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

                                   
In the Matter of                        )
Petition for Relief of                       )
                                   )
LORILEI COMMUNICATIONS INC.,       )
   d/b/a THE FIRM,                      )
               Petitioner,         )
                                   )
vs.                                )    CSR 4626-L
                                   )
SCRIPPS HOWARD CABLE OF NORTHWEST  )
     GEORGIA,                      )
               Respondent,         )

                  MEMORANDUM OPINION AND ORDER

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

By the Chief, Cable Services Bureau:

I. INTRODUCTION

     1.   Lorilei Communications, Inc., d/b/a The Firm (herein "The Firm" or "petitioner"),
filed a petition for relief pursuant to Section 76.975 of the rules of the Federal Communications
Commission against Scripps Howard Cable of Northwest Georgia (herein "Scripps Howard")
alleging violations of the Commission's commercial leased access rules.  Scripps Howard filed a
response to the petition.

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 Report").

     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 Report, the Commission set a 15 day response time from the date of
a written request for rate schedule information. 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 and for the filing of a response.

III. THE PLEADINGS

     A.  Part-Time Leased Access Rates

     4.   The Firm is an advertising agency and video production company which produces
thirty minute programs for automotive dealers, recreational vehicle dealers, and real estate
companies to air on commercial leased access channels.  The petition describes The Firm's efforts
to obtain a leased access channel on Scripps Howard's cable system at Rome, Georgia.  The Firm
states that it received a letter from Scripps Howard containing full-time and part-time leased access
rate information and conditions.  The Firm asserts that the sum of the part-time rates provided by
Scripps Howard exceeds the full-time rate provided, in violation of requirements for part-time rates
as set forth in Tootlevision v. Prime Cable and TV-24 Sarasota v. Comcast.  It also asserts that a
$25.00 per program administrative fee quoted by Scripps Howard has neither been explained nor
shown to have any relation to the provision of technical support, consistent with Section 76.971(c)
of the Commission's rules.  The Firm asks the Commission to consider issuing to Scripps Howard
a notice of apparent liability for forfeiture in the amount of $100,000 as penalty for violation of the
rules.  The Firm also asks the Commission to require an adjustment of Scripps Howard's part-time
rates to total no more than the maximum implicit fee.  Finally, The Firm asks the Commission to
review the calculations made in determining the $10,497 full time rate quoted by Scripps Howard
to insure it is accurate.

     5.   In its response, Scripps Howard states that it has reviewed the part-time rates
provided to The Firm and determined that they were calculated erroneously under the leased access
rules then in effect.  Scripps Howard says The Firm has been notified of the error and has been
provided with a revised rate card.  Scripps Howard provided a copy of the corrected rate card for the
record. 

     6.   We have examined the corrected leased access rate card Scripps Howard provided
to The Firm.  The hourly rates range from $2.23 per hour for the 1:00 a.m. to 6:00 a.m. time slot to
$35.62 per hour for the 7:00 p.m. to 11:00 p.m. daily prime time hours.  Time slots are also available
for $4.45, $8.91, and $17.81 per hour for other specified times of the day.  The Firm has not alleged
that the corrected part-time rates fail to comply with the requirements for part-time rates set forth
in Tootlevision v. Prime Cable and TV-24 Sarasota v. Comcast.  In the Second Report, the
Commission modified these requirements and mandated that a schedule of part-time rates be
developed either by prorating the full time rate or by applying different rates for different times of
the day, provided that the total of the rates for a 24-hour period not exceed the maximum daily leased
access rate.  Scripps Howard's part-time rate schedule, which consists of different rates for different
times of day, does not violate these recently modified requirements, since the total of the highest
rates for a 24 hour period ($332.59) does not exceed the maximum daily rate ($349.90).

     B.  Administrative and Technical Support Fees

     7.   The Firm contends that the $25 per program administrative and technical support  fee
imposed by Scripps Howard is excessive and that any such fee should not exceed $2.96 per program. 
This $2.96 figure is based on one quarter of an hour of the regular daytime hourly labor rate of
production labor estimated by Scripps Howard.  In response, Scripps Howard provided for the record
cost information showing the development of the $25 fee.  Scripps Howard asserts that, although the
cost information justifies a fee of $50, it seeks to recover only $25 per program.  Scripps Howard
asserts that The Firm's argument for a $2.96 per program charge fails to recognize the cost of
providing additional equipment and the cost of employee overtime.

     8.   Section 76.971(c) of the Commission's rules in effect when the petition was filed
required cable operators to provide unaffiliated leased access users, such as The Firm, the minimum
level of technical support necessary for users to present their programming.  That provision also
required leased access users to "reimburse operators for the reasonable cost of any technical support
that operators actually provide."  In the Second Report the Commission 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 for
technical support ordinarily provided in common to other programmers.  

     9.   The information provided by Scripps Howard is relatively brief and falls short of a
full justification for the $50 fee it asserts could be justified.  Thus, for example, it is not clear why
the cost allocated for modulators is not a cost ordinarily provided in common to other programmers
and thus recovered under the implicit fee calculation rather than as a separate technical support fee. 
We have, however, reviewed the labor and equipment cost information submitted by Scripps Howard
and find it supports the reduced $25 per program fee.  Scripps Howard developed a clerical and
production staff labor rate that takes into account estimated time required for program administration
and weighted that rate for estimated proportions of normal and overtime required for presentation
of leased access programs.  It then added to that labor rate an amount for cost of equipment used. 
Based on this information we believe the $25 per program administrative providing for technical
support is reasonable.  We reject as unreasonable The Firm's position that Scripps Howard should
be allowed to recover soley the hourly labor rate for a quarter hour of production labor for the
presentation of leased access programs. Scripps Howard is entitled to recover as well for the
technical equipment, if such equipment is not ordinarily provided to non-leased access programmers
and properly included with the leased access channel charge.

IV.  ORDERING CLAUSES

     10.  For the foregoing reasons, IT IS ORDERED that the petition for relief of Lorilei
Communications, Inc. d/b/a The Firm in File No. CSR 4626-L IS GRANTED to the extent
indicated in paragraph 8 above, and in all other respects IS DENIED.

     11.  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