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(1) (a) (i) 1) a)D )DDDFrfQq "i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDdddddd8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""2"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""g\\>>>\g0>03\\\\\\\\\\>>ggg\yyrF\yrgyy>3>j\>\gQgQ>\g3>g3g\ggQF>g\\\QI(I_>0_j>>>0>>>>>>\>g3\\\\\QyQyQyQyQD3D3D3D3g\\\\gggg\\g\\\\pg\\\QQ_QyQyQyQyQ\\\_\gjF3FgF>Fgg__gy3ySy>yIy3ggg\\QQQgFgFgFg_y^y>yjgggggg_yQyQyQgy>ggFy>\0\\=2=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBa\>\\\\\\7>\7>\7>>\\\??n\\nBnnBsgg>\\7"yyyy\nlc\gnn\"i~'^5>I\\>>>\g0>03\\\\\\\\\\33gggQyyrg>Frgygrr>3>T\>Q\Q\Q>\\33\3\\\\>F3\\\\QX%Xc>0cT>>>0>>>>>>\>\3QQQQQwyQrQrQrQrQ>3>3>3>3\\\\\\\\\\Q\Z\\\g\QQQyQyQycyQtrQrQrQrQ\\\c\c\>3>\>>>\gcc\r3rIr>r>r3\l\\\\y>y>y>gFgFgFgcrMr3rT\\\\\\crQrQrQ\r>\gFr>\t0\\=!=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBT\>Q\\\\\3;\7;\7>>QQ\??n\\nBnnBmgg>Q\7"yyyy\njc\gnn\"i~'^ %,77\V%%%7>%7777777777>>>0eOIIOD>OO%*ODaOO>OI>DOOgOOD%%37%07070%777V7777%*77O77055;%;3%%%%%%%%%7%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&&Bn77lBTn(nBB(AZZ>>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\\nBnnBb\\>g\7"yyyy\njc\}nn\2^zFZ_~y.X80,ɒX\  P6G;P7jC:,ynXj\  P6G;XP7nC:,leased access requirements and directed the Commission to implement rules to govern this system of  S-  channel leasing. In its 1993 Report and Order and Further Notice of Proposed Rule Making ("Rate  Sb-  \Order"),>b( yO$-ԍ8 FCC Rcd 5631 (1993).> 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  S -  [resolution of disputes.i B( {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" ,))II!"  S-  Report and Order and Second Order on Reconsideration of the First Report and Order, 12 FCC Rcd 5267  S-(1997) ("Second Report"). M {OB-  ;ԍSee also Order on Reconsideration of the First Report and Order and Further Notice of Proposed Rulemaking  {O -in MM Docket No. 92266 and CS Docket No. 9660, 11 FCC Rcd 16933 (1996).   S- -ALLEGATIONS AND ARGUMENT    S<-  3.` ` Aamen, a producer of commercial leased access programming in the south central area   .of Los Angeles, California, states that it has produced programming consisting of the services of various   local churches for a period of nine years and airs that programming on a weekly basis on leased access   channels on local cable systems. Aamen states further that it has complied with a recent MediaOne   demand that broadcasters liability and errors and omissions insurance coverage in the amount of   $1,000,000 be obtained. However, Aamen asserts that the insurance requirement is an unreasonable   demand that creates a financial hardship for itself as well as for all producers of leased access  S$ -  =programming in south central Los Angeles. Aamen argues that Section 638 of the Communications ActE$ $M {O-ԍSee 47 U.S.C.  558.E provides adequate protection for cable operators and makes the demand for insurance unnecessary.  S -  #4.` ` Aamen also states that MediaOne is imposing a $14.00 hourly technical assistance charge   kand a five percent franchise fee that it claims are illegal under 47 C.F.R.  76.970. In addition, Aamen   [seeks reimbursement in the amount of $15,600 for technical assistance charges imposed by MediaOne at   the rate of $50 per hour for two hours of programming per week for 156 weeks during 1993 1996.   Aamen requests an assessment of $4,400 in punitive damages on the grounds that MediaOne had taken   advantage of someone who was not aware until recently of Commission rulings concerning charges for   technical assistance. Finally, Aamen requests an assessment of an additional $1,000,000 in punitive   0damages to be distributed to other minority leased access producers that MediaOne has allegedly overcharged over the years.  S-  R5.` ` MediaOne defends the requirement for insurance coverage on the grounds that it is   necessary to protect against risks incurred in transmitting leased access programming, that it always   [required financial assurances from all programmers and now requires broadcasters liability and errors and   omissions insurance coverage from all programming networks in all future contracts. MediaOne cites two   examples of instances in which it was necessary and costly to defend lawsuits involving programming  ST-  transmitted on its Los Angeles cable system.9TM yO-ԍResponse, p. 34.9 MediaOne also states that all other leased access   programmers on its system have obtained broadcasters liability and errors and omissions insurance coverage.  S-  6.` ` MediaOne states that the current $14 per hour technical assistance charge covers the cost   Nof insertion and play of leased access program tapes, a service not provided for nonleased access   \programming. MediaOne states further that this charge was substantially reduced from $50 per hour  S<-  following release of the Commission's Second Report, in which the requirements for technical assistance   jcharges were clarified. Since more than sixty days have passed following the reduction of this charge and   before Aamen filed the petition, MediaOne argues that Aamen's $15,600 claim for reimbursement of such" F,>(>(IIt""   charges is barred by 47 C.F.R. 76.975(d), which requires the filing of a petition for relief within sixty days from the occurrence of any alleged violation.  S-  7.` ` MediaOne defends the imposition of a five percent franchise fee on the grounds that the   Commission permits rates for basic and cable program service tiers to include a pass through to   subscribers of all franchise fees paid, and argues that it would be unfair to force subscribers to pay   franchise fees for programming that is forced upon them by regulation. MediaOne also argues that   nothing in the Communications Act or the Commission's regulations prohibits cable operators from   seeking reimbursement for franchise fees owing on leased access revenues. Finally, MediaOne contends   that punitive damages are not available under the Communications Act or the Commission's regulations, and that Aamen has not shown that any forfeitures are justified in this case.  S -  ANALYSIS AND DISCUSSION ă  S -  8.` ` A cable operator's right to require reasonable liability insurance coverage for leased access  S -  programming was initially discussed in Anthony Giannotti v. Cablevision Systems Corporation.C M yO-ԍ11 FCC Rcd 10441 (CSB 1996)C In that   case, we noted that the programmer had not shown that the cost of the required insurance coverage was   either prohibitive or imposed an unreasonable cost of doing business as an independent program producer.  S2-  The Commission's Second Order confirmed that the regulations concerning reasonable terms and   yconditions of use for commercial leased access do not deny cable operators the right to require reasonable  S-  liability insurance coverage for leased access programming. Noting that the costs and expenses   attributable to defending a prosecution for carriage of an allegedly obscene program may be covered by   .such insurance, the Commission previously stated, "this is a reasonable term or condition relating to use   of leased access channel capacity in light of the removal by Congress in amended [S]ection 638 of cable  SD-  Moperator immunity for carriage of obscene programming." DXM {O<-ԍSee First Report and Order in MM Docket No. 92258, 8 FCC Rcd 998, 1007(1993), n.44.Ĉ Specific conditions or limits regarding the   amount of coverage or the type of insurance policy that operators may require were not adopted in the  S-  MSecond Order, on the grounds that "a specific restriction might not be appropriate for all situations."   Instead, the Commission stated that insurance requirements must be reasonable in relation to the objective   of the requirement. The Commission further stated that determinations of a "reasonable" insurance   Lrequirement will be based on the operator's practices with respect to insurance requirements imposed on   nonleased access programmers, the likelihood that the leased access programming will pose a liability   yrisk for the operator, previous instances of litigation arising from the leased access programming, and any  S-other relevant factors. The burden of proof in establishing reasonableness was placed on cable operators.u M {O -ԍSee Second Order at  112, and 47 C.F.R.  76.971(d).u  S-  9.` ` On reviewing this record, we are satisfied that MediaOne established the reasonableness   of the insurance requirement in this particular case. MediaOne demonstrated that financial assurances are   required from all programmers and that broadcasters liability and errors and omissions insurance coverage   kare now required from all programming networks in all future contracts. MediaOne also established a  S -  recent history of defending costly lawsuits involving programming transmitted on its Los Angeles cable" | ,>(>(II!"  S-  system.9 M yOh-ԍResponse, p. 34.9 Finally, in this connection, all other leased access programmers on MediaOne's cable system have been required to obtain broadcasters liability and errors and omissions insurance coverage.  S-  10.` ` The Commission considered the level of technical support that cable operators are required  S`-  to provide in the Rate Order. `XM {OX-  ЍSee Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992,  {O"-Rate Regulation, MM Docket 92266, 8 FCC Red 5631(1993) (the Rate Order). There the Commission noted that technical cooperation between the cable  S:-  operator and the leased access programmer is likely to be necessary for the programming to be delivered   over a cable system The Commission stated that operators will be required to provide programmers with   "the minimal amount of technical support, whether it be equipment, technology or other miscellaneous  S-  !support, which would be necessary for the programmer to present its material on the air."G M yO -ЍId, at 594142.G The   Commission further explained this requirement by adding that a cable operator must offer to leased access   programmers "the same services as would be offered to comparable programming services that use the  SJ -  operator's nonleased access channel capacity."MJ DM {O.-ЍId, at 5941, n. 1288.M In the Second Report the Commission further clarified   [these requirements and made it clear that the leased access rate determined under Section 76.970 includes   the cost of technical support ordinarily provided in common to other programmers. Under this   =clarification of the requirements of Section 76.971, a cable operator may not impose an additional charge  S -  for technical support ordinarily provided in common to other programmers.VZ M {O"-  ԍSee Second Report,  114. The Second Report noted that an operator may impose a charge to recover the cost   ,of providing equipment such as a tape recorder or camera, if such equipment would be provided to nonleased access programmers for the same charge.V Consequently, MediaOne   may impose charges in addition to the charges determined under Section 76.970 for the reasonable cost   of other equipment and technical support actually provided to Aamen only if that equipment and technical support is not also provided with other nonleased access programming.  S-  11.` ` The record in this case shows that MediaOne does not provide other programmers with   .the program tape insertion and replay service that is provided to Aamen. The $14 hourly charge for the   tape insertion and replay service does not appear unreasonable on its face, provided the service is actually provided on an hourly basis.  S-  12.` ` Aamen's request for reimbursement in the amount of $15,600 related to technical   assistance charges imposed by MediaOne during 1993 1996 will be dismissed as untimely filed. The   Commission's leased access rules require that petitions making such claims be filed within sixty days from   /the occurrence of the events on which the claim is based. See 47 C.F.R. 76.975(d). Aamen filed the   petition making this request on October 10, 1997, which is more than sixty days after the 1993 1996 period during which these charges were imposed.  S-  13.` ` On the other hand, we find that MediaOne has failed to justify the inclusion of a five   percent franchise fee in the charges for leased access service provided to Aamen. First, we reject" ,>(>(IIL"   /MediaOne's suggestion that overhead costs represented by franchise fees or any other factor may be  S-  imposed on leased access programmers on the basis of an assertion that cable subscribers prefer not to  S-  receive leased access programming. In the Rate Order, the Commission rejected the costofservice  S-  =ratemaking option because of difficulties in justifying costs.GM {O-ԍSee Rate Order,  513.G Second, franchise fees are included in "the   total amount the operator receives in subscriber revenue per month for programming," which is utilized   in establishing the average implicit fee under the Commission's maximum reasonable leased access rate  S-formula.nZM {O -ԍSee Second Report, Appendix D, Revised Rates, Section 76.970(d).n Consequently, franchise fees are already accounted for in the calculation of the implicit fee.  S-  %14.` ` Finally, we reject Aamen's request for the imposition of punitive damages or other   >sanctions on MediaOne. Nothing in the Communications Act authorizes the Commission to impose punitive damages in connection with the provision of commercial leased access services.  S" -1' ORDERING CLAUSES ă  S -  15.` ` Accordingly, IT IS ORDERED that the petition for relief of Aamen TV Ministry in file  S -  LNo. CSR 5122L IS GRANTED IN PART and within thirty days from the release date of this order  S -  MediaOne SHALL CEASE imposing on Aamen TV Ministry a five percent franchise fee and refund to   Aamen TV Ministry all franchise fees collected after August 11, 1997, and in all other respects the  S2-petition IS DENIED.  16. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules, 47 C.F.R.  0.321. X` hp x (#%'0*,.8135@8: