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PCancel2 Kzoy K~ KY"i~'^ %,77\V%%%7>%7777777777>>>0eOIIOD>OO%*ODaOO>OI>DOOgOOD%%37%07070%777V7777%*77O77055;%;3%%%%%%%%%%%7O0O0O0O0O0aHI0D0D0D0D0%%%%O7O7O7O7O7O7O7O7O7O7O0O7O6O7O7O7>7O0O0O0I0I0I;I0OED0D0D0D0O7O7O7O;O7O;O7%%7%%%7M>;;O7DD,D%D%DO7AO7O7O7O7aOI%I%I%>*>*>*>;D.DD3O7O7O7O7O7O7gOO;D0D0D0O7D%O7>*D%O7E77%%WMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN(BB(37%07777j7#TT7!#TT7T!%%007n&&Bn77lCTn(nBB(A\\>>n%07\n!"IIIITTenn7TnB@;7>lBBn7%a$G,',G\  P6G;P&:*,*\  P6G;P2a=5,&a\  P6G;&P"i~'^5>I\\>>>\g0>03\\\\\\\\\\33gggQyyrg>Frgygrr>3>T\>Q\Q\Q>\\33\3\\\\>F3\\\\QX%Xc>0cT>>>0>>>>>>>>\3QQQQQwyQrQrQrQrQ>3>3>3>3\\\\\\\\\\Q\Z\\\g\QQQyQyQycyQtrQrQrQrQ\\\c\c\>3>\>>>\gcc\r3rIr>r>r3\l\\\\y>y>y>gFgFgFgcrMr3rT\\\\\\crQrQrQ\r>\gFr>\t0\\=!=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBT\>Q\\\\\3;\7;\7>>QQ\??n\\pBnnBmgg>Q\7"yyyy\njc\gnn\"i~'^5>g\\>>>\g0>03\\\\\\\\\\>>ggg\yyrF\yrgyy>3>j\>\gQgQ>\g3>g3g\ggQF>g\\\QI(I_>0_j>>>0>>>>>>\>g3\\\\\QyQyQyQyQD3D3D3D3g\\\\gggg\\g\\\\pg\\\QQ_QyQyQyQyQ\\\_\gjF3FgF>Fgg__gy3ySy>yIy3ggg\\QQQgFgFgFg_y^y>yjgggggg_yQyQyQgy>ggFy>\0\\=2=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBa\>\\\\\\7>\7>\7>>\\\??n\\pBnnBsgg>\\7"yyyy\nlc\gnn\2^ւ| K4y.X80,X\  P6G;P7jC:,9Xj\  P6G;XP7nC:,|Xn4  pG;X y.\80,T\4  pG;!W!@(#,h@\  P6G;hP"H5!,i,5\  P6G;,P\#{,W80,%0W*f9 xr G;X%a$G,',G\  P6G;P&:*,*\  P6G;P'2a=5,&a\  P6G;&P (2e=5,&e4  pG;&)P:% ,J:\  P6G;JP\0_=5,%&_*f9 xr G;&X"i~'^5>M\\>>>\}0>03\\\\\\\\\\>>}}}\rryrr>Qygyrr\grrggF3FM\>\\Q\Q3\\33Q3\\\\FF3\QyQQFI3Ic>0cM>>>0>>>>>>\>\3r\r\r\r\r\yyQrQrQrQrQ>3>3>3>3y\\\\\\\\\gQr\\\\gQ\r\r\r\r\yQyQycyQnrQrQrQrQ\\\c\c\>3>\>>>\\ccyQg3gBg>g;g3y\jy\y\\\yrFrFrF\F\F\FccgBg3gM\\\\\\ygcgFgFgF\g>y\\Fg>g\n0\\=(=WddddddddddddddddddddddddddddddddddddddddNBnnB_\F\\\\\\3;\7;\7>>gg\??n\\pBnnBb\\>g\7"yyyy\njc\}nn\ yO- X   ) X-w #Xj\  P6G;9XP# Federal Communications Commission`)(# DA 971499 ă  yxdddy ) "V Ԋ "V v3 Before the Federal Communications Commission  yO} Washington, D.C. 20554 X01Í ÍX01Í  Í#&a\  P6G; &P#у In the Matter ofR) Petition for Relief ofR) R) FALCOMM PRODUCTIONS,R) x` ` Petitioner,R) R)  S@-vs.R)hCSR4937L R) TCI CABLEVISION OFR) WOODHAVEN, INC.,R) x` ` RespondentR)  S(-  MEMORANDUM OPINION AND ORDER TP  S-X` hp x (#%'0*,.8135@8:leased access channels, in the Report and Order and Further Notice of Proposed Rule Making in MM  S!- xNDocket No. 92266 ("Rate Order").K!P yO'-ԍ 8 FCC Rcd 5631, 59335964 (1993).K The Commission revisited these regulations in the Order on  xReconsideration of the First Report and Order and Further Notice of Proposed Rulemaking in MM Docket"l"D,))ZZ#"  S- xNo. 92266 and CS Docket No. 9660 ("Recon. Order"),B yOh-ԍ 11 FCC Rcd 16933 (1996).B and again in the Second Report and Order and  S- x{Second Order on Reconsideration of the First Report and Order in CS Docket No. 9690 ("Second  S-Order").dX yO-ԍ FCC 9727 (released February 4, 1997), 62 FR 11364 (1997).d  Sf- ` x3. ` ` The leased access regulations initially required, among other things, that cable operators  S>- xprovide a schedule of rates "[u]pon request" to prospective leased access programmers.I> yO -ԍ 47 C.F.R. 76.970(e) (1993).I In the Recon.  S- xOrder, the Commission set a seven business day response time from the time of a request.}x {O0 -ԍ 47 C.F.R. 76.970(e) (1996). See Recon. Order, 11 FCC Rcd at 1694816949.} In the recently  S- xadopted Second Order, the Commission set a 15 calendar day response time from the date of a written  xjrequest. A 30 day response time was established for systems who qualify for "small system" rate relief.  xAdditionally, the regulations provide for the determination of maximum monthly leased access rates by  S|- xmeans of an average implicit fee formula, which is described in the regulations.h|  {O&-ԍ See Second Order, Appendix D, Revised Rules, 76.970.h The Commission also  x[adopted procedures for resolution of disputes, providing for the filing of a petition for relief within sixty  xdays of an alleged violation of a leased access statutory or regulatory provision, and for the filing of a  S -response.h   {O@-ԍ See Second Order, Appendix D, Revised Rules, 76.975.h  S -R SUMMARY OF THE PLEADINGS TP  Sd- ` ox4.` ` FalComm initially requested leased access on TCIW's system by letter dated January  x15, 1996. FalComm complains that TCIW is intentionally delaying providing FalComm with leased  xjaccess by imposing terms and conditions upon FalComm which are not contemplated by 76.971 of the  xCommission's rules. FalComm particularly complains about insurance requirements imposed by TCIW.  xMFalComm states that it can obtain insurance for $750 annually from a local carrier, but that TCIW's  xinsistence upon being named as an additional insured on a media perils liability policy (also knows as a  xkbroadcasters' liability/errors and omissions policy) will require FalComm to apply to an outofstate  xinsurance carrier and will cost FalComm $1300 annually. FalComm contends that this is too costly a  xfinancial burden. FalComm states that TCIW has never responded to any of FalComm's written  xcommunications, and questions whether TCIW has set aside sufficient leased access capacity as mandated by law.  S- ` 2x5.` ` TCIW argues in opposition .  yOR$- xKԍ TCIW admits that its response is latefiled, but argues that accepting this response is in the public interest.  xThe Commission's rules require that responses to commercial leased access petitions for relief be filed within thirty  xhdays of the filing of the petition. (47 C.F.R. 76.975(e)) and FalComm opposes consideration of TCIW's response  x=for this reason. We do not believe, however, that either party will be prejudiced by our considering TCIW's  xKresponse. We nevertheless caution TCIW that we expect it to adhere to all mandated response times under our"r' ,N(N('" current rules. to FalComm's complaint that the complaint is in large part"X ,N(N(ZZ"  xuntimely, in that it references actions and events prior to December 7, 1996, which is more than sixty days  xprior to the filing of FalComm's complaint on February 5, 1997. TCIW notes that it any event it  xprovided a complete schedule of fulltime and parttime leased access rates to FalComm on September  x.6, 1996, together with a sample leased access contract. TCIW also states that it now has procedures in  S`- xplace to comply with the leased access requirements established in the Recon. Order. TCIW contends  xthat it has provided FalComm with all the information required by the Commission's rules, and that all  xthat remains is for the parties to negotiate a contract. TCIW states that these negotiations are exclusively  S- xlbetween it and FalComm, citing Tony Chauncey d/b/a Tony Chauncey Productions v. Continental  S- x]Cablevision of Southern CaliforniaA X yO -ԍ 11 FCC Rcd 1029 (1995).A and Thomas M. Schaefer d/b/a Strategic Video v. Continental  S-Cablevision.I  yO& -ԍ 11 FCC Rcd 13898, 13902 (1996).I  SP -( DISCUSSION TP  S - ` #x6.` ` At the time FalComm first approached TCIW on January 15, 1996, 76.970(e) required  xthat "[u]pon request, a schedule of commercial leased access rates shall be provided to prospective leased  S - x access programmers."S x {O-ԍ See 47 C.F.R. 76.970(e) (1995).S The Commission's rules did not specify a specific time period for providing  xleased access information at the time petitioner made his request to TCIW for information. Subsequently,  S`- xin the Recon. Order, the Commission amended its rules, effective July 10, 1996, to mandate a seven  S:- xbusiness day response time from the time of a request.i\:  {O- xԍ 47 C.F.R. 76.970(e) (1996). See Recon. Order, 11 FCC Rcd at 1694816949. As noted in 3, supra, in the  {O- xrecently adopted Second Order, the Commission set a 15 day response time from the date of a written request. This became effective May 12, 1997.i Nevertheless, TCIW did not provide FalComm  xwith a complete schedule of full time and part time leased access rates until September 6, 1996. This is  xnearly eight months after FalComm's initial request. Nor has TCIW denied receiving FalComm's  xcommunications. On this record, we cannot find that TCIW responded to FalComm's requests for leased  xaccess rates on a timely basis. Although we see no basis to impose formal sanctions on TCIW in view  xof the unsettled nature of our rules at the time of the actions complained of, we nevertheless caution TCI xW that we expect it to adhere to the Commission's current requirements with respect to future requests for leased access rates and information.  S- ` ox7.` ` In the Second Report, the Commission recognized the importance of prompt disclosure  x\of required leased information and emphasized its expectation that cable operators will respond to all  S- xleased access requests in a complete and timely manner.K.  {OR$-ԍ See Second Report, 129.K Accordingly, we caution cable operators that  xfuture failures to provide requested leased access information in a complete and timely manner as required  xby current 76.970(h) of the Commission's rules may result in issuance of a notice of apparent liability for forfeiture pursuant to the provisions of 47 C.F.R. 1.80."  ,N(N(ZZk"Ԍ S- ` Cԙx8.` ` Turning to the merits of FalComm's petition, we note that FalComm provides no  xevidence for its suggestion that TCIW lacks sufficient leased access capacity. With regard to FalComm's  xcomplaint that TCIW is using insurance requirements to deny FalComm leased access, we note that with  xregard to the requirement for a certificate of indemnification insurance, cable operators have been given  xprotection from leased access program liability as provided by 638 of the Communications Act. Section  S8- x638 provides program liability protection "unless the program involves obscene material."<8 yO-ԍ 47 U.S.C. 558.< We are not  xaware, however, of any statutory provision that completely protects cable operators from all possible  x.program carriage liability, or from the filing of unmeritorious actions against cable operators despite the  xprovisions of 638. Moreover, the Commission does not deny cable operators the right to request  xindemnification from leased access programmers for the costs and expenses attributable to defending a  xprosecution for carriage of an allegedly obscene program, stating that "this is a reasonable term and  xcondition relating to use of leased access channel capacity in light of the removal by Congress in amended  S - xsection 638 of cable operator immunity for carriage of obscene programming." X {O-ԍ First Report and Order in MM Docket No. 92258, 8 FCC Rcd 998, 1007 n. 44 (1993). Furthermore, the rules  xin effect at both the time of the actions complained of and at the time FalComm filed its petition allowed  xycable operators to "require reasonable security deposits or other assurances from users who are unable to  S - xprepay in full for access to leased commercial channels."  {O2-ԍ 47 C.F.R. 76.91(d). See also Recon. Order, 11 FCC Rcd at 1695416955; Rate Order, 8 FCC Rcd at 5942. In Anthony Giannotti vs. Cablevision Systems  S - xCorporation, et al.,B | yO-ԍ 11 FCC Rcd 10441 (1996).B an operator's right to require reasonable liability insurance coverage for leased access  x[programming was confirmed. In that case, we noted that the programmer had not shown that the cost of  xthe required insurance coverage is either prohibitive or imposes an unreasonable cost of doing business  x[as an independent program producer. In this instance, FalComm simply asserts that the fee for making TCIW an additional insured is prohibitive.  S- ` x9.` ` We note, however, that the Commission recently revisited this issue and established  Sl- xMguidelines for requiring insurance in the Second Order.Ll  {O-ԍ See Second Order at 112.L In connection with the Second Order, some  xlcommenting parties contended that the cost of general liability and errors and omissions insurance  xrepresents a significant barrier to small independent producers. One party requested that the Commission  xset a limit on the required amount of general liability insurance. However, the Commission declined to  x.adopt specific conditions or limits regarding the amount of coverage or the type of insurance policy that  xoperators may require on the ground that "a specific restriction might not be appropriate for all situations."  xInstead, the Commission stated that it would require that insurance requirements be reasonable in relation  xto the objective of the requirement and placed on cable operators the burden of proof in establishing reasonableness. The Commission further stated:  4XxDeterminations of what is a 'reasonable' insurance requirement will be based on the  Poperator's practices with respect to insurance requirements imposed on non leased access  S- `programmers, the likelihood that the nature of the leased access programming will pose",N(N(ZZ"  a liability risk for the operator, previous instances of litigation arising from the leased  S-access programming, and any other relevant factors.3 {O@-ԍ Id.3   S- ` 3x10.` ` In this instance, we believe that TCIW's requirement that it be named as an additional  xinsured is a reasonable requirement. Being named as an additional insured affords TCIW significant  xadditional protection. Thus, we find that TCIW's insurance requirement is reasonable and consistent with  S-the provisions of the Rate Order and the Recon. Order.  S-1 ORDERING CLAUSES TP  Sr- ` 1x11.` ` Accordingly, IT IS ORDERED , that the Complaint of FalComm Communications in File  SJ - xNo. CSR4937L IS GRANTED to the extent indicated in paragraphs 6 and 7, supra, and in all other  S$ -respects IS DENIED .  S - ` #x12.` ` This action is taken pursuant to authority delegated by 0.321 of the Commission's rules, 47 C.F.R. 0.321. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@Meredith J. Jones x` `  hh@Chief, Cable Services Bureau