********************************************************    
                         NOTICE
********************************************************

This document was converted from
WordPerfect to ASCII Text format.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
WordPerfect version or Adobe Acrobat version, if available.

*****************************************************************
                                Before the
                     Federal Communications Commission
                          Washington, D.C. 20554

Fred Campbell d/b/a A1A            TV,)
            Petitioner,              )
                                     )
            v.                       )           CSR 5234-L
                                     )
Time Warner Cable - St. Augustine, FL,)
            Respondent               )
                                     )
For Commercial Leased Access         )


                      MEMORANDUM OPINION AND ORDER

   Adopted:  June 15, 1998                         Released:  June 18, 1998

By the Acting Chief, Cable Services Bureau:

  1.    Fred Campbell, d/b/a A1A TV, ("Campbell") filed the captioned petition for relief pursuant
to 47 C.F.R.  76.975 alleging various violations by Time Warner Cable - St. Augustine ("Time Warner")
of the Commission's commercial leased access regulations.  Time Warner has submitted a response to
the petition showing that all issues raised by Campbell's petition except one have been resolved.  The
remaining unresolved issue concerns whether a Time Warner requirement that Campbell obtain and
maintain an insurance policy providing for errors and omissions coverage and naming Time Warner as
an additional insured party is reasonable within the meaning of the Commission's regulations.  Campbell's
petition claims that Time Warner has failed to justify the reasonableness of the insurance requirement, and
that the cost of the required insurance amounts to an economic barrier to the presentation of his leased
access programming.

  2.    Time Warner also submitted with its response information addressing the need for
protection against risks associated with the transmission of all programming, including commercial leased
access programming.  Time Warner contends this information establishes the reasonableness of the
requirement for insurance associated with leased access programming.  Time Warner states that general
liability insurance is required to protect the cable system from property damage to cable system headends
and equipment, damages flowing from breach of a leased access agreement, and from claims by
subscribers concerning faulty products sold by leased access programmers.  Time Warner states further
that media perils liability insurance, also known as broadcasters' liability/errors and omission insurance,
protects cable systems from the content of programming including advertising, copyright infringement and
trademark claims, obscenity allegations and other content-based claims, whether such claims are
meritorious or not.

  3.    Time Warner also contends that the insurance clause required of Campbell is the same as
that appearing in the standard form contract for leased access programming used by other cable systems
affiliated with Time Warner.  The clause requires media perils liability coverage of at least one million
dollars, which Time Warner contends is substantially less than the two million dollar limit required of non-
leased access programmers.  National satellite networks with strong financial resources are required to
provide Time Warner with comprehensive indemnification against liability arising from their programming. 
Time Warner contends that network programmers in turn typically require insurance protection from their
program suppliers.  Certain other national networks are required by Time Warner to carry insurance
similar to that required of Campbell.  Time Warner also points out that Campbell's programming consists
primarily of live entertainment video taped in local bars and restaurants, video shots at local beaches and
other outdoor gathering places.  Time Warner asserts that such programming, which is unrehearsed and
includes people unaware of being photographed, imposes various liability risks including copyright
infringement and invasions of privacy, and may be considered offensive or intrusive by people for various
reasons.  Time Warner provided information showing that Campbell obtained the required insurance from
a local insurance broker at a cost of $1,000 per year.

  4.    A cable operator's right to require reasonable liability insurance coverage for leased access
programming was initially indicated in Anthony Giannotti v. Cablevision Systems Corporation.  The
Commission's Second Order confirmed that the regulations concerning reasonable terms and conditions
of use for commercial leased access do not deny cable operators the right to require reasonable liability
insurance coverage for leased access programming.  Noting that the costs and expenses attributable to
defending a prosecution for carriage of an allegedly obscene program may be covered by such insurance,
the Commission previously stated, "this is a reasonable term or condition relating to use of leased access
channel capacity in light of the removal by Congress in amended [S]ection 638 of cable operator immunity
for carriage of obscene programming."  Specific conditions or limits regarding the amount of coverage
or the type of insurance policy that operators may require were not adopted in the Second Order, on the
grounds that "a specific restriction might not be appropriate for all situations."  Instead, the Commission
stated that insurance requirements must be reasonable in relation to the objective of the requirement. The
Commission further stated that determinations of a "reasonable" insurance requirement will be based on
the operator's practices with respect to insurance requirements imposed on non-leased access programmers,
the likelihood that the leased access programming will pose a liability risk for the operator, previous
instances of litigation arising from the leased access programming, and any other relevant factors.  The
burden of proof in establishing reasonableness was placed on cable operators.

  5.    We find, based on the record summarized above, that Time Warner has met the
Commission's requirement to justify the reasonableness of the insurance request of this particular leased
access programmer.  First, the insurance requirement at issue here appears to be substantially like that
imposed on any other leased access programmer leasing capacity on any of Time Warner's cable systems
nationwide or on national satellite networks that cannot demonstrate sufficient financial resources to
support reliance on an indemnifications clause.  Second, we believe that Time Warner has a reasonable
concern that the unrehearsed and ad hoc nature of Campbell's programming exposes not only Campbell,
who produces such programming to risks of liability, but also Time Warner who carries that programming
to subscribers.  Moreover, Campbell has not demonstrated possession of financial resources sufficient to
provide any assurance that an indemnification clause, in lieu of insurance, would offer practical protection
against liability risks that may be incurred by Time Warner in carrying his programming.

  6.    For the foregoing reasons, the petition for relief of Campbell, d/b/a A1A TV, in File No.
CSR 5234-L IS DENIED.

  7.    This action is taken pursuant to authority delegated by Section 0.321 of the Commission's
rules, 47 C.F.R.  0.321.

        FEDERAL COMMUNICATIONS COMMISSION



        John E. Logan
        Acting Chief, Cable Services Bureau