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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

                                )
In re:                          )
                                )
Lorilei Communications, Inc.    )
d/b/a The Firm                  )
                                )
vs.                             )       CSR-4737-L
                                )
TCA Cable of Fayetteville       )
Fayetteville, Arkansas          )
                                )
For Leased Access Channels      )


                  MEMORANDUM OPINION AND ORDER

     Adopted:  June 10, 1997            Released:  June 13, 1997  

By the Chief, Cable Services Bureau:

                           INTRODUCTION

     1.   Lorilei Communications, Inc., d/b/a The Firm ("Lorilei" or "petitioner") has filed the
above-captioned petition pursuant to the Commission's rules against TCA Cable of Fayetteville
("TCA") regarding its cable system in Fayetteville, Arkansas, alleging violations of the
Commission's leased access rules.  TCA filed a response to Lorilei's petition.

     2.   The commercial leased access requirements for cable operators were established by
the 1984 Cable Act and amended by the 1992 Cable Act.  The 1984 Cable Act established a federal
scheme through channel leasing to assure access to cable systems by third parties unaffiliated with
the cable operator who have a desire to distribute video programming free of  the editorial control
of the cable operator.  Channel set aside requirements were established proportionate to a system's
total activated channel capacity.  The 1992 Cable Act revised the leased access requirements and
directed the Commission to implement rules to govern this system of channel leasing.  In its 1993
Report and Order and Further Notice of Proposed Rule Making ("Rate Order"), the Commission
adopted new rules for leased access addressing maximum reasonable rates, reasonable terms and
conditions of use, minority and educational programming, and procedures for resolution of disputes. 
The Commission recently modified some of its leased access rules in the Second Report and Order
and Second Order on Reconsideration of the First Report and Order ("Second Report and Order"). 
See also Order on Reconsideration of  the First Report and Order and Further Notice of  Proposed
Rulemaking in MM Docket No. 92-266 and CS Docket No. 96-60 ("Reconsideration Order and
Further Notice").

                     ARGUMENTS OF THE PARTIES

     3.   Lorilei describes itself as an advertising agency/video production company which
produces thirty minute programs to air on commercial leased access channels.  Lorilei alleges that
it requested that TCA provide Lorilei with various leased access information about its system and
TCA failed to provide the information it requested within seven business days.  Lorilei states that
it asked for information about rates, channel availability, the number of subscribers on the system
reached by leased access, and the tape format used for leased access programming.  According to
Lorilei, although TCA eventually did send a letter in response to its inquiry, the letter merely stated
that TCA did not have a leased access channel available at the time.  TCA further stated that it was
in the process of creating a leased access channel and that it would add Lorilei's name to the list of
others who had made similar inquiries.

     4.   Lorilei argues that TCA has a responsibility to provide a leased access channel
because the system has at least 36 activated channels.  According to Lorilei, TCA has a channel
capacity of 61 channels with 14 channels available but not in use.  Because Lorilei did not receive
the information that it wanted regarding leased access on TCA's system, Lorilei states that it sent
another letter to TCA citing the Commission's leased access rules and again asking for the
information that it previously requested.  Lorilei states that this letter was not answered by TCA. 
Lorilei then filed the instant petition.  Lorilei requests that the Commission issue a notice of apparent
liability against TCA for what Lorilei deems to be flagrant violations of the Commission's leased
access rules.  Lorilei states that it has incurred expenses in its pursuit of gaining access to TCA's
system, such as fax and long distance telephone charges, as well as legal research and preparation
of the instant petition.  In addition, Lorilei alleges that it will suffer a loss of revenue at the rate of
$10,000 per month because it will miss the opportunity to provide programming to a key
geographical area of Arkansas.  According to Lorilei's calculations, a notice of apparent liability
should be issued against TCA in the amount of $140,000 and paid directly to Lorilei.

     5.    In response, TCA argues that Lorilei's allegations are either not actionable or have
been rendered moot.  TCA notes that the Commission's Reconsideration Order and Further Noticeamended Section 76.970(e) of the Commission's rules and adopted a seven-day response requirement
for cable operators; however, TCA argues that the rule was not effective until approved by the
Office of Management and Budget ("OMB").  TCA contends that its response time was not
governed by the new rule because the rule, at that time, was not yet approved by OMB.  Moreover,
TCA states that after the instant complaint was filed, it did provide Lorilei with updated leased
access rates for its cable system.

     6.   TCA also states that at the time it received Lorilei's leased access request, TCA's
headend was not technically equipped to transmit leased access programming.  TCA states that it
explained to Lorilei that TCA was in the process of creating a leased access channel.  Since the time
of the filing of the instant petition, TCA states that it completed installation of a videotape playback
machine at its headend.  TCA also notes that it informed Lorilei that its cable system was now
equipped to transmit leased access programming, forwarded information to Lorilei about TCA's
channel availability, and made known that a copy of TCA's leased access agreement was available
if Lorilei was still interested in leasing capacity.  TCA states that it is ready and willing to carry
Lorilei's programming and, therefore, Lorilei's allegations are moot.

     7.   Finally, TCA argues that Lorilei's request that the Commission issue a notice of
apparent liability in this matter is unwarranted.  TCA also notes that such forfeitures are assessed
by and paid to the Commission, not to petitioners.  According to TCA, forfeitures paid to
petitioners would be equivalent to damages and Congress has declined to adopt this remedy in leased
access proceedings before the Commission.  TCA also argues that a forfeiture payable to the
Commission would not be appropriate here because the leased access rules are still in the process
of being developed.  TCA argues that it is well settled that the Commission will not impose a
forfeiture if new rules are in the process of being developed.

                      ANALYSIS AND DECISION

     8.   Based on the information in the record before us in this proceeding, Lorilei's petition
will be denied.  With regard to Lorilei's allegation that TCA was not responsive to its requests for
information, we note that initially we required that cable operators provide a schedule of rates
"[u]pon request" to prospective leased access programmers.  In the Reconsideration Order and
Further Notice, the Commission later clarified that the purpose of our rules was to insure that the
initial information a potential programmer might need to pursue leased access on a particular system
be provided as soon as practicable.  The Commission later modified its rules to provide such
information within seven business days.  In its Second Report and Order, the Commission
modified its rules again and set a 15 day response time from the date that a request for leased access
information is made to the cable operator.  Specifically, the Commission stated that the cable
operator is required to provide information regarding leased access set-aside capacity, rate schedules,
rates associated with technical and studio costs, and, if specifically requested, a sample leased access
contract.

     9.   TCA initially informed Lorilei that it did not have a leased access channel available
at the time of Lorilei's request.  However, TCA eventually did forward to Lorilei the leased access
information requested by Lorilei, although it was several months after the initial requests were made
and after the instant petition was filed.  Because the leased access rules in effect at the time were
somewhat in flux and not completely familiar to most cable operators, as well as to programmers,
we will not impose formal sanctions in this matter.  We have no information on the record before
us to indicate if the parties have come to an agreement regarding rates to be charged, availability of
channel capacity, or whether other leased access information provided by TCA proved to be
satisfactory to Lorilei.  TCA, however, has indicated on the record that it is ready and willing to
carry Lorilei's programming on its system.  We note that since the time of the filing of the instant
petition, new calculation rules, in the form of the average implicit fee formula, have come into effect
and TCA is now required to provide new rates or rate cards based upon this new method of
calculation.  We hold that any future inquiries or negotiations regarding leased access rates or other
leased access information should be resolved under our new rules and we caution TCA to adhere to
the mandated response time under these rules.

     10.  Finally, Lorilei complains of the costs it has incurred in filing the instant petition. 
Nothing in the Communications Act of 1934, as amended, provides for recovery of costs associated
with the filing of a petition for relief with the Commission for alleged violations of the statutory
provisions or of the Commission's regulations applicable to leased access channels.  Accordingly,
Lorilei's request for compensation for out-of-pocket expenses of litigation will be denied.  Similarly,
we shall deny Lorilei's request for compensatory damages, which are also not provided for in the
statute.    
                         ORDERING CLAUSES

     11.  Accordingly, IT IS ORDERED, pursuant to 612 of the Communications Act of
1934, as amended (47 U.S.C. 532), that the petition (CSR-4737-L) filed by Lorilei
Communications, Inc. against TCA Cable of Fayetteville regarding its cable system in Fayetteville,
Arkansas IS DENIED.

     12.  This action is taken pursuant to authority delegated by 0.321 of the Commission's
rules, 47 C.F.R. 0.321.

                         FEDERAL COMMUNICATIONS COMMISSION



                         Meredith J. Jones 
                         Chief, Cable Services Bureau