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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 ) ) LORILEI COMMUNICATIONS, INC. ) Petitioner ) ) vs. ) CSR-4768-L ) COMCAST OF CORINTH ) Respondent ) MEMORANDUM OPINION AND ORDER Adopted: June 10, 1997 Released: June 13, 1997 By the Chief, Cable Services Bureau: INTRODUCTION 1. Lorilei Communications, Inc. d/b/a The Firm ("Lorilei") has filed a petition pursuant to  76.970 of the Commission's rules alleging that Comcast of Corinth ("Comcast") failed to respond in a timely fashion to Lorilei's request for information concerning leased access on its system serving Corinth, Mississippi in violation of the Commission's commercial leased access rules. Comcast contends, in response, that it did provide Lorilei the requested information in a timely fashion. BACKGROUND 2. In 1984, Congress amended the Communications Act by adding, among other things, a commercial leased access requirement contained in 612, 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, applicable to leased access channels, in the Report and Order and Further Notice of Proposed Rule Making in MM Docket No. 92-266 ("Rate Order"). The Commission revisited these regulations in the Order on Reconsideration of the First Report and Order and Further Notice of Proposed Rulemaking in MM Docket No. 92-266 and CS Docket No. 96-60("Recon. Order"), and again in the Second Report and Order and Second Order on Reconsideration of the First Report and Order in CS Docket No. 96-90 ("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 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. THE PARTIES' PLEADINGS 4. On May 28, 1996, Lorilei states that it faxed a letter to Comcast requesting the following: a sample copy of the actual lease agreement, specific information about the Corinth system, including the total number of subscribers reached by leased access, full time leased access rates, part time leased access rates by daypart, leased access set-aside capacity, the channel number on which leased access programming appears, and what tape format the system uses to playback leased access. Having not received a response from Comcast, Lorilei faxed it another letter requesting this information on June 12, 1996, and on June 18, 1996, Lorilei filed the instant petition. Lorilei contends that Comcast ought to have responded to its information requests within 7 days, and that Comcast's failure to do so has prevented Lorilei from exercising its right to transmit programming on Comcast's system. As a result, Lorilei claims that it has suffered $10,000 per month in lost revenues while this petition is pending, in addition to the expense of preparing letters, postage, faxes, long distance telephone calls, legal research, and the costs of preparing this petition. Lorilei speculates that this petition may not be processed for sixteen months after it is filed, so Lorilei requests that the Commission issue a notice of apparent liability against Comcast in the amount of $160,000 as a penalty for violating the Commission's rules. In addition, Lorilei asks that the Commission order Comcast to provide Lorilei annually with a schedule of full-time and part-time rates for the next five years as proof of Comcast's compliance with Commission rules. 5. In response, Comcast states that by letter dated June 24, 1996 it provided Lorilei with the relevant leased access information, which was within four days of receiving notice for the first time, on June 21, 1996, that Lorilei wanted such information and that it planned to file this petition. Comcast maintains that, in fact, it did not receive either Lorilei's information request of May 28, 1996 or of June 12, 1996. Comcast contends that Lorilei's request for damages is speculative, inappropriate, and outside the Commission's authority; adding that as of August 2, 1996, Lorilei had yet to purchase any time on Comcast's system. Comcast adds that it intends to give Lorilei any further information regarding leased access use to which it is entitled upon request. DISCUSSION 6. The record does not support a finding that Comcast failed to respond in a timely fashion to Lorilei's request for leased access information in violation of  76.970 of the Commission's rules. At the time that Lorilei filed its petition, cable operators were directed to respond "within seven business days" to such inquiries, and Comcast contends that it did respond within this time period to the first request for access information it received from Lorilei on June 21, 1996. While there is some dispute about when Comcast first learned of Lorilei's request for information, the record reflects that Comcast responded to Lorilei's June 21, 1996 request within four days. Obviously, this is within the seven days allowed under our former rules. Therefore, we do not believe that a violation of our rules has occurred. We note, however that our new rules provide for a response period of fifteen days. 7. We also do not believe that Lorilei is entitled to compensation for time expended or for costs incurred in bringing this action before the Commission. Neither the Communications Act of 1934, as amended, the 1984 Act, nor the 1992 Act provide for recovery of costs associated with the filing of a petition for relief with the Commission for alleged violations of the leased access statutory provisions or of the Commission's regulations issued under authority of those statutory provisions. Accordingly, Lorilei's request for compensation for such costs will be denied. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED that the petition (CSR 4768-L) filed June 24, 1996, by Lorilei Communications, Inc., IS DISMISSED. 9. This action is taken pursuant to authority delegated by  0.321 of the Commission's rules. 47 C. F. R.  0.321. FEDERAL COMMUNICATIONS COMMISSION Meredith J. Jones Chief, Cable Services Bureau