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(1) (a) (i) 1) a)D )DDDFrfQq "i~'^09]SS999S]+9+/SSSSSSSSSS99]]]Sxnxxng?Snxgx]nxxxxn9/9aS9S]I]I9S]/9]/]S]]I?9]SxSSIC%CW9+Wa999+999999S9]/xSxSxSxSxSxxInInInInI>/>/>/>/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+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&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""hour in nonprime time and $50 per hour in prime time on each of its systems, based upon a  xNblanket rate for all of TCA's Arkansas cable systems, and requiring a minimum onehour  xpurchase. The Firm states that it protested this statewide rate setting to TCA, and requested by"P ,N(N(ZZ"  xletter, phone, and fax that correct rates be sent to The Firm. TCA did not respond. The Firm  xfiled its petitions on April 4, 1996, and states that TCA is in violation of 76.970 of the  x.Commission's rules concerning commercial leased access. The Firm also contends that TCA's  xminimum purchase requirement of one hour is in conflict with 76.970 of the Commission's  X- xrules, because Commission policy mandates minimum halfhour purchases, citing the Recon.  X- xOrder. Similarly, The Firm contends that TCA has violated 76.970 of the Commission's rules  xby failing to respond to The Firm's request within seven business days. The Firm maintains that  xTCA has caused The Firm to suffer the expense of faxes, long distance telephone calls, postage,  x=letter preparation, legal research, and the cost of the instant petition, in addition to $10,000 per  x[month in lost revenues. The Firm asks the Commission to order TCA to provide The Firm with  xthe information it has requested, including leased access rates revised in accordance with the  x/Commission's rules. The Firm also asks the Commission to order TCA to refund to all non x/affiliated leased access programmers the difference between TCA's excessive rates and the  xLmaximum rates permitted by the Commission's rules since January 1993. Finally, The Firm asks  xLthe Commission to impose a penalty on each of TCA's seven Arkansas systems in the amount  xof $140,000, representing $10,000 per month for fourteen months, to be paid to The Firm in compensation of its lost revenue.  Xf- `  x5.` ` In response, TCA states that it provided The Firm with revised leased access rates  xLcalculated in accordance with the Commission's rules on April 29, 1996. TCA states that these  X8- xrates were calculated in accordance with the Commission's Recon. Order, and include a  xpermissible hourly fee for technical and administrative assistance, and a onetime contract fee of  x$50.00 to cover legal and administrative expenses associated with entering into leased access  xjagreements. TCA also requires a security deposit equivalent to the first month's billings at the  xtime a leased access agreement is executed. TCA argues that therefore The Firm's petition is moot and should be dismissed.  X- ` x6.` ` In addition, TCA contends that the original leased access rates TCA quoted to The  xFirm in January 1996, which TCA states were derived through a collective averaging of all of  xTCA's Arkansas cable systems' fees, plus an additional amount for technical and administrative  x-assistance, were reasonable, legitimately compensatory, and consistent with the general intent of  xthe Commission's rules, and also with Commission policies that recognize the public benefits of  x\uniform ratesetting methodologies. TCA maintains that it is burdensome and inefficient to  xadminister different leased access rates for numerous small systems, and results in additional  x<administrative costs to the systems which are ultimately borne by the programmers. TCA asserts  x.that its original rates were extremely reasonable when compared with the $75 to $5000 charged  X - xyfor 30second spots on area television broadcast stations. TCA also maintains that some of its  xMoriginal rates were less than the amount TCA is currently permitted to charge. TCA further  xargues that it was unclear under the Commission's original leased access rules whether cable  xoperators needed to afford parttime carriage, and, if so, in what increments. TCA states that,  Xp$- xfollowing adoption of the Recon. Order, TCA began offering leased access in onehalfhour  xjincrements. Moreover, TCA states that it has given The Firm the rate information it requested.  xTCA acknowledges that it has not given The Firm information regarding precise channel locations  xand times available on each of its systems, but will do so after The Firm completes a"-' ,N(N(ZZ%" questionnaire.  X- ` x7.` ` With respect to The Firm's requests for sanctions, TCA contends that 76.975(f)  xof the Commission's rules provides the appropriate avenue of relief in the form of refunds. TCA  xstates that The Firm could have paid the requested rates and challenged them, but chose not to  xdo so. TCA additionally argues that forfeitures are particularly inappropriate where Commission  Xv- xrules are unclear, and are subject to revision. v {O- xԍ TCA cites Alert Paging Co. of San Francisco, 6 FCC Rcd 5336 (1991) and Bart Gonzalez, 6 FCC Rcd 4646 (1991). Finally, TCA argues that The Firm's requested order is unnecessary, as TCA has provided The Firm with the information requested.  X1-( DISCUSSION ĐTP  X - ` nx8. ` ` The principal issue raised by The Firm's petitions is whether the respondent cable  x-operator, TCA, violated the Commission's leased access regulations because of its alleged failure  xto provide The Firm with rates for leased access service that were in conformance with the  x<Commission's rules. The record shows that The Firm expressed interest in leased access services  xon TCA's seven Arkansas cable systems, and that TCA proposed rates that TCA now states were  x.derived through a collective statewide averaging methodology. This methodology was not in  xconformance with the Commission's commercial leased access rules in effect at that time, which  Xb- xwere adopted in the Rate Order, and which required a showing particular to a system in question  XM- xthat the system's rates did not exceed the "highest implicit net fee."n M" {O -ԍ Rate Order, 8 FCC Rcd at 5951; 47 C.F.R. 76.970(b) (1995).n Twentyfive days after The  xzFirm filed its petitions, TCA provided The Firm with complete schedules of daily and hourly  xleased access rates. Three days later, TCA informed The Firm that halfhour increments were available at one half of the hourly rates. The Firm does not complain of these rates.  X- ` x9.` ` At the time The Firm filed its petitions, 76.970(e) required that "[u]pon request,  xa schedule of commercial leased access rates shall be provided to prospective leased access  X- xprogrammers." & {O- xԍ See 47 C.F.R. 76.970(e) (1995). At the time The Firm made its requests, amendments to 76.790(e) adopted  {O- xin the Recon. Order, which set a 7 day response time following a request, had not yet become effective. As noted  {O- xearlier, in the recently adopted Second Order, the Commission set a 15 day response time from the date of a written request. The Commission's rules did not specify a specific time period for providing  xleased access information at the time petitioner made its requests to TCA for information, but the  xrules did specify the manner in which maximum leased access rates were to be calculated. TCA  Xg- x=states that it did not use the Commission's leased access rate methodology set out in the Rate  XR- xjOrder, which was in effect at the time the petition was filed, to calculate the rates it offered The  xFirm. In view of the fact that TCA subsequently provided leased access rates to The Firm  X&- xpursuant to the Recon. Order, and in view of the fact that the Commission's leased access rules  X- xhave more recently been amended by the Second Order, we see no reason to evaluate TCA's" ,N(N(ZZ["  xLclaims concerning the Commission's original leased access rules. Nevertheless, it remains true  xthat the rate schedule TCA initially provided to The Firm did not conform with existing  x[Commission rules. TCA has not denied receiving The Firm's requests for accurate rates, and it  xadmits that it did not respond to The Firm's requests until after the petitions were filed. On this  xrecord, we cannot find that TCA responded to The Firm's requests for leased access rates either on a timely basis or in a manner in conformance with the Commission's rules.  X_- ` x10.` ` We also note that TCA added separate administrative and technical fees, on an  xhourly basis, to the hourly rates it derived from the highest implicit fee formula in effect at the  xtime. TCA then added a contract fee of $50.00 to cover legal and administrative expenses for  X - xeach of its seven cable systems. In the Second Order, the Commission clarified that cable  xoperators are allowed to charge an additional fee only for the reasonable cost of providing  X - xtechnical support to a leased access programmer that is not also provided to nonleased access  x<providers on the system. The Commission added that cable operators may not impose a separate  xcharge for the same kind of technical support that they already provide to nonleased access  xprogrammers because the maximum leased access rate already includes technical costs common  X- xto all programmers.O  {O -ԍSecond Order at  114115.O With respect to the additional fee for contract expenses, neither the  xCommunications Act of 1934, as amended, nor the Commission rules makes provision for  xLcontract fees since legal and administrative fees are presumably included in the costs common to all programmers and thus included in the average implicit fee calculation.  X- ` x11.` ` We do not believe that formal administrative sanctions are warranted in this  xinstance because of the unsettled nature of our rules at the time The Firm first requested leased  x access on TCA's systems. However, we conclude that TCA should provide The Firm with  X- xcurrent commercial leased access rates computed under the Second Report's average implicit fee  xformula. In calculating and providing leased access rates to The Firm and other potential leased  xaccess programmers in the future, TCA should not add separate charges for administrative or  xtechnical assistance unless it can show that these charges represent costs that are both reasonable  xand not provided to other nonleased access programmers. In addition, TCA may not add  xcontract fees to its leased access rates and is not permitted to delay providing leased access  xinformation to which leased access programmers are entitled, including location and availability  X;- xof channels,}X;Z yOF - x<ԍThe leased access rules require that cable operators provide the following information to prospective leased  x-access programmers: availability of leased access capacity; complete rate schedule; rates for technical and studio costs; and, if requested, a sample leased access contract. 47 C.F.R.  76.970(h).} pending the prospective programmer's completion of a questionnaire.U;z {Of#-ԍSee Recon. Order, 11 FCC Rcd. at 16949.U Further we  x=expect TCA to adhere to the Commission's current requirements with respect to responding to future requests for leased access rates and information.  X- ` x12.` ` The Firm complains of the costs it has incurred in filing the instant petitions. " ,N(N(ZZ"  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.  x.Accordingly, The Firm's request for compensation for outofpocket expenses of litigation will  xbe denied. Similarly, we shall deny The Firm's request for compensatory damages, which are  xalso not provided for in the statute. Finally, with respect to The Firm's claim for refunds to other  xleased access programmers, it is up to those programmers themselves to seek any redress to which they may be entitled.  X1-  ORDERING CLAUSES ĐTP  X - ` x13.` ` For the foregoing reasons, IT IS ORDERED that the petitions for relief of Lorilei  xCommunications, Inc. d/b/a The Firm in File Numbers CSR 4699L, 4700L, 4701L, 4702L,  X - x4703L, 4704L, and CSR4705L ARE GRANTED to the extent indicated in paragraph 10  X -above, and in all other respects ARE DENIED .  X- ` nx14.` ` Accordingly, IT IS ORDERED that TCA Cable TV, Inc. shall, within fifteen (15)  xdays from the release date of this Order, provide to Lorilei Communications, Inc. d/b/a The Firm  xya complete schedule of leased access rates, a sample leased access contract, and availability of  xZleased access setaside capacity for each of its seven Arkansas cable systems in accordance with 47 C.F.R.  76.970 and 76.971.  X- ` x15. ` ` This action is taken pursuant to authority delegated by 0.321 of the Commission's rules, 47 C.F.R.  0.321. X` hp x (#%'0*,.8135@8: