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Res 94-043RESOLUTION NO. 94-043 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA PURSUANT TO SECTIONS 76.933(C), 76.936, 76.940 76.941, AND 76.942 OF THE RULES AND REGULATIONS OF THE FEDERAL COMMUNICATIONS COMMISSION (FCC) PROPOSING THE DISAPPROVAL OF EXISTING RATES AND CHARGES FOR THE BASIC SERVICE TIER AND ASSOCIATED EQUIPMENT FOR COX CABLE SAN DIEGO, INC. (COX), SEEKING COMMENT WHY A PROSPECTIVE RATE REDUCTION, PRESCRIBING RATES AND CHARGES FOR BASIC SERVICE TIER, AND REFUNDS SHOULD NOT BE ORDERED, AND DIRECTING COX TO KEEP AN ACCURATE ACCOUNT OF ALL AMOUNTS RECEIVED BY REASON OF THE RATES IN ISSUE AND ON WHOSE BEHALF SUCH AMOUNTS WERE PAID WHEREAS, the City of Poway ("City") was certified by the Federal Communications Commission ("FCC") to regulate the Basic Service Tier, and associated equipment on October 7, 1993; and WHEREAS, the City provided written notice of said certification to Cox Cable San Diego, Inc., ("Cox") on December 13, 1993, for the new monthly basic and CPS cable rates effective January 1, 1994 in the City of Poway; and WHEREAS, the City has adopted regulations with respect to the Basic Service Tier and associated equipment that are consistent with the regulations prescribed by the FCC; and WHEREAS, the City has adopted procedural laws and regulations applicable to rate regulation proceedings which provide a reasonable opportunity for consideration of the views of interested parties; and WHEREAS, the City delivered a written request to Cox to file their schedule of rates for the Basic Service Tier and associated equipment with the City on December 13, 1993; and WHEREAS, on December 29, 1993, Cox filed with the City a FCC Form 393 dated January 1, 1994; and WHEREAS, the City notified Cox on January 21, 1994, pursuant to Section 76.933(b) of the FCC Rules and Regulations that it was unable to determine based upon the materials submitted by Cox that the existing or proposed rates were within FCCs permitted Basic Service Tier charge or actual cost of equipment and that the City was tolling the thirty (30) day deadline found in Section 76.933(a) of FCC Rules and Regulations for an additional ninety (90) days for the purpose of requesting and/or considering additional information; and WHEREAS, the City has reviewed all relevant information including, but not limited to, the FCC Form 393, the consultant's report, and other relevant written evidence; and WHEREAS, the City has not made a final decision approving, disapproving, or conditionally approving, or otherwise, Cox's proposed rates and charges as found in the FCC Form 393; and Resolution No. 94-043 Page 2 WHEREAS, the City hereby expresses its intent to reserve the right to order future refunds and/or credits if the City subsequently issues a written decision disapproving any portion of such proposed rates and charges for the Basic Service Tier and associated equipment pursuant to Section 76.933(c) of FCC Rules and Regulations. NOW, THEREFORE, the City Council of the City of Poway does hereby resolve as follows: SECTION 1 The existing and proposed rates and charges for the Basic Service Tier and associated equipment as identified in the FCC Form 393 dated January 1, 1994, for Cox do not appear to be in conformity with FCC benchmark standards in whole or in part for the reasons, and on the grounds, as contained in the consultant's report dated March 7, 1994, a copy of which is incorporated into this resolution by reference as Enclosure 1 and is if fully stated herein. SECTION 2 Cox is hereby directed pursuant to Section 76.933(c) of FCC Rules and Regulations to keep an accurate account of all amounts received by Cox by reason of the rates and charges for the Basic Service Tier as found in the FCC Form 393, and to further keep full and accurate records indicating on whose behalf such amounts were paid. SECTION 3 Cox is hereby directed to provide copies of the accounts and records specified in Section 2 above to the City Manager upon his and/or her written direction. SECTION 4 The City hereby reserves any right and remedies which it may possess in relation to rates and charges for the Basic Service Tier which are found to be in excess of the amounts authorized by FCC Rules and Regulations. SECTION 5 The City Council of the City of Poway hereby directs and orders Cox to appear at 7 p.m. on May 24, 1994, at this location to give evidence and show cause why the City should not order that Cox implement a prospective rate reduction and refund previously paid rates and charges to subscribers in excess of the rates and charges deemed reasonable pursuant to FCC Rules and Regulations Section 76.923 and 76.941 and 47 USC Section 453. SECTION 6 Cox is hereby directed and ordered to provide a Refund Plan ("Refund Plan") to the City within fifteen (15) days prior to the date of the May 24, 1994 hearing, pursuant to which it proposes how to refund to subscribers rates and charges collected by Cox in excess of the rates and charges contained in the consultant's report since September 1, 1993, or the earliest date from which Resolution No. 94-043 Page 3 the refund period may run pursuant to FCC Rules and Regulations, along with such written evidence and documentation demonstrating the reasonableness and appropriateness of said Refund Plan under the standards set forth in Section 76.g42 of FCC Rules and Regulations. PASSED, APPROVED, AND ADOPTED by the City Council of the City of Poway, California at a regular meeting thereof this 19th day of April, 1994. Don Higginson, Mayo'J~~ ATTEST: Marjor'~e ~. Wahlsten, City Clerk STATE OF CALIFORNIA ) ) SS. COUNTY OF SAN DIEGO ) I, Marjorie K. Wahlsten, City Clerk of the City of Poway, do hereby certify that the foregoing Resolution, No. 94-043 , was duly adopted by the City Council at a meeting of said City Coun~ on the 19th day of April, 1994, and that it was so adopted by the following vote: AYES: CAFAGNA, CALLERY, EMERY, SNESKO, HIGGINSON NOES: NONE ABSTAIN: NONE ABSENT: NONE a j ri~. Wahlsten, City Clerk