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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:)>F)))))))))<)C"VV5VYO5O5O5O5^<^<^<^>^<^C^F.".C.).CaC>>^CO"O6O)O0O"VCVVCVC^<^O=O)OFVCVCVCVCVCVCxVV>O5O5O5VCO)VCC.O)V<X<<( (WTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN+HH+@<)<<<<><q*"xxxxWWxxxWWkkxxxO5O5O5VCO)VCC.O)V<X<<( (WTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN+HH+@<)< ?<   wP  wP  T  X-#Xj\  P6G;yoXP#+2Before the [ FEDERAL COMMUNICATIONS COMMISSION`)(# DA 941300  X-Washington, D.C. 20554  X-x` `  hh@hpp    Xl-  XU-  X>-In the Matter of: hh@)h  X'-x` `  hh@)h  X-TCI West, Inc. hh @) hCSR 4337L  X-x` `  hh@)h  X -Complaint of Cartographichh@)  X -Publications, Inc. hh@)  X -x` `  hh@)h  X -Leased Access Complainthh@)  XA-  MEMORANDUM OPINION AND ORDER ă  X- Adopted : November 17, 1994hh@h Released : November 23, 1994 By the Chief, Cable Services Bureau  X- I.xIntroduction  Xr-x1.` ` On August 2, 1994, Cartographic Publications, Inc. ("Cartographic") filed a Complaint alleging that TCI West, Inc. ("TCI") violated the leased access rules. On September 1, 1994, TCI responded to Cartographic's complaint by filing a motion to dismiss and a request for extension of time to file a response in the event the Commission denied its motion to dismiss. In this Order, the Commission denies TCI's motion to dismiss and grants its motion for extension of time. TCI shall have 10 days from the release of this Order to respond to Cartographic's complaint.  X- II.xBackground  X!-x2.` ` In 1984 Congress enacted as part of an amendment to the Communication Act of 1934 a requirement that cable operators with 36 or more activated channels set aside part  X^#-of their channel capacity for use by programmers that are not affiliated with them. ^#E@ X%-#XP\  P6QyoXP#э 47 U.S.C.  532(b)(1)(1992), Communications Act of 1934,  612(b)(1). The amount of channel capacity an operator must set aside is based on the number of activated channels it has.  This requirement is called the leased commercial access requirement. The Cable Television"G$K0*0*0*U#" Consumer Protection and Competition Act of 1992 (the "1992 Cable Act"), revisited the leased commercial access requirement and directed the Commission to establish, among other things, procedures for resolving disputes arising from cable operators' leased access  X-requirements.< X4-#XP\  P6QyoXP#эx47 U.S.C.  532(c)(4)(A) & (B) (1992), Communications Act of 1934,  612(c)(4)(A) & (B). In the Implementation of Sections of the Cable Television Consumer  X-Protection and Competition Act of 1992: Rate Regulation, MM Docket 92266, 8 FCC Rcd  X-5631 (1993) (the "Rate Order") the Commission followed Congress' directive and established  X|-rules governing commercial leased access dispute resolution.|b< X -#XP\  P6QyoXP#эxRate Order,  531538. See also, 47 C.F.R.  76.975. ò  XN-x3.` ` The administrative dispute resolution process developed by the Commission pursuant to the 1992 Cable Act is designed to expedite resolution of disputes over leased commercial access requirements. Under this streamlined procedure, any person aggrieved by the failure or refusal of a cable operator to make commercial channel capacity available or to charge rates for such capacity as mandated by the 1992 Cable Act and FCC rules may file a  X -petition for relief with the Commission.k < X-#XP\  P6QyoXP#э 47 C.F.R.  76.975(b). k The petition must be filed within 60 days of the  X -alleged violation.l < X;-#XP\  P6QyoXP#э Id. at  76.975(d)l  When a continuing violation is involved, petitions may be filed at any  X -time based on current information. In their petitions, petitioners must concisely state the facts constituting a violation of the 1992 Cable Act or leased access rules and cite the specific  X-statute or rule violated.jy< X-#XP\  P6QyoXP#э 47 C.F.R.  76.975(c).j Petitioners must then serve a copy of the petition on the cable  Xh-operator. The operator has 30 days from the date the petition is filed to file a response.   X:-x4.` ` In addition to the administrative remedy developed by the Commission pursuant to the 1992 Cable Act, the Act expressly provides for judicial review of leased commercial access disputes. Any person aggrieved by the failure or refusal of a cable operator to make channel capacity available for use may bring an action in the district court of the United States for the judicial district in which the cable system is located to compel the cable  X-company to make such capacity available.i* < X"-#XP\  P6QyoXP#э 47 C.F.R.  76.975(a)i If the aggrieved party pursues an administrative remedy after a judicial remedy, the Commission will accept a court's finding as sufficient evidence of a violation before the Commission. " 0*((P"  X- III.xFACTS  X-x5.` ` Cartographic, a video program distributor, filed a complaint with the Commission on August 1, 1994, pursuant to the administrative commercial leased access dispute resolution provisions at 47 C.F.R.  76.975. Cartographic's complaint alleges that TCI violated section 612(c)(2) of the Communications Act by, among other things, imposing  Xv-a scrambling requirement on Cartographic's programming because of its content._v< X-#XP\  P6QyoXP#э Cartographic states that its programming includes "sexually oriented" content and that it sought to lease channel capacity between midnight and 4 a.m. on various TCI systems. TCI, it alleges, refused to carry Cartographic's programming unless it was scrambled and segregated from other programming and customers were offered an opportunity to affirmatively choose to receive it. Cartographic opposes these requirements and disputes TCI's reliance on 47 C.F.R.  76.701 as support for them. Cartographic argues that these rules have been stayed by the D.C. Circuit Court of Appeals.  XH-x6.` ` Thirty days after Cartographic filed its complaint, TCI filed a Motion to Dismiss the complaint and a Motion for Extension of Time to respond to the complaint. TCI argues for dismissal on the grounds that the Commission does not have jurisdiction to entertain Cartographic's complaint because the Communications Act requires Cartographic to pursue its complaint in federal district court. TCI interprets the Communications Act to require that a complainant sue in a district court if its complaint alleges failure or refusal by a  X -cable operator to make channel capacity available for leased access use.q < X^-#XP\  P6QyoXP#э TCI cites 47 U.S.C.  532(d).q Under TCI's reading of the statute, the Commission has jurisdiction over leased access disputes only upon a  X-showing of prior adjudicated violation of the leased access provisions by a court.q  < X-#XP\  P6QyoXP#э TCI cites 47 U.S.C.  532(d).q TCI asserts that Cartographic fails to allege an adjudicated violation of the leased access rules in its complaint to the Commission and that, therefore, the Commission is without jurisdiction to hear the complaint.  X- IV.xDiscussion  X-x7.` ` The Cable Act's 1992 amendments to the Communication Act's leased access requirement gives the Commission the authority to "establish procedures for the expedited resolution of disputes concerning rates or carriage" under the leased access requirement.  612 (c)(4)(A)(iii). At the same time, the 1992 Cable Act left in place the provisions of the Communications Act allowing leased access complaints to be filed in U.S. district court and then before the Commission after an adjudication has been made.  612 (d) and (e). These sections were undisturbed by the 1992 amendments.  X7-x8.` ` The Commission followed the directive of Congress in the 1992 Cable Act and"7Q 0*(("  X-provided a procedure for resolution of leased access disputes in the Rate Order. XxSection 612(c)(4)(A)(iii) of the Cable Act requires us to establish procedures for the expedited resolution of disputes concerning rates or carriage on leased access channels. The legislative history of Section 612 (c)(4)(A)(iii) indicates that Congress believed that the existing provision of the Cable Act of 1984 entitling aggrieved users to bring action in federal district court or to file complaints at the Commission resulted in  Xa-procedures that were too cumbersome.n a< X-#XP\  P6QyoXP#э Rate Order, at 531.n(# The 1992 Cable Act clearly authorized the Commission to develop rules providing for leased access dispute resolution before the Commission as a streamlined procedure. Under this authority the Commission adopted 47 C.F.R.  76.975 and under this rule, Cartographic filed  X -its leased access complaint against TCI before the Commission.  X -x9.` ` TCI's arguments against the Commission's jurisdiction over Cartographic's complaint are based on the dispute resolution provision of the law prior the 1992 Cable Act. TCI cites only Sections 612 (e) and (d) of the Communications Act and the 1984 legislative history of those provisions. TCI completely ignores developments in the law since 1984. It fails to note the amendment to the Communications Act giving the Commission the authority to make the rules relied upon by Cartographic and it fails to note the legislative history of the 1992 Cable Act that supports the Commission's rules allowing a leased access complaint to be  X-filed with it. {< XK-#XP\  P6QyoXP#э See, H.R. 4580 committee Report (Rpt. 102628), pp. 3940 (The cumbersome enforcement mechanism. . . may explain why some cable operators cite very low demand for leased access channels.) The 1992 Cable Act gave parties a new streamlined alternative to the existing procedures for dispute resolution. TCI's arguments in support of its motion to dismiss are without merit. The Commission has jurisdiction over the leased access complaint of Cartographic pursuant to Section 612(c)(4)(A)(iii) of the Cable Act and 47 C.F.R.  76.975.  X-x10.` ` TCI filed a motion for extension of time to respond to Cartographic's complaint in the event that its motion to dismiss was denied. TCI states in that motion that it is prepared to respond to the merits of Cartographic's complaint expeditiously if the Commission denies its motion to dismiss. Because we deny TCI's motion to dismiss, we will grant its request for an extension of time to file a response to the leased access complaint of Cartographic and hereby grant TCI 10 days from the release of this order to file its response as required by rule 47 C.F.R.  76.975. "  0*((="  X- V.xOrdering Clause  X-x11.` ` Accordingly, IT IS ORDERED that TCI West, Inc.'s motion to dismiss the complaint of Cartographic Publications, Inc. is hereby DENIED,  X-x12.` ` IT IS FURTHER ORDERED that TCI West Inc.'s motion for extension of time to file a response to the complaint of Cartographic Publications, Inc. is hereby GRANTED and TCI West, Inc. must file its response within 10 days from the release of this order,  X -x13.` ` IT IS FURTHER ORDERED that this Order is EFFECTIVE upon release.  X - x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhMeredith J. Jones  Xb-x` `  hhChief, Cable Services Bureau  X-