******************************************************** 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 In re ) ) Frank J. Vitale, d/b/a ) FAL-COMM COMMUNICATIONS ) ) vs. ) CSR-5117-L ) TCI CABLEVISION OF WOODHAVEN, INC. ) ) In Re ) ) Frank J. Vitale, d/b/a ) FAL-COMM COMMUNICATIONS ) ) vs. ) CSR-5153-L ) MediaOne of Metro-Detroit ) MEMORANDUM OPINION AND ORDER Adopted: June 22, 1998 Released: July 20, 1998 By the Acting Chief, Cable Services Bureau: 1. Frank J. Vitale d/b/a Fal-Comm Communications ("Fal-Comm") has filed both a petition for reconsideration pursuant to 47 C.F.R.  1.106 of the Bureau's decision in Memorandum Opinion and Order in Frank J. Vitale, d/b/a Fal-Comm Communications, DA 98-196, (Cable Serv. Bur., released February 5,1998) ( "Bureau Order or CSR-5117-L"), and a petition for relief pursuant to 47 C.F.R. 76.975 alleging violations of the Commission's leased access rules by MediaOne of Metro-Detroit ("MediaOne"). TCI Cablevision of Woodhaven, Inc. ("TCI Cablevision") filed an opposition to the petition for reconsideration, and MediaOne filed a response to the petition for relief. Because the issues raised in both matters are similar, the two matters are consolidated and considered in this order. For the reasons stated below, both petitions will be denied. 2. The 1984 Cable Act imposed on cable operators commercial leased access requirements designed to assure access to cable systems by unaffiliated third parties who have a desire to distribute video programming free of editorial control of cable operators. Channel set aside requirements were established proportionate to a system's total activated channel capacity. The 1992 Cable Act revised the leased access requirements and directed the Commission to implement rules to govern this system of channel leasing. In its 1993 Report and Order and Further Notice of Proposed Rule Making ("Rate Order"), the Commission adopted new rules for leased access addressing maximum reasonable rates, reasonable terms and conditions of use, minority and educational programming, and procedures for resolution of disputes. The Commission recently modified some of its leased access rules in the Second Report and Order and Second Order on Reconsideration of the First Report and Order ("Second Order"). In the Second Order, the Commission, among other things, confirmed that its regulations regarding 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. The Petition for Reconsideration 3. Fal-Comm, an independent producer of video programming, in a petition for relief in CSR 5117-L filed under Section 76.975 argued that TCI Cablevision may not demand, as a condition of getting leased access capacity, a $1,000,000 broadcasters liability insurance policy, with TCI Cablevision named as a coinsured party. The Bureau Order in CSR-5117-L reviewed the Commission's requirements under which cable operators may demand insurance from leased access users and held that TCI Cablevision had met its burden in this regard. The Bureau Order further found that a $165 annual premium for adding the cable operator as an additional insured party on Fal-Comm's policy did not appear unreasonable on its face, and denied the petition for relief. Additionally the Bureau's Order concluded that it was reasonable for TCI Cablevision to require that it be named as an insured on Fal-Comm's insurance policy. 4. Fal-Comm seeks reconsideration of the Bureau Order on grounds that for it to gain carriage on the eight cable systems in the Detroit, Michigan area it would have to pay insurance fees in the amount of $1320. Further, Fal-Comm argues that it should not have to name TCI Cablevision as beneficiary on its insurance policy. Fal-Comm maintains that the $1320 cost represents a significant barrier for a small independent video programmer, and demonstrates that insurance requirements in the aggregate are unreasonable. 5. We reject this line of argument, which was considered and rejected in the Bureau Order. The relevant fact is that the additional cost to Fal-Comm of adding TCI Cablevision as another insured party is $165, an amount found reasonable in the Bureau Order. Fal-Comm has introduced no evidence which persuades us to change our underlying decision. The fact that Fal-Comm will have to pay similar sums to obtain carriage on other systems does not undermine our earlier decision. Our leased access rules apply on a system wide basis. Moreover, while Fal-Comm's insurance costs would increase for every system on which it gained carriage, its revenue would also grow depending on the number of subscribers on the new systems. 6. Fal-Comm's further argument that the cable operator should be content to accept a certificate of insurance rather than being named as an additional insured party on Fal-Comm's policy is inconsistent with the Second Order, which concluded that cable operators may require leased access programmers to provide reasonable insurance coverage. In this connection, a certificate of insurance naming Fal-Comm alone would not provide coverage for TCI Cablevision. The Petition for Relief 7. Fal-Comm's petition for relief against MediaOne in File No. CSR 5135-L presents the same arguments that were raised regarding aggregate insurance costs in the underlying decision in CSR-5117-L. MediaOne has presented essentially the same information in justification of its insurance requirement that was presented by TCI Cablevision and found reasonable in the Bureau Order in CSR-5117-L. Because we have fully considered these matters as set out above, we see no need to re-address them separately in this case. Accordingly, we conclude that Fal-Comm's petition in File No. CSR 5135-L should also be denied. ORDERING CLAUSES 8. For the foregoing reasons, IT IS ORDERED that the petition for reconsideration filed by Fal- Comm Communications in File No. CSR 5117-L IS DENIED. 9. IT IS FURTHER ORDERED that the petition for relief filed by Fal-Comm Communications in File No. CSR 5135-L IS DENIED 10. 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