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Order"),BX 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  Sf-Order").df 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.Ix 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.} {Or-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.  {Oh-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  Sf-R SUMMARY OF THE PLEADINGS TP  S- ` x4.` ` The Firm is an advertising agency/video production company doing business throughout  xthe southeastern United States. The Firm produces thirtyminute programs to air on commercial leased  x[access channels. The Firm states that it initially requested commercial leased access rates from Adelphia  xin December 1994 and that Adelphia responded by offering monthly rates for three types of leased access  x=service. The Firm states that it contacted Adelphia a second time, in May 1995, and requested fulltime  xand parttime rates. The Firm says that Adelphia responded by providing parttime rates, the sum of  xjwhich exceeded its fulltime rates. The Firm states that it requested rates from Adelphia for a third time,  xLin February 1996, and Adelphia responded with rates similar to those provided in May 1995. The Firm  xstates that on this third occasion in February 1996, it protested the rates and requested revised rates, a  xchannel lease agreement, information about the tape format that was required, and the channel number  xwhere leased access programming appears on Adelphia's cable systems. The Firm states that Adelphia  x=provided the information requested but referred the request for revised rates to its corporate office. The  x>Firm asserts that it contacted Adelphia's corporate office in Pennsylvania and asked if the rates were  xnegotiable and was told to contact the local system manager in Florida. The Firm contends that it tried" ,_(_(II" to contact Adelphia's local system manager in southeast Florida, but he did not return the calls.  S- ` x5.` ` The Firm alleges that Adelphia has violated the Commission's leased access rules because  S- xthe monthly sum of its parttime rates significantly exceeds its fulltime monthly leased access rates.  yO- x-Ѝ The Firm asserts that Adelphia's fulltime rate in category 3 would be $15,478.47 per month, but the sum of the parttime rates ranged from $38,473.70 to $123,827.40 in the same programming category. Petition at 3.  xThe Firm further alleges that Adelphia's contract terms violate the leased access rules because Adelphia  xrequires insurance coverage for willful or intentional conduct. The Firm alleges that it is impossible to  xobtain "willful conduct" coverage because no insurance company would issue a policy covering willful  xor intentional acts by an insured. The Firm also alleges that Adelphia's contract unreasonably prohibits  xThe Firm from using Adelphia's name in its advertising and requires The Firm to clear its promotional materials with Adelphia 20 days prior to release.  SH - ` x6.` ` The Firm maintains that Adelphia has blocked access to its cable system and that it will  xsuffer financially as a result. The Firm argues that it has suffered expenses for 15 months trying to gain  xaccess to Adelphia's system and will suffer lost revenue of $50,000 per month because it is unable to gain  xaccess. The Firm asks the Commission to issue a notice of apparent liability for $700,000, which The  S - xFirm suggests Adelphia should be ordered to pay directly to The Firm.$ "  yOh- xLЍ The Firm projects that it will take 14 months before a decision is reached on its petition and therefore  xmultiplied its alleged $50,000 per month "lost revenue" times 14 to reach $700,000. Petition at 4. The Firm  xhsubsequently filed a "Motion for Emergency Order" asking that its earlier request be doubled to $1,400,000. Motion  {O-for Emergency Order at 3. See discussion of the propriety of this motion, infra.$ The Firm also asks the  xCommission to order Adelphia to adjust its parttime rates for all its systems to conform to  76.970 of  xthe Commission's rules; to revise its lease agreements to eliminate the requirement for an insurance policy  xand the restrictions on use of Adelphia's name; and to strike the provision requiring Adelphia's preapproval of The Firm's promotional materials.  S- `  x7.` ` In response, Adelphia asserts that it has complied fully with the Commission's leased  xaccess regulations. Adelphia alleges that it has responded promptly to each of The Firm's requests for  xleased access information and argues that it was The Firm that prolonged the process by spreading its  xZrequests over 13 months. Adelphia asserts that the Commission has approved parttime rate schedules that  xcharge different rates for different times of the day. Adelphia claims the Commission requires only that  xthe cable operator have a reasonable basis for the different rates it charges and that it monitors its part S- x>time revenues to ensure that the total monthly revenue does not exceed the maximum monthly rate.   {Or- xЍ Citing TV24 Sarasota, Inc. v. Paragon Communications, 10 FCC Rcd 991 (Cable Serv. Bur. 1994).  {O< -("Paragon")  xAdelphia asserts that its rates "vary based on the value of the channel for the time of day and the number  xof hours per month to which a lessee is willing to commit and takes into account the lost advertising  SP-revenue opportunity and the pro rate [sic] channel capacity charge."K Pf  yOV$-Ѝ Adelphia Response at 5.K  S- ` Bx8.` ` Adelphia further alleges that it provided The Firm with a standard lease agreement and  xthat the Firm made no attempt to negotiate the terms. With respect to The Firm's objections to the" ,_(_(II="  xrequirement for insurance, Adelphia asserts that insurance is needed to protect against liability for the  xcontent of The Firm's programming because Adelphia has no editorial control. Adelphia further asserts that insurance is needed lest a lessee damage Adelphia's equipment.  S`- ` x9.` ` With regard to The Firm's opposition to the contract provisions concerning use of  xLAdelphia's trade name and the alleged requirement for prior approval of promotional materials, Adelphia  xargues that it is entitled to protect its trade name and has the right to restrict others' use of its name.  xAdelphia also disputes The Firm's contention that its contract automatically requires prior approval of  xMpromotional materials and argues that such approval is only upon request and to prevent "subscriber  S- xconfusion between Lessee's promotional materials and Adelphia's services and trade associations."K yO -Ѝ Adelphia Response at 8.K  x.Adelphia asserts that both of these provisions are standard in programming contracts and that The Firm  SH -  neither sought clarification nor negotiated these terms.hAdelphia also questions the basis for The Firm's  xrequest for damages in the amount of $700,000 and suggests that there is no substantiation for this amount.  S - ` x 10.` ` The Firm responded to Adelphia's response with a "Motion for Emergency Order,"  x("Motion") in which The Firm disputes Adelphia's contention that The Firm did not attempt to negotiate  xthe terms of Adelphia's leased access contract. The Firm asserts that it tried on several occasions to speak  S0- x>with Adelphia's local manager, but he did not return The Firm's calls.TX0X yO(- xЍ As alleged evidence of its efforts to negotiate, The Firm offers a copy of a telephone bill showing calls of  xshort duration to Adelphia on five occasions subsequent to Adelphia's last written response and prior to The Firm's filing of the instant petition.T The Firm further asserts that  xAdelphia's response is tantamount to an admission that it violated the leased access rules because it admits  xadding "lost advertising revenues" into its parttime rates. The Firm argues that, in light of Adelphia's  xalleged "admission," the notice of apparent liability should be doubled to $1,400,000. The Firm asserts  xythat there is no opportunity for equipment damage and, therefore, disputes Adelphia's basis for requiring  xinsurance protection. The Firm also argues that Adelphia's assertion of a right to demand prior written  xconsent for use of its name, and to withhold such consent, means that programmers would have no way  xof directing potential viewers to its programming. Similarly, with respect to prior approval of promotional  x[materials, The Firm disputes Adelphia's rationale that this requirement is only "upon request" because it  xconsiders Adelphia's "antileased access nature" as an indication that it would always make this request and thus cause The Firm's programming to fail for lack of promotion.  SP- ` 3x 11.` ` Adelphia filed a response objecting to The Firm's Motion on the grounds that 76.975  xLof the Commission's rules does not authorize such pleadings. Adelphia also responds that it did not add  xlost advertising revenue into its rates but, rather, used advertising revenues at different times of days to  xreflect a reasonable basis for calculating the rates at different times. Adelphia also repeats its assertion  xthat the terms of the lease agreement are negotiable, denies telling The Firm that they were nonnegotiable,  S- xand reasserts that The Firm never conveyed its concerns about the terms in the agreement.x yO$- xЍ In support of these assertions, Adelphia submits signed but unsworn declarations from its assistant general counsel and from its regional manager. Response to Motion at Attachments A and D. Adelphia reiterates that The Firm has no basis for damages in the amount of $1,400,000. "8,_(_(II "Ԍ S-( DISCUSSION ĐTP  S- ` x 12.` ` There are four issues presented for our determination. The first is a procedural issue  xconcerning whether to accept unauthorized pleadings. The other three issues address the substance of the  xMleased access rules concerning the rates Adelphia proposes to charge and its proposed contract terms requiring insurance and restricting the content of The Firm's promotional materials.  S- A.xProcedural Issue  S- ` x 13.` ` At the time the pleadings in this case were filed, the Commission's leased access rules  x.provided for an aggrieved party to file a petition for relief within 60 days of the alleged violation and for  SH - xa cable operator or other respondent to respond to the petition within 30 days.\H  yO -Ѝ 47 C.F.R. 76.975(b), (d) and (e) (1996).\ The rules did not, and  xjdo not, provide for motions for emergency order, nor for replies from the petitioner, nor surreplies from  S - xthe respondent.q X {O-Ѝ See Second Order, Appendix D, Revised Rule  76.975.q Nevertheless, in an effort to afford the parties ample opportunity to clarify their  xpositions, we will consider The Firm's Motion and Adelphia's reply to the extent that the information  x.offered therein clarifies or attempts to clarify arguments made in the original pleadings and is not merely  xcumulative of earlier arguments. However, we note that submission of pleadings not authorized by the Commission's rules is generally disfavored.  S- B.xParttime Rates  S- ` nx 14. ` ` We find that the parttime rates offered by Adelphia do not comply with the leased access  xrules. The Firm alleges that the sum of Adelphia's parttime rates exceeds its fulltime rates. Adelphia  xdoes not deny The Firm's allegation but argues that its rates have a reasonable basis, that the Commission  xhas approved charging different rates for different parts of the day, and that, therefore, its rates comply  x=with the leased access rules. We have previously ruled and recently reaffirmed that cable operators may  xcharge different rates for different times of the day based upon different values for prime versus nonprime  S- xtime.; {OR- xhЍ Recon. Order,  44. At the time Adelphia provided its rate schedule to The Firm in 1994, 1995, and February  {O- xx1996, the regulations initially established by the Rate Order were in effect. See 47 C.F.R.  76.970 (1995). The  {O- xYCommission issued the Recon. Order just after The Firm filed this petition. In the interim, the time period relevant  {O- xhere, we ruled in TV24 Sarasota, Inc. v. Comcast Cablevision of West Florida, Inc., 10 FCC Rcd 3512 (Cable Serv.  {Oz- xBur. 1994) and Paragon, supra, that cable operators are permitted to charge higher rates for the more desirable prime time viewing hours.; However, the sum of the parttime charges for any single leased access channel within a 24hour  S- xperiod may not exceed the maximum rate for the leased access channel.l  {O"-Ѝ Recon. Order,  45. See also Second Order,  59 and 70, reaffirming the Recon. Order. Therefore, Adelphia must  Sx-recalculate its parttime rates in compliance with  76.970(g).tx  {O%-Ѝ See Second Order, Appendix D, Revised Rule  76.970(g).t "( ,_(_(II"Ԍ S- C.xInsurance Requirement  S-  S- ` x15.` ` With respect to Adelphia's requirement that The Firm obtain insurance coverage, we note  xthat cable operators have been given protection from leased access program liability as provided by  S`- xjSection 638 of the Communications Act.Q` {O-Ѝ See 47 U.S.C.  558.Q Section 638 provides program liability protection "unless the  S8- xprogram involves obscene material."=8Z {O2-Ѝ Id.= We are not aware, however, of any statutory provision that  xcompletely protects cable operators from all possible program carriage liability, or from the filing of un S- xmeritorious actions against cable operators despite the provisions of Section 638. {Ot -Ѝ See Anthony Giannotti v. Cable Systems Corporation, 11 FCC Rcd 10441 (Cable Serv. Bur. 1996). Moreover, the  x{Commission does not deny cable operators the right to request indemnification from leased access  xprogrammers for the costs and expenses attributable to defending a prosecution for carriage of an allegedly  xobscene program, stating, "this is a reasonable term or condition relating to use of leased access channel  xcapacity in light of the removal by Congress in amended [S]ection 638 of cable operator immunity for  S - xcarriage of obscene programming." ~ {O>-Ѝ See First Report and Order in MM Docket No. 92258, 8 FCC Rcd 998, 1007 (1993), n.44.ĕ In Anthony Giannotti v. Cablevision Systems Corporation,L  {O-Ѝ See supra note 24.L an  xoperator's right to require reasonable liability insurance coverage for leased access programming was confirmed.  S - ` $x16.` ` The Commission recently addressed the issue of insurance requirements in the Second  S\- xOrder.U\ {O-Ѝ See Second Order,  112.U The Commission declined to adopt specific conditions or limits regarding the amount of coverage  xor the type of insurance policy that operators may require on the ground that "a specific restriction might  xnot be appropriate for all situations." Instead, the Commission stated that it would require that insurance  xrequirements be reasonable in relation to the objective of the requirement and placed on cable operators  xthe burden of proof in establishing reasonableness. The Commission further stated that determinations  x.of what is a "reasonable" insurance requirement will be based on the operator's practices with respect to  xinsurance requirements imposed on nonleased access programmers, the likelihood that the nature of the  xleased access programming will pose a liability risk for the operator, previous instances of litigation arising  S-from the leased access programming, and any other relevant factors.=4  {O -Ѝ Id.=  S- ` `x17.` ` Adelphia's response to The Firm's petition and its reply to The Firm's Motion suggest  xthat it is willing to negotiate the terms of its insurance requirement. While it may be reasonable for  xAdelphia to require certain types of insurance coverage from some leased access providers, the burden  xyunder the leased access rules is on the subject cable operator to show that an indemnification requirement  x=is reasonable. Consequently, should Adelphia require that insurance coverage be provided by The Firm,  S-Adelphia must show its reasonableness consistent with the provisions of the Second Order." ,_(_(IIz"Ԍ S-ԙ D.xRestrictions on Promotional Materials  S-  S- ` x18.` ` With respect to the final issue raised by the petition Adelphia's requirement for prior  xjapproval of The Firm's promotional materials and restriction on the use of its trade name we conclude  xthat Adelphia may contractually protect the use of its trade name but may not require prior review of The Firm's promotional materials unless The Firm has previously violated Adelphia's contractual restrictions.  S- ` #x19.` ` Adelphia's Channel Lease Agreement ("Agreement") provides that the lessee may not use  xAdelphia's name in its advertising or for any purpose without Adelphia's prior written consent, "which  S- xconsent may be withheld or delayed in [Adelphia's] sole and absolute discretion."L yO -Ѝ Petition Exhibit 7 at 9.L The Agreement  x/further requires the lessee to take all necessary measures to ensure there is no confusion between the  xlessee's programming and Adelphia's services and reserves Adelphia right to request prior approval of the  xlessee's promotional materials at least 20 days prior to use. According to the Agreement, if Adelphia does  xnot object to the material within the 20 days, the lessee may use the material, unless and until Adelphia  S -raises an objection." X {O- xЍ Id. The Agreement also reserves Adelphia's right to insert a message into the lessee's programming stating  xKthat Adelphia is not responsible for lessee's programming and requires that the lessee's promotional materials set  xforth a telephone number for inquiries that is different from Adelphia's number. The Firm has not complained of either of these specific provisions.  S - ` 3x20.` ` The Firm specifically objects to Adelphia's unilateral restriction on the use of its trade  xname because such restriction seriously limits The Firm's ability to convey to potential viewers where its  xprogramming may be found. The Firm also objects to Adelphia's requirement for prior approval of The  xFirm's promotional materials as an infringement of its freedom to promote its programming. Adelphia  xresponds that all of these terms are negotiable and that the Agreement does not automatically require prior  xapproval, but merely reserves Adelphia's right to do so. We agree with The Firm that this reservation,  xat Adelphia's sole discretion, amounts to a mandatory requirement because the lessee has no say in  x{whether or when the cable operator will assert its "right" to require prior approval of promotional  xmaterials. Adelphia further asserts that its right of approval is intended only to assure that there is no confusion between the lessee's programming and Adelphia's services.  S- ` x21.` ` We agree that Adelphia may protect the use of its name and take reasonable steps to  xprevent confusion and avoid the appearance of endorsing a lessee's programming. However, we find merit  xin The Firm's argument that the goal of providing commercial leased access would be seriously harmed  xif leased access programmers are unable to advertise their location on a cable system. Just as the  xyCommission has followed Congressional instruction that leased access channels provide a "genuine outlet  S- xfor programmers,"PB {O"-Ѝ Second Order,  83.P similarly, we believe that restrictions that would effectively prevent advertising the  xlocation of leased access programming would deprive the leased access programmer of a genuine outlet  xfor its programming. Therefore, we conclude that while Adelphia may make reasonable restrictions on  xthe use of its trade name, it may not prevent a leased access programmer from using its name in the context of advertising its channel location. "8,_(_(II "Ԍ S- ` x22.` ` Moreover, we believe that Adelphia's unilateral option to impose a twenty day period to  xMreview The Firm's advertising material is unreasonable in the absence of The Firm's failure to comply  xwith the contractual restrictions on the use of its name. Adelphia may include reasonable contract terms  xas necessary to prevent confusion concerning affiliation with or sponsorship of The Firm's programming,  xbut it may not require The Firm to submit advertising or promotional materials to Adelphia for review  xprior to release. The contract may provide, as a remedy for material breach of the trade name restrictions,  xthat Adelphia subsequently may review promotional materials prior to publication. We further remind  xAdelphia that its contractual provisions and review process may not involve the content of the  S-programming.  {O( - xyЍ See Communications Act,  612(c)(2), 47 U.S.C.  532(c)(2) ("A cable operator shall not exercise any  xeditorial control over any video programming provided pursuant to this section, or in any other way consider the  xcontent of such programming, except that a cable operator may refuse to transmit any leased access program . . .  xLwhich contains obscenity . . . and may consider such content to the minimum extent necessary to establish a reasonable price for the commercial use of designated channel capacity by an unaffiliated person.").  Sp- E.xMonetary Penalty  SH -  S - ` x23.` ` 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  xtime The Firm requested leased access on Adelphia's systems. Similarly, we deny The Firm's request for  xcompensatory damages. The Firm complains of the costs it has incurred in filing the instant petitions.  xNothing in the leased access rules provides for recovery of costs associated with the filing of a petition  xfor relief with the Commission for alleged violations of the statutory provisions or of the Commission's  xregulations applicable to leased access channels. Accordingly, The Firm's request for compensation for  xoutofpocket expenses of litigation will be denied. Similarly, we shall deny The Firm's request for compensatory damages, which are also not provided for in the rules.  S-1 ORDERING CLAUSES ĐTP  S@- ` x24.` ` For the foregoing reasons, IT IS ORDERED that the petition for relief of Lorilei  S- xCommunications, Inc. d/b/a The Firm in File Number CSR 4694L IS GRANTED to the extent indicated  S-in paragraphs 14, 21 and 22 above, and in all other respects IS DENIED .  S- ` Px25.` ` Accordingly, IT IS ORDERED that Southeast Florida Cable, Inc. d/b/a Adelphia Cable  x.Communications and West Boca Acquisition Limited Partnership of Riviera Beach, Florida shall, within  xfifteen (15) days from the release date of this Order, provide to Lorilei Communications, Inc. d/b/a The  xFirm, parttime rates for leased access on its cable systems in southeast Florida in compliance with 47 C.F.R.  76.970.  S- ` #x26. ` ` 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: