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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 ) Petition for Relief of ) ) STEVE GRUBERG, ) Petitioner, ) ) vs. ) CSR 4519-L ) TIME WARNER CABLE OF NEW YORK CITY, ) Respondent, ) ) For Leased Access Channels ) MEMORANDUM OPINION AND ORDER Adopted: April 23, 1997 Released: April 25, 1997 By the Chief, Cable Services Bureau I. Introduction 1. Steve Gruberg (herein "Gruberg") submitted a petition for relief to the Federal Communications Commission requesting an "investigation of the overcharging of commercial use rates" by Time Warner Cable of New York City (Time Warner) and its predecessor entities. Time Warner filed a response to Gruberg's petition. The response asserts that the petition does not allege a prima facie violation of the Commission's regulations governing leased access rates nor show by clear and convincing evidence that Time Warner has violated any of the Commission's leased access provisions. It requests that the petition be dismissed. 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 video 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, 5956-5961 (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, 62 Fed. Reg. 11364, March 12, 1997 ("Second Order"). 3. The leased access regulations initially required, among other things, that cable operators provide a schedule of rates "[u]pon request" to prospective leased access programmers. In the recently adopted Second Order, the Commission set a 15 day response time from the date of a written request for information by a potential programmer. A 30 day response time was established for systems who qualify for "small system" rate relief. Additionally, the regulations provide for the determination of maximum monthly leased access rates by means of an average implicit fee formula, which is described in the regulations. The Commission also adopted procedures for resolution of disputes, providing for the filing of a petition for relief within sixty days of an alleged violation of a leased access statutory or regulatory provision. III. The Pleadings 4. The petition identifies Gruberg as a producer of commercial use programming on Time Warner's cable system serving New York City (Time Warner). The petition asserts that another program producer, Media Ranch, Inc., pays Time Warner a programming rate of $200 per hour for a midnight to 1:00 a. m. slot on Tuesday and Saturday while Gruberg is charged $250 per one-half hour for a midnight to 12:29 a. m. slot on Wednesday and $225 per half hour for a midnight to 1:29 a. m. slot on Monday. The petition further asserts that a producer, identified as Temptation Publishing, is paying 12.5% less than Gruberg for a 4:30 a. m. to 5:59 a. m. time slot on another, unspecified day of the week. 5. The petition states further that, in an effort to determine whether Gruberg is being overcharged, Gruberg and his attorney were permitted to examine Time Warner's public file and that they were presented with certain documents which, according to Gruberg, did not include a rate schedule or any justification of rates pursuant to Section 76.970. Gruberg asserts that Time Warner failed to maintain such information in its public file as required by 47 C.F.R.  76.970. The petitioner asks the Commission to consider its letter and the annexed affidavits as a complaint for a) overcharging and b) failure to properly maintain commercial use rate information. 6. Time Warner notes that Section 76.305(a) of the rules does not require cable operators to maintain leased access information in their public inspection file. Time Warner asserts further that it in fact maintains leased access information, and that Gruberg and his attorney were provided with fifteen pages of leased access rate information when they visited Time Warner's offices. 7. Time Warner contends that Gruberg failed to provide any basis for the allegation of overcharging. Time Warner asserts that Commission regulations permit negotiation of rates lower than the maximum allowed rates, that such negotiations may result in different rates for different programmers, and that the existence of different rates for different programmers does not constitute a violation of the leased access regulations. It argues further that the rate difference is less than $4.34 per half hour, which is de minimis and the result of market place negotiations contemplated by the Congress and the Commission. Time Warner contends that its rates do not exceed the maximum permitted under Commission regulations. Finally, Time Warner states that the rate charged to Media Ranch, Inc. was set by stipulation in litigation in a federal court case under 47 U.S.C.  532(d) and therefore "has no bearing on rates pursuant to a rate card or during arms-length negotiations." III. Discussion A. Availability of Rate Information. 8. First, we reject Gruberg's assertion that Time Warner was required to maintain rate information for commercial use channels in its public file. Section 76.305(a) of the Commission's regulations lists the records that are required to be maintained in a cable operators public inspection file as follows: The operator of every cable television system ... shall maintain for public inspection a file containing a copy of all records which are required to be kept by 76.207 (political file); 76.221 (sponsorship identification); 76.79 (EEO records available for public inspection); 76.225(c) (commercial records for children's programs); 76.601(c) (proof of performance test data); 76.601(e) (signal leakage and repair records); and 76.701(h) (records for leased access). Section 76.305(a) on its face does not require that leased access rate information be maintained in a cable operator's public file. Neither did Section 76.970 of the rules in effect when the petition was filed. 9. When the petition was filed, Section 76.970(e) of the rules provided that "[u]pon request, a schedule of commercial leased access rates shall be provided to prospective leased access programmers." No specific time period was provided for at the time petitioner made his request for information. The petition shows that, when Time Warner's staff was asked for "rate information for Commercial Use Channels," Gruberg was presented with fifteen pages containing leased access rate information. Subsequently, Time Warner submitted a formal rate card as part of the record in this proceeding. Moreover, the petition makes no showing that either Gruberg or his attorney expressed to Time Warner's staff or any other company official any dissatisfaction with the information given them, either when it was handed to them or at any time before the petition for relief was submitted to the Commission about a month later. We find that the rate information provided by Time Warner was responsive to Gruberg's request for rate information for Commercial Channel Use. On this record, we conclude that Gruberg failed to show that Time Warner has violated the requirements of Section 76.970(e) in effect when the petition was filed. B. Allegations of Overcharging Are not Substantiated 10. We also conclude that Gruberg failed to substantiate the allegation of overcharging by Time Warner. Rather than providing facts relevant to an allegation of overcharging, Gruberg points to alleged differences between hourly rates charged him and hourly rates charged other leased access users on Time Warner's system. Section 612 of the Act does not prohibit differences in charges for leased access channels. Section 612 and Commission leased access regulations require that cable operator's rates not exceed the maximum reasonable rate calculated in the manner prescribed by Commission rules. Gruberg does not allege that the rates quoted by Time Warner exceeded the maximum net implicit fee calculated pursuant to the Section 76.970(c) requirements that were in effect when the petition was filed. IV. Ordering Clauses 11. Accordingly, IT IS ORDERED, pursuant to authority delegated by Section 0.321 of the Commission's rules, 47 C.F.R.  0.321, that the petition of Steve Gruberg IS DISMISSED. FEDERAL COMMUNICATIONS COMMISSION Meredith J. Jones Chief, Cable Services Bureau