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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 ) Emergency Petition for Relief of ) ) LORILEI COMMUNICATIONS INC. ) d/b/a THE FIRM, ) CSR 4766-L Petitioner, ) ) vs. ) ) NORTHLAND CABLE TV, ) Respondent. MEMORANDUM OPINION AND ORDER Adopted: June 6, 1997 Released: June 10, 1997 By the Chief, Cable Services Bureau: I. INTRODUCTION 1. Lorilei Communications, Inc., d/b/a The Firm (herein "The Firm"), filed a petition for relief pursuant to Section 76.970(e) of the Commission's rules against Northland Cable TV (herein "Northland") alleging violations of the Commission's commercial leased access rules. Northland has filed an Opposition. II. BACKGROUND 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 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). See also Order on Reconsideration of the First Report and Order and Further Notice of Proposed Rulemaking, MM Docket No. 92-266 & CS Docket No. 96-60, FCC 96-122, Released March 29, 1996, 61 Fed. Reg. 16396 (April 15, 1996), ("Recon Order"). 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 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 order to facilitate the provision of such information to potential leased access programmers, in the Recon Order, the Commission required an operator to provide the following information within seven business days of a request regarding leased access: (a) a complete schedule of the operator's full-time and part-time leased access rules; (b) how much of the cable operator's leased access set-aside capacity is available; (c) rates associated with technical and studio costs; and (d) if specifically requested, a sample leased access contract. In the recently adopted Second Order, the Commission set a 15 day response time from the date of a written request to provide such information. A 30 day response time was established for systems who qualify for "small system" rate relief. III. THE PLEADINGS 4. In its petition, the Firm claims that on May 28, 1996, it requested commercial leased access rates and other information from Northland. The Firm claims that on June 28, 1996 it faxed a second letter to Northland again requesting the information and, having failed to obtain a response by June 18, 1996, filed this petition. The Firm claims that pursuant to the Recon Order, the information should have been provided to it within seven days. The Firm claims that Northland has blocked access by withholding rate and other information and has violated Sections 76.970(c)(2) and 76.970(e) of the rules. The Firm requests that the information be provided to it and that the Commission consider issuing a notice of apparent liability in the amount of $160,000 to be paid to the Firm as compensation for its lost revenue during the pendency of this petition. 5. In response, Northland claims that it provided a timely response to the Firm's request for leased access information in a letter dated July 9, 1996, in accordance with the then- applicable leased access rules. Northland states that the Firm's reliance on the Commission's amendment to Section 76.970(e) of the rules, (which requires cable operators to respond to requests for leased access information within seven business days), is misplaced. Northland contends that the Commission's seven-day response requirement did not become effective until July 10, 1996, upon approval by the Office of Management and Budget, and thus the rule did not govern the requests for information from the Firm. Northland states that prior to the amendment, Section 76.970(e) did not specify a time limit in which cable operators were expected to respond to requests for leased access information. Northland states that its response was reasonable under the rule in effect at the time as it provided the Firm with leased access rates, a leased access application and a sample contract six weeks after the initial request and provided other information less than two weeks later. Finally, Northland argues that the Firm's request for relief here must be denied because such a penalty is inappropriate and in any event has no logical basis. III. DISCUSSION 6. The issue before us is whether Northland timely responded to the Firm's request for information under the leased access rules in effect during the relevant time period here. At the outset, we note that Northland correctly notes that the amendment to Section 76.970(e), requiring a seven day response time to information requests became effective on July 10, 1996, after Northland had responded to the Firm's request for information. Thus, the rule in effect at the time did not specify a time limit in which operators were expected to respond. Consequently, under these circumstances we can not find that Northland's response within six weeks of the Firm's request is unreasonable. Accordingly, we need not address the firm's request for relief. We do note that in the future such responses are required within 15 days of the request. IV. ORDERING CLAUSES 7. For the foregoing reasons, IT IS ORDERED that the Firm's petition for relief IS DENIED. 8. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules, 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION Meredith J. Jones Chief, Cable Services Bureau