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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           )
Petitioner,                             )
                                   )
vs.                                )    CSR 4730-L
                                   )    CSR 4731-L
ADELPHIA CABLE COMMUNICATIONS,     )    CSR 4732-L
               Respondent,         )    CSR 4733-L
                                   )
For Leased Access Channels         )


                  MEMORANDUM OPINION AND ORDER

   Adopted:  May 27, 1997               Released:  June 4, 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 Adelphia Cable Communications ("Adelphia") of
statutory and regulatory provisions applicable to commercial leased access channels on cable
systems.  Each of these petitions arise out of the same March 12, 1996 correspondence from 
Adelphia in response to petitioner's February 12, 1996 request for information.  Adelphia filed a
consolidated response to the petitioners requesting dismissal on the grounds 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. 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,
among other things, rules for determining maximum reasonable rates for commercial leased access. 
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).  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 programming.  On February 12, 1996, petitioner sent letters to various persons at
Adelphia.  One letter, sent to Adelphia's president, requested that Adelphia lease channel capacity
to petitioner on Adelphia's cable systems in Pennsylvania and also requested the following leased
access information for each of Adelphia'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 Adelphia's cable
systems; 4) rates for technical services; 5) a list of communities that Adelphia serves and the number
of subscribers in each of those communities; and 6) a leased access agreement.  Petitioners also sent
letters to the operations manager located in Bethel Park, Pennslyvania and the general manager
located in Blairsville, Pennslyvania requesting access on the cable systems in the South Hills of
Pittsburgh and the Murrysville area, respectively, and also requesting information regarding those
systems.  Adelphia responded to these requests  on March 12, 1996 by providing information,
including rate cards, names of communities served and number of subscribers, and a copy of a leased
access agreement.

     4.   Petitioner's four petitions raise separate issues with respect to the responses provided
by Adelphia.  In particular, Petitioner claims that it has not received a response to its letter to the
president of Adelphia asking for information with respect to all of Adelphia's cable systems in
Pennslyvania. Petitioner states that Adelphia's failure to respond to the petitioner's request is in
violation of  Section 76.970(a) and (e) of the Commission's rules and that Adelphia has acted
unreasonably and in bad faith in failing or refusing to make capacity available.  In response,
Adelphia states that it is unreasonable to expect its chief executive officer to respond to the
individual requests for leased access information.  Adelphia also notes that the petitioner previously
was informed that it had to pursue leased access through Adelphia's general managers, as reaffirmed
in a Commission Order dismissing petitioners prior petition against Adelphia.  Adelphia notes that
it did respond to the requests for information as evidenced by the correspondence from Messrs.
Bradley and Redpath on February 20, 1996 and March 12, 1996, respectively.

     5.   In a second petition, petitioner claims that Adelphia only identified one channel for
leased access use and that, given its size, several channels should be designated.  Petitioner claims
that the negotiation process identified in Section 76. 971(a)(1) and 76.971(a)(1)(ii) cannot take place
if the system operator does not identify the complete list of designated channels.  Petitioner claims
that by failing to provide a complete list of all channels designated for commercial use, Adelphia is
in violation of Section 76.970(a) of the Commission's rules and has acted unreasonably in failing to
make capacity available in violation of 76.975(g).  In response, Adelphia states that under the Cable
Act, designated leased access channels are not required to remain vacant and that operators may use
such channels until they are utilized by leased access programmers.  Adelphia also contends that
it will make available the appropriate number of leased access channels as required under the Cable
Act, if they are requested by leased access programmers.  Adelphia states that currently it has time
available on the channel identified in its correspondence and it will make other arrangements if this
is inadequate to accommodate petitioner.

     6.   In a third petition, petitioner challenges the rates quoted by Adelphia for cablecasting
its programming.  Specifically, petitioner claims that Adelphia's rates are in violation of the law
because Adelphia has established rates for three separate day parts and also has established rates
based on the total number of hours purchased by the non-affiliated programmer.  Petitioner claims
that the Commission rules do not provide for prices based on quantity purchased; the rates charged
for purchasers of fewer than 30 hours (and all other purchasers of any quantity of channel capacity)
are higher than the maximum reasonable rate set forth in 76.970(b)(c)(d); the quantity-based pricing
scheme works against the purpose of the law (as stated in 47 U.S.C.  532(a)) because by inflating
the charge for the purchaser of fewer than 30 hours of channel capacity, the operator will reduce the
number of programmers able to purchase channel capacity at the inflated price and competition will
be reduced as will diversity; and the quantitative categories established by Adelphia are entirely
arbitrary.  

     7.   In response to the third petition, Adelphia states that the Commission specifically
approved part-time rate schedules which contain different rates for different times of the day, and
which are scaled depending on the number of weeks to which the lessee is willing to commit. 
Adelphia states that such rates are in compliance with Commission rules and decisions as long as
different rates have a reasonable basis and as long as a cable operator monitors the revenues
collected from part-time leasing to ensure that the total monthly revenue does not exceed the
maximum monthly rate for full-time use.  Adelphia states that its part-time rate schedule varies based
on the value of the channel for the time of day and the number of hours per month to which a lessee
is willing to commit and takes into account the lost advertising revenue opportunity and the pro rate
channel capacity charge.  Adelphia further states that it carefully monitors its monthly leased access
revenue to ensure that part-time usage by multiple lessees will not result in revenue which exceeds
the permissible full-time channel rate. 

     8.   Finally, in a fourth petition, petitioner claims that it requested a schedule of hourly
charges for technical services associated with distributing leased access programming through
Adelphia's cable system and that Adelphia replied that the hourly rate depended on the support
required and the time of day.  Petitioner claims that under Section 76.970(e) of the Commission's
rules it is entitled to a schedule of commercial leased access rates and that this should include the
choices and costs of various types of technical assistance.  Petitioner further claims that it is
unreasonable for Adelphia to delay disclosure of these rates and prevent prospective programmers
from being aware of the hourly technical service costs associated with each of the various devices
available from Adelphia.  In response, Adelphia states that Adelphia cannot determine the cost of
the technical support until it knows what time of day the programming will be aired and what type
of technical support will be necessary to air the programmer's material.  Adelphia further states that
petitioner has not followed up as to the type of technical support it will require or to pursue
placement of the programming on Adelphia's systems.

     IV.  Discussion 
 
     9.   This case presents the question of whether Adelphia has responded to petitioner's
requests for leased access capacity in a manner that is consistent with the requirements of the
statutory and regulatory provisions applicable to leased access.  

     A.  Cable Operator Responses to Requests for Leased Access Capacity

     10.       Petitioner claims that because it has not received a response from Adelphia's 
president, Adelphia has violated the Commission's rules in failing or refusing to make capacity
available. The record before us shows that petitioner sent three letters to different individuals at
Adelphia requesting various information on the leased access programming of Adelphia -- one to
the president of Adelphia and two to the managers of specific Adelphia systems.  By letters dated
February 20, 1996 and March 12, 1996, the two named managers provided rates and other
information to petitioner relevant to their respective systems.  

     11.       Section 612(b) of the Communications Act requires cable operators to designate
channel capacity for commercial use by programmers unaffiliated with the cable operator.  The
Commission has incorporated this channel designation requirement into its rules. Under  Section
76.970(e) of the rules in effect at the time this petition was filed, a cable operator was required upon
request to provide a schedule of leased access rates to prospective leased access programmers.  In
a prior Order involving these parties, we noted that petitioner had been informed by Adelphia that
requests for access and information should be directed to the operations manager for the specific
system(s) in which it was interested.  We noted in that Order that there was nothing in our rules that
precluded a cable operator from designating a particular office, officer or employee for handling
leased access matters.  We also noted 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. As stated above, Adelphia has provided leased access rates and other information
to petitioners in response to the letters to its two managers.  To the extent that petitioner desires
information for other systems in Pennslyvania, its requests should be directed to the managers of
those systems.  Upon request by petitioner, Adelphia should provide the names of those managers
to petitioners or forward the requests to the appropriate individuals.  On this record, however, we
do not find that Adelphia has refused to respond to the requests of petitioners for leased access
channel capacity or has denied petitioners access to its cable system, in violation of the
Communications Act or the Commission's rules.
     
     B.  Identification of Leased Access Channels

     12.       Petitioner claims that Adelphia only identified one channel for leased access use and
that by failing to provide a complete list of all channels designated for commercial use, Adelphia is
in violation of Section 76.970(a) of the Commission's rules and has acted unreasonably in failing to
make capacity available in violation of 76.975(g).  We reject petitioner's claim that Adelphia must
identify all channels designated for use and note that there is no requirement under the Commission's
rules for Adelphia to provide a complete and inclusive list of all channels designated for commercial
use by persons unaffiliated with the operator on each cable system.  Indeed, 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." Adelphia also correctly notes that designated
leased access channels are not required to remain vacant and that operators may use such channels
until they are utilized by leased access programmers. However, we do note that pursuant to Section
76.970(h), upon request a cable operator is required to provide prospective leased access
programmers with "how much of the operator's leased access set-aside is available."  Thus, while
Adelphia has indicated that it will make available the appropriate number of leased access channels
as required if such channels are requested by petitioner, Adelphia must also indicate how much of
its leased access set- aside is available.   

     C.  Part-time Rates

     13.       Petitioner further claims that Adelphia's rates are in violation of the law because it
has established rates based upon the time of day and also on the total number of hours purchased by
the non-affiliated programmer and that in some instances the rates exceed the maximum permitted
rate under the rules.  Petitioner further contends that establishing rates based upon the quantity
purchased is contrary to the purpose of the rule.  Based on the current record, we deny this claim. 
With respect to rates for part-time leased access programming, we note that under Section 76.970(d)
of the Commission's rules cable operators are permitted to charge different rates for different times
of day provided that the total rates for a 24-hour period does not exceed the maximum rate for one
day of a full-time leased access channel (prorated evenly from the monthly rate derived in
accordance with Section 76.970(b)(c) and (d)).  In the Second Order, we reaffirmed that this
approach recognizes that different time slots have different values, furthers the statutory goal of
promoting a diversity of programming sources, and promotes the full use of leased access channels
by making non-prime time slots less expensive than prime-time slots, and therefore more attractive
to programmers.  The Second Order  did adopt revisions in how the maximum reasonable rate  for
leased access programming was calculated, adopting the "average implicit fee" in place of the
"highest implicit fee" formula.  Accordingly, until we have evidence of Adelphia's recalculated rates,
we can not determine whether Adelphia's rates currently are in compliance with our rules.  Adelphia
must establish a new schedule of rates or rate cards for different times of the day based on the
average implicit fee formula recently adopted in the Second Order.  Part-time rates must be in
compliance with the rules as noted above.  Likewise, because Adelphia must establish a new
schedule of rates based upon the average implicit fee formula, at this time we can not determine
whether its rates, based on quantity purchased, violate our rules.  We note that contrary to petitioner's
position, there is nothing in the rules that precludes an operator from charging less than the
maximum permitted rate based upon the quantity of purchases.  Adelphia, however, is precluded
from charging programmers more than the prorated permitted rate based upon the quantity of their
purchase.  
          
     D. Technical Support

     14.       Petitioner claims that Adelphia acted unreasonably in failing to disclose to petitioner
its hourly rates for technical services associated with leased access.   In response, Adelphia states
that it cannot determine the cost of the technical support until it knows what time of day the
programming will be aired and what type of technical support will be necessary to air the
programmer's material.  Adelphia further states that petitioner has not followed up as to the type of
technical support it will require or to pursue placement of the programming on Adelphia's systems.
In the Second Order, the Commission clarified some of the rules with respect to cable operators
providing technical support to leased access users.   The Commission noted that cable operators
are allowed to charge an additional fee only for the reasonable cost of providing technical support
to a leased access programmer that is also provided to non-leased access programmers on the system.
The Commission further noted that cable operators may not impose a separate charge for the same
kind of technical support that they already provide to non-leased access programmers because the
maximum leased access rate already includes technical costs common to all programmers. The
Second Order further notes that a cable operator may impose an additional charge for services it
provides the leased access programmer that it does not provide non-leased access programmers.   
Based on the record here, we do not find that Adelphia acted unreasonably. Adelphia did not refuse
to provide the technical service costs that may be involved, but noted that it could not make a
determination until it had certain information from petitioner. Accordingly, we deny the petition on
this issue.IV.  Ordering Clauses

     15.       For the foregoing reasons, IT IS ORDERED that Adelphia comply with this Order
as noted herein. In particular, Adelphia is required (1) upon request, to provide the appropriate names
of its managers that petitioner should contact for information about other systems in Pennslyvania;
(2) recalculate its part-time rates using the average implicit fee formula.  In all other respects, the
petitions for relief of R. K. Production Company in File Number CSR 4730-L; 4731-L; 4732-L and
4733-L ARE DISMISSED.

     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 Services Bureau