulatory per channel, the franchising authority We hereby amend § 76.922(b)(5) of our Flexibility Certification, to the Chief shall bear such burden only if the rate rules to conform it with our intent as set Counsel for Advocacy of the Small that the cable operator actually seeks to forth in the Small System Order. Business Administration. charge does not exceed $1.24 per channel. List of Subjects in 47 CFR Part 76 V. Final Regulatory Flexibility * * * * * Certification Administrative practice and (9) In any rate proceeding before a 36. As permitted by Section 605(b) of procedure, Cable television, Reporting franchising authority in which a final the Regulatory Flexibility Act, 5 U.S.C. and recordkeeping requirements. decision had not been issued as of June 5, 1995, a small system owned by a 605(b), (‘‘RFA’’), we certify that a Federal Communications Commission. regulatory flexibility analysis is not small cable company may elect the form William F. Caton, necessary because the amendments to of rate regulation set forth in this section the rules adopted in this order will not Acting Secretary. to justify the rates that are the subject of impose a significant economic impact Rule Changes the proceeding, if the system and on a substantial number of small entities affiliated company were a small system as defined by statute, by our rules, or by Part 76 of Title 47 of the Code of and small company respectively as of the Small Business Administration. 5 Federal Regulations is amended as the June 5, 1995 and as of the period U.S.C. 605(b). Three of the amendments follows: during which the disputed rates were in merely correct the rules and have no effect. However, the validity of a final PART 76ÐCABLE TELEVISION substantive effect. In addition, we rate decision made by a franchising SERVICE clarified that the operator’s presumption authority before June 5, 1995 is not affected. of reasonableness is preserved when the 1. The authority citation for Part 76 operator’s actual rate charged does not continues to read as follows: * * * * * exceed $1.24 per regulated channel, (11) A system that is eligible to regardless of the maximum permitted Authority: 47 U.S.C. 151, 152, 153, 154, establish its rates in accordance with the rate calculated on Form 1230. Because 301, 302, 303, 303a, 307, 308, 309, 312, 315, small system cost-of-service approach 317, 325, 503, 521, 522, 531, 532, 533, 534, this clarification will benefit small 535, 536, 537, 543, 544, 544a, 545, 548, 552, shall remain eligible for so long as the systems owned by small cable 554, 556, 558, 560, 561, 571, 572, 573. system serves no more than 15,000 companies, we believe a regulatory subscribers. When a system that has flexibility analysis is unnecessary. This 2. Section 76.922 is amended by established rates in accordance with the certification conforms to the RFA, as revising paragraph (b)(5)(i) introductory small system cost-of-service approach amended by the Small Business text to read as follows. exceeds 15,000 subscribers, the system Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations 53577 may maintain its then existing rates. overharvest of 1 mt in the September Classification After exceeding the 15,000 subscriber period subquota, and the transfer of 70 This action is taken under 50 CFR limit, any further rate adjustments shall mt from other categories (62 FR 51608, 285.22 and is exempt from review under not reflect increases in external costs, October 2, 1997), the October- E.O. 12866. inflation or channel additions until the period subquota was adjusted to 141 mt. system has re-established initial The October-December subquota is Authority: 16 U.S.C. 971 et seq. permitted rates in accordance with some divided into a coastwide subquota of Dated: October 8, 1997. other method of rate regulation 131 mt and 10 mt for the traditional fall Gary C. Matlock, prescribed in this subpart. New York Bight set-aside area, defined Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 97–27151 Filed 10–14–97; 8:45 am] as the waters south and west of a [FR Doc. 97–27133 Filed 10–8–97; 3:19 pm] BILLING CODE 6712±01±P straight line originating at a point on the southern shore of Long Island at 72°27’ BILLING CODE 3510±22±F W. long. (Shinnecock Inlet) and running ° ° DEPARTMENT OF COMMERCE SSE 150 true, and north of 38 47’ N. lat. (Delaware Bay). DEPARTMENT OF COMMERCE National Oceanic and Atmospheric NMFS previously announced the National Oceanic and Atmospheric Administration closure of the General category fishery Administration for the October-December time period 50 CFR Part 285 effective , 1997, which 50 CFR Part 660 published in the Federal Register on [I.D. 100797B] [Docket No. 961227373±6373±01; I.D. , 1997. After tallying the 092497C] Atlantic Tuna Fisheries; Atlantic landings following the closure, NMFS Bluefin Tuna General Category has determined the remaining Fisheries Off West Coast States and in unharvested coastwide quota AGENCY: National Marine Fisheries the Western Pacific; Pacific Coast Service (NMFS), National Oceanic and (approximately 10 mt) is insufficient to Groundfish Fishery; Nontrawl Atmospheric Administration (NOAA), warrant a reopening of the coastwide Sablefish Mop-Up Fishery; Commerce. General category because daily catch Announcement of Extension rates in September and October have ACTION: Opening of the New York Bight averaged 30 mt. AGENCY: National Marine Fisheries fishery. Service (NMFS), National Oceanic and The New York Bight set-aside of 10 Atmospheric Administration (NOAA), SUMMARY: NMFS opens the Atlantic mt will open effective Thursday, Commerce. bluefin tuna (ABT) General category October 9, at 1 a.m. local time. Upon the ACTION: Nontrawl sablefish mop-up New York Bight fishery. This action is effective date of the New York Bight set- fishery and delay of the limited entry being taken to extend the season for the aside, persons aboard vessels permitted daily trip limit fishery; announcement General category, provide for fishing in the General category may fish for, of extension. opportunities in the New York Bight retain, possess, or land large medium area, and ensure additional collection of and giant ABT only in the New York SUMMARY: NMFS announces the biological assessment and monitoring Bight set-aside area specified above, extension of and new ending date for data. until the set-aside quota for that area has the mop-up fishery for nontrawl limited DATES: Effective October 9, 1997, 1 a.m. been harvested. ABT harvested from entry sablefish. This action will delay local time until , 1997, or waters outside the defined set-aside area the beginning of the October limited until the date, published in the Federal may not be brought into the set-aside entry daily trip limit fishery. This action Register, that the set-aside quota is area. Vessels permitted in the Charter/ is taken in response to unusually bad determined to have been taken. Headboat category, when fishing for coastwide weather during the first week FOR FURTHER INFORMATION CONTACT: large medium and giant ABT, are of the mop-up fishery. This action is Sarah McLaughlin, 301-713-2347, or Pat subject to the same rules as General intended to increase safety while Scida, 508-281-9260. category vessels when the General providing for harvest of the remainder SUPPLEMENTARY INFORMATION: category is open. of the 1997 limited entry nontrawl Regulations implemented under the The announcement of the closure date allocation for sablefish. authority of the Atlantic Tunas will be filed with the Office of the DATES: This action is effective on Convention Act (16 U.S.C. 971 et seq.) Federal Register, and further October 9, 1997. The nontrawl sablefish governing the harvest of ABT by persons communicated through the Highly mop-up fishery began at 1201 hours and vessels subject to U.S. jurisdiction Migratory Species (HMS) Fax Network, local time (l.t.), October 1, 1997, and are found at 50 CFR part 285. Section the HMS Information Line, NOAA will end at 1200 hours l.t., October 22, 285.22 subdivides the U.S. quota weather radio, and Coast Guard Notice 1997, at which time the limited entry recommended by the International to Mariners. Although notification of daily trip limit fishery resumes. The Commission for the Conservation of closure will be provided as far in daily trip limits for the nontrawl Atlantic Tunas among the various advance as possible, fishermen are sablefish fishery will remain in effect domestic fishing categories. encouraged to call the HMS Information until the effective date of the 1998 Implementing regulations for the Line to check the status of the fishery annual specifications and management Atlantic tuna fisheries at 50 CFR 285.22 before leaving for a fishing trip. The measures for the Pacific coast provide for a subquota of 72 mt of large phone numbers for the HMS groundfish fishery, which will be medium and giant ABT to be harvested Information Line are (301) 713-1279 and published in the Federal Register. from the regulatory area by vessels (508) 281-9305. Information regarding Comments will be accepted through permitted in the General category the Atlantic tuna fisheries is also October 22, 1997. during the period beginning October 1 available toll-free through NextLink ADDRESSES: Comments on these actions and ending December 31. Due to an Interactive, Inc., at (888) USA-TUNA. should be sent to William Stelle, Jr.,