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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) Petition for Relief of ) ) HARRY TOOTLE d/b/a TOOTLEVISION, ) Petitioner, ) ) vs. ) CSR 4554-L ) COMMUNITY CABLE TV/PRIME ) CABLE OF NEVADA et al., ) Respondent, ) ) For Leased Access Channels ) MEMORANDUM OPINION AND ORDER Adopted: May 16, 1997 Released: May 20, 1997 By the Chief, Cable Services Bureau: I. Introduction 1. Harry Tootle d/b/a Tootlevision (herein "Tootle") filed a Petition for Relief pursuant to 47 C.F.R. 76.975(b) alleging that Community Cable TV/Prime Cable of Nevada (herein "Prime Cable"), has violated the Commission's regulations applicable to commercial leased access services by refusing to supply specific information concerning commercial leased access on Prime Cable's cable system in Las Vegas, Nevada. Tootle requests relief in the form of an order directing Prime Cable to accept a payment of an unspecified amount which he has tendered to Prime Cable for leased access service. He also requests an order directing Prime Cable to disclose prices for a number of items of technical equipment. Prime Cable filed a response to the petition asking that the request for relief be denied and the petition be dismissed. II. Background 2. In 1984, Congress amended the Communications Act of 1934, 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 programmers that are not affiliated with them. 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 rules for determining maximum reasonable rates for, and reasonable terms and conditions for the use of, commercial leased access channels. Pursuant to that Congressional directive, the Commission established regulations applicable to leased access channels in its proceedings in Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992; Rate Regulation, MM Docket 92-266, (the Rate Order), 8 FCC Rcd 5631, 5956-5961 (1993). The Commission revisited these regulations in Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992, Leased Commercial Access, Second Report and Order and Second Order on Reconsideration of the First Report and Order, CS Docket No. 96-90, 62 Fed. Reg. 11364, March 12, 1997 ("Second Order"). 3. The leased access regulations initially required, among other things, that cable operators provide a schedule of rates "[u]pon request" to prospective leased access programmers. In the recently adopted Second Order, the Commission set a 15 day response time from the date of a written request. A 30 day response time was established for systems who qualify for "small system" rate relief. Additionally, the regulations provide for the determination of maximum monthly leased access rates by means of an average implicit fee formula, which is described in the regulations. The Commission also adopted procedures for resolution of disputes, providing for the filing of a petition for relief within sixty days of an alleged violation of a leased access statutory or regulatory provision, and for the filing of a response. III. The Pleadings 4. Tootle alleges Prime Cable has ignored his requests for information and thus failed to comply with a prior order from the Federal Communication Commission, which decided another Petition for Relief filed by Tootle against Prime Cable ("Tootlevision"). In Tootlevision, the Commission held, inter alia, that cable operators must accommodate requests for part-time leases, and that Prime Cable would, therefore, be required to establish a rate schedule applicable to part time use of leased access channels. 5. Prime Cable asserts that, consistent with the Commission's Order in Tootlevision,it has provided Tootle with the information necessary for him to obtain leased access channel capacity on its cable system in Las Vegas, Nevada. In particular, Prime Cable states it promptly provided Tootle with a schedule of hourly rates for all three categories of leased access services, and with copies of its Standard Lease Access Agreement and related leasing information. Prime Cable states further that Tootle not only refused to sign a lease agreement with Prime Cable, but has changed from time to time the proposed method for delivering programming to the cable system headend. Prime Cable asserts that Tootle's failure to identify how programming will be delivered to the cable system makes it unduly difficult to respond fully and promptly to Tootle's request. Prime Cable also states that the check tendered by Tootle falls far short of covering the expected charges for leased access service. Prime Cable also provides in its response specific information requested by Tootle in his Petition although not previously requested directly from Prime Cable. IV. Discussion 6. Section 76.975(g) of the leased access regulations requires that, before being afforded relief, a petitioner must show by clear and convincing evidence that the cable operator has violated a statutory or regulatory provision applicable to leased access services. The record shows that Prime Cable provided Tootle with information, consisting of a schedule of hourly rates for the "non- shopping/other" category, a proposed lease access agreement, and related technical information that were in a format consistent with the rule in effect at the time of Tootle's request and Prime Cable's response. The record also shows that, instead of pursuing negotiations toward completion of leased access arrangements, Tootle tendered a payment to Prime Cable, which was refused because, according to Prime Cable, the amount tendered fell far short of the expected charges for leased access services. 7. We find on this record that Tootle has not presented clear or convincing evidence that Prime Cable violated any statutory or regulatory provision relating to leased access in effect at the time Tootle filed its petition or otherwise acted unreasonably or in bad faith with respect to petitioner within the meaning of Section 76.975(g). The showing made by Tootle that Prime Cable has not accepted a check in an undisclosed amount for leased access service does not, of itself, establish a violation by Prime Cable of any of the statutory or regulatory provisions applicable to leased access. V. Ordering Clause 8. For the foregoing reasons, IT IS ORDERED, pursuant to authority delegated by Section 0.321 of the Commission's rules, 47 C.F.R.  0.321, that the Petition for Relief of Harry Tootle d/b/a as Tootlevision in File No. CSR 4554-L IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Meredith J. Jones Chief, Cable Services Bureau