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Accordingly, this second petition will be dismissed.6 CONTINENTAL CABLEVISION OFR) MICHIGAN, 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").KZ yO-ԍ 8 FCC Rcd 5631, 59565961 (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  S<- xNo. 92266 and CS Docket No. 9660 ("Recon. 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").Az yO -ԍ 12 FCC Rcd 5267 (1997).A  S- ` x3.` ` The leased access regulations initially required, among other things, that cable operators  Sz- xprovide a schedule of rates "[u]pon request" to prospective leased access programmers.Iz  yO$-ԍ 47 C.F.R. 76.970(e) (1993).I In the Recon.  ST - xOrder, the Commission set a seven business day response time from the time of a request.} T  {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  S - xmeans of an average implicit fee formula, which is described in the regulations.d ,  yO-ԍ 12 FCC Rcd at 53545356 app. D, Revised Rules, 76.970.d 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.d @  yO-ԍ 12 FCC Rcd at 53585360 app. D, Revised Rules, 76.975.d  S-q ARGUMENTS OF THE PARTIES ĐTP  S- `  x 4.` ` FalComm complains that Continental's system has failed to afford FalComm leased  xMaccess pursuant to rates in accordance with the Commission's formula. FalComm submits copies of  xjcorrespondence it has sent to Continental concerning these issues. This correspondence outlines several  x.attempts by FalComm to secure leased access upon Continental's system throughout most of 1996. In  x^this correspondence, FalComm alleges that Continental quoted rates in excess of 300% of the  x\Commission's formula. In addition, FalComm alleges that the system has only a single leased access channel, despite having 78 activated channels. Finally, on December 5, 1996. FalComm filed its petition.  S`- ` x5.` ` In opposition to FalComm, Continental argues that FalComm's petition should be  xdismissed for failure properly to serve a full copy of the petition on Continental, and for failure to meet"8L ,_(_(II"  xthe necessary burden of proof. Continental states that FalComm only served Continental with a onepage  xletter alleging Continental's failures, but failed to include the six exhibits constituting FalComm's 1996  xletters to Continental. Accordingly, Continental states that it cannot properly respond to FalComm, and  S- xlthe petition should be dismissed for violating 76.975(c) of the Commission's rules.B  yO-ԍ 47 C.F.R. 76.975(c).B In addition,  xContinental argues that FalComm has failed to "show by clear and convincing evidence that [Continental]  S8- x^has violated the Commission's leased access provisions . . . ."B 8X yO0-ԍ 47 C.F.R. 76.975(g).B Continental submits copies of  xcorrespondence with FalComm, together with Federal Express records. Continental argues that these  x copies and records show that Continental did send a leased access application form to FalComm on  xAugust 30, 1996, which FalComm returned on September 13, 1996, and that FalComm did not respond  x0to Continental's further correspondence which specified deficiencies in FalComm's applications.  xContinental states that these deficiencies included fundamental information about FalComm's business  xand lack of an acceptable insurance policy. Continental submits a copy of a letter it sent to FalComm  xdated October 21, 1996, in which Continental specified various deficiencies in FalComm's application,  xincluding: (1) identifying FalComm as an "individual"; (2) not supplying information on the company's  S - xannual gross income for the most current tax year;  yOX- xJԍ FalComm had responded to this query on Continental's application form by stating that this information was confidential, and that FalComm has a three year history with Continental, including meeting insurance requirements. (3) not providing a broadcasters liability insurance  S - x.policy with a minimum $1 million coverage amount; @ yO-ԍ FalComm had submitted a commercial general liability policy with a $2 million coverage amount. and (4) not stating how FalComm's programming  xwill be marketed to Continental's subscribers. In addition, Continental's letter seeks additional information  xzand clarification with respect to certain portions of FalComm's application. These items include: (1)  x whether the music from local bands to be used in FalComm's programming is original; (2) additional  xexplanation of the type of advertising and acknowledgments to be displayed on FalComm's programming;  xand (3) whether Continental's name or logos will be used in FalComm's marketing. Continental contends  S- xthat its requests are reasonable, citing Anthony Giannotti vs. Cablevision Systems Corporation, et al.,^ {O(-ԍ 11 FCC Rcd 10441 (1996) ("Anthony Giannotti").^ and notes that FalComm has yet to remedy these deficiencies.  SB- ` x6.` ` In reply, FalComm states that it served the missing six exhibits on Continental on January  x20, 1997. FalComm further states that Continental continues to deny FalComm's request for leased  xaccess. FalComm does not respond to Continental's claim that FalComm's leased access application form was deficient.  Sz-( DISCUSSION ĐTP  S*- ` x7.` ` Initially we note that FalComm does not deny that it failed to serve a complete copy of  xits petition including all accompanying exhibits upon Continental. FalComm certifies that it has remedied  xthis deficiency. Continental does not dispute this. We do not believe that either party to this proceeding will be prejudiced by our consideration of FalComm's petition. "b ,_(_(II"Ԍ S- ` 4x8.` ` At the time FalComm initially made its request to Continental for leased access in  x/February of 1996, the Commission's rules did not specify a specific time period for providing leased  x>access information. At that time, 76.970(e) required that "[u]pon request, a schedule of commercial  S- xleased access rates shall be provided to prospective leased access programmers."4J {O- x\ԍ See 47 C.F.R. 76.970(e) (1995). At the time FalComm initially made its request of Continental,  {O- xamendments to 76.790(e) adopted in the Recon. Order, which set a 7 day response time following a request, had  xnot yet become effective. The amendment to 76.970(e) requiring a seven day response time to leased access  {OL- xinformation requests became effective on July 10, 1996, upon approval by OMB. Notice of Office of Management  {O- xYand Budget Action, OMB #30600568 (July 10, 1996). This rule was therefore not in effect when FalComm made  xits original request for leased access in February 1996, though it was in effect at the time of Continental's response  {O - xto FalComm on August 30, 1996. As noted earlier, in the recently adopted Second Order, the Commission set a 15 day response time from the date of a written request.4 However, Continental's  xZsubmitted correspondence shows that Continental did not respond to FalComm until more than six months  xafter FalComm's initial request. Continental admits in this correspondence that it did not respond to Fal xComm's requests in a timely fashion, and we cannot find a six month response time to have been  xreasonable. Because of the unsettled nature of our leased access rules at the time of FalComm's initial  xrequest, we will take no administrative action at this time. We nevertheless caution Continental that we expect it to adhere to all mandated response times under our new rules.  SH - ` x9.` ` Turning to FalComm's substantive complaints, as we have noted above, the Commission's  xleased access rules and regulations have been modified significantly, in particular since FalComm filed  xits complaint. We do not believe that it would be useful to require that the affected parties submit the  xnecessary documentation that would allow an examination of Continental's rates at the time FalComm  xjmade its request, to determine whether these rates comported with rules that have now been superseded.  x>We caution Continental, however, that we expect it to adhere fully to our current leased access rules.  xWith regard to FalComm's allegation that Continental's system has only a single leased access channel,  S0- xwe note that in the Second Order we confirmed a prior holding that "a cable operator is not required to  x[open an additional leased access channel if a programmer's request can be accommodated in a comparable  S- xMtime slot on an existing leased access channel."P yO\-ԍ 12 FCC Rcd at 5299 (footnote omitted).P We further concluded that a cable operator need not  xopen an additional channel for parttime leased access use until existing parttime channels were  x"substantially filled" with leased access programming, and defined "substantially filled" as having leased  Sj-access programming occupy 75% or more of the channels' programming day.3jj  {Ot-ԍ Id.3  S- ` `x10.` ` Turning to the merits of FalComm's generalized complaint that Continental is denying  xFalComm leased access, we note that with regard to the requirement for a certificate of indemnification  xinsurance, cable operators have been given protection from leased access program liability as provided by  x638 of the Communications Act. Section 638 provides program liability protection "unless the program  Sz- xinvolves obscene material."<z  yO%-ԍ 47 U.S.C. 558.< We are not aware, however, of any statutory provision that completely  xprotects cable operators from all possible program carriage liability, or from the filing of unmeritorious  xactions against cable operators despite the provisions of 638. Moreover, the Commission does not deny"* ,_(_(II{"  x\cable operators the right to request indemnification from leased access programmers for the costs and  xyexpenses attributable to defending a prosecution for carriage of an allegedly obscene program, stating that  xz"this is a reasonable term and condition relating to use of leased access channel capacity in light of the  xremoval by Congress in amended section 638 of cable operator immunity for carriage of obscene  S`- x[programming."` {O-ԍ First Report and Order in MM Docket No. 92258, 8 FCC Rcd 998, 1007 n. 44 (1993). In Anthony Giannotti, supra, an operator's right to require reasonable liability insurance  xcoverage for leased access programming was confirmed. In that case, we noted that the programmer had  xnot shown that the cost of the required insurance coverage is either prohibitive or imposes an unreasonable cost of doing business as an independent program producer.  S- ` Px11.` ` In its response to Continental, FalComm merely asserts that Continental is attempting to  Sr- x[deny FalComm leased access. This issue has been settled in Anthony Giannotti, supra. In this decision,  xjthe Commission concluded that cable operators could require reasonable indemnification provisions from  xleased access users. Consequently based on the Commission's holding at the time FalComm's petition  S - xwas filed, which is set out in Anthony Giannotti, supra, we cannot find that Continental violated the leased access rules then in effect by requesting an indemnification policy.  S - ` x12.` ` The Commission recently revisited this subject and modified the insurance requirements  S^- xin the Second Order.=^Z yOX-ԍ 12 FCC Rcd at 5323.= In connection with the Second Order, some commenting parties contended that  xkthe cost of general liability and errors and omissions insurance represents a significant barrier to small  xindependent producers. One party requested that the Commission set a limit on the required amount of  xgeneral liability insurance. However, the Commission declined to adopt specific conditions or limits  xregarding the amount of coverage or the type of insurance policy that operators may require on the ground  x-that "a specific restriction might not be appropriate for all situations." Instead, the Commission stated that  xit would require that insurance requirements be reasonable in relation to the objective of the requirement  xand 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  #operator's practices with respect to insurance requirements imposed on nonleased access  `programmers, the likelihood that the nature of the leased access programming will pose  a liability risk for the operator, previous instances of litigation arising from the leased  S0-access programming, and any other relevant factors.30 {O-ԍ Id.3   S- ` Qx13.` ` In this instance, Continental has not explained to FalComm why its programming will  ximpose a liability risk for the operator or what Continental's practices are with regard to nonleased access  xprogramming. Thus, we find that if Continental chooses to continue to impose insurance requirements  xupon FalComm, or other leased access programmers, it must show that its requirements are reasonable  S@-and consistent with the provisions of the Second Order.  S - ` Dx14.` ` In view of the above, we will require Continental to provide FalComm with an  xMapplication and rate card for leased access services within 15 days from the release date of this order."!|,_(_(IIU#"  xPreviously, Continental apparently had refused to provide such prior to FalComm first submitting  x\information relating to its company's annual gross income, how its leased access programming will be  x?marketed, whether music carried will be original, and information relating to proposed advertising  S- x/methods. In its Second Order, the Commission prohibited cable operators from asking for additional  x^information prior to responding to a request for leased access information made by a potential  xprogrammer. The Commission concluded it "remain[s] concerned that requests for programmer  x[information will be used by operators to discourage leased access use, we will not allow operators to ask  xfor any information before responding to a leased access request unless the information is necessary to  S- xprepare the required response."= yO* -ԍ 12 FCC Rcd at 5333.= We do not believe that the above information requested of FalComm  xis necessary for Continental to prepare the required response to FalComm's request for leased access information  S" - 1ORDERING CLAUSES ĐTP  S - ` 1x15.` ` Accordingly, IT IS ORDERED , that the Complaint of FalComm Communications in File  S - xjNo. CSR4874L IS GRANTED to the extent indicated in paragraphs 8, 9, 13 and 14, supra, and in all  S -other respects IS DENIED .  S4- ` @x16.` ` IT IS FURTHER ORDERED , that the Complaint of FalComm Communications in File  S -No. CSR4938L IS DISMISSED .  S- ` #x #e? 1 #e? 7. ` ` IT IS FURTHER ORDERED THAT, Continental will provide FalComm with the  xinformation required by 76.970(h) of the Commission's rules within 15 days of the release date of this order.  S- ` #x18.` ` 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