******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect or Word 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: ) ) Bookbusters, Inc. d/b/a ) The Community Guide Show, Petitioner ) ) v. ) CSR 5397-L ) Cablevision and Cablevision of Long Island ) ) Petition for Commercial Leased Access ) MEMORANDUM OPINION AND ORDER Adopted: January 24, 2000 Released: January 28, 2000 By the Deputy Chief, Cable Services Bureau: I. INTRODUCTION 1. Bookbusters, Inc. d/b/a The Community Guide Show ("Bookbusters") filed a petition for special relief pursuant to Section 76.975 of the Commission's rules alleging that Cablevision and Cablevision of Long Island (collectively "Cablevision") unlawfully refused to accept certain commercial leased access programming tendered for presentation on Cablevision's cable systems serving New York City, Brookhaven, Westchester, and Riverhead, New York. Bookbusters requests an order compelling Cablevision to accept its programming and requesting monetary damages, including reasonable attorney's fees, resulting from the refusal of its programming. Cablevision filed an opposition to the petition, and Bookbusters filed a reply. II. background 3. The Cable Communications Policy Act of 1984 imposed on cable operators a commercial leased access requirement 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 Cable Television Consumer Protection and Competition Act of 1992 revised the leased access requirements and directed the Commission to implement rules to govern this system of channel leasing. In 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 initially adopted 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 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"). IV. allegations and argument 5. Bookbusters states that it submitted applications to Cablevision, with sample video tapes, for leased channel capacity for airing programming, entitled "The Community Guide Show," on Cablevision's cable systems serving New York City, Brookhaven, Westchester, and Riverhead, New York. Bookbusters states further that Cablevision refused to present the programming on the grounds that "The Community Guide Show" constituted a series of "spot ads" that cable systems have no obligation to accept as commercial leased access programming. Bookbusters contends Cablevision's refusal to accept its programming is and has caused monetary losses in revenue and profits that would have been generated by the proposed presentation of its programming. 6. Cablevision contends that it properly refused to accept Bookbusters' programming for presentation as leased access programming. Cablevision contends that the programming at issue was produced and owned by Cablevision, and is a home-recorded VHS version of commercials created and produced for Bookbusters under a contract for purchase of blocks of time on Cablevision's Photo Advertising channel. Cablevision also asserts that the programming consists of severable images that are not "video programming" within the meaning of the Communications Act and the Commission's rules. 7. In reply, Bookbusters disputes Cablevision's claim of ownership of any programming to be presented as commercial leased access programming. Bookbusters asserts that the particular tape about which Cablevision complains was presented with its applications for the sole purpose of demonstrating programming format, and that it has no intention of using any material previously produced by Cablevision nor of hiring Cablevision employees for program production or assistance. Bookbusters contends that its programming contains photographs, musical background, and voice-over which qualifies as video programming. VIII. analysis and discussion 9. In light of the clarifications provided by Bookbusters, we find that the reasons advanced by Cablevision do not justify its refusal to provide the requested leased access channel space. This refusal appears to have been based largely on a tape presented by Bookbusters with its leased access application. Bookbusters, however, has now clarified that the tape was only intended as a demonstration and that material previously produced and owned by Cablevision would not be included among its leased access programming. In view of Bookbusters representation that it has no intention of using Cablevision material, the sole issue before us is whether Cablevision properly refused to accept Bookbusters' programming because, as is alleged, it does not fit the definition of "video programming" in Section 602(20) of the Communications Act. Contrary to Cablevision's contention, the programming proposed by petitioner does not appear to be essentially static in nature and will contain a musical background and voiceovers. Although the material demonstrated is alleged to have been of home-recorded VHS quality, we have no basis on the record before us to conclude that it is of such poor quality as not to qualify as leased access programming. We have consistently rejected contentions by cable operators that they may refuse to accept as commercial leased access programming material that contains advertising content. We have also noted that Section 612(C)(2) is clear and unambiguous in providing that "[a] cable operator shall not exercise any editorial control over any video programming provided pursuant to the section, or in any other way consider the content of such programming, except that a cable operator . . . may consider such content to the minimum extent necessary to establish a reasonable price for the use of designed channel capacity by an unaffiliated person." Consequently, Cablevision may not refuse presentation of Bookbusters' programming. 10. Finally, we deny Bookbusters' request for damages. Nothing in the Communications Act authorizes the Commission to impose damages in connection with the provision of commercial leased access services. XI. ordering clauses 12. Accordingly, IT IS ORDERED that the petition for relief of Bookbusters, Inc. d/b/a The Community Guide Show ("Bookbusters") in File No. CSR 5397-L IS GRANTED IN PART; and within fifteen (15) days from the release date of this order Cablevision and Cablevision of Long Island SHALL ACCEPT Bookbusters' applications for presentation of commercial leased access programming on its cable systems serving New York City, Brookhaven, Westchester, and Riverhead, New York; and in all other respects the petition IS DENIED. 13. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson, Deputy Chief Cable Services Bureau