******************************************************** 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 the Matter of: ) ) Frank J. Vitale, d/b/a Fal-Comm Communications ) ) vs. ) CSR-5317-L ) MediaOne of Metropolitan Detroit, Inc. ) ) For Leased Access Channels ) MEMORANDUM OPINION AND ORDER Adopted: June 22, 1999 Released: June 24, 1999 By the Chief, Cable Services Bureau: 1. Frank J. Vitale d/b/a Fal-Comm Communications ("Fal-Comm") filed the above-captioned petitions pursuant to 47 C.F.R. 76.975 against MediaOne of Metropolitan Detroit, Inc. ("MediaOne"), operator of a cable system serving Dearborn Heights and Westland, Michigan. MediaOne filed a response to the petition. Fal-Comm filed a motion to dismiss MediaOne's response on the grounds that it was untimely filed on December 9, 1998, beyond the thirty days provided in 47 C.F.R.  76.975(e) following the filing of the petition on October 13, 1998. 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. Fal-Comm is an independent producer of video programming in the Metro-Detroit area. Fal- Comm states that pursuant to a Channel Lease Agreement with MediaOne a request was made for two thirty minute time slots on Tuesdays and Wednesdays from 11:00 PM to 11:30 PM for presentation of its leased access programming starting July 13, 1998. Fal-Comm states that MediaOne denied that request because those time slots were committed to another leased access programmer through February 1999. Fal-Comm asserts that MediaOne refused to make any commitment or negotiate with respect to leased access time slots and gave as its reason for its refusal that it was developing a policy for the allocation of such time slots. Fal-Comm states that it requested that MediaOne provide information by October 1, 1998, regarding the status of its request for time slots in March 1999. Fal-Comm states that MediaOne has not responded to that request. Fal- Comm contends that MediaOne's refusal to respond constitutes a failure to comply with Section 76.971 of the Commission's leased access regulations. 4. MediaOne states in response that neither the Commission's regulations nor the provisions of the Channel Lease Agreement entered into with Fal-Comm requires that it provide to Fal-Comm a policy regarding the allocation of leased access time slots. MediaOne states, however, that leased access time slots are allocated on its cable system on a "first come-first served" basis. MediaOne states further that because Fal- Comm entered into the Channel Lease Agreement later than another leased access programmer, the other leased access programmer first requested and obtained the time slots now requested by Fal-Comm. MediaOne contends that its "first come-first served" practice with respect to allocation of leased access time slots is reasonable unless or until the demand for part time leased access channels meets the requirements of Section 76.971(1) for the opening of a second part time leased access channel. MediaOne also states that it is presently airing approximately 3.75 hours per day of part time leased access programming and argues that Fal- Comm's demand for two thirty minute time slots per week when considered with its current 3.75 hours per day of part time service does not invoke the requirements of Section 76.971(1) for opening a second part time leased access channel. Finally, MediaOne urges the Commission not to address this time slot allocation issue, because such action would not only disrupt MediaOne's programming operations but such precedent would also make the Commission the venue for resolving all such time slot allocation matters. 5. Fal-Comm's petition in File No. CSR 5317-L will be denied. Fal-Comm has not cited any regulation requiring that MediaOne provide it with a statement of policy regarding the allocation of time slots and we also find no such requirement in MediaOne's Channel Lease Agreement entered into with Fal-Comm. MediaOne's practice of allocating time slots for leased access on a "first come-first served" basis appears to be reasonable, particularly since the record shows that the requirements of Section 76.971(1) for opening an additional part time channel have not been met. 6. Fal-Comm's motion to dismiss MediaOne's response will also be denied. MediaOne's response was filed within 30 days of the public notice of the filing of Fal-Comm's petition on November 9, 1998. The Commission has acknowledged that confusion concerning filing deadlines of Part 76 petitions exists, because some deadlines are triggered by the issuance of a public notice of the filing of the petition or complaint and some deadlines, including the Section 76.975 petition involved here, are triggered by the filing of the petition. Since MediaOne's petition was filed within thirty days of the public notice of Fal-Comm's petition and in order to have a more complete record, we accept MediaOne's response in this particular instance. However, we remind cable operators that Section 76.975(e) requires that responses to petitions for relief in leased access matters be filed within 30 days of the filing of the petition. ORDERING CLAUSES 7. For the foregoing reasons, Fal-Comm Communications' petition for relief and its motion to dismiss MediaOne's response in File No. CSR 5317-L ARE DENIED. 8. 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