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(1) (a) (i) 1) a)D )DDDFrfJ$ a2Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfK/` ` ` a3Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfL:` ` `  2lMjNjOWkP la4Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfME` ` `  a5Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfNP  ` ` ` hhh a6Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfO[   a7Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfPf  2tQlKmKpK\ra8Paragraph R!1. a. i. (1) (a) (i) 1) a)D )DDDFrfQq "i~'^#)0<8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""$- xMarch 29, 1996, 61 Fed. Reg. 16396 (April 15, 1996) ("Recon. Order"). The leased access regulations as modified  {O%-by the Recon. Order may be found at 47 C.F.R.  76.970, 76.971 & 76.975 (1996).@ "<,N(N(ZZ*"Ԍ X- ` ox3.` ` The leased access regulations initially required, among other things, that cable  X- xoperators provide a schedule of rates "[u]pon request" to prospective leased access programmers.A18 yOb-ԍ47 C.F.R.  76.970(e).A  X- xIn the recently adopted Second Order, the Commission set a 15 day response time from the date  xof a written request. A 30 day response time was established for systems who qualify for "small  xsystem" rate relief. Additionally, the regulations provide for the determination of maximum  x=monthly leased access rates by means of an average implicit fee formula, which is described in  Xx- xthe regulations.jxX18 {O -ԍSee Second Order, Appendix D, Revised Rules, Section 76.970.j The Commission also adopted procedures for resolution of disputes, providing  Xa- xfor the filing of a petition for relief within sixty days of an alleged violation of a leased access  XJ-statutory or regulatory provision and for the filing of a response. J18 {O -ԍSee Second Order, Appendix D, Revised Rules, Section 76.975 and 47 C.F.R.  76.975 (1996).  X - III. THE PLEADINGS  X -x A. The Petitioner's Allegations  X - ` x4.` ` The petitions describe The Firm as an advertising agency and video production  xcompany, which produces thirty minute programs for automotive dealers, recreational vehicle  X- xdealers, and real estate companies to be aired on commercial leased access channels.7 |18 yO-ԍPetition, p. 1.7 The Firm  xjstates that it initially sought a leased access channel on Continental's cable systems through a  x\series of letters and facsimile messages exchanged with Continental. The Firm states that it  xrequested information including the number of system channels, full time and part time leased  xaccess rates, the number of system subscribers reached by leased access, and system format for  xplayback of leased access tapes. The Firm states that an initial response from Continental failed  xMto include part time rate information, included a questionnaire to be completed to determine  xzeligibility, indicated that a leased access programmer may be responsible for technical costs  xassociated with activating a channel, and informed The Firm that a local origination channel was  xavailable. The Firm states further that, after requesting clarifying information, Continental  xzresponded by stating that leased access would be denied, because The Firm's programming constituted commercial advertising, and offering advertising rates to The Firm.  Xg- ` x5.` ` The Firm asserts that Continental's denial of leased access and failure to provide  x.part time rate information constitute violations of the Commission's leased access regulations.  x.It requests relief in the form of the issuance of a notice of apparent liability for forfeiture, to be  xpaid directly to The Firm as compensation for revenues allegedly lost while trying to gain leased  x\access from Continental. It also asks for an order requiring Continental to make as many as  x=thirty halfhour leased access programs available at no cost to all programmers who request it,  xas compensation for expenses other programmers may have incurred in pursuing leased access"  ,N(N(ZZ;"  x/services on Continental's cable systems. It also requests an order requiring all Continental  xsystems using the screening process employed here to report to the Commission periodically on  xthe manner in which leased access inquiries are processed and to act accordingly on that information.  X-x B. Continental's Responses  X_- ` @x6.` ` Continental asserts in response that The Firm is an advertising agency and, as such,  xis not entitled to leased access channels and thus lacks standing to file a leased access petition.  xlIt asserts that the Congress did not intend for the leased access obligations to extend to  X - xicommercial advertising. Continental cites as support for this argument Sofer v. United States, No. 2:94cv1182, slip op. (E.D.VA., June 7, 1995), 1995 WL 576833 (E.D.Va.).  X - ` x7.` ` Continental asserts further that it has responded promptly and thoroughly to all  X - x requests from The Firm for information. It states that the information provided to The Firm  x<included information about leased access rates, and that only after providing that information did  xjit present a questionnaire seeking basic information about The Firm. It asserts that the offer of  xa local origination channel as an alternative for The Firm's advertising was not made as an attempt to dissuade The Firm from leased access.  X6- ` x8.` ` Continental asserts that the relief requested is unwarranted, excessive and  xunavailable under the Commission's rules. Further, Continental asserts that The Firm has failed  xZto meet its burden of showing by clear and convincing evidence that Continental has violated the leased access rules, and that The Firm therefore is not entitled to relief.  X- III. DISCUSSION  X-x A. Eligibility for Commercial Leased Access Channels  Xg- ` _x9.` ` The principal issue presented is whether Section 612 of the 1992 Cable Act, or the  xCommission's implementing regulations, obligates Continental to make a leased access channel  xiavailable for the presentation of programming that includes commercial advertising. We conclude that it does.  X- ` x10.` ` Section 612(a) states that the purpose of the commercial leased access requirement  xKis to promote competition "in the delivery of diverse sources of video programming and to assure  xthat the widest possible diversity of information sources are made available to the public from  X!- xcable systems in a manner consistent with the growth and development of cable systems."> !18 yO($-ԍ47 U.S.C.  532(a).>  x0Section 612(b) implements this goal by mandating that cable operators designate stated  X#- xpercentages of activated channel capacity "for commercial use by persons unaffiliated with the"#X ,N(N(ZZe""  X- xoperator."> 18 yOy-ԍ47 U.S.C.  532(b).> The Commission's dispute resolution rules that any person aggrieved by the failure  xor refusal of a cable operator to make commercial channel capacity available in accordance with  x=the provisions of Section 612 or the Commission's implementing regulations may file a petition  X-for relief with the Commission.Y ZX18 yO- xԍ47 C.F.R.  76.975(b) (1995). These petitions will be considered in the context of the initial leased access  {O- xregulations adopted in the Rate Order that were applicable when they was filed. See 47 C.F.R.  76.970, 76.971 & 76.975 (1995), Y  X- ` x11.` ` The Firm states that it is "an advertising agency/video production company" which  xproduces thirty minute programs for automotive dealers, recreational vehicle dealers, real estate  X_- xcompanies, camp grounds, and others "to air on commercial leased access channels."8_z18 yO -ԍPetitions, p. 1.8 We read  xthis statement as a representation by The Firm that it is a video production company (as well as  xan advertising agency) and that it seeks to present its video program productions on a commercial  xileased access channel to be obtained from Continental. Continental has presented nothing which  xldisputes that representation. Absent a showing of any affiliation between The Firm and  xContinental, we find that The Firm qualifies as an unaffiliated "diverse source of video  xjprogramming" for whom Continental is required by Section 612 to "designate channel capacity  X - xfor commercial use."F 18 yOy-ԍ47 U.S.C.  532(a) and (b).F Accordingly, we reject Continental's argument that The Firm is not  xxentitled to leased access channels because The Firm is an advertising agency. Nothing in Section  x612 may be construed as disqualifying The Firm from use of a leased access channel, simply  xbecause it is engaged in business as an advertising agency, in addition to being engaged in  xbusiness as a video production company providing a "diverse source of video programming" within the meaning of Section 612.  X-x B. Standing to File Section 76.975 Petition for Relief  X- ` x12.` ` Moreover, we disagree with Continental that Sofer vs. United States, supra,  xysupports the proposition that The Firm does not have standing to file a petition for relief under  X- x47 C.F.R.  76.975. Sofer involved a claim that a cable operator refused to sell commercial  xMadvertising time on a cable system and allegations, not specified in the court's Opinion and  X- xOrder, of violations of Section 612 and related regulations. The court in Sofer found that Section  X- x612 and related Commission regulations have no application to commercial advertising.  xHowever, the case before us deals with advertising time on a leased access channel. Nothing in  x?Section 612 or the Commission's leased access rules prohibits a leased access user from  xdistributing advertisements let alone programming containing advertisements. The inclusion of  X&- xadvertising content in video program productions?&18 {Oq'-ԍSee  3 above.? does not disqualify independently produced"&, ,N(N(ZZ"  xvideo programming, such as that produced by The Firm, from carriage on Section 612 designated  xjleased access channels. Moreover, cable operators may consider the content of leased access  X- xprogramming only to the extent necessary to establish which pricing category applies to such  X- x[programming.18 {O4- xԍSee 47 U.S.C.  532(c)(2) and 47 C.F.R.  76.970(f) (1995). The pricing categories applicable when the  {O-petition was filed have been modified. See Second Order,  49, 50. Accordingly, we will direct Continental to provide such leased access channel capacity as may be requested by The Firm consistent with the requirements of Section 612.  Xv- xC. Response to Request for Rates File No. CSR 4564L  XH- ` px13.` ` The petition further alleges that Continental failed to respond promptly and  xadequately to requests for leased access information and for parttime rates for leased access. The  xrecord in File CSR 4564L shows that The Firm submitted a request to Continental dated June  X - xj27, 1995, and that Continental submitted a response to The Firm by facsimile on July 11, 1995.jZ $18 yO- xԍOn July 7, 1995, Continental received the first written request from The Firm, dated June 27, 1995 and post  x-marked July 1, 1995, which was addressed to the prior owner of this cable system at an inactive post office box.  {Oh-See Response, p. 5, in File No CSR 4564L.j  xThe response provided the number of subscribers served by the system, the areas served, and the  xmonthly rates for three categories of service. The response also provided other information  xregarding availability of parttime and perprogram leases, including the information that there  xxwere no leased access users on Continental's system. It included a questionnaire to be completed  xby The Firm. The response expressed a need to determine channel placement upon completion  xand return of the questionnaire, and indicated that The Firm may be responsible for "reasonable  Xb- xytechnical costs associated with activating the channel."ZbF18 {OY-ԍSee Response, Exhibit B, in File No. 4564L.Z When the petition was filed, Section  x76.970(e) required cable operators to provide a schedule of leased access rates to prospective  X4- xleased access programmers "[u]pon request."R418 {O-ԍSee 47 C.F.R.  76.970(e) (1995).R We find that Continental's responses, which were  x{provided within four days of receipt of The Firm's requests, were neither untimely nor so  X- xinadequate in this instance as to constitute a violation of Section 76.970(e).+j 18 {O!- xԍSee Second Order Appendix D, Revised Rules, Section 76.970(h). Further, we note that Continental provided  xYmonthly rates rather than part time rates requested by The Firm. Section 76.970(e) initially required rather broadly  {O - xthat the cable operator provide "a schedule of commercial leased access rates" upon request. See 47 C.F.R.   yO}!- x76.970(e) (1995). The Commission subsequently clarified this requirement to specify that parttime rates as well  {OE"- xas monthly rates should be provided within 15 days of the receipt of a written request for rates. See Second Order Appendix D, Revised Rules, Section 76.970(h). + This finding, of  xLcourse, does not affect our conclusion that Continental improperly rejected The Firm's request for leased access capacity. ",N(N(ZZ"Ԍ X- xD. Response to Request for Rates File No. CSR 4571L  X- ` x14.` ` In File No. CSR 4571L, the record shows that The Firm first submitted a request  X- xto Continental dated June 12, 1995, and that Continental submitted a response to The Firm by  xfacsimile on June 28, 1995, including a questionnaire to be completed before leased access rates  X- xcould be discussed.Z18 {O-ԍSee Response, Exhibit B, in file No. 4571L.Z Although The Firm returned the completed questionnaire that same day,  Xv- xJune 28, 1995, Continental failed to provide The Firm any leased access rates until September  x>7, 1995, after the instant petition was filed with the Commission on August 9, 1995. On this  x\record, we find that Continental failed in this instance to respond to The Firm's requests for  xleased access rates on a reasonably timely basis. As noted above, the Commission has clarified  x-the requirement to specify that parttime rates as well as monthly rates should be provided within  X - x15 days of the receipt of a written request for rates. See Second Order Appendix D, Revised  xRules, Section 76.970(h). We will expect Continental to adhere to these requirements with respect to future requests for leased access rates and information.  X -x E. Other Forms of Relief  X{- ` #x15.` ` The Firm requests relief in the form of compensation for time expended and costs  xzincurred in bringing this action before the Commission. Neither the Communications Act of  x1934, as amended, nor the 1992 Cable Act provides for recovery of costs associated with the  xfiling of a petition for relief with the Commission relating to the statutory leased access  xprovisions or the Commission's leased access regulations. Accordingly, petitioner's request for  X-compensation for such costs will be denied. Z18 yO- xhԍThe Firm provided no evidence of lost revenues, or that Continental engaged in conduct justifing a requirement  xfor the provision of leased access services at no cost to other unspecified programmers or for the filing of periodic  xreports with the Commission, or used any unlawful "screening processes." Accordingly, it is unnecessary to address the question whether we have authorty to grant such forms of relief.  X- IV. ORDERING CLAUSES  X- ` x16.` ` For the foregoing reasons, IT IS ORDERED pursuant to 47 C.F.R.  76.975(f)  xthat respondent Continental shall, within twenty days from the release date of this order, provide  xto The Firm such leased access channel capacity as may be requested consistent with the requirements of 47 U.S.C.  532.  X9-x17.` ` IT IS FURTHER ORDERED , that the petition for relief of The Firm (a) IS  X"-GRANTED in part insofar as indicated above and (b) IS DENIED insofar as it requests compensation for costs incurred in bringing this matter before the Commission and for other forms relief. "B,N(N(ZZ"Ԍ X-x18.` ` IT IS FURTHER ORDERED in File No. CSR 4564L that the Answer to  X-Response IS STRICKEN and the Motion to Authorize Response to Respondent's Reply filed by The Firm and the Motion to Strike Reply or in the Alternative to Authorize Respondent to  X-Reply filed by Continental ARE DENIED .  X-x19.` ` 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: