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A. a.(1)(a) i) a)DocumentҲ2   qa1Document+>ȗ&Document Style7&ȏ(6+#.K+, F *  ׃  a2Document+>ȗ&Document Style7&ȏ(6+#.K+, *    a3Document+>ȗ&Document Style7&ȏ(6+#.K+,0     a4Document+>ȗ&Document Style7&ȏ(6+#.K+, . 2fRfqqa5Document+>ȗ&Document Style7&ȏ(6+#.K+,   a6Document+>ȗ&Document Style7&ȏ(6+#.K+, !" a7Document+>ȗ&Document Style7&ȏ(6+#.K+,#$` ` ` a8Document+>ȗ&Document Style7&ȏ(6+#.K+,%&` ` ` 2*2e\ps1PleadingT(PȗHeader for Numbered Pleading Paper,ȗ&+Bȗ+>'(   ,#6X@@# X  y*dddyy*dddy HJ1 HJ2 HJ3 HJ4 HJ5 HJ6 HJ7 HJ8 HJ9 H10 H11 H12 H13 H14 H15 H16 H17 H18 H19 H20 H21 H22 H23 H24 H25 H26 H27 H28   ӲHeading 2T(PȗUnderlined Heading Flush Left.K+,ȗ&+Bȗ+>)* Heading 1T(PȗCentered Heading6+).K+,ȗ&+Bȗ+>+,* Ã  Bullet List(PȗIndented Bullet List+*.K+,ȗ&+Bȗ+>-.` ` ` 2X"i !!a1Right Par+>ȗ&Right-Aligned Paragraph Numbers6+6.K+,8/0@   a2Right Par+>ȗ&Right-Aligned Paragraph Numbers6+6.K+,A12@` `  ` ` ` a3Right Par+>ȗ&Right-Aligned Paragraph Numbers6+6.K+,J34` ` @  ` `  a4Right Par+>ȗ&Right-Aligned Paragraph Numbers6+6.K+,S56` `  @  2%"A#$$a5Right Par+>ȗ&Right-Aligned Paragraph Numbers6+6.K+,\78` `  @hh# hhh a6Right Par+>ȗ&Right-Aligned Paragraph Numbers6+6.K+,e9:` `  hh#@( hh# a7Right Par+>ȗ&Right-Aligned Paragraph Numbers6+6.K+,n;<` `  hh#(@- ( a8Right Par+>ȗ&Right-Aligned Paragraph Numbers6+6.K+,w=>` `  hh#(-@pp2 -ppp 2.K%K(Kd*K,"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""and 30,000 subscribers, and should only charge in the range of $10 to $20 for a halfhour of  xleased access. Similarly, FalComm's correspondence states that ComcastD offered leased access  xat a rate of $125 for a half hour, but that the system has 75 channels and 122,000 subscribers,  xKand should only charge about $35 for a half hour. In addition, FalComm's correspondence states  xthat Comcast East offered leased access at a rate of $130 for a half hour, but that the system has 80 channels and 130,000 subscribers, and should only charge about $35 for a half hour.  X- ` x6.` ` To support its allegation that FalComm was denied access for programming due  xto program content which included obscenity, nudity, and/or indecency, FalComm points to its  xrequest to place its program, "Fantasy Adventure," over ComcastT's system. The  xycorrespondence with ComcastT submitted by FalComm states that "Fantasy Adventure" had  xalready been transmitted twice by ComcastT prior to ComcastT's refusal, and had been carried  xfor 18 months by other cable systems. FalComm states that ComcastT has failed to provide  xFalComm with a copy of a written and published policy concerning programming containing  xnudity, indecency, or obscenity, but rather relies on the personal determinations of its system manager. FalComm claims that this violates FalComm's first amendment rights.  X - ` nx7.` ` Finally, FalComm submits no record evidence for its allegations that the systems fail to maintain sufficient leased access capacity.  X- ` Qx8.` ` The correspondence submitted by FalComm includes a letter dated March 26,  x.1996 from Alan S. Dannenbaum, Assistant Deputy General Counsel for Comcast, in which Mr.  xDannenbaum states that Comcast simply elected its right pursuant to 612(h) not to carry  xprogramming containing nudity, indecency, and/or obscenity. Mr. Dannenbaum in addition states  xthat Comcast need not dedicate the maximum number of channels required by statute for leased  xZaccess "so long as time slots which are reasonably comparable to the time requested are available"h$Z ,N(N(ZZF#"  X- xjon the system's existing leased access channel(s)."  {Oy- xԍ Mr. Dannenbaum cites TV24 Sarasota, Inc. vs. Comcast Cablevision of West Florida, Inc., 10 FCC Rcd 3512  {OC-(1994) ("TV24 Sarasota"). Finally, Mr. Dannenbaum notes that only a government can violate the first amendment.  X-( DISCUSSION ĐTP  X- ` x9.` ` The principal issue presented by FalComm's complaint is whether the leased  xaccess rates proposed by the various Comcast systems exceed the maximum reasonable rates for  xparttime leased access channel capacity that may be established, consistent with the requirements  XH- xof 76.970 of the rules.  H$ {O - xiԍ See 47 C.F.R. 76.970. See also 47 U.S.C. 532(c)(4)(A), which authorized the Commission to determine the maximum reasonable rates that a cable operator may establish for leased access capacity.  In its initial Rate Order, the Commission adopted a "highest implicit  xfee" formula as the method for setting maximum reasonable rates that a cable operator may  xcharge any nonaffiliated programmer for leased access. The Commission recently modified this  X -methodology in the Second Order, adopting an "average implicit fee" formula.* ( ~ {O4- x=ԍ In the Recon. Order, the Commission identified problems with the highest implicit fee formula. After  {O- x;considering comments of interested parties, the Commission, in the Second Order, replaced the highest implicit fee  {O- xformula with an average implicit fee formula, which became effective on April 11, 1997. See Second Order, 165  {O-and Appendix D, Revised Rules. See also 62 FR 11364 (1997).*  X - ` x10.` ` The record in this matter fails to provide any of the data or other information  xnecessary for making the rate calculations and provided none of the calculations required by  x76.970 of the rules. Absent such a showing, we have no basis for a finding that these systems  X- xproperly applied the methodology of our rules in effect when the petition was filed,Pn  {O-ԍ See 47 C.F.R. 76.970 (1996).P or that the  xrequired methodology was properly applied to the appropriate data as required by the rules. For  xLthose reasons, we are unable to make any determination whether the systems' monthly rate for  x.leased access channel capacity exceeds the maximum reasonable rate requirements of 76.970.  xNor can we determine whether the systems properly calculated the part time rates quoted to FalComm.  X- ` x11.` ` In order to assure that a cable operator's revenues generated from parttime channel  X- xcharges not exceed the maximum monthly rate, we indicated in TV24 Sarasota, supra, that cable  x.operators may establish a schedule of rates, or rate card, for different times of day pursuant to  xwhich, if all times were used, the sum of the parttime charges for any single leased access  xchannel would not exceed its maximum monthly rate for a leased access channel calculated in  X- xaccordance with 76.970 of our rules.B  yO3&-ԍ 10 FCC Rcd at 35203521.B We also indicated that the part time rate structure should" ,N(N(ZZ"  x "e]  "e] be reasonably reflective of time of day values and not serve merely as a mechanism to retard  X-use. {Ob- xԍ Id. at 3521. The Commission in its Second Order affirmed the treatment of part time rates set forth in TV24  {O,-Sarasota. See Second Order, Appendix D, Revised Rules.  "e]  "e]   X- ` x12.` ` Accordingly, ComcastPW, ComcastD, and Comcast East will be required to  x=establish maximum reasonable monthly rates consistent with the current "average implicit fee"  xrequirements of 76.970 applicable to the services provided, and to establish part time rate  Xv- xschedules consistent with the current requirements of 76.970 of the rules and TV24 Sarasota.  xWe will also require the systems to maintain on file adequate records, consistent with 76.970(h)  xof our rules, that show the total monthly revenues derived from part time users of leased access  x1channels, the maximum monthly charge for a full time leased access channel, and the  x<documentation and calculations used for deriving the maximum monthly charge are in compliance  X - xwith 76.970 of the rules.\ $ {O-ԍ See Second Order, Appendix D, Revised Rules.\ With respect to FalComm's remaining contention, FalComm has  xsubmitted no substantiating evidence for its claim that the cable systems in question lack legally  xzmandated leased access capacity. Accordingly, this aspect of FalComm's complaint will be dismissed.  X- ` Cx13.` ` With respect to FalComm's claims against ComcastT, as noted above, the  X{- xCommission in the First Report and Order in MM Docket No. 92258&{ {O- xԍ 8 FCC Rcd 998 (1993), appeal remanded sub nom. Alliance for Community Media v. FCC, 10 F.3d 812 (D.C.  {O- xiCir. 1993), vacated, 15 F.3d 185 (D.C. Cir. 1994), aff'd en banc, 56 F.3d 105 (D.C. Cir. 1995), aff'd in part and  {Ov- xhreversed in part sub nom. Denver Area Educational TeleCommunications Consortium, Inc. v. FCC, 116 S.Ct. 2374 (1996). read 612(h) as leaving  x>to cable operators, exercising "their reasonable belief about which programming is or is not  xLindecent," the determination of whether proffered programming should be refused or provided  X8- xonly pursuant to conditions.K8 {O-ԍ See 8 FCC Rcd at 10021003.K The Commission also concluded that, "[b]ecause Congress appears  xto have deliberately omitted any role for the Commission in the implementation of this particular  xprovision . . . the courts, rather than this agency, are the appropriate forums for resolution of any  xjdisputes concerning whether cable operators have properly denied access pursuant to section  X-10(a)."<6  {O!-ԍ Id. at 1003.< Accordingly, FalComm's complaint with respect to ComcastT will be dismissed.  X-T  X- ORDERING CLAUSES ĐTP  X- ` x14.` ` Accordingly, IT IS ORDERED , that the Complaint of FalComm Communications  Xi- xin File No. CSR4698L IS GRANTED only to the extent indicated at paragraph 12, supra, and  XT-in all other respects IS DISMISSED ."T ,N(N(ZZ"Ԍ X- ` #ԙx15.` ` IT IS FURTHER ORDERED that Comcast Cablevision of PontiacWaterford,  xComcast Cablevision of Detroit, and Comcast Cablevision of East Detroit shall each, within thirty  xdays of the release date of this order: (a) establish a reasonable schedule of rates, or rate card for  xdifferent times of day pursuant to which, if all times were used, the sum of the part time charges  xfor any single leased access channel would not exceed its maximum monthly rate for a leased  x<access channel calculated in accordance with 76.970 of our current rules, and (b) provide a copy of such schedule of rates to FalComm. x  XH- ` #x16.` ` IT IS FURTHER ORDERED that Comcast Cablevision of PontiacWaterford,  xComcast Cablevision of Detroit, and Comcast Cablevision of East Detroit shall each maintain on  xfile adequate records, consistent with 76.970(h) of our current rules, which show the total  xmonthly revenues derived from part time users of each leased access channel, together with  xlthemaximum monthly charge for a full leased access channel and the documentation and  xcalculations used for deriving the maximum monthly charge in accordance with 76.970 of the rules.  X- ` x17.` ` This action is taken pursuant to authority delegated by 0.321 of the Commission's rules, 47 C.F.R. 0.321. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@Meredith J. Jones x` `  hh@Chief, Cable Services Bureau