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Order"),B yO@-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  S>- ` 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 {O -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  ST - xmeans of an average implicit fee formula, which is described in the regulations.hT  {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  x\days 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  S<- ` x4.` ` The Firm is a multimedia company doing business throughout the United States. The  xjFirm produces thirtyminute programs to air on commercial leased access channels. The Firm states that  xit initially requested commercial leased access rates from Continental in July 1996 and that Continental  xresponded by offering a range of rates, on a onehalf hour basis, depending upon the type of leased access  xservice. Continental's initial response to The Firm also required a $50.00 tape insertion fee and  xcommitment to a minimum 13 week schedule. Continental included a draft contract for review and  xrequested The Firm to complete a Leased Access Application Form. The Firm states that it did not  xLcontact Continental again until December 10, 1996, at which time it asked for documentation supporting  x=Continental's $50 tape insertion fee and for an explanation of the 13 week minimum schedule. The Firm  xalso asked Continental to strike a clause from its standard contract which required insurance protection  xagainst "willful conduct." The Firm states that Continental agreed to reduce the minimum leased access  xNschedule to four weeks and provided an explanation of its tape insertion charge but insisted on an  x\insurance policy covering negligent and willful conduct by a lessee. The Firm says it offered to make  xContinental a coinsured on its $1 million media perils policy. It alleges that it is impossible to obtain  xthe "willful conduct" coverage demanded by Continental because no insurance company would issue a  xpolicy covering willful or intentional acts by an insured. The Firm also says it told Continental that the $50 tape insertion fee included administrative costs prohibited by the Commission's leased access rules.". ,_(_(II<"Ԍ S- ` ԙx5.` ` The Firm alleges that Continental did not provide information about channel setaside or  xavailability and did not clarify its policies within seven business days of The Firm's request, as required  S- xby  76.970 as clarified in the Recon. Order. The Firm also alleges that Continental has included items  xother than technical support in its statement of costs, in violation of  76.971(c). The Firm also contends  xthat Continental has included administrative fees such as salaries, rent, utilities and legal fees in its tape  x insertion charge, a practice The Firm alleges the Commission rejected in a previous ruling on a leased  S- xaccess petition filed by The Firm.  {Oz- xhԍ The Firm cites Lorilei Communications, Inc. d/b/a The Firm v. Scripps Howard Cable Co. d/b/a Lake County  {OD-Cablevision, DA961449 (released September 6, 1996). The Firm objects to Continental's four week minimum as contrary  S-to the Commission's ruling that cable operators provide leased access in onehalf hour intervals. $ {O - xZԍ The Firm cites The Rate Order as support for the impermissibility of requiring a minimum schedule of four weeks.  S- ` %x6.` ` The Firm further alleges that cable operators are indemnified by Section 618 of the  xCommunications Act of 1934, as amended, unless the programming is obscene. The Firm asserts that it  x\has assured Continental that it will not air obscene programming, and therefore, there is no reason for  xContinental to require liability insurance as a condition of providing leased access. Moreover, The Firm  xjobjects to Continental's requirement for insurance that covers willful acts and alleges Continental is using this requirement as a way of avoiding compliance with the Commission's leased access rules.  S - ` Px7.` ` The Firm maintains that Continental has maliciously barred its access to this cable system  xMand that it will suffer financially as a result. The Firm recommends the Commission fine Continental  xL$10,000 for each of the offenses alleged plus $10,000 a day for each day The Firm is denied access. The  x/Firm asks the Commission to order Continental to cease and desist from charging administrative fees  xdisguised as technical fees and to issue a declaratory ruling on what reasonable technical charges should  x\include. The Firm also seeks declaratory rulings on requirements for liability insurance and minimum schedules.  SB- `  x8.` ` In response, Continental first alleges that The Firm's petition is untimely because it was  xnot filed within 60 days of the alleged violation, as required by  76.975(d) of the Commission's rules.  xContinental asserts that The Firm initially requested leased access information on July 23, 1996, and it  x.responded to that request on July 26, 1996. The Firm did not contact Continental again until December  x10, 1996, and did not file its petition until January 23, 1997, which, Continental contends, is more than 60 days after the violations allegedly were committed in July, 1996.  S*- ` x9.` ` Continental alleges further that, within seven days of The Firm's request, it provided The  xLFirm with all the information required by the provisions of  76.970(e) in effect at the time. Continental  xemphasizes that this initial response included the amount of available set aside capacity on its system; to  xwit, channel 69 as indicated on the channel line up card which accompanied its July 26, 1996 response  xto The Firm. Continental also asserts that it provided the additional information and clarification requested  xby The Firm in July and December, 1996. Therefore, Continental contends, The Firm's petition should be dismissed.  S - ` x 10.` ` Continental disputes The Firm's contention that its $50.00 charge for tape insertion  xviolates the Commission's rules concerning technical support and equipment charges. Nevertheless,"!~ ,_(_(IIF#"  xContinental reports that since the time the petition was filed it has revised its technical support fee and  xzhas communicated its revised fee to The Firm. The revised fee, according to Continental, is limited to  xpersonnel costs required to insert and playback leased access programming and is consistent with the  xCommission's rules. Continental asserts that it does not provide tape playback or insertion free of charge  xfor nonleased access users and charges local programmers $200 per half hour for these services. With  x{respect to equipment fees, Continental asserts that the equipment required to transmit The Firm's  xprogramming is used at no charge for transmitting access channels required by its franchise agreement and  xis not used for any other nonleased access programming. Continental argues that, therefore, it may  xycharge The Firm for use of this equipment and has relied on local video equipment rental fees as the basis  xfor its proposed charge to The Firm. For the foregoing reasons, Continental argues that its technical  Sp- x[support charges are consistent with the clarifications in the Commission's Second Order, and The Firm's allegations should be dismissed.  S - ` x 11.` ` With respect to the four week minimum scheduling requirement, Continental states that  x>it has agreed not to impose this requirement on The Firm. Nevertheless, Continental argues that this  S - xrequirement is consistent with previous Commission leased access cases as well as commercial standards.   {O- xԍ Continental cites Tony Chauncey d/b/a Tony Chauncey Productions v. Continental Cablevision of Southern  {O-California, 11 FCC Rcd 1029 (1995) ("Chauncey").  xyContinental asserts that the Commission has found that a 13week minimum purchase requirement is not  xMunreasonable, and that its fourweek minimum is necessary for consistency with its billing and media schedules.  S- ` #x 12.` ` Continental states also that in a letter sent to The Firm on February 20, 1997, four weeks  x!after the petition was filed, it agreed to the insurance terms proposed by The Firm in its letter to  xContinental dated January 5, 1997. Specifically, Continental has agreed to The Firm's proposal to include  xContinental as a coinsured party on its $1 million media perils liability insurance policy. Continental  SB- xasserts that the Commission's Second Order allows cable operators to impose reasonable insurance  x!requirements on leased access programmers. By agreeing to The Firm's proposal with respect to insurance, Continental has, it argues, imposed terms that are reasonable.  S- ` x 13.` ` Finally, Continental argues that The Firm's request that the Commission assess a penalty  xagainst Continental should be denied because the leased access rules have been revised repeatedly and,  xtherefore, sanctions are not appropriate. Continental contends that the Commission has not and should  xnot impose a forfeiture when the rules are in flux. Continental also states that the Firm has failed to  xprovide a basis for its request for $10,000 per violation plus $10,000 a day for each day it is denied access to Continental's system.  S-( DISCUSSION ĐTP  S<- ` 4x 14.` ` We do not agree with Continental's allegation that the petition should be dismissed  xbecause The Firm did not file within 60 days of the alleged violations. Section 76.975(d) of the  xCommission's rules, in effect at the time of the alleged violations and the filing of the petition, requires  S!- xthat a petition be filed within 60 days of the alleged violation. !$ {O&- xiԍ The Second Order amended  76.975(d) to require that a petition be filed within 60 days of completion of the final accountant's report or within 60 days of termination of an ADR proceeding. The Firm's petition, filed January 23,"!~ ,_(_(II7#"  x.1997, alleges violations based on both the initial information Continental provided in July, 1996, as well  xas the subsequent information and clarifications Continental provided in December, 1996, which The Firm  xreceived in January, 1997. If we were to dismiss The Firm's petition, we would be penalizing it for  xfailing to file within 60 days of its first contact with Continental, which would discourage potential leased access users from negotiating with cable operators and would encourage premature filing of petitions.  S- ` ox15. ` ` The principal issues raised by The Firm's petition are whether Continental violated the  xCommission's leased access regulations by (1) failing to provide setaside capacity and availability and  xlother required information in a timely manner; (2) including impermissible charges in its proposed  xLtechnical support fees; (3) requiring a fourweek minimum schedule; and (4) requiring insurance coverage that is effectively impossible for The Firm to obtain.  S - ` x16.` ` Regarding the alleged failure to provide information in a timely manner, we find that the  xrecord does not support The Firm's allegation that Continental failed to provide information as required  xby the Commission's leased access rules. At the time of The Firm's request for information, the  xCommission's rules required Continental to respond to a request for leased access information within seven  xdays by providing a complete schedule of leased access rates, how much setaside capacity is available,  SX- xthe rates for studio and technical costs, and, if requested, a sample leased access contract.&X {O- xԍ See 47 C.F.R. 76.970(e) (1996). 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 just become effective. As noted  {OT- xearlier, in the recently adopted Second Order, the Commission set a 15 day response time from the date of a written request. Continental  xresponded to The Firm's initial request for information within three days and provided leased access rates,  S- xktechnical fees, a sample contract, and channel capacity on its channel lineup card." yO^- xԍ Continental also responded within 13 days to The Firm's follow up request, five months later, for additional  xLinformation and clarification. The Firm's follow up request was dated December 10, 1996, and Continental's  {O- xresponse was dated December 23, 1996 although not received by The Firm until January 3, 1997. See Petition at Exhibits 2 and 3 and Response in Opposition at Exhibit 2. We note that the  S- xCommission's Second Order, released some months after Continental's initial response to The Firm,  xjclarifies and emphasizes that the cable operator is responsible for calculating its system's available leased  S- xaccess capacity, and that we have given cable operators additional time to do so. {O- xiԍ Second Report at  135 and note 339 ("We wish to remind operators that the relevant information is how  ximuch of their leased access setaside requirement remains unfilled, not how much open capacity remains on their  {Od- xsystem."). (See also Id. at  127129, which explains that the response period is extended to 15 days to afford cable  xoperators ample time to respond completely.) We note that Continental affirms its commitment to provide specific  xinformation concerning overall available channel capacity within the mandated response time. Response in Opposition at note 3. Continental  x=acknowledges that The Firm had to calculate the approximate amount of leased access capacity from the  SB- xlineup card. However, subsequent to the filing of the petition and the adoption of the Second Order,  xContinental provided specific information to The Firm concerning its current leased access setaside capacity.  S- ` x17.` ` With respect to the second issue, we conclude, based on the information available in the",_(_(II"  S- xzrecord, that Continental should recalculate the technical support fee it proposes to charge The Firm.z yOh- xԍ The Firm did not complain of the charges Continental proposes with respect to fees to lease or purchase  xequipment necessary to transmit its programming. Therefore, we will not address those fees in this ruling. We note,  xhowever, that cable operators may not charge for equipment if the same type of equipment is used for nonleased  xaccess programmers. Cable operators may charge for the use of technical equipment that is provided at no charge  xfor PEG access programming, provided that the franchise agreement requires the operator to provide the equipment,  xthe equipment is not being used for any other nonleased access programming, and the operator's franchise agreement  {O-does not preclude such use. Second Report at  114.  x.Because Continental charges nonleased access programmers a separate fee for technical support, it may  xcharge leased access programmers a reasonable fee for technical support but may not impose a separate  xcharge for the same kind of technical support that it already provides to nonleased access programmers  S`- xif that fee is included in the calculation of the maximum leased access rate.`  {O - xԍ Second Report at  114. Continental claims it currently charges local programmers $200 for tape playback and personnel. In a letter sent to The Firm  xon February 20, 1997, subsequent to the filing of the petition, Continental revised its technical support  xLrates. In this letter Continental lists a technical support fee of $57.09 "based on the hourly labor cost of  xthe personnel most likely to perform the required tasks. (Hourly rate of $15.46, plus $3.57 per hour in  S- xfringe benefits)."xd  yO- xZԍ Response in Opposition at Exhibit 4. We note that Continental's initial response to The Firm on July 26,  x1996 stated there would be "a $50.00 fee each time there is a tape change or tape insertion" but did not breakdown  xthe fee. Petition at Exhibit 1. Continental's followup response to The Firm dated December 23, 1996, clarified  xthat the "Tape Insertion and Administrative Costs" would be $55.73 per hour and provided a breakdown including  x$15.22 for the "Leased Access Coordinator" and $9.80 for "Playback Personnel" plus $9.81 for fringe benefits and  xadditional amounts for rent ($1.00), utilities ($3.00), return postage per tape ($2.85), legal fees ($12.00) and "franchise fees on leased access revenue" ($2.65). Response in Opposition at Exhibit 3. Continental asserts to us that this revised technical support fee "is limited to personnel  S- xcosts required to insert and playback leased access programming."F yO-ԍ Response in Opposition at 4.F Continental has not, however,  xexplained how its calculation of what appears to be an hourly rate of $19.03 (which would be $9.51 per  SH - xhalf hour) becomes the $57.09 charge Continental quotes in its February 20, 1997 letter to The Firm.H 4 yO- x<ԍ We also note that the fee has inexplicably increased from the time of The Firm's first inquiry ($50.00) to $55.73 when The Firm sought clarification in December and then to $57.09 in Continental's response to the petition.  S - ` x18.` ` With respect to the third and fourth issues raised by the petition the requirements of a  xfourweek minimum schedule and insurance coverage we note that Continental has communicated to  S - x[The Firm its willingness to drop both these requirements.  {O!- xԍ See Continental's letter to The Firm dated February 20, 1997 attached as Exhibit 4 to its Response in Opposition. In light of Continental's abandonment of the  xkrequirements of which The Firm complained, and in the absence of any further complaint about these  x.requirements from The Firm, we find it unnecessary to rule on these issues. We note, however, that the  S0- xSecond Report affirmed the clarification provided in the Recon. Order that cable operators are required  S - xto accept leases in half hour increments.r  {O'-ԍ Second Report at  62 and Recon. Order at  4647.r In a ruling issued prior to the Recon. Order, we noted that a" x,_(_(II "  S- x=13 week schedule requirement is not per se unreasonable but cautioned that we would expect persuasive  x justification in the future for such a requirement in the face of an objection to the requirement from a  S- xleased access programmer. {O- xԍ In 1995 in Chauncey we questioned the reasons offered by Continental Cablevision of Southern California  x(CCSC) for its 13 week schedule requirement, which included subscriber expectation of programming consistency.  xiAccordingly, we admonished CCSC that if it should seek to continue to impose such a requirement in response to  xa bona fide request from a leased access programmer for a shorter program period, we would expect CCSC to justify  {O<-any scheduling or time limitation based on content neutral criteria. Chauncey, 11 FCC Rcd at 103334. In a more recent leased access opinion, which was issued after the Second  S- xReport, we rejected a cable operator's 13 week minimum and its rationale that the leased access  Sf- xprogramming would displace advertisersupported popular prime time local origination programming.f| {O -ԍ Matthews Media Production v. Coaxial Communications, DA971122 (released May 30, 1997).  xWe concluded in that case that the 13 week minimum purchase was unwarranted because the Commission  xhas given cable operators considerable flexibility regarding placement of parttime leased access  S- xjprogramming, which is intended to minimize displacement of nonleased access programming. {O- xԍ Id. at 7. See also Second Report at  6569. We note that leased access programming has priority over nonleased access programming on a leased access channel. We note  xhere, with regard to Continental's fourweek minimum schedule that, in general, the leased access rules  x\are structured to allow leased access programmers to purchase time in half hour increments without a minimum required purchase.  S& - ` x19.` ` We also note, with respect to the issue of insurance required by Continental, that the  S - xCommission recently modified the insurance requirements in the Second Order.N h  {O-ԍ See Second Report at  112.N While declining to adopt  x]specific conditions or limits regarding the amount of coverage or the type of insurance policy that  xoperators may require, the Commission stated that it would require that insurance requirements be  x/reasonable in relation to the objective of the requirement and placed on cable operators the burden of  xzproof in establishing reasonableness. The Commission further stated that determinations of what is a  x"reasonable" insurance requirement will be based on the operator's practices with respect to insurance  x/requirements imposed on nonleased access programmers, the likelihood that the nature of the leased  xaccess programming will pose a liability risk for the operator, previous instances of litigation arising from  S-the leased access programming, and any other relevant factors.3  {OZ-ԍ Id.3  Sp- ` x20.` ` As to The Firm's request that we impose monetary penalties, we do not believe that formal  x.administrative sanctions are warranted in this instance because of the unsettled nature of our rules at the  x\time The Firm first requested leased access on Continental's systems. Similarly, we deny The Firm's request for compensatory damages, which are not provided for in the rules.  S-1 ORDERING CLAUSES ĐTP  SX- ` x21.` ` For the foregoing reasons, IT IS ORDERED that the petition for relief of Lorilei  S0- xCommunications, Inc. d/b/a The Firm in File Number CSR 4927L IS GRANTED to the extent indicated"0 ,_(_(II"  S-in paragraph 17 above, and in all other respects IS DENIED .  S- ` _x22.` ` Accordingly, IT IS ORDERED that Continental Cablevision of Costa Mesa, California  xshall, within fifteen (15) days from the release date of this Order, provide to Lorilei Communications, Inc.  xd/b/a The Firm a statement of charges for technical support revised so as to be consistent with this Order and in accordance with 47 C.F.R.  76.971.  S- ` #x23. ` ` 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: