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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+, . 2d ffqqa5Document+>ȗ&Document Style7&ȏ(6+#.K+,   a6Document+>ȗ&Document Style7&ȏ(6+#.K+, !" a7Document+>ȗ&Document Style7&ȏ(6+#.K+,#$` ` ` a8Document+>ȗ&Document Style7&ȏ(6+#.K+,%&` ` ` 2&* e$p%%s%PleadingT(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+>-.` ` ` 2(:&&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,()e*.+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 2^5K2,K}.K0K3"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""NN&2NB^HN>NH8BHHdHHB"":2"28,8,"28"8T8288,&"82H22,((4"4:"""""""""2"8H2H2H2H2H2dHH,B,B,B,B,%%%%H8N2N2N2N2H8H8H8H8H2H2H8M2N2H2H2=8H2H2H2H,H,H4H,HJB,B,B,B,N2N2N2N4N2N8N:&&8&"&8Q844N8BB-B"B(BH8HH8H8N2N2cHH,H,H,8&8&8&84B3B"B:H8H8H8H8H8H8dHH4B,B,B,H8B"H88&B"H2I22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$52"22222`2"LL2"JJ2L""222d"")>F)))))))))<)C"VV5VYO5O5O5O5^<^<^<^>^<^C^F.".C.).CaC>>^CO"O6O)O0O"VCVVCVC^<^O=O)OFVCVCVCVCVCVCxVV>O5O5O5VCO)VCC.O)V<X<<( (WTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN+HH+@<)<<<<Show properly belongs in Adelphia's "all other" programming category. Adelphia defends  X-placing The Mainline Real Estate Show in the home shopping/infomercial rate category.  X- II. Background  XZ- ` ~x6.` ` In 1984, Congress amended the Communications Act of 1934 by adding among  xother things a commercial leased access requirement, pursuant to which cable operators with 36  xor more activated channels must set aside part of their channel capacity for use by video  X- xjprogrammers that are not affiliated with them.0 {O - xԍSee Section 612 of the Communications Act of 1934, as amended., 47 U.S.C.  532. The amount of channel  {OX!-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  xzCompetition Act of 1992 (the "1992 Cable Act") revisited the leased access requirement and  xdirected the Commission to establish rules for determining maximum reasonable rates for, and  X - x-reasonable terms and conditions for the use of, commercial leased access channels. $ {O%- xԍSee 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  x-that Congressional directive, the Commission established regulations applicable to leased access"!~,N(N(ZZ "  X- xchannels in its proceedings in Implementation of Sections of the Cable Television Consumer  X- xiProtection and Competition Act of 1992; Rate Regulation, MM Docket 92266, (the Rate Order),  X- x_8 FCC Rcd 5631, 59565961 (1993)._ {OO-ԍSee, 47 C.F.R.  76.970, 76.971 & 76.975._ The Commission revisited these regulations in  V- xImplementation of Sections of the Cable Television Consumer Protection and Competition Act of  V- x1992, Leased Commercial Access, Second Report and Order and Second Order on  X- xReconsideration of the First Report and Order, CS Docket 9690, 62 Fed. Reg. 11364, March  X|-12, 1997 ("Second Report").@(|Z {O -  ԍSee Second Order, Appendix D, Revised Rules. See also Order on Reconsideration of the First Report and  {OQ -  Order and Further Notice of Proposed Rulemaking, MM Docket 92266 & CS Docket 9660, FCC 96122, released  {O -  March 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).@  XP- ` x7.` ` In the Rate Order, the Commission initially developed a maximum implicit fee  X;- xjcalculation procedure for cable operators to use to determine the maximum reasonable rate that  X$ - xKa cable operator may charge nonaffiliated programmers for leased access.\Z$ J {O- xԍSee 47 C.F.R  76.970(b), (c) and (d) (1995). In the Second Report, the Commission adopted an average  ximplicit fee formula for use in determining maximum reasonable leaased access rates. The average implicit fee formula became effective on April 11, 1997.\ The Commission also  xseparated leased access programming into three distinct rate categories: "(1) Programming for  xwhich a perevent or per channel charge is made, (2) Programming more than fifty percent of the  X - x<capacity of which is used to sell products directly to customers; and (3) All other programming." l  yO- xJԍ47 C.F.R.  76.970(f) (1995). Effective April 11, 1997, the second of these rate categories applicable to direct  {O-sales was eliminated. See Second Report,  49.  xThe Commission required cable operators to calculate maximum monthly access rates for each  X -of these three categories of programmers.m  {O(-ԍSee Rate Order, 8 FCC Rcd at 594951,  516 through 520.m  X- IV. Discussion  XU- ` x8.` ` The primary issue presented is whether Adelphia has overcharged for the leased  xaccess services provided to Advantage as alleged. In order to resolve this issue, we first  X'- xdetermine whether Adelphia applied to The Mainline Real Estate Show the proper rate category pursuant to our initial leased access regulations then in effect .  X-x A. Application of the Proper Category of Leased Access Charges  X- ` 4x9.` ` The rate schedules submitted by Adelphia identify four categories of rates"X ,N(N(ZZp"  X- xapplicable to its full time and part time leased access services.) " yOy- xYԍThe four categories are labeled Categories 1A, 1B, 2, and 3. Category 1A, "Programming for which a perevent  xcharge is made," and Category 1B, "Programming for which a perchannel charge is made," are not pertinent here.  xKCategory 2 applies to "Programming of which more than 50% of the capacity is used to sell products directly to  {O-consumers," and Category 3 applies to "All other programming." See Adelphia response, Attachment "A.") Those rate categories, with one  xxexception not pertinent here, closely track the rate categories initially adopted by the Commission.  xyAdelphia argues that rate Category 2, "Programming of which more than 50% of the capacity is  X- x<used to sell products directly to consumers," properly applies to The Mainline Real Estate Show  xpresented by Advantage. Advantage, on the other hand, argues that Category 3, "All other  X-programming," should be applied to its programming.  yO - xԍAdvantage initially alleged that Adelphia failed to offer leased access service under part time rates derived by  xprorating the full time monthly rate. Since Advantage now seeks an order directing Adelphia to apply a particular  xrate category from Adelphia's rates schedule that contains only nonprorated rates, that initial allegation is considered moot.  Xa- ` ^x10.` ` Advantage alleges that The Main Line Real Estate Show is sponsored by real estate  xagents representing licensed brokers who have exclusive rights to sell properties, that no  xjhomeowners appear on the program to sell their own properties, that Advantage does not own  xany of the properties listed for sale, that its phones are not involved in providing property  xinformation beyond that shown in the programs, and that Advantage does not receive a real estate  xcommission nor does it participate in the real estate sales in any way. Advantage states further  xthat the ads help real estate agents achieve personal recognition in the community, and that it  x=charges its customer less than $40 for an ad, while prices for real estate shown on the program  xranges from $90,000 to $2,300,000. Advantage asserts that its programming is not involved in  xxdirect sales. It also asserts that its programming is not an infomercial and does not provide phone  x@numbers for credit card sales as a part of the program. According to Advantage, the  x|programming involves the showcasing of agents and of the homes they represent for entertainment and information of value for the community in general.  X!- ` x11.` ` Adelphia concedes that "Advantage Video is not itself involved in direct selling  X - xof the real estate" being advertised.Z  {OU-ԍSee Adelphia Response of July 5, 1995, p. 3.Z Adelphia argues that, although Advantage's programming  x-does not involve direct sales to customers, the programming should nonetheless be priced under  xrate Category 2 because it constitutes "infomercials." It asserts that infomercials provide  xprogramlength information about a commercial product, often including a phone number and/or  xaddress where subscribers can receive further information and/or purchase the product, and that  X- xthe programmer may or may not directly sell the product to subscribers. &Z,  {Ot$- xԍApplicability of Commission Policies on ProgramLength Commercials, 44 FCC 2d 985, 986 (1974), and Report  {O>%- xand Order in MM Docket No. 90570, 6 FCC Rcd 2111, 1118 (1991), cited by Adelphia, concern classification of  x=certain broadcast programming as program length commercials (or "infomercials"), but are not relevant to a  {O&- xdetermination of the proper leased access rate category applicable to The Mainline Real Estate Show. Here we are"& ,N(N(&"  xguided by Section 612(a) and its expressed concerns for assuring that "the widest possible diversity of information  xservices are made available to the public from cable systems in a manner consistent with the growth and development  {O -of cable systems." See 47 U.S.C.  632(a). Adelphia asserts that" ,N(N(ZZ"  xNthe programming offered by Advantage should be considered infomercials, because the  xkprogramming involves the promotion of the sale of homes including the address and phone  xnumber of the realtor from whom one may receive further information and make a purchase. It  xasserts further that the entire content of the programming is commercial in nature and is made  X-up of a continuous series of real estate offerings.^  {O? -ԍSee Adelphia response of July 5, 1995, at p. 23^  Xv- ` x12.` ` Section 612(c)(2) of the Communications Act prohibits a cable operator from  xconsidering the content of leased access programming except "to the minimum extent necessary  xkto establish a reasonable price for the commercial use of designated channel capacity by an  X1- xyunaffiliated person."K1| {O^-ԍSee 47 U.S.C.  532(c)(2).K Section 76.970(f) of our rules in effect when these events arose required  X - xjcable operators to separate leased access programming into three separate categories.  {O-ԍSee Rate Order, 8 FCC Rcd at 5949, 595960. See also 47 C.F.R.  76.970(f). Under  xSection 612(c)(2) of the Communications Act, a cable operator may inquire into programming content only as far as necessary to determine which of our rate categories should be applied.  X - ` x13.` ` Based on the record before us, we conclude that rate Category 2, "Programming  x[of which more that 50% of the capacity is used to sell products directly to consumers," should  X- x>not have been applied to The Mainline Real Estate Show. First, as noted above, Adelphia  xconcedes that "Advantage Video is not involved in direct selling of the real estate" being  Xd- xadvertised on The Mainline Real Estate Show.Zd {O-ԍSee Adelphia Response of July 5, 1995, p. 3.Z Once it was determined that such programming  xdid not involve direct selling, Adelphia had all the information necessary to determine that rate  xCategory 2 did not apply to that programming. Section 612(c)(2) of the Communications Act  xprecluded further inquiry by Adelphia about programming content, such as whether that  X -programming consisted of advertising, or the kind or amount of advertising presented. 2  yO- xYԍThe record makes it abundantly clear that all real estate sales are made by the real estate brokerage firms whose agents' ads appear on these programs, and not by Advantage.  X-x B. The Issue of Overcharges  X- ` x14.` ` Having determined that Category 3 rates for "All other programming" should be  X- xapplied to The Mainline Real Estate Show, we now consider whether Adelphia overcharged  xAdvantage for that programming as alleged. Advantage began taking service on Adelphia's  xDelaware County system on January 23, 1995, paying $175 per hour for programming carried"k ,N(N(ZZ"  xbetween 8:30 p.m. and 9:00 p.m. on a Monday, Wednesday and Friday schedule. By the time  X-it filed the petition on May 31, 1995, Advantage had paid $8,575.00 for 49 hours of service. {Ob-ԍSee Advantage Reply letter, and Exhibit 3 thereto. See also Adelphia response at p. 1.  X- ` x15.` ` Rate schedules for the "Delaware County" system on which The Mainline Real  X- xEstate Show is being carried were not provided for the record. Instead, Adelphia supplied for  xthe record rate schedules which on their face apply to systems serving communities identified as  Xz- xKRadnor and Broomall, Pennsylvania, respectively.zZ {O -ԍThese Radnor and Broomall rates are "Effective: 12/31/94." See Adelphia response, Attachment "A." Moreover, the record does not show that the  Xc- xRadnor and Broomall systems are the same as the Delaware County system on which The  XN- xMainline Real Estate Show is being carried. Moreover, the Radnor and Broomall schedules list  xhourly rates of $73.59 for Radnor and $178.22 for Broomall, respectively, for from one to thirty  xMhours of service per month in the 6:00 p.m. to 12:00 midnight time slot. None of these listed  xrates is consistent with the $175 hourly rate which Advantage was charged for service provided on the Delaware County system.  X - ` x16.` ` Because of these discrepancies, we cannot determine from this record which  xLCategory 3 rates should apply to the leased access services provided by the Delaware County  xksystem to Advantage. Also, the record does not identify the quantity of services Adelphia  x.provided to Advantage between the date service began and the release of this order. For that  x[reason, we will require Adelphia to provide Advantage with an accounting of all leased access  XS- xiservices provided to Advantage. KS {O-ԍSee 47 C.F.R.  76.975(f).K This accounting shall show in detail (a) all services provided  X<- xto Advantage between April 1, 1995Z<~ {Ok- xԍA leased access petition must be filed within 60 days of a violation of the leased access regulations. See 47  xC.F.R.  76.975(d). Advantage is barred by this provision from recovering any overcharges occuring more that 60 days prior to the filing of the petition on May 31, 1995, or prior to April 1, 1995. and the release date of this order, (b) the charges actually  x=billed and collected for all periods of such services, (c) the schedules of Category 3 charges in  xeffect for all such periods of services and the systems to which such schedules apply, (d) the  xdifferences, if any, between the charges actually billed and collected and the Category 3 charges  xproperly applied to such services, and (e) the sum of the differences in the charges collected and  xthe charges properly applied. In the event that the sum of the charges actually collected exceeds  xZthe sum of the charges properly applied, the accounting shall also show that a reimbursement has been made to Advantage of the total amount that exceeds the correctly billed amount.  Xm- ` nx17.` ` Finally, Advantage seeks a reimbursment on the grounds that it was not provided  x=with Adelphia's volume sensitive rates that became effective on December 31, 1994, and that it  xwould have requested more programming time had it been aware of the lower rates available for  xyincreased usage. Advantage asserts, in effect, that increased usage would have qualified it for  xdiscounted rates applicable to higher volume usage, which would have resulted in a lower",N(N(ZZy"  x["average hourly rate" than was actually paid. Advantage requests an order for reimbursement  xbased upon an assumed "average hourly rate" applied to a larger volume of service than was  xZactually taken. We decline to require Adelphia to make reimbursement based on some speculative  X-quantity of services which was not actually provided. {O4-ԍ Cf., BunkerRamo vs Western Union Telegraph Company, 25 FCC 2d 691 (1971), at  10.  X- V. Ordering Clauses  X_- ` "x18.` ` For the foregoing reasons, IT IS ORDERED that the petition of Advantage Video  XH- x=& Marketing, Inc. (herein "Advantage") IS GRANTED in part as described in paragraphs 13  X1-through 17 above, and in all other respects IS DENIED .  X - ` $x19.` ` IT IS FURTHER ORDERED that Adelphia Cable Communications (herein  x"Adelphia") shall, within thirty days of the release date of this order, (1) provide Advantage with  xian accounting of all services provided by the Deleware County system to Advantage, which shall  xshow in detail (a) all services provided to Advantage up to the release date of this order, (b) the  xLcharges actually billed and collected for all periods of services from April 1, 1995 to the release  xdate of theis order, (c) the schedules of Category 3 charges properly applied for all such periods  xof services, (d) the differences, if any, between the charges actually billed and collected and the  xiCategory 3 charges that that properly applied for such services, and (e) the sum of the differences  x=in charges collected and the charges properly applied, and (2) to the extent that the sum of the  xcharges actually collected exceeds the sum of the charges properly applied, the accounting shall also show a reimbursement to Advantage of the total excessive amount.  X- ` px20.` ` 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