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

                                 
In the Matter of                             )
Petition for Relief of                            )
                                        )
HARRY TOOTLE d/b/a AMERICAN             )
   PATRIOT SATELLITE NETWORK,           )
               Petitioner,                   )
                                        )
                                        )
vs.                                     )    CSR 4565-L
                                        )
TIME WARNER CABLE OF NEW YORK CITY,     )    
               Respondent,                   )
For Leased Access Channels                   )


                  MEMORANDUM OPINION AND ORDER

   Adopted:  May 16, 1997               Released:  May 20, 1997

By the Chief, Cable Services Bureau:

I.   Introduction

     1.   Harry Tootle d/b/a American Patriot Satellite Network (herein "Tootle") filed a
Petition for Relief pursuant to 47 C.F.R. 76.975(b) alleging that Time Warner Cable of New York
City (herein "TWCNYC"), is in violation of the Commission's regulations applicable to commercial
leased access services by failing to provide leased access rates for hourly programming.  TWCNYC,
operator of a cable system in southern Manhattan, New York, filed a response asking that the request
for relief be denied and 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. 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

     4.   Tootle alleges that TWCNYC, in response to a request for commercial leased access
information, "has instead forwarded a misleading 10 PAGE document entitled `APPLICATION
FOR COMMERCIAL USE TIME', and has failed to provide the requested information," in direct
violation of 47 C.F.R. 76.970(e).  Tootle requests relief in the form of an order directing TWCNYC
to provide certain items of leasing information and an award of damages.

     5.   TWCNYC states that it could not locate a record of receiving any request from Tootle
prior to the instant petition.  TWCNYC states that after receiving the petition, it forwarded to Tootle
an application for commercial use time and a copy of TWCNYC's rate card showing hourly rates for
the "all other" rate category of programming.  TWCNYC states it also provided Tootle with
information regarding the availability of leased access time on its system during the hours specified
in Tootle's petition.  TWCNYC states further that it received from Tootle on August 18, 1995 certain
information regarding Tootle's organization and his proposal for commercial use time.  TWCNYC
asserts that it is complying with the Commission's regulations governing commercial leased access. 
TWCNYC asserts that, in view of the dialogue and exchange of information initiated with Tootle
and the inability to locate any request from Tootle prior to the receipt of the petition, the petition is
at best premature.  TWCNYC requests that the petition be denied and dismissed, or at minimum held
in abeyance.


IV.  Discussion

     6.   Section 76.975(g) of the rules requires that a petitioner, before being afforded relief,
must show by clear and convincing evidence that the cable operator has violated a statutory or
regulatory provision applicable to leased access services.  Tootle provided no documentation with
the petition that supports the allegation that any request for commercial leased access leasing
information was made of TWCNYC prior to the filing of the petition on July 28, 1995.  However,
TWCNYC provided with its response documents showing that Tootle was provided with leasing
information, including a rate card and an application for leased access service, by letter dated August
11, 1995, promptly after receiving a copy of the petition.  We find on this record that the
unsupported allegations of the petition do not constitute clear or convincing evidence that TWCNYC
has violated any statutory or regulatory provision relating to leased access or has otherwise acted
unreasonably or in bad faith with respect to Tootle, within the meaning of Section 76.975(g).


V.   Ordering Clause

     7.   For the foregoing reasons, 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 for Relief of Harry
Tootle in File No. CSR 4565-L IS DENIED.


                         FEDERAL COMMUNICATIONS COMMISSION



                         Meredith J. Jones
                         Chief, Cable Services Bureau