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United filed an amended petition. TWC   filed a response asserting that TWC fully complied with its obligations under the commercial   leased access requirements and that the petition should be denied. Thereafter, United filed a letter in reply to TWC's response and TWC filed a letter setting forth the current status of the matter.  Xl!- II. Background  X>#-  ~2.` ` In 1984, Congress amended the Communications Act of 1934 by adding among   other things a commercial leased access requirement, pursuant to which cable operators with 36   or more activated channels must set aside part of their channel capacity for use by video"%X,))[[$"  X-  jprogrammers that are not affiliated with them.0< {Oy-  ԍSee Section 612 of the Communications Act of 1934, as amended., 47 U.S.C.  532. The amount of channel  {OC-capacity an operator must set aside is based on a system's activated channel capacity. See 47 U.S.C.  532(b).0 The Cable Television Consumer Protection and   zCompetition Act of 1992 (the "1992 Cable Act") revisited the leased access requirement and   directed the Commission to establish rules for determining maximum reasonable rates for, and  X-  -reasonable terms and conditions for the use of, commercial leased access channels.$< {O-  ԍSee Pub. L. No. 102385,  9, 10(a) and 10(b), 106 Stat. 1460, Oct. 5, 1992. See 47 U.S.C.  532(c)(4)(A) & (B) (1992). Pursuant to   -that Congressional directive, the Commission established regulations applicable to leased access  X-  channels in its proceedings in Implementation of Sections of the Cable Television Consumer  Xx-  iProtection and Competition Act of 1992; Rate Regulation, MM Docket 92266, (the Rate Order),   8 FCC Rcd 5631, 59565961 (1993). The Commission revisited these regulation in  VL-  Implementation of Sections of the Cable Television Consumer Protection and Competition Act of  V5-  1992, Leased Commercial Access, Second Report and Order and Second Order on  X -  Reconsideration of the First Report and Order, CS Docket 9690, FCC 9727, released  X -February4, 1997 ("Second Order").X\ ~< {O8-  ԍSee also Order on Reconsideration of the First Report and Order and Further Notice of Proposed Rulemaking,   xMM Docket 92266 & CS Docket 9660, FCC 96122, released March 29, 1996, 61 Fed. Reg. 16396 (April 15,  {O-1996) ("Recon. Order").X  X - III.  Petition  X -   3.` ` In its petition, United asserts that it sought access on TWC's cable system in order   [to air a thirtyminute news magazine program. United initially contended that in response to its   request for access, TWC required a number of terms and conditions that were in violation of the   leased access rules. However, the record in this case shows that subsequent to the filing of the   {petition, all issues in dispute have been resolved between the parties except one: TWC's   requirement that United procure liability insurance before it grants United's request for leased access.  X-  #4.` ` In connection with this issue, United contends that TWC is requiring it to obtain   insurance policies in amounts of $1 million and $3 million. United states that the high cost of this   insurance (which it estimates to be over $3,500) will prevent it from gaining access. United   further argues that this insurance is unwarranted because the TWC is protected from liability  X-  -arising out of its programming pursuant to Section 638 of the Communications Act.p< yO"-ԍ Letter from Roderick C. Harsh to William Caton, dated January 22, 1996.p That section   provides: "Nothing in this title shall be deemed to affect the criminal or civil liability of cable   /programmers or cable operators pursuant to the Federal, State, or local law of libel, slander,   obscenity, incitement, invasions of privacy, false or misleading advertising, or other similar laws,   Mexcept that cable operators shall not incur any such liability for any program carried on any"?2 ,,(,([["   channel designated for public, educational, governmental use or on any other channel obtained under Section 612 or under similar arrangements unless the program involves obscene material."  X-  Q6.` ` In response, TWC contends that its requirement that United procure error and   omissions insurance is a standard business practice which is included in its leased access   kprogramming agreements. TWC states that the Commission previously found that standard   zcontract provisions do not violate the Commission's rules if the requirements do not require  X_-  program production standards in excess of those required for public access channels._< {O-  ԍCiting Chauncey v. Continental Cablevision of Southern Cal., CSR 4430L, DA 951353, (Cab. Serv. Bur., rel. June 19, 1995). TWC states   that the insurance requirement may be characterized as a standard provision which is unrelated   to program production standards, and therefore, it is not unreasonable or inconsistent with Section  X -  /76.971(b) of the Commission's rules. "< yO -  ԍSection 76.971(b) provides that "Cable operators may not apply programming production standards to leased access that are any higher than those applied to public, educational and governmental access channels." TWC further contends that requiring a leased access   programmer to obtain errors and omissions insurance is necessary because under current law an   operator may be found liable for cablecasting obscene material on commercial leased access   Kchannels and further that factual situations might arise in which a cable operator could be subject   xto a lawsuit based on the content of leased access programming for reasons other than obscenity.   =TWC also contends that even if a cable operator is insulated from ultimate liability under such   Klawsuits, it must still incur expenses in defending them. Finally, TWC contends that its insurance   requirement was made in good faith and was not a tactic to deny access to TWC's systems and   that United has not set forth evidence to demonstrate that its requirement to carry liability  XK-insurance is unreasonable.UKz< yOv-ԍTWC's Response to Petition for Relief at 35.U  X-  A7.` ` In its reply letter, United states that the insurance that TWC has requested that it   obtain is not a standard form of liability insurance used by most businesses, is not designed or   intended for use by commercial leased access programmers, and is prohibitive in cost. United   further contends that cable operators must not be allowed to discriminate by forcing only certain   users of their system to obtain such insurance and that the possibility of having to defend themselves against a lawsuit is a risk that all businesses share.  X|- IV. Discussion  XN-  8.` ` In  Anthony Giannotti v. Cablevision Systems Corporation,^ N < yO $-ԍ11 FCC Rcd 10441 (Cable Serv, Bur., September 6, 1996)^ we recently confirmed   an operator's right to require reasonable liability insurance coverage for leased access   programming. In that case, we noted that Mr. Giannotti had not shown that the cost of the   Mrequired insurance coverage is either prohibitive or imposes an unreasonable cost of doing"  ,,(,([[y"   business as an independent program producer. However, in the instant case, the cost to United   of obtaining the insurance required by TWC appears to present an obstacle to United in obtaining   .leased access. We note that there is no evidence in the record showing the reasonableness of   jTWC's insurance requirement, such as whether TWC requires nonleased access programmers   jto obtain insurance or carries insurance in respect of nonleased access programming, whether   TWC has incurred litigation costs in this context, or the likelihood that the programming at issue   jwill pose a liability risk. Consequently, we find that TWC's insurance requirement as applied to  X_-United is not in compliance with the leased access rules and should be eliminated. _< yO-  ԍWhile the leased access rules in effect during the relevant time in this case did not address the issue of  {O -  Zinsurance, the issue was addressed in the Second Order. In connection with the Second Order, some commenters   contended, similar to United here, that the cost of general liability and errors and omissions insurance represents a   Ysignificant barrier to small independent producers. One commenter requested that the Commission set a limit on the  {O -  required amount of general liability insurance. In the Second Order, the Commission declined to adopt specific   Yconditions or limits regarding the amount of coverage or the type of insurance policy that operators may require on   the ground that "a specific restriction might not be appropriate for all situations." Instead, the Commission stated   Jthat it would require insurance requirements to be reasonable in relation to the objective of the requirement and that   jcable operators bears the burden of proof in establishing reasonableness. The Commission further stated that   Jdeterminations of what is a "reasonable" insurance requirement will be based on the operator's practices with respect   to insurance requirements imposed on nonleased access programmers, the likelihood that the nature of the leased   Yaccess programming will pose a liability risk for the operator, previous instances of litigation arising from the leased access programming, and any other relevant factors.   X1- V.  Ordering Clauses  X -  10.` ` For the foregoing reasons, IT ORDERED that TWC shall eliminate the insurance requirement as applied to United as a prerequisite for leased access, as indicated above.  X -  p11.` ` This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules, 47 C.F.R.  0.321. X` hp x (#%'0*,.8135@8: