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(1) (a) (i) 1) a)D )DDDFrfQq "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+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&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""%7777777777>>>0eOIIOD>OO%*ODaOO>OI>DOOgOOD%%37%07070%777V7777%*77O77055;%;3%%%%%%%%%%%7O0O0O0O0O0aHI0D0D0D0D0%%%%O7O7O7O7O7O7O7O7O7O7O0O7O6O7O7O7>7O0O0O0I0I0I;I0OED0D0D0D0O7O7O7O;O7O;O7%%7%%%7M>;;O7DD,D%D%DO7AO7O7O7O7aOI%I%I%>*>*>*>;D.DD3O7O7O7O7O7O7gOO;D0D0D0O7D%O7>*D%O7E77%%WMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN(BB(37%07777j7#TT7!#TT7T!%%007n&&Bn77lCTn(nBB(A\\>>n%07\n!"IIIITTenn7TnB@;7>lBBn7"i~'^5>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^^y.X80,X\  P6G;P2a=5,&a\  P6G;&P 2e=5,&e4  pG;&7jC:,9Xj\  P6G;XPy.\80,T\4  pG;7nC:,|Xn4  pG;XW!@(#,h@\  P6G;hPH5!,i,5\  P6G;,P\{,W80,%0W*f9 xr G;XP:% ,J:\  P6G;JP\0_=5,%&_*f9 xr G;&X` hp x (#` !(# yO- X   w S-#&a\  P6G;&P#  Federal Communications Commission`}(#DA 981491#&a\  P6G;&P# #Xj\  P6G;9XP#у  yxdddy wv3 Before the Federal Communications Commission  yO} Washington, D.C. 20554 ă  S -#&a\  P6G;&P##Xj\  P6G;9XP##&a\  P6G;&P#In the Matter of  hh@h)  S-Petition for Relief of hh@h) x` `  hh@h)  S-LORILEI COMMUNICATIONS, INC.@h)  S-d/b/a THE FIRM MULTIMEDIAhh@h)  SX-x` ` Petitioner,hh@h) x` `  hh@h)  S -vs.x` `  hh@h)ppCSR 5119L x` `  hh@h)  S -CABLEVISION OF MONMOUTH, INC.,@h)  S -x` ` Respondenthh@h) x` `  hh@h)  S@ -For Leased Access Channelshh@h)pp T  S-  MEMORANDUM OPINION AND ORDER TP  Sx-X` hp x (#%'0*,.8135@8:leased access requirements and directed the Commission to implement rules to govern this system of  S - xchannel leasing. In its 1993 Report and Order and Further Notice of Proposed Rule Making ("Rate" D,))II""  S- x\Order"),> yOh-ԍ8 FCC Rcd 5631 (1993).> the Commission adopted new rules for leased access addressing maximum reasonable rates,  xreasonable terms and conditions of use, minority and educational programming, and procedures for  S- x[resolution of disputes.iX {O-ԍSee 47 C.F.R. 76.970, 76.971, 76.975 and 76.977 (1995).i The Commission recently modified some of its leased access rules in the Second  S-Report and Order and Second Order on Reconsideration of the First Report and Order ("Second Order").\ {O- x-ԍFCC 9727 (released February 4, 1997), 62 Fed. Reg. 11364 (1997).  See also Order on Reconsideration of  xthe First Report and Order and Further Notice of Proposed Rulemaking in MM Docket No. 92266 and CS Docket  {O -No. 9660, 11 FCC Rcd 16933 (1996) ("Reconsideration Order").ā  S>- ` }x3.` ` In Lorilei Communications, Inc. d/b/a The Firm v. Cablevision of Monmouth, Inc., __ FCC  S- x.Rcd __, (DA 971456, released July 14, 1997) ("Order"), Cablevision was directed to provide the Firm  xinformation regarding availability of leased access setaside capacity, to establish a schedule of rates based  S- x>on the average implicit fee formula adopted in the Second Report, and to adopt a period for advanced  xfiling of applications for parttime service that is consistent with requirements established in an earlier  S|- xLdecision.| {O*-ԍSee Anthony Gianotti v. Cablevision System Corporation, 11 FCC Rcd 10441 (CSB 1996). The Order found that Cablevision had not refused to air the Firm's programming or requested  SV - x!any changes to programming format and dismissed an allegation that Cablevision tried to exercise  S. - ximproper editorial control over the Firm's programming.=.  {On-ԍOrder,  13.= A request for certain forms of relief was also  S -dismissed.:  2  {O-ԍId,  15.:  S - -ALLEGATIONS AND ARGUMENT    S -  Sf- ` x4.` ` In its new petition, the Firm f  yO- xԍThe Firm is an advertising agency/video production company doing business throughout the United States producing thirty minute programs to air on commercial leased access channels. states that it has entered into a contract with Cablevision  xfor a twelve week run of programming consisting of advertisements for a company whose advertisements  xpreviously were provided to Cablevision by an advertising agency. The Firm contends Cablevision has  xviolated provisions of the leased access rules by refusing to disclose the portion of system subscribers  x.reached by the cable channel which carries leased access programming; by including in its Leased Access  xChannel Rules a provision prohibiting programming that "supports, promotes or endorses a Legally  xQualified Candidate or other candidate for public office or a political cause or contains personal attacks  SN- x upon any individual or group,"d N {O $-ԍSee Petition for Relief, Exhibit 2, p. 5 (Clause 3.j.)d in violation of the prohibition against exercise of editorial control of  S&- xleased access programming by cable systems found in Section 612(c)(2) of the Communications Act;K & {Ot&-ԍSee 47 U.S.C.  532(c)(2).K  x0by imposing a program insertion fee of $25 per program that is not charged for nonleased access"@ ,_(_(IIa"  xprogramming, in violation of Section 76.971 of the rules; and by requiring payment of one half of total  xprogramming contract cost in advance of program carriage, in violation of Section 76.971(d) of the rules.  xThe Firm also requests a declaration of the kinds of technical support services for which a fee may properly be charged under the Commission's leased access rules.  S`-  S8- ` x5.` ` Cablevision asserts in response that the leased access regulations impose on it no  xobligation to disclose the portion of system subscribers reached by the cable channel on which the Firm's  xleased access programming is carried. Cablevision contends further that the Commission has held that  S- xthe federal candidate access provisions of Section 312(a)(7) of the Communications Act, as amended,K  {O( -ԍSee 47 U.S.C.  312(a)(7).K  xdo not apply to cable systems. Therefore, Cablevision argues, its contract provision prohibiting  x programming that supports, promotes or endorses candidates for public office or a political cause or  xkcontains personal attacks does not conflict with the prohibition against exercise of editorial control of  xleased access programming by cable systems found in Section 612(c)(2). Cablevision asserts also that  xinsertion of the Firm's programming tapes must be accomplished manually on a program by program basis  xMbecause of the vagaries of scheduling that affect parttime leased access channels. On the other hand,  xCablevision contends it controls the scheduling of nonleased access programming, which permits such  xprogramming to be transferred to master tapes for future play during schedules covering periods of a week  xor more on an automated basis. Therefore, according to Cablevision, its nonleased access programming  xLdoes not require manual insertion and the attendant costs associated with leased access programming. In  xthis connection, Cablevision argues that Section 76.975 of the Commission's rules does not contemplate  xthe issuance of declaratory rulings addressing situations that may or may not occur in the future for which  xfees for technical support services would be appropriate. Finally, Cablevision points out that Section  x=76.971(d) of the rules permits cable operators to require reasonable security deposits from leased access  xprogrammers unable to prepay in full for access to leased access channels. Therefore, Cablevision argues,  xits demand for prepayment of one half of the charges applicable to the twelve weeks of program run for  S- xzwhich the Firm has contracted is not unreasonable, particularly since the twelve week contract period assures the availability to the Firm of the requested time slots.  S- DISCUSSION AND ANALYSIS  SP- A. Disclosure of Leased Access Penetration Levels  S- ` x6.` ` We address first the Firm's contention that it has a right under the Commission's rules  xto know the percentage of subscribers to Cablevision's system reached by channels carrying leased access  xprogramming. The Firm concedes that it is not seeking subscriber penetration for purposes of determining  x0whether Cablevision miscalculated the leased access rate. The Firm asserts, nonetheless, that the  xCommission's average implicit fee formula demonstrates that the number of subscribers is a factor utilized  xin rate calculation, and that without information concerning the number of subscribers reached a leased  xaccess programmer cannot determine whether the rate being paid is correct. The distinction being made,  x[apparently, is that the information is not needed to contest the fee but is needed to make sure the overall  xrate is billed properly in relation to the number of subscribers served. The Firm also contends that a lack  x[of subscriber penetration information blunts its ability to communicate in its marketing effort how many  x[households or subscribers is reached by leased access programming. As noted earlier, Cablevision argues  xthat the Commission's rules do not require cable operators to provide to leased access programmers information regarding the percentage of subscribers reached by their programming." %Z ,_(_(II&"Ԍ S- ` 2ԙx7.` ` Section 76.970(h) of the rules lists the information cable operators are required to provide  xprospective leased access programmers. That information includes: (1) the amount of leased access set xkaside capacity available, (2) a complete schedule of fulltime and parttime leased access rates, (3) the  xrates associated with technical and studio costs, and (4) a sample leased access contract if one is  S`- xyrequested.Y` {O- xԍSee Second Report, at Appendix D, Revised Rules, Section 76.970(h) In R.K. Production Company v.  {O- xArmstrong Group of Companies, d/b/a Armstrong Cable, DA 971018 (Cable Serv. Bur., released May 15, 1997),  xwe held that there is no requirement for a cable operator to provide a list of communities served by each cable  xheadend and the number of subscribers in each community because such information is publicly available and accessible to leased access programmers. Y Although Section 76.970(h) does not separately require cable operators to disclose to leased  xzaccess programmers the number of subscribers reached by its service tiers, information of this type is  xtypically made available in other regulatory contexts, e.g. on FCC Forms 1210 and 1240 filed with the  x=Commission and available for public inspection. However, the information on file with the Commission  x=may not be current or easily assembled from a distant location. Moreover, we note that Cablevision has  x.not made any case that the requested information must be kept confidential. For these reasons, we will require Cablevision to provide the Firm with the subscriber information requested.  S - B. Leased Access Programming Involving Candidates for Public Office  S - ` x8.` ` The Firm's next contention is that Section 612(c)(2) of the Communications Act  xkinvalidates a provision in Cablevision's Leased Access Channel Rules prohibiting programming which  x"supports, promotes or endorses a Legally Qualified Candidate or other candidate for public office or a  SX- xpolitical cause or contains personal attacks upon any individual or group."dX| {Ot-ԍSee Petition for Relief, Exhibit 2, p. 5 (Clause 3.j.)d We agree, and Cablevision  xwill be prohibited from enforcing that provision. Section 612(c)(2) is clear and unambiguous in providing,  x@in relevant part, that "[a] cable operator shall not exercise any editorial control over any video  x?programming provided pursuant to this section, or in any other way consider the content of such  xprogramming, except that a cable operator . . . may consider such content to the minimum extent  S- xMnecessary to establish a reasonable price for the use of designated channel capacity by an unaffiliated  Sh- x person."Ah yO-ԍ47 U.S.C.  532(c)(2).A We hold that the specific prohibition against exercise of editorial control of leased access  x=programming by cable operators found in Section 612(c)(2) controls in the circumstances obtaining here. Consequently, Cablevision may not prohibit the sale of political advertising on leased access channels x  S- C. Charges for Technical Services  Sx- ` x9.` ` The Firm states that Cablevision demands a $25 per program insertion fee that will total  x$3,000 during the twelve week run of programming under contract. The firm further asserts that  xCablevision previously carried similar programming provided by an advertising agency but did not impose  xany program insertion fee for that programming. The Firm contends the imposition of the insertion fee  xzis in violation of Commission rules governing the imposition of technical support fees adopted in the  S- xSecond Report. Cablevision states in response that insertion of the Firm's programming tapes must be  xaccomplished manually on a program by program basis because of the vagaries of scheduling that affect  xparttime leased access channels. It contends, on the other hand, that it controls the scheduling of non"b,_(_(II"ԫ S- xjleased access programming, which permits such programming to be transferred to master tapes for future  xplay during schedules covering periods of a week or more on an automated basis. Therefore, according  xto Cablevision, nonleased access programming does not require manual insertion or the attendant costs associated with the manual insertion of leased access programming.  S8- ` x10.` ` The Commission considered the level of technical support that cable operators are required  S- xto provide in the Rate Order. {Ox- xЍSee Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992,  {OB-Rate Regulation, MM Docket 92266, 8 FCC Red 5631(1993) (the Rate Order). There the Commission noted that technical cooperation between the cable  xoperator and the leased access programmer is likely to be necessary for the programming to be delivered  xover a cable system The Commission stated that operators will be required to provide programmers with  x"the minimal amount of technical support, whether it be equipment, technology or other miscellaneous  Sr- x!support, which would be necessary for the programmer to present its material on the air."Gr$ yO6 -ЍId, at 594142.G The  xCommission further explained this requirement by adding that a cable operator must offer to leased access  xprogrammers "the same services as would be offered to comparable programming services that use the  S -operator's nonleased access channel capacity."M  {ON-ЍId, at 5941, n. 1288.M  S - ` x11. ` ` 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  S - xprovided in common to other programmers.]Z F {O- x ԍSee Second Report,  114. The Second Report noted that an operator may impose a charge to recover the actual  xcost of providing equipment such as a tape recorder or camera, if such equipment would be provided to nonleased access programmers for the same charge.] If an operator must purchase equipment not typically used  xLby nonleased access programmers to accommodate a leased access programmer, the operator may either  x=(1) require the leased access user to purchase the equipment or (2) purchase the equipment for itself and  S- xlease it to the programmer at a reasonable rate.Jh  {O-ԍSee Second Report,  115.J Thus, we have indicated that a cable operator may  ximpose charges in addition to the charges determined under Section 76.970 for the reasonable cost of other  xyequipment and technical support actually provided to a leased access programmer only if that equipment  S-and technical support is not also provided with other nonleased access programming.I$  {O!- x;ԍSee, for example, Lorilei Communications, Inc. d/b/a the Firm, __ FCC Rcd __, (DA 971842, released August  {O"- x28, 1997), at  1112. We believe the Second Report and Section 76.971 of the rules provide sufficient clarification  xof the obligations of cable operators with respect to provision of technical equipment and support services and decline to issue any further ruling on that matter in the absence of any actual controversy beyond that addressed in this order. I  S-  S- ` _x12.` ` The record shows that Cablevision provides nonleased access programmers with program  xinsertions on an automated basis, and that due to the unpredictable nature of leased access programming  xlmanual insertion of leased access programming is required, involving costs not associated with the"|,_(_(II"  xautomated handling of nonleased access programming. We find that Cablevision is providing a service  xto the Firm, manual insertion of programming, that it does not provide to nonleased access programmers,  x>and Cablevision may charge the Firm for the reasonable cost of such services. However, Cablevision  x=provided no information demonstrating that the reasonable cost of manual program insertion exceeds the  xzcost of automatic program insertion by $25 per program. Accordingly, we will disallow this $25 per  xprogram insertion fee and direct Cablevision to refund all amounts collected for such fee pursuant to the contract with the Firm for the twelve week run of programming.  S- D. Prepayment of Leased Access Services  Sp- ` %x13.` ` As noted earlier, the Firm contracted with Cablevision for a twelve week run of its  xprogramming, in order to assure the availability of leased access channel capacity during the desired run  x=of this programming. However, the Firm objects to Cablevision's requirement for prepayment of half of  xthe cost of the run of this contract, contending that under the Commission's regulations of security  xdeposits for charges for leased access services Cablevision may demand prepayment of charges only on  x a monthly basis. The Firm alleges that Cablevision's billing term for an advertising agency providing  S - xsimilar programming is for only one month,R  yO-ԍPetition for Relief,  4 and exhibit 5.R and that Cablevision's prepayment demand places an unfair  x\burden on leased access programming inconsistent with the requirements of Section 76.971(d), which  xprecludes collection of security deposits when payment is made in advance. Cablevision on the other hand  xargues that Section 76.971(d) entitles it to require a security deposit or other assurance of payment for the  x{approximately three months of leased access time reserved by the Firm. It contends that allowing  xkprepayment for only one month would leave it exposed in the event the Firm is unable to satisfy the  xterms of the contract beyond one month. Cablevision argues that the Firm had the discretion to elect a  xjcontract term of one month but determined, for its own business reasons, that booking for a twelve week  xrun would be more beneficial. Cablevision argues that in these circumstances requiring prepayment of half of the cost of the twelve week run of the contract is reasonable.  S- ` x14.` ` Section 76.971(d) provides, in relevant part, "Cable operators may require reasonable  x\security deposits or other assurances from users who are unable to prepay in full for access to leased  Sx- xcommercial channels."xX {Op- xԍ47 C.F.R.  97.971(d) (1996). See Second Report, Appendix D, Revised Rules, Section 76.971(d) for additional, nonrelevant text of this rule. The record shows that the Firm obtained a twelve week commitment from  xCablevision in order to assure the availability of leased access channel capacity during the desired run of  xthis programming. We find that Cablevision's requirement for prepayment of half of the cost of the  S- x0twelve week run is consistent with the requirements of Section 76.971(d). {OR!- xZԍAs indicated in the Reconsideration Order at  53, the reasonableness of security deposits depends upon the  xparticular facts and circumstances of each case, such as the past relationship between the parties involved, the amount  xof time leased, the credit history of the leased access programmer, the cable operator's security deposit practices in  xsimilar contexts, and any other relevant factors. A requirement for prepayment of half of the cost of a contract run may not be deemed reasonable for all other contract terms, particularly for lengthy contract terms.  Finally, Cablevision  xdemonstrated that several differences exist between the business arrangements with the advertising agency  xlsupplying nonleased access programming and its provision of leased access capacity to the Firm,  xincluding substantially shorter contract terms for advertising, different scheduling problems, and"d ,_(_(II"  S-longstanding business relationships with the advertising agencies..D yOh-ԍCablevision Response, n. 21.D  S- 1ORDERING CLAUSES ă  S`- ` x15.` ` For the foregoing reasons, IT IS ORDERED that Cablevision of Monmouth, Inc. (a) shall  xnot enforce clause 3. j. of its Leased Access Channel Rules pertaining to programming of candidates for  xpublic office and other related matters, (b) shall cease charging the Firm a $25 per program insertion fee  xland (c) shall, within thirty days from the release date of this order, refund to the Firm all amounts collected from the Firm in payment of the program insertion fee.  Sp- `  $B x16.` ` IT IS FURTHER ORDERED that Cablevision of Monmouth, Inc. shall, within thirty  xdays from the release date of this order, provide the Firm with the percentage of subscribers to Cablevision's system reached by channels carrying leased access programming.  S - ` }x17.` ` IT IS FURTHER ORDERED , that in all other respects, the petition for relief filed by  S -Lorilei Communications, Inc. in File Number CSR 5119L IS DISMISSED .  SX- ` _x18.` ` This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules, 47 C.F.R. 0.321. x` `  FEDERAL COMMUNICATIONS COMMISSION x` `  Deborah A. Lathen  S-x` `  Chief, Cable Services Bureau#Xj\  P6G;9XP#