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


In the Matter of                   )
Petition for Relief of             )
                                   )
R. K. PRODUCTION COMPANY, ANDREW   )
RAYNOVICH, AND FRANK KIRKWOOD,     )
               Petitioners,        )
                                   )
vs.                                )    CSR 4717-L
                                   )    CSR 4727-L
THE ARMSTRONG GROUP OF COMPANIES,  )    CSR 4728-L
   d/b/a ARMSTRONG CABLE,          )    CSR 4729-L
               Respondent,         )
                                   )
For Leased Access Channels         )


                   MEMORANDUM OPINION AND ORDER

     Adopted:  May 13, 1997                  Released:  May 15, 1997

By the Chief, Cable Services Bureau:

I.  Introduction

     1.   R. K. Production Company (herein "petitioner") filed with the Federal
Communications Commission four petitions for relief pursuant to Section 76.975 of the
Commission's rules alleging violations by The Armstrong Group of Companies d/b/a Armstrong
Cable (herein "Armstrong") of statutory and regulatory provisions applicable to commercial leased
access channels on cable systems.  Each of these petitions arise out of the same March 7, 1996
correspondence from Armstrong in response to petitioner's February 12, 1996 request for
information.  Armstrong filed a consolidated response to the four petitions requesting dismissal of
the petitions on the grounds that petitioner failed to show by clear and convincing evidence that
Armstrong violated any provision of the Commission's leased access rules.  Armstrong also claims
that the petitions are frivolous and suggests that petitioner should be sanctioned for filing these
petitions.  These four petitions are consolidated and decided in this Order.
 
II.  Background

     2.   In 1984, Congress amended the Communications Act of 1934 by adding among other
things a commercial leased access requirement, pursuant to which cable operators with 36 or more
activated channels must set aside part of their channel capacity for use by programmers that are not
affiliated with them.  The Cable Television Consumer Protection and Competition Act of 1992 (the
"1992 Cable Act") revisited the leased access requirement and directed the Commission to establish
rules for determining maximum reasonable rates for, and reasonable terms and conditions for the use
of, commercial leased access channels.  Pursuant to that Congressional directive, the Commission
established regulations applicable to leased access channels in its proceedings in Implementation of
Sections of the Cable Television Consumer Protection and Competition Act of 1992; Rate
Regulation, MM Docket 92-266, (the Rate Order), 8 FCC Rcd 5631 (1993).  The Commission
revisited these regulations in Implementation of Sections of the Cable Television Consumer
Protection and Competition Act of 1992, Leased Commercial Access, Second Report and Order and
Second Order on Reconsideration of the First Report and Order, CS Docket 96-90, FCC 97-27,
released February 4, 1997 ("Second Order").

III.  The Pleadings

     3.   The petitioner R. K. Production Company is a Pennsylvania corporation  proposing
to cablecast its programming.  On Feburary 12, 1996, petitioner requested the following leased
access information from Armstrong for each of Armstrong's Pennsylvania cable systems having 36
or more activated channels: 1) a list of channels designated for leased access use; 2) a schedule of
rates (per hour for all hours of the week) for each system, and for each of the three programming
categories set forth in 47 C.F.R.  76.970(f); 3) a list of "devices" by which programming enters
Armstrong's cable systems; 4) rates for technical services; 5) a list of communities that Armstrong
serves and the number of subscribers in each of those communities; and 6) a leased access
agreement. 

     4.   Armstrong responded to this request on March 7, 1996 indicating that it operates six
cable systems serving a number of communities in Pennsylvania and noting that each system has
leased access capacity available.  Armstrong requested that petitioner identify the specific cable
systems on which petitioner planned to cablecast its programming and stated that Armstrong would
then provide petitioner with the applicable leased access rate card.  With respect to the request for
rate schedules for all categories of programming, Armstrong noted that although petitioner requested
a rate card for each of the three categories of programming, a previous letter from petitioner to the
Commission indicated that petitioner's programming fell within the third category of programming
under Section 76.970(f) of the Commission's rules.  Armstrong stated that it had forwarded to
petitioner a leased access agreement and rate cards for one of its systems and noted that it would
provide petitioner with other rate cards if it now planned on cablecasting on other systems with other
types of programming.  With respect to the request for information on devices required to deliver
programming, Armstrong stated that petitioner would be required to provide a VCR along with tapes
of its programming in order to cablecast on Armstrong's cable systems.  As to the request for rates
for technical services, Armstrong referred to the rate card provided.  With respect to the request for
community and subscriber information, Armstrong stated that such information is publicly available
at the Commission.  Finally, Armstrong noted that while a copy of the leased access agreement
previously was provided to petitioner, another copy was now provided.

     5.   Petitioner's four petitions separately address four of its information requests and are
in most respects identical.  With respect to request No. 1, a complete and inclusive list of all
channels designated for commercial leased access use, petitioner asserts that Armstrong's
identification of its six cable systems on which it claims leased access is available failed to provide
it with the information requested.  Petitioner claims that Armstrong acted unreasonably and in bad
faith "in failing and refusing to make capacity available to an unaffiliated leased access
programmer."  In response, Armstrong contends that Section 76.970 of the Commission's rules do
not require cable operators to designate and identify, in advance, those channels made available for
leased access. Armstrong notes that pursuant to Section 76.971(a) of the Commission's rules, parties
may negotiate channel placement and tier access for leased programming.  Armstrong asserts that
it has not denied channel capacity to petitioner.  Rather, Armstrong states that it identified its cable
systems on which leased access is available and provided petitioner with a rate card and a leased
access agreement.  Armstrong states that it has waited for petitioner to sign the agreement or contact
it to discuss alternative terms, but that neither of these events happened.   

     6.   As to request No. 2, a schedule of commercial leased access rates (per hour for all
hours of the week) for each headend, for each of the three program categories set forth in Section
76.970(f), petitioner claims that Armstrong provided rates for only one of the six systems and only
for one of the three programming catagories.  Petitioner notes that Section 76.970(e) states that
"Upon request, a schedule of commercial leased access rates shall be provided to prospective leased
access programmers."  Petitioner claims that Armstrong is acting unreasonably and in bad faith "in
failing and refusing to make capacity available and to charge lawful rates of such capacity."  In
response, Armstrong notes that petitioner previously described its programming in a letter to the
Commission and stated that it planned to cablecast in the "Pittsburgh region."  Armstrong states that
for over a year petitioner has had in its possession a rate card and leased access agreement for the
Armstrong system that serves the Pittsburgh region and that to date petitioner has not contacted
Armstrong to enter an agreement or negotiate different terms.  Armstrong contends that petitioner's
lack of action led it to believe that petiitoner had no plans to lease access, but merely sought the
information to harass Armstrong.  Armstrong further states that as a small operator, it has weighed
the costs and benefits of compiling all of the leased access information required by the Commission,
and has concluded that it cannot afford to devote its resources in advance to producing information
that no one requests on a regular basis.  Armstrong states that while its actions were reasonable, it
has now provided rate cards for all of its systems and for all types of programming and thus the
petition on this issue is moot. Petitioners have not disputed this position.

     7.   Request No. 3 seeks a list of devices by which programming may enter Armstrong's
cable television distribution system.  Petitioner relies upon Section 76.971(2)(c) that requires cable
operators to provide unaffiliated leased access users with the minimal level of technical support
necessary for users to present their material on the air.  Petitioner claims that it believes that other
non-leased access programmers are able to enter Armstrong's system by means other than a VCR,
and that Armstrong has an obligation to disclose the availability and rental rates of all such devices. 
Again, petitioner claims that Armstrong acted unreasonably and in bad faith " in failing and refusing
to make capacity available to a leased access programmer."   In response, Armstrong claims that
it provided petitioner with the required information as needed by petitioner to decide whether to
lease channel capacity from Armstrong.  Armstrong states that it included this provision in the leased
access agreement sent to petitioner based upon its previous experience with other leased access
programmers, who cablecast programs using this method.  Armstrong states that pursuant to the
Commission's directive, Armstrong would permit a leased access satellite feed to interconnect with
its system if circumstances required and also that it is willing to provide the minimal level of
technical support required under the Commission's rules.  Armstrong further states that since
petitioner has failed to provide any information concerning its programming plans and the type of
technical support petitioner will need or how it plans to access Armstrong's cable system, it does not
understand petitioner's complaint which alleges that Armstrong refused to make channel capacity
available because it suggested that a VCR is a reasonable means to cablecast programming.   Finally,
Armstrong notes that petitioner previously never attempted to change the terms of the agreement and
Armstrong presumed that the terms were acceptable to petitioner.  

     8.   Finally, with respect to Request No. 5, a list of communities served by each cable
headend and the number of subscribers in each community, petitioner claims that in failing to
provide this information, Armstrong acted unreasonably and in bad faith "in failing and refusing to
make capcaity available and to charge lawful rates for such capacity."  Petitioner further states that
Armstrong's failure to provide this information makes it impossible for petitioner and Armstrong to
reach an agreement.  In response, Armstrong states that the Commission's rules do not require
Armstrong to provide petitioner with this type of information and that it can be obtained by
petitioner by reviewing the FCC Form 325 which Armstrong files annually for each of its cable
systems.

IV.  Discussion

     9.   This case presents the question whether Armstrong has responded to the petitioner's
request for leased access information in a manner that is consistent with the statutory and regulatory
provisions applicable to leased access.  Section 76.970(e) of the Commission's rules in effect at the
time the petitions were filed provided that within seven business days of a prospective leased access
programmer's request, a cable operator must provide such programmer with the following
information:

     (1) a complete schedule of the operator's full-time and part-time leased access rates; 
     (2) how much of the operator's leased access set-aside capacity is available; (3) rates
     associated with technical and studio costs; and (4) if specifically requested, a sample leased
     access contract.

     10.  We note that only one petition before us  involves a category of information covered
under Section 76.970 -- the schedule of the operator's leased access rates. Armstrong has provided
this information to petitioner as an attachment to its response and therefore the basis for the petition
no longer exists.  In any event, we note that programmers are entitled to obtain a complete schedule
of an operator's rates.  While such requests must be made in good faith, contrary to Armstrong's
suggestion in its Response, there is no requirement in the rule that a programmer identify the specific
systems it plans to use before rate information is required to be provided by the operator.

     11.  With respect to the three remaining petitions, we agree with Armstrong that there is
no requirement under the Commission's rules for Armstrong to provide a complete and inclusive list
of all channels designated for commercial use by persons unaffiliated with the operator on each cable
system.  Armstrong correctly notes that pursuant to Section 76.971(a) "the cable operator and
unaffiliated commercial leased access user may negotiate channel placement and tier access for
leased programming."  Likewise, there is no requirement for a cable operator to provide a list of
communities served by each cable headend and the number of subcribers in each community.  Such
information is publicly available and accessible to petitioner.  Finally, we believe that Armstrong
has complied with petitioner's request to list devices by which petitioner's programming may enter
Armstrong's cable television distribution system.  Petitioner's claim is based upon unsubstantiated
allegations that Armstrong has  offered to non-leased access programmers means other than a VCR
to enter its system.  Moreover, we note that petitioner has not even raised this issue with Armstrong
in an attempt to negotiate different terms in the agreement. 

     12.  Based upon the foregoing, we  reject petitioner's contention in all four of its petitions
that Armstrong failed and refused to make capacity available and to charge lawful rates for such
capacity.  Armstrong has now provided the information to petitioner that is  required under the
Commission's rules.  Armstrong also appears ready to negotiate a leased access agreement with
petitioner.  We note that there is nothing in the record that shows that petitioner even attempted to
discuss the terms of a leased access agreement with Armstrong, or even to resolve the issues
surrounding the information requests prior to filing these petitions. 

V.  Ordering Clauses

     13.  Therefore, IT IS ORDERED that the petitions for relief of R. K. Production
Company in File Numbers CSR 4717-L; 4727-L; 4728-L; and 4729-L ARE DISMISSED.

     14.  This action is taken pursuant to authority delegated by Section 0.321 of the
Commission's rules, 47 C.F.R.  0.321.

                         FEDERAL COMMUNICATIONS COMMISSION



                         Meredith J. Jones
                         Chief, Cable Services Bureau