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Reg. 11364 (1997).i See also Order on Reconsideration of the  xFirst Report and Order and Further Notice of Proposed Rulemaking in MM Docket No. 92266 and CS  S- xDocket No. 9660 ("Reconsideration Order and Further Notice").@ z yO0 -ԍ11 FCC Rcd 16933 (1996).@ In the Rate Order, the Commission  xzinitially required cable operators to provide rates and rate information to potential leased access users  S- x"upon request."8   {Or-ԍRate Order8 Subsequently, the Commission established a response time of seven business daysV  {O-ԍReconsideration Order and Further NoticeV and  S-then fifteen calendar days,E .  {On-ԍSecond Report and OrderE which is the present rule.  SP -q ARGUMENTS OF THE PARTIES  S - ` } x3. ` ` Lorilei describes itself as an advertising agency/video production company which produces  xjthirty minute programs to air on commercial leased access channels. Lorilei alleges that it requested from  xHarmon on several occasions certain leased access information including full time leased access rates, part  x>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. It alleges further that Harmon failed to provide the information it requested  xkwithin seven business days as required by the Commission's rules then in effect. Lorilei states that it  x[eventually received rate information from Harmon and placed an order with Harmon for 39 hours of part  xLtime service in half hour time slots between 6:30 and 8:00 p.m. at a total cost of $351, cancelable on two  x/weeks notice. Lorilei asserts further that it never received the information requested regarding leased access capacity available on Harmon's system or a copy of Harmon's sample leased access contract.  S - ` x4. ` ` Lorilei alleges further that Harmon declined to accept the order for service and instead  x identified certain equipment that Lorilei would need to acquire and make available before the ordered  xprogramming could be run. Lorilei alleges that Harmon violated Section 76.971(c) of the Commission's  xrules by refusing to provide the equipment identified as necessary to carry Lorilei's programming on the  S- xcable system. Lorilei argues that our decision in Lorilei Communications, Inc. v. Scripps Howard, 11 FCC  SZ- xRcd 10431 (CSB 1996) ("Lorilei"), interpreted the Commission's regulations as requiring that Harmon  x\purchase the identified equipment. According to Lorilei, administrative costs, such as purchasing the  xequipment necessary to present leased access programming on the air, is part of the cable operators'"  ,O(O(88z"  S- xstatutory duty as set forth under Section 612 of the Communications Act.Z  yOh-ԍCommunications Act Section 612, 47 U.S.C. 612.Z Lorilei states that the cost of  S- xzsuch equipment is included under the Commission's implicit fee formula. Lorilei notes that in Lorilei,  x\Scripps Howard was ordered to cease and desist from charging an administrative fee to programmers.  xAccording to Lorilei, this ruling is germane here because of the proposed administrative fee purporting to cover costs of equipment utilized in providing leased access.  S- ` x5. ` ` Lorilei also states that it has incurred expenses in pursuing its efforts to obtain leased  xaccess on Harmon's cable system and in preparing and filing the instant petition and that the economic  xviability of its programming is in jeopardy because of Harmon's refusal to carry that programming.  xLorilei asks for an order (a) requiring Harmon to install equipment necessary to carry its programming,  xL(b) assessing Harmon with a $1,000 per day penalty for each day the remaining requested information is  xMnot provided, (c) assessing a $10,000 per day penalty for each day its program fails to air starting on  xSeptember 30,1996, and (d) admonishing Harmon's counsel "for blocking our statutory rights to leased  S -access."I X {O-ԍSee Lorilei petition, p. 5.I  S - ` x6. ` ` In response, Harmon asserts that Lorilei's claim that Harmon did not respond to the  xrequests for lease access in a timely fashion and is responsible for providing and paying for all equipment  SZ- xnecessary for carriage of Lorilei's programming is without merit. Harmon states that it provided Lorilei  xzwith a part time leased access rate schedule, pursuant to which Lorilei placed an order for 39 hours of  xservice priced at $351, within twelve business days from Lorilei's initial request. Harmon asserts that  xproviding Lorilei with rate information within twelve business days likely represents the most expeditious timetable in which a cable operator and a leased access programmer have reached agreement on rates.  Sj- ` x7. ` ` Harmon explains its decision not to provide the identified equipment to Lorilei by stating  xthat the system headend is located on a West Virginia hillside over two miles from the cable office with  xaccess by means of a four wheel drive vehicle in good weather and by foot in bad weather, and that  xpresentation of the 39 half hour program segments in the 6:30 to 8:00 p.m. time slots would require 39  xLcostly trips up the mountain that would yield only $351 in revenue. The better alternative, according to  xHarmon, would be to insert the programming into the system from Harmon's cable office using the  xequipment which Harmon did not possess but which it identified for Lorilei's benefit. Harmon argues that  SR- xthe Commission in the Rate Order determined that a cable operator is not obligated to invest in equipment  x=or technology not already in its possession, a concept that is embodied in Section 76.971(c) of the rules.  S- xIt argues further that our decision in Lorilei did not alter that general rule, because Lorilei dealt with an ongoing administrative fee that included a wide variety of cost components not at issue here.  S- DISCUSSION AND ANALYSIS ă  S>-x A. Timeliness of Response to Request for Rates and Information  S - ` `x8. ` ` Section 76.970(e) of our rules in effect when Lorilei initially placed a request for leased  xaccess rates and other information with Harmon required cable operators to provide certain information  x{within seven business days of a prospective leased access programmer's request. While Harmon's  xprovision of rates to Lorilei in twelve business days constituted a technical violation of that provision, we"v#,O(O(88%"  xdo not find it so untimely as to require assessment of any administrative sanctions. Initially, we required  x@that cable operators provide a schedule of rates "[u]pon request" to prospective leased access  S- xzprogrammers.G yO-ԍ47 C.F.R. 76.970(e) (1995).G A few months before this petition was filed, the Commission, in the Reconsideration  S- xOrder and Further Notice, clarified this requirement by indicating that the purpose of our rules was to  x?insure that the initial information a potential programmer might need to pursue leased access on a  xparticular system be provided as soon as practicable. It then modified the rules to require that such  S- xinformation be provided within seven business days.`X {O -ԍReconsideration Order and Further Notice at 16949.` In its Second Report and Order, the Commission,  xrecognizing the importance of prompt disclosure of leased access information but concluding that an  S- xextension of the response time was justified,P {OP -ԍSecond Report and Order,  129.P further modified its rules to set a fifteen calendar day  S- xresponse time from the date that a request for leased access information is made to the cable operator.Z| yO- xԍSpecifically, the Commission stated that the cable operator is required to provide information regarding leased  xaccess setaside capacity, rate schedules, rates associated with technical and studio costs, and, if specifically requested,  {OJ-a sample leased access contract. Second Report and Order, Appendix D, Revised Rules, Section 76.970(h).   xWhile Harmon apparently failed to provide Lorilei the requested information within seven days as the rule  x.then required, we note that Harmon did provided Lorilei with a schedule of rates within twelve business  S& - xdays, which would have satisfied the requirement of the Second Report and Order, had it been in effect  S -at that time. Consequently, we do not believe that formal administrative sanctions are warranted.X  yO>- xԍHarmon further provided Lorilei with the identification as well as the costs of the equipment required for  xinserting the programming into its system less that a week after Lorilei placed a specific order for service. We also reject any notion that Harmon unreasonably delayed the furnishing of this information.  S - ` }x9. ` ` The record further shows that Harmon failed to provide Lorilei with requested information  xregarding available leased access capacity or a sample leased access contract. The failure to provide this  xrequested information constitutes a violation of Section 76.970(e) that was applicable when the request  xfor this information was made. However, because the leased access rules in effect at the time these  xjmatters initially arose were somewhat in flux and not completely familiar to most cable operators as well  xas to programmers, we will not impose formal sanctions in this matter. However, we now direct Harmon  xto provide Lorilei with information regarding available leased access capacity and a sample leased access  xcontract within fifteen calendar days of the release date of this order. We note that cable operators are  xrequired under our current rules to provide such information within fifteen days of a request made by a  SH-potential leased access user.CH  {O!-ԍSee footnote 15 supraC  S- ` ox10. ` ` 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.JP  {O&-ԍSee Second Report,  129.J Accordingly, we caution cable operators that  xfuture failures to provide requested leased access information in a complete and timely manner as required",O(O(88"  xby Section 76.970(h) may result in issuance of a notice of apparent liability for forfeiture pursuant to the provisions of 47 C.F.R.  1.80.  S-x B. Provision of Technical Support and Equipment  S8- ` ~x11. ` ` As noted earlier, Harmon stated that certain equipment identified as necessary to insert  xjLorilei's programming into its cable system was not on hand and indicated that Lorilei must provide such  xequipment at its expense, in order to have its programming carried. Lorilei contends that the leased access  xzregulations require Harmon to provide any equipment necessary for carriage of its programming. The  xCommission considered the level of technical support that cable operators are required to provide in the  Sp- xRate Order.p {O - xЍSee Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992,  {O -Rate Regulation, MM Docket 92266, 8 FCC Red 5631(1993) (the Rate Order). There the Commission noted that technical cooperation between the cable operator and the  xleased access programmer is likely to be necessary for the programming to be delivered over a cable  xsystem The Commission stated that operators will be required to provide programmers with "the minimal  xamount of technical support, whether it be equipment, technology or other miscellaneous support, which  S - xzwould be necessary for the programmer to present its material on the air."G $ yO-ЍId, at 594142.G The Commission further  xexplained this requirement by adding that a cable operator must offer to leased access programmers "the  xsame services as would be offered to comparable programming services that use the operator's nonleased  SZ-access channel capacity."MZ {O-ЍId, at 5941, n. 1288.M  S - ` x12. ` ` In the Second Report the Commission further clarified these requirements and made it  xclear that the leased access rate determined under Section 76.970 includes the cost of technical support  x\ordinarily provided in common to other programmers. Under this clarification of the requirements of  xkSection 76.971, a cable operator may not impose an additional charge for technical support ordinarily  Sl- xprovided in common to other programmers.VZlF {OR- xԍSee Second Report,  114. The Second Report 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.V If an operator must purchase equipment not typically used  xLby nonleased access programmers to accommodate a leased access programmer, the operator may either  xj(1) purchase the equipment for itself and lease it to the programmer at a reasonable rate or (2) require the  S- x=leased access user to purchase the equipment.Jh  {O -ԍSee Second Report,  115.J Consequently, Harmon may impose charges in addition  xto the charges determined under Section 76.970 for the reasonable cost of other equipment and technical  xsupport actually provided to Lorilei only if that equipment and technical support is not also provided with  xother nonleased access programming. It is not clear from this record whether Harmon provides other  xprogrammers with equipment that it has identified here. If that is the case, such equipment must be provided to Lorilei and other leased access users without charge. " ,O(O(88k"Ԍ S-8x C. Request for Monetary Penalties and Other Administrative Sanctions  S-  S- ` x13.` ` Finally, Lorilei requests compensation for the costs incurred in filing the instant petition  xand imposition of various other monetary and administrative sanctions against Harmon. Nothing in the  x8Communications Act of 1934, as amended, provides for recovery of costs associated with the filing of a  x]petition for relief with the Commission for alleged violations of the statutory provisions or of the  x!Commission's regulations applicable to leased access channels. Accordingly, Lorilei's request for  xcompensation for outofpocket expenses of litigation will be denied. Finally, we decline to impose  xmonetary and administrative sanctions in the instance case, because we believe in the first instance that  x=Lorilei failed to establish the need for any such sanctions. Moreover, as noted above, because the leased  xaccess rules in effect at the time these matters initially arose were somewhat in flux and not completely  xfamiliar to most cable operators as well as to programmers, we believe it would be inappropriate to impose monetary or administrative sanctions in this matter.  S - 1ORDERING CLAUSES ă  S - ` `x14. ` ` For the foregoing reasons, IT IS ORDERED pursuant to 47 C.F.R.  76.975(f) that  xrespondent Harmon shall, within fifteen days from the release date of this order, provide to Lorilei information regarding available leased access capacity and a sample leased access contract.  S- ` x15. ` ` IT IS FURTHER ORDERED , that the petition for relief of Lorilei (a) IS GRANTED  S- xk in part insofar as indicated above and (b) IS DENIED insofar as it requests compensation for costs incurred in bringing this matter before the Commission and other forms of relief.  S@- ` _x16. ` ` 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: