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R.K. Production Company, Andrew Raynovich, and Frank Kirkwood, Petitioners, v. Adelphia Cable Communications, Respondents, For Leased Access Channels

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Released: January 19, 1996


Before
The

FEDERAL COMMUNICATIONS COMMISSION

Washington, D. C. 20554

DA
95-2473

In the Matter of
)
Petition for Relief of
)
)
R. K. PRODUCTION COMPANY, ANDREW
)
RAYNOVICH, AND FRANK KIRKWOOD,
)
Petitioners,
)
)
vs. )
CSR
4491-L
)
ADELPHIA CABLE COMMUNICATIONS,
)
Respondent,
)

)
For Leased Access Channels
)



MEMORANDUM OPINION AND ORDER


Adopted:
December 12, 1995



Released

: January 19, 1996

By the Chief, Cable Services Bureau

I. Introduction


1. R. K. Production Company, Andrew Raynovich, and Frank Kirkwood filed with the
Federal Communications Commission on March 23, 1995 a petition for relief pursuant to
Section 76.975 of the Commission's rules alleging violations by Adelphia Cable
Communications of statutory and regulatory provisions applicable to commercial leased access
channels on cable systems. On April 24, 1995, Adelphia Cable Communications filed a response
asserting that it has fully complied with its obligations under the rules applicable to leased access
and has provided rates and other information necessary to facilitate programming on its systems.

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.1 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, among other things, rules for determining maximum reasonable rates
for commercial leased access.2 Pursuant to that Congressional directive, the Commission
established regulations, including rate regulations and other terms and conditions 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), at ¶¶ 531-538. The new leased access regulations relevant
to this case are found at 47 C.F.R. §§ 76.970, 76.971 and 76.975.


III. The Pleadings




3. The petitioners are R. K. Production Company, a Pennsylvania corporation, and its
owners Andrew Raynovich, and Frank Kirkwood, residents of Allegheny County, Pennsylvania
(herein, collectively, "petitioners"), who propose to cablecast programs advertising residential
real estate properties for sale. The petition asserts that, although several written and oral requests
have been made to Adelphia Cable Communications ("Adelphia") between August 1, 1994 and
January 31, 1995, Adelphia has refused to respond to petitioners' requests for access to
Adelphia's cable system by means of leased access, has failed to designate channel capacity and
has failed to provide petitioners with commercial leased access. It asserts that Adelphia's refusal
to respond and failure to designate channel capacity and to provide petitioners with commercial
leased access constitute a continuing and ongoing violation of 47 U.S.C. § 532 et seq. and
Section 76.970 of the Commission's rules. It asks the Commission to require Adelphia to
provide leased access to petitioners at rates determined by the Commission and to execute a
lease agreement in the form of one attached to the petition. It also requests an order requiring
Adelphia to compensate petitioners for out-of-pocket expenses not to exceed $10,000. Copies of
correspondence in which the petitioners' written requests were made are submitted with the
petition.


4. Adelphia in its response states that it operates two cable systems that serve
municipalities in the Pittsburgh region. The two systems are managed by two local operations
managers. Adelphia states that it is obligated pursuant to Section 612(b) of the Communications
Act to make channel space available for lease on both systems.


1 See Section 612 of the Communications Act of 1934, as amended., 47 U.S.C. § 532. The
amount of channel capacity an operator must set aside is based on a system's activated channel
capacity. See 47 U.S.C. § 532(b).
2 See Pub. L. No. 102-385, §§ 9, 10(a) and 10(b), 106 Stat. 1460, Oct. 5, 1992. See 47 U.S.C.
§ 532(c)(4)(A) & (B) (1992).




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5. Adelphia asserts that it has responded to petitioners' requests, has made leased access
capacity available, and has been and remains willing to make leased access capacity available to
petitioners. In support, it submitted copies of correspondence to show that its staff attorney had
advised petitioners during August and September of 1994 to contact its local operations
managers to obtain specific information for the respective systems, and that those local managers
had concurrently provided petitioners with leased access rates and other information.3 Adelphia
asserts further that petitioners were also informed through a phone conversation with its staff
attorney that petitioners needed to contact the local managers in order to obtain leased access
programming on Adelphia's individual systems. It asserts, however, that petitioners had not
contacted those local managers further to pursue leased access to its systems prior to filing their
petition.

IV. Discussion




6. This case presents the question of whether Adelphia has responded to the requests of
petitioners for leased access capacity in a manner that is consistent with the requirements of the
statutory and regulatory provisions applicable to leased access. The petition also raises the issue
of whether the Commission has statutory authority to order payment of expenses of litigation.


A. Cable Operator Responses to Requests for Leased Access Capacity




7. The record before us shows that by letter to Adelphia's staff attorney dated August 1,
1994, petitioner Raynovich asked for a response to his July 14, 1994 letter "requesting various
information on the leased access programming of Adelphia Cable Communications," and for "a
copy of your lease agreement for access to your cable system."4 Adelphia's staff attorney
responded by letter dated August 22, 1994, stating, among other things, that "The Operations
Manager of the local system will work out specific rates for your programming." She also
provided the name of the local operations manager.5 By letter to petitioner Kirkwood, dated
August 15, 1994, the named operations manager provided rates for the "home shopper" and "all
other" leased access categories, and offered to be available for further assistance.6 By letter to
petitioner Kirkwood, dated September 30, 1994, Adelphia's staff attorney provided the names of
the operation managers for both of Adelphia's systems and indicated that those managers would

3 See Response, Attachments B through E.
4 See Petition, Exhibit A. No copy of the mentioned July 14, 1994 letter was provided for the
record.
5 See Petition, Exhibit B.
6 See Response, Exhibit B.




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be asked to respond to petitioners' requests by providing information on their respective areas.7
By letters dated October 13, and 31, 1994, the two named operations managers provided rates
and other information relevant to their respective systems to petitioner Kirkwood. The record
shows that all of petitioners' subsequent requests for lease agreements and other information
concerning leased access were addressed to Adelphia's staff attorney, and none of those requests
were directed to either of the local operations managers with whom petitioners had been asked
by Adelphia to work.8


8. Section 612(b) of the Communications Act requires cable operators to designate
channel capacity for commercial use by programmers unaffiliated with the cable operator.9 In
language that parallels Section 612(b) of the Act, the Commission has incorporated this channel
designation requirement into Section 76.970(a) of its rules. That requirement is supplemented
by Section 76.970(e) of the rules, which requires that a cable operator, "Upon request," shall
provide a schedule of leased access rates to prospective leased access programmers. This record
shows that, on at least three occasions, Adelphia has provided leased access rates and other
information to petitioners.10 That correspondence also shows that Adelphia has designated its
Channel 20 on some of its systems and channels 18 or 23 other systems for leased access
programming.11 On this record, we do not find that Adelphia has refused to respond to the
requests of petitioners for leased access channel capacity, has failed to designate channel
capacity, or has denied petitioners access to it cable system, in violation of Section 612(b)(1) of
the Communications Act, or of Section 76.970(a) of the Commission's rules, as petitioners have
alleged.


9. To the extent that the petition may be construed as a complaint that Adelphia has not
responded to petitioners' follow-up requests made to Adelphia's staff attorney for a commercial
leased access agreement,12 the petition is also without merit. In this regard, the record shows that
Adelphia's staff attorney, on at least two occasions,13 requested petitioners to contact the local
operations managers for arrangements for leased access. The record contains no showing that
petitioners made any effort prior to filing the petition to contact those operations managers with

7 See Response, Exhibit C.
8 See Petition, p. 4-6.
9 See n. 1 above.
10 See Response, Exhibits B, D, and E.
11 See Response, Exhibits D and E.
12 See Petition, p. 4 - 6 and Exhibit D.
13 See Response, Exhibit C, and Petition, Exhibit B.




4


regard to obtaining a leased access agreement or other information about leased access
programming on Adelphia's cable system.


10. On this record, we cannot find that Adelphia has violated the statutory or regulatory
provisions applicable to leased access in respect to the requests for a leased access agreement,
for two reasons. First, as noted above, petitioners never directed their request for a leased access
agreement to the persons identified to them as responsible in the first instance for leased access
matters, as they had been requested to do. Although Section 612(b) of the Communications Act
requires cable operators to designate channels for leased access and Section 76.970(e) of the
Commission's rules requires them to provide rates "[u]pon request," those provisions do not
mandate that a cable operator must respond to a leased access programmer's requests through
any particular office, officer or employee. Those provisions also do not preclude a cable
operator from designating a particular office, officer or employee for handling leased access
matters. We note that cable operators must assure that misdirected requests from leased access
programmers are directed to those having authority to handle them and to respond to them
promptly. We note here that Adelphia's staff attorney not only redirected petitioners' requests,
but she also requested the local managers to handle petitioners' requests, which were then never
made.

B. Timeliness of Petition




11. Section 76.975(d) of the rules requires that a petition for relief be filed within sixty
days from the alleged violation. The record shows that petitioners last made a written request of
Adelphia's staff attorney on October 31, 1994, and had a telephone conversation with her as
recently as December 19, 1994 about leased access matters. However, the petition was not filed
until March 23, 1995, more that sixty days after that last event. On these facts, we conclude that
the petition was not timely filed and must be dismissed for noncompliance with Section
76.975(d) of the rules. The unverified petition describes further efforts that were made to reach
Adelphia's staff attorney by telephone as recently as January 31, 1995 that were unsuccessful.
However, we decline to conclude on this record that the alleged failure to return these telephone
calls constitutes a violation of Section 612 of the Communications Act or Section 76.970 of the
Commission's rules.


C. Payment of Expanses of Litigation




14. Petitioners request that the Commission order Adelphia to pay them a sum not to
exceed $10,000 to compensate them for out-of-pocket expenses . Neither the Communications
Act of 1934, as amended, the 1984 Act, nor the 1992 Act provides for recovery of costs
associated with the filing of a petition for relief with the Commission for alleged violations of
the statutory provisions or of the Commission's regulations applicable to leased access channels.
Accordingly, petitioner's request for compensation for out-of pocket expenses of litigation will
be denied.




5







6


IV. Ordering Clauses




15. For the foregoing reasons,

IT IS ORDERED

that the petition for relief of R. K.
Production Company, Andrew Raynovich and Frank Kirkwood in File Number CSR 4491-L

IS
DISMISSED

as untimely filed.


16. 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
Service
Bureau




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