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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: ) Petition for Relief of ) ) CSR-4763-L LORILEI COMMUNICATIONS, INC. ) d/b/a/ THE FIRM ) ) v. ) ) NORTHLAND CABLE PROPERTIES ) SIX LIMITED PARTNERSHIP ) Philadelphia, MS ) ) For Leased Access ) MEMORANDUM OPINION AND ORDER Adopted: July 1, 1997Released: July 3, 1997 By the Chief, Cable Services Bureau: I.INTRODUCTION 1.Lorilei Communications, Inc. d/b/a/ The Firm ("The Firm") filed this petition pursuant to Section 76.970(e) of the Commission's rules for relief alleging that Northland Cable Properties Six Limited Partnership, Philadelphia, MS, ("Northland Cable") has violated the Commission's commercial leased access rules. Northland Cable filed an opposition. II.BACKGROUND 2.In 1984, Congress amended the Communications Act by adding, among other things, a commercial leased access requirement contained in 612, pursuant to which cable operators with 36 or more activated channels must set aside part of their channel capacity for use by 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, among other things, rules for determining maximum reasonable rates for commercial leased access. Pursuant to that Congressional directive, the Commission established regulations, including rate regulations, applicable to leased access channels, in the Report and Order and Further Notice of Proposed Rule Making in MM Docket No. 92-266 ("Rate Order"). The Commission revisited these regulations in the 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 ("Recon. Order"), and again in the Second Report and Order and Second Order on Reconsideration of the First Report and Order in CS Docket No. 96-90 ("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 the Recon. Order, the Commission set a seven business day response time from the time of a request. In the recently adopted Second Order, the Commission set a 15 calendar day response time from the date of a written request. A 30 day response time was established for systems who qualify for "small system" rate relief. Additionally, the regulations provide for the determination of maximum monthly leased access rates by means of an average implicit fee formula, which is described in the regulations. The Commission also adopted procedures for resolution of disputes, providing for the filing of a petition for relief within sixty days of an alleged violation of a leased access statutory or regulatory provision, and for the filing of a response. III.SUMMARY OF PLEADINGS 4.In its petition, The Firm states that on May 28, 1996, it sent via facsimile a letter to Northland Cable requesting information pertaining to Northland Cable's full-time and part-time leased access rates, channel numbering for leased access channels, leased access capacity, number of system subscribers, technical requirements and requested a sample leased access agreement. The Firm further states that because it did not receive a response to its initial request, The Firm sent a second facsimile to Northland Cable on June 12, 1996 requesting the same information. The Firm alleges that, as of the date of its petition, it had not received a response from Northland Cable. The Firm argues that Northland Cable failed to provide its commercial leased access rate information within seven business days as required by Section 76.970(e), as amended by the Recon. Order. The Firm requests that the Commission direct Northland Cable to provide The Firm with the requested information without further delay and to file its leased access rates annually with the Commission for the next five years. The Firm also requests that the Commission issue a notice of apparent liability against Northland Cable in the amount of $160,000 payable to The Firm as compensation for expenses and lost revenues. The Firm calculated the amount of damages by estimating that the Commission will need 16 months to resolve its complaint and assessing $10,000 for each month. 5.In opposition, Northland Cable asserts that it did not receive either of the two facsimiles from The Firm requesting leased access information and only learned of The Firm's requests on June 24, 1996 when The Firm filed this petition. Northland Cable states that in a letter dated July 9, 1996, it provided its leased access information to The Firm in accordance with the then applicable leased access rules. Northland Cable further states that it provided additional information to The Firm in a second letter dated July 16, 1996. Northland Cable argues that it did not violate Section 76.970(e), as amended, by not providing leased access information within seven business days because that section of the Commission's rules was not in effect at the time of Northland Cable's request. Northland Cable argues that The Firm's request was governed by the more flexible standard contained in Section 76.970(e) prior to amendment which required cable operators to provide leased access information upon request. Thus Northland Cable argues that its July 9, 1996 response to The Firm's June 24, 1996 petition occurred within a reasonable period of time. 6.Northland Cable further argues that The Firm mistakenly requests the Commission to order Northland Cable to pay a penalty in the amount of $160,000 to The Firm. Northland Cable asserts that forfeitures are assessed by the Commission and paid to the Commission, not to petitioners. In any event, Northland Cable argues that a forfeiture would be inappropriate in this case because, at the time of The Firm's request, the Commission had recently amended its rules governing commercial leased access and the application of the new rules was unclear. Northland Cable further argues that, under such circumstances, and because Northland Cable has not engaged in any willful or repeated violations of the commercial leased access rules, sanctions are not appropriate. IV.DISCUSSION 7.We will deny The Firm's petition for relief alleging violations of the Commission's commercial leased access regulations. The Firm's petition is governed by the commercial leased access regulations established pursuant to the Rate Order. We note that Northland Cable denies receiving either one of The Firm's two requests for leased access information which were faxed to Northland Cable on May 28, 1996 and on June 12, 1996, respectively. When the petition was filed Section 76.970(e) of the Commission's rules required cable operators to provide a schedule of leased access rates upon request. There was no specific response time period provided for in the rules at the time the petition was filed. In any event, we find that Northland Cable's response to The Firm which occurred 6 weeks after The Firm's initial request for leased access information was not unreasonable under the circumstances. Northland Cable's response included the required information such as its part-time and full-time leased access rates, a leased access application and a sample leased access agreement. We note that the Second Order requires cable operators to provide prospective leased access programmers with information pertaining to leased access rates, among other things, within 15 calendar days of the date on which a request for such information is received. We also note that the Second Report provides that all requests from prospective leased access programmers must be in writing and must specify the date on which the request was sent to the cable operator. Now that the Second Report has been released, which has resolved timing issues among others, we expect cable operators to follow the outlined procedures therein for responding to requests for leased access rates. In light of the foregoing, we will deny The Firm's petition. Thus we need not address the issue of sanctions. V. ORDERING CLAUSES 8.Accordingly, IT IS ORDERED that the petition filed by Lorilei Communications, Inc. d/b/a The Firm (CSR-4763-L) against Northland Cable Properties Six Limited Partnership, pursuant to Section 76.970(e) of the Commission's rules then in effect, 76 C.F.R.  76.970(e), IS DENIED. 9.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