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(1) (a) (i) 1) a)D )DDDFrfQq 2wKnK q KXs Ku"i~'^"(22TN"""28"2222222222888,\HBBH>8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""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\2 K xf kz^х/"i~'^09]SS999S]+9+/SSSSSSSSSS99]]]Sxnxxng?Snxgx]nxxxxn9/9aS9S]I]I9S]/9]/]S]]I?9]SxSSIC%CW9+Wa999+999999S9]/xSxSxSxSxSxxInInInInI>/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN\\\\\\7>\7>\7>>\\\??n X- X   PK S-#&a\  P6G;0&P#  Federal Communications Commission`}(#DA 971654 #Xj\  P6G;+XP#у  yxdddy PՊv3 #X\  P6G;IP#Before the Federal Communications Commission  yO} Washington, D.C. 20554 #Xj\  P6G;+XP#у  Sb-#&a\  P6G;0&P#In re:R) R) Lorilei Communications, Inc. d/b/a The FirmR) R)  S-vs.R)hppCSR4847L R) Liberty CableR) South Gate, CaliforniaR) R) For leased Access ChannelsR) T  S -  MEMORANDUM OPINION AND ORDER TP  S2-X` hp x (#%'0*,.8135@8:time leased access rates by day part, the channel number on which leased access programming would  xzappear, the number of cable subscribers reached by leased access, the available access capacity, and a  xsample leased access contract. Lorilei states that it received rate information from Liberty, offering leased  xaccess at $75 per half hour as the standard rate. Lorilei asserts further that it never received any of the other requested information regarding leased access on Liberty's system.  S`- ` x4.` ` Lorilei alleges the $75 per half hour rate quoted by Liberty would produce a full time rate  x\of $108,000 per month. Lorilei stated that this rate exceeds by approximately $100,000 per month a  xleased access rate quoted to it by another cable operator having roughly the same number of subscribers  xkat Vicksburg, Mississippi. Lorilei argues that this rate disparity demonstrates that Liberty "willfully,  xwantonly, and fraudulently seeks to mislead potential unaffiliated programmers by greatly over  x0exaggerating the rate one must pay for access to its system," in violation of Section 76.970 of the  x\Commission's rules. Lorilei also alleges that Liberty failed to provide leased access information with  SH- xseven business days as required by the Commission's leased access regulations as modified in the Recon  S"-Order, also in violation of Section 76.970.  S- ` x5.` ` Lorilei also states that it has incurred expenses in pursuing its efforts to obtain leased  xaccess on Liberty's cable system. In preparing and filing the instant petition Lorilei asserts that it suffered  xlost revenues in the amount of $10,000 per month from missed opportunities in the Southern California  xmarket during the pendency of this petition. Lorilei requests an order assessing a $10,000 per day penalty  xfor each day starting on the date the petition was filed and ending when Liberty establishes compliance with the Commission's leased access regulations.  S- ` x6.` ` In a response by its General Manager, Liberty states that its leased access channel is  x[operable Monday through Thursday from 5 p.m. to 7 p.m. only, which "are the only times that we have  x=budgeted to present any programming of any kind, whether it is local origination, public access or leased  xaccess. This has been our standard times of cable casting since 1983." Liberty further states that the $75  xper half hour rate quoted to Lorilei "was set over six years ago based solely on what the other cable  xsystems surrounding us in Los Angeles County charges . . . Our rates are set by our market, not anything  xelse." Finally, Liberty asserts that all the information requested by Lorilei was supplied to Lorilei with"!,>(>(IIF#"  xthe exception of a sample leased access contract, and that a copy of its contract was sent to Lorilei with a copy of the response.  S- DISCUSSION AND ANALYSIS ă  S8-x A. Timeliness of Response to Request for Rates and Information  S- ` `x7.` ` Section 76.970(e) of our rules in effect when Lorilei initially placed a request for leased  xaccess rates and other information with Liberty required cable operators to provide certain information  S- xwithin seven business days of a prospective leased access programmer's request.\g {O -ЍSee 47 C.F.R.  76.970(e) (1996).\ Lorilei states that it  xinitially requested leased access rates from Liberty on July 23, 1996. However, Lorilei supplied for the  SH - xrecord only a copy of a written request sent by facsimile dated September 6, 1996,QH Zg {OB -ЍSee, petition, Exhibit 1.Q which is also the date  S - x=shown on Liberty's response.G g {O-ЍId., Exhibit 2.G In this response, Liberty quoted the $75 per half hour rate, provided the  xnumber of subscribers served by the system, and stated that no other programming uses the channel, that  xonly one channel is "used exclusively for public access," and that Liberty does not use contracts for leased  xaccess programming. We find, based on the record, that in providing this information, Liberty fully  x/responded to Lorilei's request for information as set out in its facsimile dated September 6, 1996 and  SX-within the seven business days then required by our leased access regulations. XX~g yOv- xЍWe note also that Liberty ultimately provided Lorilei with a copy of a sample contract with a copy of its  xresponse to the petition. Although not shown by the record, we assume that subsequently after Lorilei filed a petition with the Commission, Liberty decided to provide leased access services pursuant to a contract.  S-x B. Maximum Reasonable Leased Access Rates  S- ` x8.` ` The validity of leased access rates are not tested, as Lorilei suggests here, by comparison  xjwith rates available on another cable system in another region of the company. Instead, at the time these  xrates were quoted, leased access rates were not permitted to exceed maximum rates developed under the  S@- xkhighest implicit fee formula then incorporated in Section 76.970 of our rules.Y @g {O~-ЍSee 47 C.F.R.  76.970 (1996).Y In the Rate Order, the  S- xCommission rejected market place rate making for leased access servicesQ 0 g {O -ЍSee Rate Order,  514.Q and mandated use of the highest  ximplicit fee formula incorporated in Section 76.970 of our rules in effect at the time Liberty was requested  S- xto provide rates to Lorilei. We point out further that the Commission, in the Second Report, replaced the  x highest implicit fee formula with an average implicit fee formula, which now applies to leased access  S|- xyservices.X | g {O%-ЍSee Second Report,  13 58.X The Commission also provided substantial guidance in the Second Report for developing rates"|T ,>(>(II"  S- xfor part time leased access service.X g {Oh-ЍSee Second Report,  59 76.X We will direct Liberty to provide Lorilei with schedules of full and  S- x=part time leased access rates that comply with the requirements of the Second Report within 15 calendar  xday from the release date of this Order. Finally, we note in this connection that Section 76.970(h)  xprovides that a cable operator is required to provide information regarding leased access setaside capacity,  xrate schedules, rates associated with technical and studio costs, and, if specifically requested, a sample  S:-leased access contract pursuant to the request of prospective leases access programmers such as Lorilei.U:Zg {O4-ЍSee 47 C.F.R.  76.970(h).U  S- ` x9.` ` We reject the suggestion by Liberty's General Manager that, because of budgetary  xlimitations, a cable operator may provide a leased access channel only for a few hours per day during only  x?a few days of the week. First, leased access programmers are responsible for compensating cable  xoperators for any channel capacity utilized pursuant to rates derived from the implicit fee methodology  xzincorporated in Section 76.970 of the rules. Furthermore, the amount of channel capacity that a cable  xoperator must set aside is based on a system's activated channel capacity, with the minimum being ten  S - xpercent of such channels for systems having 36 or more activated channels.R g {O-ЍSee 47 U.S.C.  532(b).R Concerning part time leased  S - x!access channels, the Commission in the Second Report emphasized that operators are required to  xaccomodate all leased access requests as long as capacity exceeds demand, in order to assure leased access  S -programmers access until the statutory setaside of channels is met.T ~g {O-ЍSee Second Report,  110.T  S4-x C. Request for Monetary Penalties and Other Administrative Sanctions  S -  S- ` x10.` ` Finally, Lorilei requests compensation for the costs incurred in filing the instant petition  xand imposition of various other monetary and administrative sanctions against Liberty. Nothing in the  x.Commission's rules provides for recovery of costs or damages associated with the filing of a petition for  xkrelief with the Commission for alleged violations of the Commission's regulations applicable to leased  xaccess channels. Accordingly, Lorilei's request for compensation will be denied. Finally, we decline to  x\impose monetary and administrative sanctions in the instance case. However, we note that while the  xyleased access rules were in a state of flux when the complaint was filed, they did not permit a market rate  x1fixing of leased access charges as maintained by Liberty. We expect Liberty to closely follow Commission criteria in setting future leased access rates.  ST- 1ORDERING CLAUSES ă  S- ` `x11.` ` For the foregoing reasons, IT IS ORDERED pursuant to 47 C.F.R.  76.975(f) that  x respondent Liberty shall, within fifteen days from the release date of this order, provide to Lorilei a  x>schedule of full and part time leased access rates developed in compliance with Section 76.970 of the  S- xCommission's rules as modified by the Second Report together with other information regarding leased  xaccess setaside capacity, rate schedules, rates associated with technical and studio costs, and, if specifically requested, a sample leased access contract, as required by Section 76.970(h) of the rules. " ,>(>(II!"Ԍ S- ` @x12.` ` IT IS FURTHER ORDERED , that the petition for relief of Lorilei Communication, Inc.,  S- xin File No. CSR 4847L (a) IS GRANTED in part insofar as indicated above and (b) IS DENIED insofar  xas it requests compensation for costs incurred in bringing this matter before the Commission and other forms of relief.  S8- ` _x13.` ` This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules, 47 C.F.R.  0.321. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` ` hhMeredith J. Jones x` ` hhChief, Cable Services Bureau