Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of:                | * | CSR-5376-L                   |
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| Frank J. Vitale,                 | ) |                              |
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| d/b/a Fal-Comm Communications    | * |                              |
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| MediaOne of Metropolitan         | ) |                              |
| Detroit, Inc.                    | * |                              |
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| Petition for Leased Access       |   |                              |
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MEMORANDUM OPINION AND ORDER

**Adopted: June 15, 2000 Released: June 21, 2000**

By the Deputy Chief, Cable Services Bureau:

**I. INTRODUCTION**

1.  Frank J. Vitale d/b/a Fal-Comm Communications ("Fal-Comm") filed the
    above-captioned petition pursuant to Section 76.975(b) of the
    Commission's rules against MediaOne of Metropolitan Detroit, Inc.
    ("MediaOne"), operator of a cable system serving Birmingham,
    Michigan.[^1] MediaOne filed a response to the petition.

    **II. BACKGROUND**

2.  The Cable Communications Policy Act of 1984 imposed on cable
    operators a commercial leased access requirement designed to assure
    access to cable systems by unaffiliated third parties who have a
    desire to distribute video programming free of editorial control by
    cable operators.[^2] Channel set-aside requirements were established
    proportionate to a system's total activated channel capacity. The
    Cable Television Consumer Protection and Competition Act of 1992
    revised the leased access requirements and directed the Commission
    to implement rules to govern this system of channel leasing.[^3] In
    *Implementation of the Cable Television Consumer Protection and
    Competition Act of 1992*, Report and Order and Further Notice of
    Proposed Rulemaking (*"Rate Order"*),[^4] the Commission adopted new
    rules for leased access addressing maximum reasonable rates,
    reasonable terms and conditions of use, minority and educational
    programming, and procedures for resolution of disputes.[^5] The
    Commission modified some of its leased access rules in *In the
    Matter of Implementation of the Cable Television Consumer Protection
    and Competition Act of 1992,* Second Report and Order and Second
    Order on Reconsideration of the First Report and Order (*"Second
    Report"*).[^6]

    **III. DISCUSSION**

3.  Fal-Comm, an independent producer of video programming in the
    Metro-Detroit area, states that on January 20, 1999 it submitted a
    written request for leased access channel placement and time slot on
    Saturdays from 11:00 PM to Midnight starting on February 6, 1999 and
    ending April 10, 1999 on respondent's Birmingham, Michigan
    system.[^7] Fal-Comm submitted the request pursuant to a Channel
    Lease Agreement with MediaOne.[^8] Fal-Comm contends that respondent
    failed to respond to its written request as of February 8, 1999 and
    that the failure to respond constitutes non-compliance with the
    provisions of the Channel Lease Agreement governing channel
    placement and time slots and with Section 76.971(a)(3) of the
    Commission's rules.[^9] Furthermore, Fal-Comm contends that this and
    other violations have increased Fal-Comm's operation costs, damaged
    its credibility, customer relations, and ability to solicit
    customers in the affected viewing area.[^10] Accordingly, Fal-Comm
    requests that the Commission impose fines, penalties, or
    administrative action on MediaOne.[^11]

4.  MediaOne contends that the petition should be dismissed in light of
    its full compliance with the Channel Lease Agreement and with
    Section 76.971(a)(3). The Channel Lease Agreement provides
    respondent with the right to place programming on MediaOne's system
    on a space-available basis.[^12] Section 76.971(a)(3) only requires
    a cable operator to accommodate leased access requests on systems
    with available capacity.[^13] MediaOne states that it notified
    petitioner by letter dated February 12, 1999, that the timeslot
    petitioner sought on MediaOne's Birmingham, Michigan system was
    unavailable.[^14] MediaOne also notes that this is petitioner's
    ninth petition filed in the last two years concerning MediaOne's
    leased access practices.[^15]

5.  Pursuant to Section 76.971(a)(3), on cable systems with available
    leased access capacity sufficient to satisfy current leased access
    demand, cable operators are required to accommodate as expeditiously
    as possible all leased access requests for programming that is not
    obscene or indecent.[^16] On systems with insufficient available
    leased access capacity to satisfy current leased access demand,
    cable operators shall be permitted to select from among leased
    access programmers using objective, content-neutral criteria."[^17]
    MediaOne states that it notified petitioner by letter dated February
    12, 1999 that the timeslot petitioner sought on MediaOne's
    Birmingham, Michigan system was unavailable.[^18]

6\. Fal-Comm's petition in File No. CSR 5376-L will be granted in part.
It is not clear from the record that MediaOne ever responded to
Fal-Comm's January 20, 1999 leased access inquiry. Indeed, to the extent
it can be considered a response at all, MediaOne's February 12, 1999
letter to Fal-Comm was sent 6 days after Fal-Comm's requested leased
access service was to have commenced. Moreover, although MediaOne's
February 12, 1999 letter addresses a number of commercial leased access
issues, it fails to address petitioner's January 20, 1999 request for
leased access channel placement and time slot on Saturdays from 11:00 PM
to Midnight starting on February 6, 1999 and ending April 10, 1999.
Rather, MediaOne's February 12, 1999 letter indicates why the Birmingham
systems' 1:00 AM - 3:00 AM timeslot is not available. Hence, it was not
until MediaOne filed its response to petitioner's leased access
complaint, on March 1, 1999, that petitioner became aware that the
requested time slot was unavailable. Clearly, MediaOne's March 1, 1999
response to petitioner's leased access petition cannot be deemed an
"expeditious accommodation" under §76.971(a)(3). In addition, when
MediaOne finally responded to petitioner's request, it failed to provide
any "objective content-neutral criteria" for the time slot's
unavailability.[^19] In spite of respondent's failure to comply with the
provisions of this act, we nevertheless decline to impose a forfeiture
penalty. The record indicates that there were telephone conversations
between the parties regarding leased access matters that may or may not
have included the subject matter of the proceeding that are not a part
of the record herein. Accordingly, we decline to impose a forfeiture
penalty in light of the ambiguous record before the Commission.
Consequently, we grant Fal-Comm's petition in part.

**V. ORDERING CLAUSES**

7\. Accordingly, **IT IS ORDERED** that the petition for relief of
Fal-Comm Communications (Fal-Comm) in File No. CSR 5376-L **IS GRANTED
IN PART** to the extent indicated herein.

1.  **IT IS FURTHER ORDERED** that within fifteen (15) days from the
    release date of this order MediaOne of Metropolitan Detroit, Inc.
    **SHALL ACCEPT** Fal-Comm's application for the Saturday 11:00 PM to
    Midnight time slot, or a reasonably comparable time period should
    this time period not be available, on its Birmingham system.

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6.  This action is taken pursuant to authority delegated by Section
    0.321 of the Commission's rules.[^20]

> FEDERAL COMMUNICATIONS COMMISSION
>
> William H. Johnson
>
> Deputy Chief, Cable Services Bureau

[^1]: 47 C.F.R. §76.975.

[^2]: Cable Communications Policy Act of 1984, Pub. L. No. 98-549, 98
    Stat. 2779 (1984).

[^3]: Cable Television Consumer Protection and Competition Act of 1992,
    Pub. L. No. 102-385, 106 Stat. 1460 (1992). *See* Section 612(b) of
    the Communications Act of 1934, as amended, 47 U.S.C. §532(b).

[^4]: 8 FCC Rcd 5631 (1993).

[^5]: *See* 47 C.F.R. §76.970, 76.971, 76.975 and 76.977 (1995).

[^6]: 12 FCC Rcd 5267 (1997). *See also In the Matter of Implementation
    of the Cable Television Consumer Protection and Competition Act of
    1992*, Order on Reconsideration of the First Report and Order and
    Further Notice of Proposed Rulemaking, 11 FCC Rcd 16933 (1996).

[^7]: Petition at Exhibit A (Letter from Frank Vitale, Business Manager,
    Fal-Comm Communications, to Program Manager, MediaOne of
    Metropolitan Detroit, Inc., dated Jan. 20, 1999).

[^8]: MediaOne Response at Exhibit A (Channel Lease Agreement dated June
    15, 1999).

[^9]: Petition at 1; *see* 47 C.F.R. § 76.971 (a)(3).

[^10]: Petition at 2.

[^11]: *Id.*

[^12]: MediaOne Response at 1, Exhibit A.

[^13]: MediaOne Response at 1.

[^14]: *Id.* at Exhibit B.

[^15]: *Id.* at 2.

[^16]: 47 C.F.R. §76.971(a)(3)

[^17]: *Id*.

[^18]: *Id.* at Exhibit B.

[^19]: *See* 47 C.F.R. §76.971(a)(3)

[^20]: 47 C.F.R. §0.321.