Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of:                | * | CSR-5391-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: October 26, 2000 Released: October 31, 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 Plymouth, Canton
    and Northville 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
    *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 28, 1999 it submitted a
    written request for channel placement and time slot on respondent's
    Plymouth/Canton/Northville systems. Fal-Comm later realized that its
    request failed to include the Wednesday, 11:00PM-11:30PM time slot.
    Accordingly, Fal-Comm submitted a corrected schedule and contacted
    Mr. M. Fitzsimmons, MediaOne, Program Manager, regarding the
    oversight.[^7] Fal-Comm alleges that Mr. Fitzsimmons stated that he
    was unaware of Fal-Comm's schedule and in December 1998 allocated
    the Wednesday, 11:00PM-11:30PM time slot to Ocean
    Communications.[^8] Fal-Comm maintains that MediaOne allocated the
    time slot in favor of Ocean Communications because it is a much
    larger programmer and purchased a larger block of commercial leased
    access time (*i.e.*, 11:00PM-1:00AM from Sunday through
    Saturday).[^9] Fal-Comm alleges that MediaOne failed to adhere to
    Section 76.971(a)(2) commercial leased access terms and
    conditions.[^10] Accordingly, Fal-Comm requests that the Commission
    impose sanctions and/or forfeitures on MediaOne.[^11]

4.  MediaOne contends that the petition should be dismissed in light of
    its full compliance with Section 76.971(a)(2) and the Channel Lease
    Agreement. MediaOne states that Schedule A of the Channel Lease
    Agreement, which sets forth the guidelines for channel placement,
    allows for the placement of petitioner's programming upon advance
    request on a space-available basis only and does not guarantee
    petitioner any specific time slot nor channel placement.[^12]
    MediaOne asserts that the Agreement stipulates that MediaOne will
    make every effort to air petitioners programming "at the requested
    time or in a reasonably comparable time period."[^13] Since
    petitioner did not include the Wednesday, 11:00PM-11:30PM time slot
    in its request of January 28, 1999, no concessions were made nor
    necessary to accommodate alternate placement.[^14] Moreover,
    MediaOne states that petitioner did not, as claimed, consistently
    reserve placement on the Plymouth/Canton/Northville systems on
    Wednesdays at 11:00PM-11:30PM.[^15] Despite the terms of the
    agreement, MediaOne maintains that it did take petitioner's normal
    schedule into consideration in negotiating its Channel Lease
    Agreement with Ocean Communications and preserved petitioner's
    regularly requested timeslot of Saturday, 11:30PM-12:00PM.[^16]
    Finally, MediaOne contends that its actions were clearly within the
    reasonableness guidelines of 47 CFR §76.971(a)(2) and exceeded the
    requirements of the Channel Lease Agreement between the
    parties.[^17]

5.  Pursuant to Section 76.971(a)(2), cable operators "shall be
    permitted to make reasonable selections when placing leased access
    channels at specific channel locations."[^18] The Commission will
    evaluate disputes involving channel placement on a case-by-case
    basis and will consider any evidence that an operator has acted
    unreasonably in this regard.[^19] Schedule A of the parties Channel
    Lease Agreement allows for the placement of petitioner's programming
    upon advance request on a space-available basis only and does not
    guarantee petitioner any specific time slot or channel
    placement.[^20] While certain aspects of the record are
    ambiguous,[^21] there is no dispute regarding petitioner's failure
    to include the Wednesday, 11:00PM-11:30PM time slot in its written
    request of January 28, 1999. Where petitioner did not include the
    time slot in its written request, respondent was under no obligation
    to reserve the time slot or otherwise accommodate alternate
    placement. Accordingly, Fal-Comm's petition is denied.

    **IV. ORDERING CLAUSES**

    7\. Accordingly, **IT IS ORDERED** that the petition for relief of
    Fal-Comm Communications (Fal-Comm) in File No. CSR 5391-L **IS
    DENIED**.

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8.  This action is taken pursuant to authority delegated by Section
    0.321 of the Commission's rules.[^22]

> 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 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]: ^?^Fal-Comm Petition at 1.

[^8]: ^?^Id. Fal-Comm alleges that Mr. Fitzsimmons "allocated" the
    Wednesday timeslot to Ocean Communications in December 1998. The
    record, however, does not indicate when Ocean Communications was
    actually scheduled to begin programming.

[^9]: ^?^Id. at 2.

[^10]: ^?^47 C.F.R. §76.971(a)(2).

[^11]: ^?^Fal-Comm Petition at 2.

[^12]: ^?^MediaOne Response at 1-2, Exhibit A.

[^13]: ^?^Id.

[^14]: ^?^Id.

[^15]: ^?^Id. at 2; Respondent's Exhibit B.

[^16]: ^?^Id. at 2.

[^17]: Id.

[^18]: ^?^47 C.F.R. §76.971(a)(2).

[^19]: ^?^Id.

[^20]: ^?^Schedule A of the Channel Lease Agreement provides that lessee
    shall provide written notice to lessor of its intent to air
    programming pursuant to the terms of this Channel Lease Agreement
    not less than ten (10) days prior to the date on which lessee seeks
    to air its programming. Such notice shall indicate the specific date
    on which lessee would like the programming to air, the preferred
    time slot in which lessee would like the programming to air, and the
    system(s) on which the lessee would like the programming to air.
    Channel placement and programming air times are subject to change at
    the sole discretion of the lessor. Lessee shall be informed of any
    such change. Every effort will be made to air lessee's programming
    at the requested time or in a reasonably comparable time period.
    See, MediaOne Reponse at Exhibit A (Schedule A of the Channel Lease
    Agreement).

[^21]: ^?^Petitioner asserts that respondent was unaware of petitioner's
    schedule and allocated the 11:00PM-1:00PM time slot Sunday through
    Saturday to Ocean Communications as of December 1998. See, Fal-Comm
    Petition at 1. Respondent, however, states that since petitioner did
    not include the Wednesday, 11:00PM-11:30PM time slot in its request
    of January 28, 1999, no concessions were made nor necessary to
    accommodate alternate placement.

[^22]: ^?^47 C.F.R. §0.321.