WPC 2MB%RK Z3|jTimes New RomanTimes New Roman Bold P6G;P"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN K<3|j"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdTimes New RomanTimes New Roman BoldTimes New Roman Italic P6G;\o!HP2 <pXK Times New RomanTimes New Roman BoldTimes New Roman Italicy.X80,IX\  P6G;P7jC:,+Xj\  P6G;XP7nC:,Xn4  pG;XW!@(#,9h@\  P6G;hPd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd X- I. A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#Xj\  P6G;+XP#"i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDdddddd8HH"&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""/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN@} yO -ԍ8 FCC Rcd 5631 (1993).> the Commission adopted new rules for leased access addressing maximum  x<reasonable rates, reasonable terms and conditions of use, minority and educational programming,  X- x<and procedures for resolution of disputes.} yO-ԍ47 C.F.R. 76.970, 76.971, 76.975 and 76.977; 47 U.S.C. 532(c)(4)(i)(ii)(iii) and 532(i)(1). The Commission recently modified some of its leased  Xz- xaccess rules in the Second Report and Order and Second Order on Reconsideration of the First  Xe- xLReport and Order ("Second Report and Order").be` } yOv-ԍFCC 9727 (released February 4, 1997), 62 FR 11364 (1997).b See also Order on Reconsideration of the  xZFirst Report and Order and Further Notice of Proposed Rulemaking in MM Docket No. 92266  X9-and CS Docket No. 9660 ("Reconsideration Order and Further Notice").@ 9 } yO-ԍ11 FCC Rcd 16933 (1996).@  X -  ARGUMENTS OF THE PARTIES  X - ` } x3.` ` Lorilei describes itself as an advertising agency/video production company which  x<produces thirty minute programs to air on commercial leased access channels. Lorilei alleges that  xiit requested that TCA provide Lorilei with various leased access information about its system and  xZTCA failed to provide the information it requested within seven business days. Lorilei states that  xZit asked for information about rates, channel availability, the number of subscribers on the system  xreached by leased access, and the tape format used for leased access programming. According  xto Lorilei, although TCA eventually did send a letter in response to its inquiry, the letter merely  xstated that TCA did not have a leased access channel available at the time. TCA further stated  xthat it was in the process of creating a leased access channel and that it would add Lorilei's name  X-to the list of others who had made similar inquiries.  } yOA"-ԍLorilei received a letter from TCA on February 6, 1996 in response to its inquiry made in January, 1996.  X- ` x4.` ` Lorilei argues that TCA has a responsibility to provide a leased access channel  xbecause the system has at least 36 activated channels. According to Lorilei, TCA has a channel" ,-(-(ZZ"  X- x/capacity of 61 channels with 14 channels available but not in use. } yOy-ԍTCA cites the Television and Cable Fact Book (1995 Edition) as its source of this information. Because Lorilei did not  xreceive the information that it wanted regarding leased access on TCA's system, Lorilei states that  x-it sent another letter to TCA citing the Commission's leased access rules and again asking for the  xinformation that it previously requested. Lorilei states that this letter was not answered by TCA.  xMLorilei then filed the instant petition. Lorilei requests that the Commission issue a notice of  xapparent liability against TCA for what Lorilei deems to be flagrant violations of the  xCommission's leased access rules. Lorilei states that it has incurred expenses in its pursuit of  xxgaining access to TCA's system, such as fax and long distance telephone charges, as well as legal  xresearch and preparation of the instant petition. In addition, Lorilei alleges that it will suffer a  x[loss of revenue at the rate of $10,000 per month because it will miss the opportunity to provide  xMprogramming to a key geographical area of Arkansas. According to Lorilei's calculations, a  xnotice of apparent liability should be issued against TCA in the amount of $140,000 and paid  X -directly to Lorilei.U X X} yO- xԍAccording to Lorilei's rationale, it is reasonable to assume that its petition would remain pending at the  xwCommission for 14 months. As such, Lorilei states that the notice of apparent liability should be issued for $140,00 ($10,000 per month multiplied by 14 months).U  X - ` x5.` ` In response, TCA argues that Lorilei's allegations are either not actionable or have  X - xbeen rendered moot. TCA notes that the Commission's Reconsideration Order and Further  X- xNotice amended Section 76.970(e) of the Commission's rules and adopted a sevenday response  X}- xzrequirement for cable operators;s }x} {O-ԍReconsideration Order and Further Notice, 11 FCC Rcd at 16949. s however, TCA argues that the rule was not effective until  Xf- x-approved by the Office of Management and Budget ("OMB").;f } {O!-ԍId. at 16993.; TCA contends that its response  xLtime was not governed by the new rule because the rule, at that time, was not yet approved by  xOMB. Moreover, TCA states that after the instant complaint was filed, it did provide Lorilei  X!-with updated leased access rates for its cable system.}!} yOn-ԍTCA states that it sent this information to Lorilei in a letter dated April 29, 1996.}  X- ` #x6.` ` TCA also states that at the time it received Lorilei's leased access request, TCA's  xheadend was not technically equipped to transmit leased access programming. TCA states that  xit explained to Lorilei that TCA was in the process of creating a leased access channel. Since  xlthe time of the filing of the instant petition, TCA states that it completed installation of a  xvideotape playback machine at its headend. TCA also notes that it informed Lorilei that its cable  xsystem was now equipped to transmit leased access programming, forwarded information to  xLorilei about TCA's channel availability, and made known that a copy of TCA's leased access  XR- xyagreement was available if Lorilei was still interested in leasing capacity.{R, } yO/'-ԍTCA states that it sent this information to Lorilei in a letter dated June 8, 1996.{ TCA states that it is"R ,-(-(ZZ" ready and willing to carry Lorilei's programming and, therefore, Lorilei's allegations are moot.  X- ` x7.` ` Finally, TCA argues that Lorilei's request that the Commission issue a notice of  xZapparent liability in this matter is unwarranted. TCA also notes that such forfeitures are assessed  X- x by and paid to the Commission, not to petitioners.j} {O-ԍTCA Opposition at 3; see also 47 U.S.C. 503.j According to TCA, forfeitures paid to  xpetitioners would be equivalent to damages and Congress has declined to adopt this remedy in  Xv- xleased access proceedings before the Commission.vvZ} {O -ԍId.; see also 47 U.S.C. 532(d) and (e). v TCA also argues that a forfeiture payable  xto the Commission would not be appropriate here because the leased access rules are still in the  xkprocess of being developed. TCA argues that it is well settled that the Commission will not  X1-impose a forfeiture if new rules are in the process of being developed.1} {O - xԍId.; see also Alert Paging Co. of San Francisco, 6 FCC Rcd 5336 (1991); Bart Gonzalez, 6 FCC Rcd 4646 (1991).  X - ANALYSIS AND DECISION  X - `  x8.` ` Based on the information in the record before us in this proceeding, Lorilei's  xpetition will be denied. With regard to Lorilei's allegation that TCA was not responsive to its  xxrequests for information, we note that initially we required that cable operators provide a schedule  X- xof rates "[u]pon request" to prospective leased access programmers.GF} yO-ԍ47 C.F.R. 76.970(e) (1995).G In the Reconsideration  X{- xOrder and Further Notice, the Commission later clarified that the purpose of our rules was to  xinsure that the initial information a potential programmer might need to pursue leased access on  XO- xa particular system be provided as soon as practicable.lO} {O-ԍReconsideration Order and Further Notice, 11 FCC Rcd at 16949.l The Commission later modified its rules  X8- xto provide such information within seven business days.18h } {OQ-ԍId.1 In its Second Report and Order, the  xCommission modified its rules again and set a 15 day response time from the date that a request  X - xZfor leased access information is made to the cable operator.t  } {O -ԍSecond Report and Order, Appendix D, Revised Rules, Section 76.970(h).t Specifically, the Commission stated  x>that the cable operator is required to provide information regarding leased access setaside  xcapacity, rate schedules, rates associated with technical and studio costs, and, if specifically  X-requested, a sample leased access contract.1 } {O%-ԍId.1  X- ` x9.` ` TCA initially informed Lorilei that it did not have a leased access channel",-(-(ZZ"  xavailable at the time of Lorilei's request. However, TCA eventually did forward to Lorilei the  xleased access information requested by Lorilei, although it was several months after the initial  x[requests were made and after the instant petition was filed. Because the leased access rules in  xLeffect at the time were somewhat in flux and not completely familiar to most cable operators, as  X- xwell as to programmers, we will not impose formal sanctions in this matter.,} yO- xԍThe amendment to Section 76.970(e), requiring a seven day response time to leased access information requests  {O- xbecame effective on July 10, 1996, upon approval by OMB. See Notice of Office of Management and Budget Action,  xdated July 10, 1996, OMB #30600568. Thus, this rule was not in effect when Lorilei made its original request for  x,information in January, 1996, and was still not in effect when TCA eventually forwarded the requested information  xto Lorilei on April 29, 1996, after the petition was filed. Nonetheless, TCA was under an obligation to respond to Lorilei's request in a reasonable amount of time after the request was made. , We have no  xZinformation on the record before us to indicate if the parties have come to an agreement regarding  xrates to be charged, availability of channel capacity, or whether other leased access information  X_- xprovided by TCA proved to be satisfactory to Lorilei.I_B} yOR- xԍAside from the lack of information on the record regarding the present status of negotiations, or lack thereof,  xbetween Lorilei and TCA, Commission staff has not been able to determine, through telephone inquiries, if any  xprogress has been made in resolving this matter between the parties. Regardless of the status of the parties'  xnegotiations, it is our understanding that the parties still desire to have the issues raised in the petition addressed by the Commission. I TCA, however, has indicated on the  xrecord that it is ready and willing to carry Lorilei's programming on its system. We note that  xsince the time of the filing of the instant petition, new calculation rules, in the form of the  xkaverage implicit fee formula, have come into effect and TCA is now required to provide new  xrates or rate cards based upon this new method of calculation. We hold that any future inquiries  xor negotiations regarding leased access rates or other leased access information should be resolved  xunder our new rules and we caution TCA to adhere to the mandated response time under these rules.  X- ` x10.` ` Finally, Lorilei complains of the costs it has incurred in filing the instant petition.  x{Nothing in the Communications Act of 1934, as amended, provides for recovery of costs  xassociated with the filing of a petition for relief with the Commission for alleged violations of  xKthe statutory provisions or of the Commission's regulations applicable to leased access channels.  xLAccordingly, Lorilei's request for compensation for outofpocket expenses of litigation will be  xdenied. Similarly, we shall deny Lorilei's request for compensatory damages, which are also not provided for in the statute. " ,-(-(ZZs"  X-  ORDERING CLAUSES ă  X- ` }x11.` ` Accordingly, IT IS ORDERED , pursuant to 612 of the Communications Act of  x1934, as amended (47 U.S.C. 532), that the petition (CSR4737L) filed by Lorilei  xCommunications, Inc. against TCA Cable of Fayetteville regarding its cable system in  X-Fayetteville, Arkansas IS DENIED .  X_- ` x12.` ` This action is taken pursuant to authority delegated by 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