(A) Initial Filings By Franchisees.
(1) When made. A franchisee that is notified that its basic service and equipment rates are subject to regulation must file a submission ("the rate filing") within thirty (30) days of the notification (but no earlier than November 15, 1993) justifying its then existing basic service and equipment rates. All rates, for all customer classifications must be justified. Once a franchisee has been so notified by the city that its rates are subject to regulation, it may not thereafter increase its rates for basic service or equipment without the prior approval of the city. This requirement applies in all cases, including with respect to increases in rates announced prior to the date the operator was notified its rates were subject to regulation where the increases were not implemented prior to the date of notice. A franchisee must submit a rate filing to justify any increase in basic service or equipment rates or any new basic service or equipment rate (collectively referred to as rate increases). An "increase" occurs when there is an increase in rates or a decrease in program or customer services. Rate filings proposing and supporting rate increases must be filed for review at least sixty (60) days in advance of the proposed effective date of the increase. This requirement does not alter or eliminate any other notice requirement.
(2) Where made. Every rate filing must be submitted to the City Clerk. A rate filing shall be considered filed for review on the date the required rate filing and all required copies are received by the City Clerk. Ten (10) copies of each rate filing (including all supporting materials), must be submitted. If the operator claims any part of the filing is proprietary, it shall additionally file three (3) copies, which omit the proprietary information.
(3) Contents. Subject to any Federal Communications Commission (FCC) regulations governing the burden of proof, a rate filing submitted by a franchisee must show that the rates the franchisee proposes to charge for basic service and equipment are reasonable, except as inconsistent with FCC rules.
(a) Every rate filing must clearly state in a cover letter whether it justifies existing rates or proposes an increase in rates. The cover letter must also identify any rate that is derived in whole or in part based upon cost of service and identify any pages of the rate filing that contain information that the franchisee claims is proprietary. it must state whether any part of the proposed increase is based on an inflation adjustment or an alleged increase in external costs. The cover letter should also contain a brief, narrative description of any proposed changes in rates or in service.
(b) The pages of each rate filing must be numbered sequentially.
(c) The rate filing must contain all applicable FCC forms and these forms must be correctly completed.
(d) If different rates are proposed for basic service for different classes of customers, the filing must show that the classifications and the differences in the rate charged are reasonable and consistent with federal law.
(4) If the franchisee seeks to support a rate based upon a cost of service, the city will establish a rate that provides the franchisee an opportunity to recover the reasonable costs associated with providing basic cable service, including a reasonable profit. An expense or investment is not presumed reasonable merely because the franchisee has incurred or made it. A franchisee is not entitled to recover monopoly profits in any form.
(5) Unless the city grants a waiver of this provision, a franchisee who seeks to justify all or any part of its rates based upon its cost of service must submit a complete cost of service analysis that shows all expenses it incurs and all revenues derived from the system, directly or indirectly, by the franchisee or any person that constitutes a cable operator of the system within the meaning of 47 U.S.C. 522(4). The cost of service must identify the accounting level (as that term is used in the FCC's regulations) at which each expense or revenue identified was aggregated and show clearly how the expense or revenue was allocated. The franchisee may not include costs at an accounting unless it also includes all revenues from that same level attributable to the system or to a group of systems of which the system serving the city is a part. The replacement cost of a comparable system must be identified and supported. The franchisee must identify the name and address of any entity with which it has a contract, other than a programmer, which derives revenues from the system, and must state whether and how the revenues of that entity were included in the cost of service. In addition, the cost of service shall clearly show the derivation of a proposed charge per channel and the application of that charge to yield a basic service rate. It must also show and support the derivation and allocation of any amounts included in the derivation of the rate for:
(a) operation and maintenance expenses;
(b) administration and general expenses;
(c) programming expenses (identifying retransmission consent costs and copyright fees separately);
(d) costs for PEG access and any institutional network;
(e) franchise fee expenses;
(f) investment in the system and associated depreciation;
(g) other expenses, including federal, state and local taxes, itemized; and
(h) the proposed return on equity and actual interest paid by the franchisee.
(6) Notwithstanding the foregoing, a franchisee is not required to submit the cost of service specified in subsection (A) (5) of this section for equipment rates, and instead initially shall complete, submit, and support the costs of equipment using applicable FCC forms. Any cost of service submitted to justify basic service rates must show that the cost of service does not include equipment costs.
(7) In addition, the franchisee is required to submit a current list of active account numbers and addresses of all customers in the area regulated by the city. This information will be subject to verification at the discretion of the city.
(B) Initial city review.
(1) After receiving a rate filing, the City Clerk shall promptly publish a notice that a filing has been received and that, except for those parts which may be held proprietary, it is available for public review. The notice shall state that interested parties may comment on the filing, and shall provide interested parties seven (7) days to submit written comments on the filing to the City Clerk. The City Clerk shall submit the comments received to the cable committee chairman no later than ten (10) days after the filing. The committee chairman shall submit the comments received and its recommendation for action to the City Council no later than twenty (20) days after the filing and shall make those recommendations available for public inspection. The franchisee may submit a response to public comments or staff recommendations, but must do so no later than three (3) business days after the staff recommendations are submitted to the City Council. The response shall be filed with the City Clerk, and if submitted in a timely fashion, the City Clerk shall forward a copy to the cable chairman.
(2) Within thirty (30) days of the date of the filing, the City Council shall issue a written order, which may be in any lawful form, approving the proposed rate in whole or in part; denying the proposed rate in whole or in part; or tolling the proposed rate in whole or in part. If the City Council tolls the rate in whole or in part, its written order at a minimum shall explain that it requires additional time to review the rate filing and state that the franchisee may cure any deficiency in its filing by submitting a supplementary filing as provided in subsection (A)(3) of this section. With respect to existing rates, tolling means the rates may remain in effect, subject to refund; with respect to rate changes, tolling means the portion of the rate change that is tolled may not go into effect.
(C) Supplementary filings.
(1) If a proposed rate is tolled in whole or in part, the franchisee shall submit a supplementary filing twenty (20) days from the effective date of the tolling order, containing corrections, if any, to its filing (including any required supplement to its cost of service filing) and any response to information filed by interested parties or to the recommendations of the staff, or any additional information necessary to support the proposed rate. Supplementary filings must be filed in accordance with subsection (A)(2) of this section.
(2) A supplementary filing also must contain such information as the city directs the franchisee to provide.
(3) In addition to information the city requires the franchisee to provide, and unless the city grants a waiver of this provision, a franchisee who claims that it is entitled to a rate in whole or in part based upon the adjustments for inflation and external costs contemplated by 47 C.F.R. 76.922(d) (1)-(2) must submit the following:
(a) A calculation showing how each part of the adjustment was derived;
(b) A statement itemizing each external cost (as defined by FCC regulations), the amount of that external cost for the two calendar years prior to the date of the filing and the year-to-date in which the filing is made; and the projected amount of the external cost for the remainder of the year in which the filing is made and for the following calendar year. The statement must specifically show any increases in revenues from programming services. "Revenues" include all revenues, in whatever form received.
(c) If the increase is attributed to any increase in programming service costs, the contract for each programming service whose cost has increased; a sworn statement identifying each programming service whose costs increased where the programmer is an affiliate of the franchisee (as defined by FCC regulations); and, for any contract that has been in effect less than twelve (12) months, the prior contract for the service.
(d) A sworn statement by the franchisee's chief financial officer or an independent, certified accountant stating that he has examined all external costs (including all programming costs), and has off set against any increase claimed, the amount of any decreases in external costs, and the amount by which any increase in external costs was below the GNPPI, as required by 47 C.F.R. 76.922(d)(2); affirming that the franchisee has not attempted to recover any increase in the cost of programming purchased by an affiliate except as provided in 47 C.F.R. 76.922(d)(2)(vi).
(4) Upon receiving the supplementary filing, the City Clerk promptly shall publish a notice that a filing has been received and that it is available for public review (except those parts which may be withheld as proprietary). The notice shall state that interested parties may comment on the filing, and shall provide interested parties twenty (20) days to submit written comments on the filing to the City Clerk. The City Clerk shall submit the comments received to the cable chairman no later than twenty-four (24) days after the supplemental filing was received. The cable chairman shall submit the comments received and its recommendation for action to the City Council no later than thirty (30) days prior to the date the City Council must act under subsection (C)(7) of this section.
(5) The recommendations shall be made available for public inspection. The franchisee may submit a response to public comments or staff recommendations, but must do so no later than ten (10) days after the staff recommendations are submitted to the City Council. The response shall be filed with the City Clerk, and if submitted in a timely fashion, the City Clerk shall forward a copy to the City Council.
(6) The City Council shall issue a written order, which may be in any lawful form, approving the proposed rate in whole or in part; denying the proposed rate in whole or in part; or allowing the rate to go into effect in whole or in part, subject to refund. If the City Council issues an order allowing the rates to go into effect subject to refund, it shall also direct the franchisee to maintain an accounting in accordance with 47 C.F.R. 76.933.
(7) The order specified in subsection (C)(5) of this section adopted within ninety (90) days after the tolling order for any rate the franchisee justifies based on the FCC benchmark. The order shall be adopted within one hundred fifty (150) days of the tolling order for any rate the franchisee justified with a cost of service showing.
(Ord. 94-1, passed 2-3-94)