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In support  xMof these allegations, the petition refers to a letter from Adelphia's general manager to Soca, containing  SN - xa statement that a rate schedule was "enclosed"rN  yO -ԍA copy of the "enclosed" rate schedule was not included with the petition.r and that Adelphia was willing "to negotiate lower rates consistent with FCC guidelines" and "to lease [Soca] programming time at a rate of $100 per hour."  S - ` x4.` ` Adelphia, operator of a cable system in Lorain, Ohio, claims full compliance with its  xobligations under the cited rules. More particularly, Adelphia states that it commenced leasing to Soca  x[one hour of time on Wednesdays from 5 p.m. to 6 p.m. at $100 per hour, in early 1994. Adelphia states  xfurther that in April of 1994 Soca requested a change to a 9 p.m. time slot and questioned whether the  x.$100 hourly rate complied with Commission rules. Adelphia states that during subsequent negotiations  x\Soca was informed that it had allocated a channel on its basic tier available for part time leases from 6  xa.m. to 6 p.m. daily, that the maximum rate would be $100 per hour of leased time, and that it was willing to negotiate a lower rate.  Sn- `  x5.` ` With this as backdrop, Adelphia asserts that it has made leased access capacity available  xand that its part time rates do not violate the Commission's rules. Adelphia asserts that the decision to  xmake one channel available for part time leases between 6 a.m. and 6 p.m. and the refusal to provide the  x9 p.m. time slot requested by Soca is not inconsistent with announced Commission policy. It argues that  S- x]the Commission, in its Rate Order, declined to establish guidelines regarding the time that channel  S- xcapacity must be made available and left that matter up to the cable operator and prospective lessees.fX {O-ԍCiting the Rate Order, 8 FCC Rcd at 5940, n. 1283.f  xlFurther, it argues that the Commission has reaffirmed that position and declined to reverse a cable  SX- xoperators's refusal to provide a specific time slot to a lessee.X yO- xԍCiting TV24 Sarasota, Inc. v. Comcast Cablevision of West Florida, Inc., 10 FCC Rcd 3512, (CSB 1994)  {O-("Comcast"). It states that accommodating Soca's one  x]hour of programming at 9 p.m. would require displacement of another program which Adelphia is  xcontractually obligated to carry from 6 p.m. to 6 a.m. weekdays and all days on weekends. It takes the  xposition that neither Section 612 of the Communications Act nor Section 76.970 of our rules mandates  xdisruption of existing programming to accommodate a request for a single hour of leased access time one night a week, when adequate alternative time slots are readily available. "A "D,_(_(II"Ԍ S- `  "A `x6.` ` In defense of the $100 per hour rate, Adelphia states that it developed its maximum  S- xmonthly full time rate of $13,167 per month. yO@- xԍAdelphia's calculations of its maximum monthly full time rate for the "all other" category involved here, are as follows:  `  X` hp x (#%'0*,.8135@8: AbCrHours/month" "  12am 7 am"7am 5 pmr5pm 7pm7pm 12am  yO-r" x: "$B')+J.02R57:Z<> AbCX/ V2x (#%'0*,.8135@8: AbCr1 10I $60u2$90p$150$200 11 20I $50u2$85p$135$175 21 50I $45u2$80p$125$150 >50I $40u2$75p$115$125 Adelphia argues that when all of the circumstances are considered,  xLincluding its statement to Soca that it would be willing to discuss lower rates, it has not set unreasonable part time rates or been unreasonable with Soca.  S - ` # x7.` ` Soca asserts in reply that Adelphia incorrectly determined the pro rata hourly rate, which  xshould be developed by dividing the monthly rate by the number of hours in an average month (not by  xthe number of hours available part time capacity) to get $18.29 per hour. Soca says the cost of technician  xtime should be distributed over all active channels serviced by the technicians. Soca further argues that  x=Adelphia's part time rate schedule submitted for the record is not consistent with the Commission's goal  xof providing diversity in programming, because those rates make it impossible for an independent producer  xto present programming without incurring a loss. Soca compares Adelphia's ad rates with the part time  xrate schedule and asserts that the leased access rates leave very little margin to cover programming and  xother costs. Soca further states that Adelphia's proposed part time rates, when summed over a month's  xtime, total $78,600, and thus exceeds the $13,167 maximum monthly rate. It asserts that, if different rates" ,_(_(II"  xfor different time slots are to be allowed, the proposed rates should be reduced proportionately so that the monthly total of part time rates will not exceed the maximum monthly rate.  S- ` }x8.` ` Finally, Soca points out that, although Adelphia is required to designate over four channels  xfor leased access, it has made only one half of a channel available for part time use. Soca states that its  xprogramming targets an adult male audience that is best reached during the hours 6 p.m. to 12 a.m., and that it is essential for the success of its programming that those hours be made available for lease.  S- (DISCUSSION ă  Sp- ` }x9.` ` Two principal issues are presented in this case. The first issue is whether Adelphia's offer  xof part time leased access channel capacity between the hours of 6 a.m. and 6 p.m. daily is consistent with  xLthe requirements of Section 76.970 of the Commission's rules. The second issue is whether the schedule  xof part time leased access rates offered by Adelphia to Soca meets the requirements of Section 76.970.  xThese issues will be addressed in that order and in the context of the leased access regulations initially  S -adopted in the Rate Order that were in effect when the petition was filed, except where noted otherwise.  SZ-x A. Availability of Leased Access Channel Capacity  S - ` _x10.` ` In Comcast, which interpreted the requirement to provide part time leased access services,  xwe declined to require a cable operator to open an additional part time leased access channel when time  x.slots were not available, noting that the programmer there failed to establish the presence of time critical  xaspects, such as live performances or sporting events scheduled for specific times, that would make the  Sl-requested time slot critical to the success of the programming.1 l {O-ԍId.1  S- ` x11.` ` In the Second Report, the Commission revisited the matter of the obligation of cable  x[operators to accommodate requests for parttime leased access, stating that the requirements for opening  S- xof leased access channels adopted in Comcast would promote the statutory objectives of competition and  S- x-diversity by providing parttime programmers with reasonable opportunity to obtain carriage.L Z {O-ԍSee Second Report,  6269.L In addition  xto confirming that operators are not obligated to open an additional leased access channel as long as  xycomparable time slots remain available on an existing leased access channel, the Commission made it clear  x[that parttime leased access requests also may be accommodated on comparable time slots on nonleased  xaccess channels. The Commission further stated that operators need not open an additional parttime  xchannel until all other parttime leased access channels have at least 18 hours of leased access  x[programming every day. Finally in this connection, the Commission made it clear that an additional part  xtime channel need not be opened even if comparable time slots are no longer available on a parttime  Sh-channel that is only partially programmed for less than 18 hours.; h {O#-ԍId.,  69.;  S - ` 3x12.` ` In this instance Soca requested an evening time slot. We find the time slots offered by  S - xAdelphia, between 6 a.m. and 6 p.m., not comparable to the time slot requested by Soca. The 6 a.m. to  x6 p.m. time slots are considered in the industry as morning and afternoon daytime programming slots,"!~ ,_(_(IIU#"  x[while the 9 p.m. time slot requested by Soca is considered a nighttime programming slot. Moreover, we  x.cannot not accept Adelphia's contention that its leased access channel is occupied between the hours of  x6 p.m. to 6 a.m. and is therefore not available to Soca. The record contains no evidence that the  xprogramming Adelphia contends it is contractually mandated to carry during these times is carried as a  S`- xleased access channel under the provisions of the Commission's leased access rules. Z` yO- xԍThe fact that Adelphia prorated its full time monthly rate over the offered 6 a.m. to 6 p.m. time slots in  {O- x\developing part time rates (see paragraph 7 above) strongly suggests that Adelphia does not consider the programming commitment for the 6 p.m. to 6 a.m. slots to be leased access programming. Cable operators  xmay occupy leased access channels with other programming, but only until their use is required for leased  S- xaccess programming.A yO -ԍ47 U.S.C.  532(b)(4).A Consequently, we will order Adelphia to provide Soca leased access time in the requested 9 p.m. time slot, or in another comparable nighttime slot.  S-x B. Setting Part Time Rates Consistent with Section 76.790  SH - ` x13.` ` The second issue concerns whether Adelphia's $100 per hour part time rate was developed consistent with the requirements of Section 76.970 of the rules then in effect.  x=  The information provided for the record shows that Adelphia properly calculated its maximum monthly  S - xkrate ($13,167)? z {O-ԍSee n. 14, above.? using the highest implicit fee formula in the manner required by Section 76.970 at the  S - xtime that rate was developed.O  {OT-ԍSee 47 C.F.R.  76.970 (1996).O However, we cannot find that Adelphia's schedule of part time rates meets  S - xLour leased access requirements. In the Rate Order, the Commission rejected both market place and cost xofservice rate making methodologies in favor of the net implicit fee methodology embodied in Section  S2- x76.970 of the rules.2 {Op- xԍSee Rate Order, 8 FCC Rcd at 594850. See also Lorilei Communications v. Scripps Howard Cable Company, 11 FCC Rcd 10431 (CSB 1996) at  1415 (administrative support cost element rejected). In Comcast, we recognized that the statutory provisions relating to leased access do  xnot specifically address the question of rates for parttime use. We acknowledged that our rules mentioned  xprorating the maximum monthly rate as a method available for establishing maximum rates for periods  S- xof less than a month.D  {OT-ԍSee Section 76.970(d).D We observed that the only rate that cable operators are not permitted to exceed  xjunder our rules is the maximum reasonable rate as calculated on a monthly basis from the highest implicit  Sl- xnet fee.Dl  {O!-ԍSee Section 76.970(c).D We declined to construe our rules as requiring an operator to adhere to a rigid formula for  xdetermining hourly leased access rate only by prorating the monthly fulltime rate into equal hourly  x.amounts. A rational time of day rate structure that is appropriately related to time of day pricing in the  xMmedia industry within the overall "highest net implicit fee" formula and that does not frustrate leased  S- xaccess channel use would not conflict with the rules.N {O&-ԍSee Comcast, 10 FCC Rcd at 3520.N Subsequently, we further mandated that a schedule of part time rates",_(_(II"Ԍ pb ` Йshall include rates for different times of day pursuant to which, if all times were  pused, the sum of the part time charges for any single leased access channel would  S- pnot exceed its maximum monthly rate for a leased access channel calculated in  S-accordance with Section 76.970 or our rules.1 {O- xԍSee Harry Tootle dba Tootlevision vs Community Cable TV/Prime Cable of Nevada,10 FCC Rcd 3340, 3342 {O-3343, (CSB 1995) ("Prime Cable").  `    S8- ` Cx14.` ` To determine whether the sum of Adelphia's part time charges exceed its maximum  S- x/monthly rate, we must examine one criteria discussed in Prime Cable, the hourly rates applicable for  xservice of more than 50 hours per month. Applying those rates to the approximately 720 hours per month  S- xMproduces a total of $55,350 as the sum of part time charges for one month, which greatly exceeds the  S- x[$13,167 maximum monthly full time rate,$ {O^ -ԍThe sum of the part time charges (for one to ten hours of use) for one month (See n. 9, above) is $77,170. even if the $27 hourly charge for "technical support" {O - xԍSee Adelphia's part time rate schedule accompanying Adelphia's letter to the Commission staff, dated March 3, 1995. is not  Sr- xincluded in the full time rate. r yO"- xԍThe total of part time charges of $55,350 minus the technical charge $19,440 ($27 per hour, times 24 hours per day, times 30 days per month) equals $35,910, which is more than twice the $13,167 maximum monthly charge.  Moreover, a clause1rh  {Oz-ԍId.1 in the rate schedule providing for a proportional rate  xreduction when usage produces revenues in excess of the maximum monthly rate only adds uncertainty  xto unreasonableness. Under this usage based rate reduction scheme, the leased access programmer cannot  xzdetermine in advance what a leased channel will cost. The programmer cannot establish channel costs  xby simply reading the rate schedule; indeed, channel costs cannot be determined until after service has  S - xbeen provided.   yOD- xԍAdelphia improperly pro rated the monthly rate by dividing that rate ($13,167) for a full month's use by the  xnumber of part time hours in half of a month (360) to get a $36.58 hourly part time rate. A properly pro rated rate  x;is obtained either by dividing half of the monthly rate by 360, or by dividing the full monthly rate by the 720 hours of a "typical" month. For these reasons, we find Adelphia's schedule of part time rates fails to comply with  S - x.the requirements of our leased access regulations as explained in Prime Cable. In the Second Report, the  xCommission mandated that a schedule of parttime rates be developed either by prorating the full time rate  x=or by applying different rates for different times of the day, provided that the total of the rates for a 24 S - xhour period not exceed the maximum daily leased access rate.z  {O -ԍSee Second Report,  70 and Appendix D, Revised Rules, Section 76.970(g).z Adelphia's parttime rate schedule, which  xconsists of different rates for different times of day, also fails to comply with these requirements, since  S-the total of the highest rates for a 24 hour period ($1,845) exceeds the maximum daily rate ($439).t yO#- xԍAdelphia's schedule does not contain a daily rate. However, prorating the monthly full time rate ($13,167 monthly full time rate divided by 30 days) yields a daily rate of $438.90.  Sl- ` x15.` ` Furthermore, although Section 76.971(c) permits an operator to recover from the  xprogrammer the reasonable cost of the technical support actually provided, the Commission made it clear"D,_(_(IIr"  S- xin the Rate Order that cost of services other than the provision of channel capacity must be excluded from  S- xthe calculation of the implicit fee used in determining the maximum reasonable rate.U {OB-ԍSee Rate Order, 8 FCC Rcd at 59505951.U The Commission  S- xrevisited the area of technical costs in its Second Report. There the Commission clarified that the leased  xyaccess rates determined under Section 76.970 include the cost of technical support ordinarily provided to  xother programmers. For that reason a cable operator may not impose an additional charge for technical  S<- xKsupport ordinarily provided to other programmers.UZ<Z {O6- xhԍSee Second Report,  114. The Second Order noted that an operator may impose a charge to recover the cost  x,of providing equipment such as a tape recorder or camera, if such equipment would be provided to nonleased access programmers for the same charge.U Therefore, cable operators may not attempt to recover  xcosts of technical support by burying them in a schedule of part time rates. In other words, the Section  x76.970 methodology makes no provision for folding technical cost elements into the implicit fee determination, as Adelphia suggests.  St- ` x16.` ` For the reasons stated above, we find that Adelphia's schedule of part time rates>t| {O-ԍSee n. 9, above.> is not  xconsistent with the requirements of Section 76.970 of the Commission's rules as initially adopted or  S$ - xmodified in the Recon Order. Accordingly, we will require Adelphia to establish a new schedule of rates,  xor rate card, for different times of day pursuant to which the sum of the part time charges for any 24 hour  xNperiod for a single leased access channel will not exceed its maximum daily rate for a leased access  S - xjchannelK  {O\-ԍSee 47 C.F.R.  76.970(g).K calculated in accordance with the requirements of Section 76.970 of our rules as modified in the  S - xSecond Report. We will require Adelphia to provide Soca with a copy of such new schedule of part time  xrates, in order that Soca may be able to select the rates and day parts most suitable to its future  xprogramming needs. We will also require Adelphia to recalculate the hourly rates it charged Soca under  x=the former highest implicit fee formula in effect when the Soca's complaint was filed and payments were  xmade. Should this recalculation result in lower hourly rates under the former rules then Adelphia shall refund the difference in charges.  Sp- ` _x17.` ` We will also require Adelphia to maintain on file adequate records, consistent with Section  x[76.970(h)(5) of our current rules, that show the total daily revenues derived from part time users of each  xMleased access channel, together with the maximum monthly charge for a full leased access channel and  xthe data and calculations used for deriving the maximum monthly charge in accordance with Section 76.970 of the current rules.  S- 1ORDERING CLAUSES ă  S0- ` x18.` ` For the foregoing reasons, IT IS ORDERED that the petition of Soca Trend Video  S- x(herein "Soca") IS GRANTED in part as described paragraphs 9 through 17 above and in all other  S-respects IS DENIED .  S- ` 2x19. ` ` IT IS FURTHER ORDERED that the Adelphia shall, within fifteen (15) days of the  xrelease date of this order, (a) establish a reasonable schedule of part time rates, or rate card, for different"h ,_(_(II"  xtimes of day pursuant to which the total of the rates for a 24hour period shall not exceed the maximum  xdaily leased access rate for a leased access channel calculated in accordance with Section 76.970 of our  x/current rules, (b) provide a copy of such schedule of rates to Soca and (c) refund to Soca all amounts collected in excess of part time rates applicable at the time the complaint was filed. x  S8- ` _x20.` ` This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules, 47 C.F.R.  0.321. X` hp x (#%'0*,.8135@8: