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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 ) ) FAL-COMM PRODUCTIONS ) ) vs. ) CSR-4693-L ) CITY OF WYANDOTTE ) ) Petition for Reconsideration ) MEMORANDUM OPINION AND ORDER Adopted: August 27, 1997 Released: August 29, 1997 By the Chief, Cable Services Bureau: INTRODUCTION 1. The City of Wyandotte, Michigan ("the City"), pursuant to 1.106 of the Commission's rules, has filed a petition for reconsideration of the decision in Fal-Comm Productions vs. City of Wyandotte. Fal- Comm Productions (Fal-Comm) has not responded. 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 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. 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. In Fal-Comm Productions vs. City of Wyandotte, supra, the Bureau found that there was no record evidence upon which to evaluate Fal-Comm's complaint that the City's quoted leased access rates were in excess of those permitted by the Commission's rules then in effect. The Bureau ordered the City to establish maximum reasonable monthly rates and part time rate schedules consistent with the current requirements of 76.970 of the Commission's rules. The Bureau also ordered the City to maintain on file adequate records, consistent with the current requirements of 76.970(h) of the Commission's rules, which show the total monthly revenues derived from part time users of each leased access channel, together with the maximum monthly charge for a full leased access channel and the documentation and calculations used for deriving the maximum monthly charge in accordance with 76.970 of the rules. SUMMARY OF THE PLEADINGS 5. The City argues that, pursuant to 623(a)(1) of the Communications Act, the City is exempt from rate regulation. The City further argues that it qualifies as a "small cable operator" or a "small cable company," pursuant to the Act and the Commission's rules. The City contends that Fal-Comm's initial petition was procedurally defective and should have been dismissed. The City states that Fal-Comm never served a copy of its initial petition upon the City. In addition, the City states that Fal-Comm did not certify that it had served its petition upon the City, as required by 76.975(c) of the Commission's rules. The City states that while Fal-Comm may have contacted the City's cable television staff concerning leased access channel availability and rates, this did not qualify as a bona fide request for leased access pursuant to 76.970(h) of the Commission's rules. The City notes that the Commission has recognized that small cable operators such as the City need only respond to bona fide requests, citing the Second Order. In addition, the City claims that Fal-Comm failed to follow the Commission's prescribed dispute resolution methodology, because Fal-Comm failed to obtain a determination of the City's maximum permitted leased access rate from an independent accountant before Fal-Comm filed its petition, as required by 76.975(b)(1) of the Commission's rules. Finally, the City maintains that Fal-Comm may not file another complaint in this matter, as any such complaint would fall outside of the sixty-day time period for filing set forth in 76.975(d) of the Commission's rules. DISCUSSION 6. We will deny the City's petition. The Commission's leased access rules stem from and implement 612 of the Communications Act, which contains no exemption from regulation for municipally-owned cable systems. We note, too, that the "small cable operator" exemption cited by the City is by its own terms specifically limited to the provisions of 623(a)-(c) and (m) of the Communications Act which are not applicable in this instance. Though the City contends that Fal-Comm's petition should be dismissed because Fal-Comm neither served its petition on the City nor certified its service, we note that Fal- Comm's petition indicated that a copy had been sent to the City. The Commission's rules specify that "[s]ervice by mail is complete upon mailing." While Fal-Comm's proof of service may not have been in standard certification form, we note that proof of service may be by "other proof satisfactory to the Commission," and that such proof may be supplied "at any time, unless to do so would result in material prejudice to a party." Fal-Comm's statement of service at the time it filed its initial petition was satisfactory. In any event, we note that the City has not been prejudiced in view of our consideration of the City's petition for reconsideration. Finally, we reject the City's claims that Fal-Comm neither made a bona fide request nor followed the prescribed methodology of our rules. The version of the rules which the City cites are our rules as amended by the Second Order, which was not adopted until nearly a year after Fal- Comm filed its complaint. Fal-Comm's petition complied with the Commission's rules in effect at the time Fal-Comm filed its petition. 7. In view of the foregoing, we find that grant of the City's petition is not in the public interest. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED, that the petition for reconsideration filed by the City of Wyandotte, Michigan in File No. CSR-4693-L IS DENIED. 9. IT IS FURTHER ORDERED, that the motion for stay filed by the City of Wyandotte, Michigan in File No. CSR-4693-L IS DISMISSED. 10. These actions are 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