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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 re: )CSR-4765-L LORILEI COMMUNICATIONS, INC. ) d/b/a/ THE FIRM ) ) v. ) ) PICAYUNE CABLEVISION, INC ) Picayune, Mississippi ) ) For Commercial Leased Access ) MEMORANDUM OPINION AND ORDER Adopted: July 18, 1997Released: July 21, 1997 By the Chief, Cable Services Bureau: I.INTRODUCTION 1.Lorilei Communications, Inc., d/b/a/ The Firm ("The Firm"), has filed with the Commission a petition pursuant to Section 76.970(e) of the Commission's rules alleging that Picayune Cablevision, Inc., Picayune, Mississippi, ("Picayune Cablevision") has violated the Commission's rules which require a cable operator to provide information pertaining to its rates for commercial leased access. Picayune Cablevision did not file a response. II.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 Recon. Order, the Commission set a seven business day response time from the time of a request. In the recently adopted Second Order, the Commission set a 15 calendar 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.SUMMARY OF PLEADINGS 4.In its petition, The Firm states that on May 28, 1996, it requested from Picayune Cablevision information pertaining to Picayune Cablevision's commercial leased access rates, channel numbering for leased access programming, total number of subscribers reached by leased access, leased access capacity, and tape format requirements. The Firm also requested a copy of Picayune Cablevision's standard leased access agreement. The Firm asserts that it did not receive a response from Picayune Cablevision. The Firm further states that on June 12, 1996, it sent a second request for leased access information to Picayune Cablevision to which it received no response. The Firm argues that Picayune Cablevision failed to provide its commercial leased access rate information in violation of Section 76.970(e) of the Commission's rules then in effect. The Firm requests that the Commission order Picayune Cablevision to provide the requested information to The Firm immediately and to file its rates with the Commission annually for the next five years. The Firm further requests that the Commission penalize Picayune Cablevision in the amount of $160,000 as compensation for The Firm's time expended, costs incurred, and lost revenues in bringing this action before the Commission. IV.DISCUSSION 5.We will grant The Firm's petition with respect to its request for leased access information from Picayune Cablevision. The Firm's petition is governed by the commercial leased access regulations established pursuant to the Rate Order. When the petition was filed, Section 76.970(e) required cable operators to provide a schedule of leased access rates to prospective leased access programmers "[u]pon request." We find on the basis of the record before us that Picayune Cablevision failed to respond to The Firm's request for leased access information. We remind Picayune Cablevision of its obligation to provide leased access rate information to prospective leased access programmers and direct it to respond to The Firm with the requested information within 15 calendar days of the date of this Order. We note that any leased access rates charged by Picayune Cablevision must be calculated using the "average implicit fee" formula adopted by the Commission in its Second Report. We further note that the Second Report requires cable operators to provide prospective leased access programmers with information pertaining to leased access rates, among other things, within 15 calendar days of the date on which a request for such information is received. In view of Picayune's complete failure to provide information in violation of our rules, we will require it to file with the Commission an explanation of its action within 30 days of the date of this Order. The Firm will have 15 days to reply. We will address at that time what, if any, administrative sanctions are warranted. 6.With regard to The Firm's request concerning the annual filing of Picayune Cablevision's leased access rates with the Commission, since Picayune is now required to respond to The Firm's request for leased access information within 15 days, we see no need to require Picayune to file its leased access rate cards with the Commission at this time. 7.The Firm also requests relief in the form of $160,000 in compensatory damages. Nothing in the Commission's rules provides for compensatory damages. Accordingly, The Firm's request for compensation for such damages will be denied. V.ORDERING CLAUSES 8.Accordingly, IT IS ORDERED that the petition filed by Lorilei Communications, Inc. d/b/a The Firm against Picayune Cablevision, Inc. (CSR-4765-L) pursuant to Section 76.970(e) of the Commission's rules then in effect, 47 C.F.R. 76.970(e), IS GRANTED, and Picayune is ordered to provide The Firm with the requested leased access information within 15 days of the date of this Order. 9.IT IS FURTHER ORDERED that Picayune shall file an explanation with the Commission within 30 days of this Order which addresses its failure to respond to The Firm's request for leased access information as required by Section 76.970(e) of the Commission's rules then in effect, 47 C.F.R. 76.970(e). 10.IT IS FURTHER ORDERED that The Firm shall have 15 days to file with the Commission a response to Picayune's explanation of its failure to respond. 11.IT IS FURTHER ORDERED that the petition with respect to The Firm's request that the Commission order Picayune to file its leased access rates annually with the Commission IS DENIED. 12.IT IS FURTHER ORDERED that the petition with respect to The Firm's request for compensatory damages IS DENIED. 13.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