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

                                 
James D. Brelsford,             )
          Petitioner,           )
                                )
     vs                         )       CSR 4579-L
                                )
TCI Cablevision of Oregon, Inc.,)
          Respondent            )

                  MEMORANDUM OPINION AND ORDER

     Adopted:  May 30, 1997             Released:  June 4, 1997

By the Chief, Cable Services Bureau:

                           INTRODUCTION

     1.   James D. Brelsford ("Brelsford") filed a petition for relief pursuant to 47 C.F.R. 
76.975 alleging that TCI Cablevision of Oregon, Inc. (herein "TCI of Oregon") failed to provide him
with leased access channels on its cable system in Eugene, Oregon.  TCI of Oregon has filed a
response to the petition.

                            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,  FCC 97-27, released February 4, 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 to provide leased access 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.

     4.   Brelsford states in his petition that in early June of 1995 he requested information
about the availability of a leased access channel on TCI of Oregon's cable system in Eugene, Oregon
and the costs that would be involved.  Brelsford states that after an exchange of correspondence TCI
of Oregon informed him that leased access channel time would be available but that its system did
not have equipment necessary for providing leased access service.  He states that TCI of Oregon
furnished a list of equipment, with a one time cost of $10,258, that Brelsford must provide before
he could be provided with leased access service.   Brelsford asserts that TCI of Oregon apparently
has the equipment necessary to provide leased access services, because such equipment was used
by TCI of Oregon in 1993 for presentation of his programming as local origination programming,
and TCI of  Oregon now utilizes such equipment for the provision of public and educational
channels.  He alleges that TCI of Oregon's claim of lack of equipment is "nothing more than a
shallow excuse to deny [him] leased  access."  Brelsford asserts that cable systems are obligated
under the Commission's rules to provide leased access programmers with a minimum amount of
technical support, "whether it be equipment, technology or other miscellaneous support necessary
for the leased access programmer to put on its programs."

     5.   TCI of Oregon asserts that it responded to Brelsfords's requests for leased access
information promptly and thoroughly, provided him with leased access rates as well as a list of
equipment required to transmit leased access programming, and offered to provide leased access
service upon delivery and installation of that equipment.  TCI of Oregon asserts further that it made
no attempt, directly or indirectly, to deny leased access to Brelsford and has not violated the
Commission's leased access rules.  TCI of Oregon listed with its response the items of equipment
allegedly required for the presentation of Brelsford's programming.  TCI of Oregon states that,
although it possesses most of such equipment, its equipment "is currently being used full time for
local advertising insertion at the beginning and end of every hour for a 24-hour period and has been
for over a year" and therefore is not available for petitioner's leased access programming.  TCI of
Oregon also states that equipment previously used for its local origination channel, the channel on
which Brelsford's non-leased programming previously appeared, is now being used for local
advertising insertion.  TCI of Oregon contends that, although a cable operator may be required to
provide the minimal amount of support necessary for the programmer to present its material on the
cable system, Commission rules do not require the operator to purchase equipment or technology
not already in its possession.  It further asserts that leased access programmers are required by
Commission rules to reimburse cable operators for any technical support cable operators in fact
provide.

                            DISCUSSION

     6.   The Commission considered the level of technical support that cable operators are
required to provide in the Rate Order.  There the Commission noted that technical cooperation
between the cable operator and the leased access programmer is likely to be necessary for the
programming to be delivered over a cable system  The Commission stated that operators will be
required to provide programmers with "the minimal amount of technical support, whether it be
equipment, technology or other miscellaneous support, which would be necessary for the
programmer to present its material on the air."  The Commission further explained this requirement
by adding that, while it would not impose on cable operators obligations similar to the
interconnection obligations imposed on common carriers under Title II of the Communications Act,
it would require a cable operator to offer to leased access programmers "the same services as would
be offered to comparable programming services that use the operator's non-leased access channel
capacity."

     7.   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.   If an operator must purchase equipment
not typically used by non-leased access programmers to accommodate a leased access programmer,
the operator may either (1) purchase the equipment for itself and lease it to the programmer at a
reasonable rate or (2) require the leased access user to purchase the equipment. Consequently, TCI
of Oregon may impose charges in addition to the charges determined under Section 76.970 for the
reasonable cost of other equipment and technical support actually provided to Brelsford only if that
equipment and technical support is not also provided with other non-leased access programming, as
provided by 47 C.F.R.  76.971(c).  We note in closing that it appears from the record that TCI
apparently provides other programmers with equipment that it seeks to charge Brelsford a fee for
using.  If this is the case, such equipment must be provided to Brelsford and other leased access users
without charge.

                         ORDERING CLAUSES

     8.   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  James D.
Brelsford IS GRANTED to the extent indicated in Paragraph 8 above, and in all other respect IS
DENIED.

                              FEDERAL COMMUNICATIONS COMMISSION



                              Meredith J. Jones
                              Chief, Cable Services Bureau