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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) ) LORILEI COMMUNICATIONS, INC. ) Petitioner) ) vs.)CSR-4764-L ) COMCAST CABLEVISION OF TUPELO, INC.) Respondent) MEMORANDUM OPINION AND ORDER Adopted: July 1, 1997 Released: July 3, 1997 By the Chief, Cable Services Bureau: INTRODUCTION 1.Lorilei Communications, Inc. d/b/a The Firm ("Lorilei") has filed a petition pursuant to  76.970 of the Commission's rules alleging that Comcast Cablevision of Tupelo, Inc. ("Comcast") failed to respond in a timely fashion to Lorilei's request for information concerning leased access on its system serving Tupelo, Mississippi in violation of the Commission's commercial leased access rules. Comcast contends, in response, that it has provided the requested information to Lorilei, and that this petition, therefore, is moot. 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. THE PARTIES' PLEADINGS 4.On May 28, 1996, Lorilei states that it faxed a letter to Comcast requesting the following: a sample copy of the actual lease agreement, specific information about the Tupelo system, including the total number of subscribers reached by leased access, full time leased access rates, part time leased access rates by daypart, leased access set-aside capacity, the channel number on which leased access programming appears, and what tape format the system uses to playback leased access. Having not received a response from Comcast, Lorilei faxed it another letter requesting this information on June 12, 1996, and on June 18, 1996, Lorilei filed the instant petition. Lorilei contends that Comcast ought to have responded to its information requests within 7 days, and that Comcast's failure to do so has prevented Lorilei from exercising its right to transmit programming on Comcast's system As a result, Lorilei claims that it has suffered $10,000 per month in lost revenues while this petition is pending, in addition to the expense of preparing letters, postage, faxes, long distance telephone calls, legal research, and the costs of preparing this petition. Lorilei speculates that this petition may not be processed for sixteen months after it is filed, so Lorilei requests that the Commission issue a notice of apparent liability against Comcast in the amount of $160,000 as a penalty for violating the Commission's rules. In addition, Lorilei asks that the Commission order Comcast to provide Lorilei annually with a schedule of full-time and of part-time rates for the next five years as proof of Comcast's compliance with the Commission's rules. 5.In response, Comcast contends that Lorilei's request for damages is speculative, inappropriate, and outside the Commission's authority, adding that as of August 2, 1996, Lorilei had yet to purchase any time on Comcast's system. Comcast contends that by letter dated June 17, 1996, it provided Lorilei ". . . with relevant information concerning leased access on Comcast's Tupelo, Mississippi system." On June 25, 1996, Comcast states that it provided Lorilei with additional leased access information which Lorilei had requested. Comcast notes that it intends to give Lorilei any further information regarding leased access use to which it is entitled upon request. DISCUSSION 6.The record does support a finding that Comcast failed to respond in a timely fashion to Lorilei's request for leased access rates in violation of  76.970 of the Commission's rules. At the time that Lorilei filed its petition, cable operators were directed to provide programmers with certain commercial leased access information "within seven business days." The principal reason for this requirement was that the Commission recognized that timely receipt of initial leased access information is an important item in a leased access programmer's process of deciding whether to pursue leased access. Comcast does not deny receiving Lorilei's May 28, 1996 request for access information. However, Comcast did not respond to this request until June 17, 1996, some twenty days later. On these facts, we conclude that Comcast was not reasonably responsive to Lorilei's requests for leased access information, under the requirements of the Commission's rules in effect at the time. We note, however, that our new rules provide for a response period of 15 days from the date of a written request. Since the Commission modified this provision subsequent to the instant filing, we do not believe that any administrative sanctions are appropriate in this case. We note, however, that the Commission has clearly set out requirements for responding to requests for leased access information in the future. In the Second Report, the Commission recognized the importance of prompt disclosure of required leased information and emphasized its expectation that cable operators will respond to all leased access requests in a complete and timely manner. Accordingly, we caution cable operators that future failures to provide requested leased access information in a complete and timely manner as required by Section 76.970(h) may result in issuance of a notice of apparent liability for forfeiture pursuant to the provisions of 47 C.F.R.  1.80. 7.We also do not believe that Lorilei is entitled to compensation for time expended or for costs incurred in bringing this action before the Commission. Neither the Communications Act of 1934, as amended, the 1984 Act, nor the 1992 Act, provides for recovery of costs associated with the filing of a petition for relief with the Commission for alleged violations of the leased access statutory provisions or of the Commission's regulations issued under authority of those statutory provisions. Accordingly, Lorilei's request for compensation for such costs will be denied. ORDERING CLAUSES 8.Accordingly, IT IS ORDERED that the petition (CSR 4764-L) filed June 24, 1996, by Lorilei Communications, Inc., IS GRANTED to the extent indicated, and in all other respects IS DENIED. 9.IT IS FURTHER ORDERED that, to the extent it has not already done so, within fifteen (15) days from the release date of this Order, Comcast Cablevision of Tupelo, Inc. shall provide Lorilei Communications, Inc. with a sample leased access contract, a complete schedule of its full-time and part- time leased access rates, as well as its rates associated with technical and studio costs, and with information concerning how much of the system's leased access set-aside capacity is available, in accordance with 76.970 of the Commission's rules. 10.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