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A. 1. a.(1)(a) i) a) I. 1 1. a.(1)(a) i) a) I. 1 1. a.(1)(a) i) a) I. 1 1. a.(1)(a) i) a)x1. On September 8, 1993 Harry Tootle d/b/a Tootlevision ("Tootlevision") filed a Petition for Relief pursuant to the Section 76.975 of the Commission's rules alleging that Community Cable TV/ Prime Cable of Nevada ("Prime Cable") was in violation of various sections of the Federal Communication Commission's leased access and program carriage"S%0*0*0*T$"  X-rules as well as certain other statutory and regulatory provisions.Ya( Xy- x< #Xj\  P6G;XP#э Tootlevision's petition also names Barbara Greenspun, Brian Greenspun, Harris Bass, Steve  xSchorr and Rudolph H. Green, identified as employees of Prime Cable, individually in the caption  xas respondents. None of those individuals has filed a response. Inasmuch as the petition seeks  xrelief only with respect to Prime Cable, the petition will be dismissed with respect to these  xindividuals. Moreover, the Commission's leased access dispute resolution rules provide for the  xgranting of relief with respect to cable operators only, and not with respect to individuals or  X-entities which are not cable operators. See 47 C.F.R.  76.975.Y On October 22, 1993, Prime Cable filed an opposition to Tootlevision's petition. Prime Cable asserts that the petition is defective as a matter of law and that it seeks relief the Commission has no authority to grant. Prime Cable also questions the intent of Tootlevision in filing the Petition. x2. On November 11, 1993, Tootlevision filed an "Addendum" to its petition reiterating an allegation from its original petition that Prime Cable has violated the Commission's leased access rules by refusing to offer leased access channels on other than a full time/full channel basis, by quoting rates for channels on a full time/full channel basis only, and by imposing certain technical requirements that are excessive. On December 10, 1993, Prime Cable filed a response to the addendum asserting that it had fulfilled its obligation under the leased access rules.  X - II.xBackground x3. In 1984, Congress amended the Communications Act of 1934 to add, among other things, a requirement that cable operators with 36 or more activated channels set aside part of  X-their channel capacity for use by programmers that are not affiliated with them.{] Y-#Xw PE37}XP# č Communications Act of 1934, as amended,  612(b)(1), 47 U.S.C.  532(b)(1)(1992). The amount of channel capacity an operator must set aside is based on a system's activated channel capacity.  This requirement is called the commercial leased access or "leased access" requirement. The Cable Television Consumer Protection and Competition Act of 1992 (the "1992 Cable Act") revisited the leased access requirement and directed the Commission to establish, among other  X4-things, rules for determining maximum reasonable rates for leased access.4] Y- #Xw PE37}XP#э Communications Act of 1934,  612(c)(4)(A) & (B), 47 U.S.C.  532(c)(4)(A) & (B) (1992). Pursuant to that Congressional directive, the Commission established rules applicable to leased access channel  X-rates in its May 3, 1993 order for Implementation of Sections of the Cable Television  Y-Consumer Protection and Competition Act of 1992; Rate Regulation,#Xw PE37}XP# MM Docket 92266,  Y-(the Rate Order), 8 FCC Rcd 5631 (1993), at  531538. See also, 47 C.F.R.  76.970.  Y-x4. In the Rate Order, the Commission developed procedures for cable operators to  Y-follow in determining the maximum reasonable rate that a cable operator may charge any  Y-nonaffiliated programmer for leased access.X Í ÍX Í ÍM Y#-ԍ 47 C.F.R  76.970(b)(c) and (d).M Under the Commission's rules, maximum  Yn-reasonable rates are to be developed by cable operators for three categories of programs.DnL  Yk&-ԍ 47 C.F.R.  76.970(f). D The three program categories are: (1) payperevent or payperchannel programs; (2)"W 0*((!" programming where more than fifty percent of the capacity is used to sell products to subscribers; and (3) all other programs. The highest implicit net fee that a cable operator charges any nonaffiliated nonleased access programmer within each category is to be calculated, using procedures described in our rules, on a monthly basis. The highest implicit net fee thus determined for each of the three program categories becomes the maximum monthly rate that the operator may charge a programmer for leased access for that program  Y-category.C Y-ԍ 47 C.F.R.  76.970(d).C x5. The Commission determined that certain issues associated with obtaining leased access should be left for negotiations between the parties. For example, in establishing the maximum reasonable rates for leased access, the Commission noted that lower rates could be  Y1-negotiated.E1z Y\ -ԍ Rate Order,  519.E With respect to channel placement and tier access, the Commission also stated  Y -that this should be left in the first instance to negotiation between the parties.F - Y-ԍ Rate Order,  498. F The  Y -Commission further noted its belief that cable operators should accommodate all leases, i.e., leasing an hour on a regular leased channel, leasing a whole channel, or leasing for use as a  Y -subscription service.N  Yh-ԍ Rate Order,  498, n. 1277.N The Commission's rules provide some guidance for establishing rates for these shorter lease periods, stating that maximum rates can be calculated by prorating the  Y -monthly maximum rate.C  Y-ԍ 47 C.F.R.  76.970(d).C  Y{-x6. Pursuant to the 1992 Cable Act, the Commission in the Rate Order developed an administrative dispute resolution process for the purpose of expediting resolution of disputes concerning leased access requirements. Under this procedure, any person aggrieved by the failure or refusal of a cable operator to make leased access capacity available or to charge rates for such capacity as mandated by the 1992 Cable Act and Commission's rules may file  Y -a petition for relief with the Commission.n E  X-#XP\  P6QyoXP#э 47 C.F.R.  76.975(b). n  X- III. The Pleadings x7. In its petition, Tootlevision, an operator of a lowpower UHF TV station serving the Las Vegas, Nevada area, alleges that Prime Cable has caused Tootlevision financial hardship and mental anguish and has failed to provide leased access channels on other than a full channel/full time basis, in violation of Sections 76.970(d) & (d), 76.971(a)(1)(iii), and"i 0*(("  Y-76.977(a) of the Commission's rules.o  Yy-ԍ 47 C.F.R.  76.970(d) & (e), 76.971(a)(1)(iii), and 76.977(a).o Violations of 47 U.S.C.  531, 543(b)(7)(ii), and 548(a) are also alleged. x8. In support of these allegations, Tootlevision asserts that it has tried without success to negotiate an arrangement for carriage of programming on the cable system of Prime Cable, which serves Las Vegas, Nevada and adjacent areas. Enclosed with the petition is correspondence between Tootlevision and Prime Cable during these negotiating efforts. This correspondence shows that Tootlevision initially inquired about arrangements for carriage as a local broadcast station. Prime Cable responded by asserting that the low  Y1-power station did not qualify for must carry under the Commission's must carry rules. 1z Y\ -ԍ See Tootlevision's letters to Prime Cable, dated July 22 and August 9, 1993, and Prime Cable's letter to Tootlevision dated August 10, 1993. Since the LPTV station serves a community, Las Vegas, NV, that is larger than 35,000 in population and served by full  Y-power television stations, it does not qualify for "must carry" on Prime Cable's system. See 47 U.S.C.  534(h)(2)(A)(F). Tootlevision also inquired about a leased access channel rate, which elicited a quotation by  Y -Prime Cable of $85,000 per month.o  Y-ԍ See Prime Cable's letter to Tootlevision dated August 10, 1993.o When Tootlevision requested "a schedule of rates for  Y -each classification,"  Y#-ԍ See Tootlevision's letter to Prime Cable dated August 1, 1993 at p. 2. In this letter Tootlevision confirmed the availability of certain program delivery equipment, and asked Prime Cable for a phone number of a Prime Cable contact person and for a copy of its billing and collection policy, and stated an interest in "starting out with 8 pm to 10 pm, seven days a week." Prime Cable responded by again quoting the $85,000 per month rate   Yz-ԍ See letter from Prime Cable to Tootlevision dated August 10, 1993. The $85,000 rate was quoted "for programming that does not fall into the categories of 'shopping channels' or 'premium services' such as payperview."  and stating that it "has no obligation to lease capacity on less than a full channel/full time basis." Following a further inquiry about pricing, terms and conditions for the three  Y -categories of channels set out in the rules,t b Y!-ԍ See letter from Tootlevision to Prime Cable dated September 6, 1993.t Prime Cable reiterated that it "will not lease time on less that a full month basis" and submitted a proposed channel lease agreement along with the following monthly rate quotes: X` hp x (#%'0*,.8135@8:y { Y-ԍ The requirement that Prime Cable establish a schedule of part time leased access rates and that it maintain supporting records for inspection is consistent with requirements we have imposed on cable operators in two other proceedings in which the matter of part time leased  Y-access rates were condidered. See Memorandum Opinion and Order, CSR4178L (DA 94 Y-1563), released December 27, 1994, and Memorandum Opinion and Order, CSR4186L (DA 941564 ), released December 27, 1994.> We reserve the right to review Prime Cable's part time rates to assure that they both encourage use and provide reasonable and adequate compensation within the  Y-"implicit fee" structure. The issue addressed here is among significant issues now before the  Yy-Commission on reconsideration.# y Y-ԍ See Implementation of Sections of the Cable Television Consumer Protection and  Y-Competition Act of 1992: Rate Regulation,#Xw PE37XP# MM Docket 92266, (petition for reconsideration pending.)# In this order, we resolve the issues presented in accordance with the current rules applicable to leased access channels.  XK-x` `  X4-D. Miscellaneous Other Matters  Y-x18. Other miscellaneous matters have been raised by the petition. For example, it is alleged that Prime Cable may be exercising control over a government access channel in  Y-violation of Section 611 of the Communications Act, as amended.!A  Y#-ԍ See 47 U.S.C.  531(e), (cable operators may not exercise editorial control over public, educational, or governmental ("PEG") use of leased access channels) . The petition contains no specific information that supports this allegation, and therefore we will not consider this issue. The petition further asserts that a PEG channel is being carried by Prime Cable on"!0*(("  Y-channel 31 and not in the basic tier, in violation of Section 623(b)(7)(A)(ii) of the Act." Yy-ԍ See 47 U.S.C.  543(b)(7)(ii) (any PEG access programming required by the franchise of the cable system to be provided to subscribers must be carried in the basic tier). Prime Cable argues in response that the Commission has no jurisdiction over content of a cable system's basic tier unless the local franchise authority has requested the Commission to exercise such jurisdiction, which has not occurred here. The record before us contains no information about the makeup of Prime Cable's basic tier or even whether channel 31 is part of its basic tier, nor does it show whether Prime Cable's franchise requires carriage of PEG  Yv-channels.Q#vd Y -ԍ See 47 U.S.C.  543(b)(7)(ii).Q We decline to address this issue in this context. It is also alleged that Prime Cable's actions have impeded petitioner's efforts to increase the availability of cable and satellite programming in rural and other areas not currently able to receive such  Y1-programming, in violation of Section 628(a) of the Act.J$1 Y-ԍ See 47 U.S.C.  548(a).J Prime Cable asserts that petitioner has not shown that he is a multichannel video programming distributor, and that he therefore has no standing to seek relief under Section 628. We believe this order grants the essential elements of relief that the petitioner seeks, namely the requirement that Prime Cable offer it part time leased access channel capacity pursuant to part time rates. Therefore, we need not  Y -consider in this order whether petitioner may have standing under Section 628 of the Act.%  Y9-ԍ Tootlevision cannot be faulted nor its petition dismissed because the petition was filed only a few days after the leased access rules became effective on September 1, 1993, as suggested by Prime Cable. This order addresses the requirements of the leased access rules forward from the effective date of those rules and does not purport to apply any of those requirements retroactively.  Y-x19. Finally, the petition asserts that Prime Cable has imposed certain technical standards that are excessive and in violation of Section 76.971 (b) of the rules. In view of the relief granted by this order, we believe it sufficient at this time to remind both parties that Section 76.971 (b) provides that cable operators may not apply program production  Y4-standards to leased access channels that are higher than those applied to PEG channels.R&4  Y -ԍ See, 47 U.S.C.A. Section 76.971(b)R These standards should be readily ascertainable, as they should be applied by Prime Cable to the PEG channels currently on its system. Accordingly, we expect that Prime Cable will apply those standards in its carriage of Tootlevision's programming, as required by that rule.  X- V. Ordering Clauses " &0*(("Ԍ Y-x20. For the foregoing reasons, IT IS ORDERED that the Petition for Relief of Harry Tootle d/b/a as Tootlevision is GRANTED in PART, as described above, and in all other respects, is DENIED.  Y-x21. IT IS FURTHER ORDERED that COMMUNITY CABLE TV/ PRIME CABLE OF NEVADA (herein "Prime Cable"), within 20 days from the effective date of this order, shall file with the Commission supporting contracts in effect for the calendar year prior to December, 1993, the number of subscribers for the Las Vegas, Nevada system as of December 31, 1993, and any other relevant documentation, to justify the calculation of the maximum monthly implicit net fee for leased access as provided Section 76. 970(e) of our rules.  Y -x22. IT IS FURTHER ORDERED that Prime Cable, within 20 days from the effective date of this order, shall establish a schedule of rates, or rate card for different times of day pursuant to which, if all times were used, the sum of the part time charges for any single leased access channel would not exceed its maximum monthly rate for a leased access channel calculated in accordance with Section 76.970 of our rules.  Yb-x23. IT IS FURTHER ORDERED that Prime Cable shall maintain on file adequate records, consistent with Section 76.970(e) of our rules, which show the total monthly revenues derived from part time users of each leased access channel, together with the maximum monthly charge for a full leased access channel and the documentation and calculations used for deriving the maximum monthly charge in accordance with Section 76.970 of the rules.  Y-x24. IT IS FURTHER ORDERED that the petition is DISMISSED with respect to Barbara Greenspun, Brian Greenspun, Harris Bass, Steve Schorr and Rudolph H. Green individually.  Ye-x25. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules, 47 C.F.R.  0.321. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhMeredith J. Jones x` `  hhChief, Cable Services Bureau