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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 the Matter of: ) ) TV\TV, Inc. ) ) vs. ) CSR-5281-L ) TCI of Central New Jersey, Inc., Aspen, CO ) ) For Leased Access Channel Placement ) MEMORANDUM OPINION AND ORDER Adopted: November 6, 1998 Released: November 10, 1998 By the Acting Chief, Consumer Protection and Competition Division, Cable Services Bureau: 1. TV\TV, Inc. ("TV\TV") filed the captioned petitions pursuant to 47 C.F.R. 76.975 against TCI of Central New Jersey, Inc. ("TCI"), operator of a cable system serving the upper Roaring Fork Valley, including Pitkin County, Aspen and Snowmass, Colorado. TCI filed an opposition to the petition. 2. The 1984 Cable Act imposed on cable operators a 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 In the Matter of Implementation of the Cable Television Consumer Protection and Competition Act of 1992, 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 modified some of its leased access rules in In the Matter of Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Second Report and Order and Second Order on Reconsideration of the First Report and Order ("Second Order"). 3. TV/TV seeks an order requiring placement of its leased access programming on TCI's basic service tier, which carries in addition to basic service tier programming, a local low power station, local origination programming, and community programming. TV/TV objects to TCI's offer to carry its programming on Channel 95. TV/TV contends that TCI's proposed channel placement is unreasonable and that TCI is attempting to interfere with access to its potential viewing audience. TV/TV considers Channel 95 objectionable because that channel is more than fifty channels from the basic service tier channels which are positioned between Channels 2 and 42. TV/TV claims the Commission's regulations give it a right to have its programming positioned within a contiguous part of TCI's channel line-up. 4. We deny TV/TV's complaint. TCI has shown in opposition that its proposed placement of TV/TV's programming on Channel 95 would provide a genuine outlet for TV/TV's programming as required by the Commission's leased access regulations. TV/TV concedes that Channel 95 has a subscriber penetration of more than 50%. Under the Commission's regulations, a channel with a subscriber penetration of over 50% qualifies as a genuine outlet because it consists of a channel location that most subscribers use. As long as a cable operator provides a leased access programmer with a genuine outlet that provides access to more that 50% of the cable operator's subscribership, the operator may place the programmer on any reasonable channel location. We find that TCI has satisfied these requirements with respect to TV/TV. 5. Finally, TV/TV failed to support the allegation that TCI proposed Channel 95 in order to favor other programming. The record shows that Channel 95 also carries Animal Planet, programming in which TCI has an ownership interest, among other popular programming. We believe the carriage on Channel 95 of programming in which TCI has an ownership interest refutes any suggestion that TCI considers Channel 95 an unfavorable channel position. TCI also points out that cable ready television sets are capable of being programmed so that Channel 95 is only three channels away from Channel 2. An up- channel scan from Channel 95 must pass through only Channels 98 (QVC) and 99 (C-SPAN) to reach Channel 2. Alternatively, Channel 95 may be selected directly from any other channel position without scanning on many remote controlled television sets. TCI has also committed to provide the minority of subscribers without cable ready television sets free cable converter boxes that permit channel selection in the manner just described. ORDERING CLAUSES 6. For the foregoing reasons, TV/TV, Inc.'s petition for relief in File No. CSR 5281-L IS DENIED. 7. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION Deborah Klein, Acting Chief Consumer Protection and Competition Division Cable Services Bureau