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

In the Matter of:                       )
                                        )
Frank J. Vitale d/b/a Fal-Comm Communications          )
                                        )
     v.                                 )    CSR-5042-L
                                        )
Time Warner Cable                            )
                                        )
Leased Access Complaint                 )    


                    ORDER ON RECONSIDERATION

       Adopted:  May 4, 1999                    Released:  May 11, 1999  

By the Chief, Cable Services Bureau:

I.   INTRODUCTION

     1.   Frank J. Vitale d/b/a Fal-Comm Communications ("Fal-Comm") filed a petition for
reconsideration of the Cable Services Bureau's (the "Bureau") decision in Fal-Comm Communications v.
Time Warner Cable.  Time Warner filed an opposition to Fal-Comm's petition for reconsideration.

II.  BACKGROUND

     2.   In its initial decision, the Bureau dismissed Fal-Comm's petition for relief pursuant to
Section 76.975 of the Commission's rules which asserted that Time Warner improperly refused to accept
certain adult oriented programming produced by Fal-Comm for presentation on a commercial leased access
channel.  The Bureau found that Section 612(h) of the Communications Act permits cable operators to
enforce their own written policies imposing conditions on carriage of leased access programming.  The
Bureau also stated that, in Implementation of Section 10 of the Cable Television Consumer Protection and
Competition Act of 1992: 

          The Commission . . . concluded that Congress deliberately omitted any role for the
     Commission in implementing Section 612(h) and that the federal courts are the only
     appropriate fora for resolution of disputes regarding denial of access pursuant to that
     section.
                         *    *    *    
          Because the question as to whether Time Warner's policies refusing carriage of Fal-Comm's
     programming comply with Section 612(h) is one for the courts, and not the Commission,
     we cannot decide whether Time Warner properly denied carriage of Fal-Comm's
     programming and therefore must dismiss Fal-Comm's complaint.  

III. DISCUSSION

     3.   The only grounds presented by Fal-Comm's petition for reconsideration is that our prior
decision "did not allow Fal-Comm an opportunity to present new facts or circumstances which have changed
since the last opportunity to present such matters."  Fal-Comm claims that: (i) there were procedural defects
in Time Warner's response to the petition for relief; (ii) Time Warner erroneously measured community
standards in connection with the refusal to carry Fal-Comm's programming; (iii) Time Warner's refusal of
carriage constitutes a significant barrier to small independent programmers; and (iv) the Bureau's initial
decision conflicts with the intent of the Communications Act.  

     4.   Time Warner filed an opposition to the petition for reconsideration asserting that the
Commission correctly concluded that the Congress omitted any role for the Commission in the
implementation of Section 612(h).  Time Warner argues that the Commission properly dismissed Fal-
Comm's petition for relief and that Fal-Comm's petition for reconsideration should be denied.  

     5.   Fal-Comm's petition for reconsideration is denied.  Irrespective of whether the matters raised
by Fal-Comm represent new facts or changed circumstances, they clearly have no bearing on our prior
conclusion that the matters alleged in Fal-Comm's petition for relief (i.e., Time Warner's refusal to accept
certain adult oriented programming produced by Fal-Comm) is a matter for the courts and not this
Commission to decide. 








IV.  ORDERING CLAUSES

     6.   Accordingly, IT IS ORDERED that the petition for reconsideration filed by Frank J. Vitale
d/b/a Fal-Comm Communications in File No. CSR 5042-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 A. Lathen
                         Chief, Cable Services Bureau