**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

*Re: Leased Commercial Access, and Development of Competition and
Diversity in Video Programming Distribution and Carriage (MB Docket No.
07-42)*

I am pleased to support this item which deals with the Commission's
commercial leased access rules.

When I requested that we launch this proceeding to reform the current
leased access regime, I did so for two reasons.  First, I had heard that
many small and independent creators of local and diverse programming
could not gain access to and carriage on their local cable systems.  And
second, while Congress explicitly required the Commission to ensure that
leased access opportunities remain available and viable, our rules and
practices over the years have made leased access unnecessarily
burdensome and, in some instances, prohibitively expensive for many
independent programmers.

I am, therefore, pleased that the instant *Order* addresses these
problems. As the initiator of this proceeding, I would like to thank my
colleagues for supporting this thoughtful item. I particularly would
like to thank Chairman Martin for heeding my request and following
through on our agreement in the *Adelphia* transaction to bring this
proceeding to a final order. Given that the Commission's experience with
managing leasing arrangements in media is limited to commercial cable
leased access, the rules we consider and implement here today should set
the baseline standard for any other media leasing arrangement
contemplated by the Commission.

Today's *Order* makes remarkable improvements to our commercial cable
leased access rules. We first adopt uniform customer service standards
to remedy the lack of a consistent and fair treatment of actual and
interested leased access programmers. We then reduce the potential
expense and burden on a programmer associated with filing a complaint
with the Commission about an alleged violation. To ensure that we better
monitor leased access practices and the effects of our rules, we adopt
an annual reporting requirement for cable operators and we invite leased
access programmers to comment on the information provided by cable
operators.

As the underlying record shows, the inconsistent and unpredictable
treatment of leased access programmers has impeded their ability to
lease cable channels. Considering that many part-time leased programmers
are small, community-based operations, the difficulty to obtain basic
information about leased access opportunities can create an unnecessary
barrier of entry. I believe that the Commission must take appropriate
steps to facilitate the entry of new and diverse programmers in a manner
that has been specifically authorized by Congress.

Leased access programmers should be able to request and then obtain
information about rates, terms and conditions in a timely manner. Today,
we reaffirm that cable operators have an obligation to reasonably
accommodate these requests. Accordingly, we conclude that within three
business days of an initial inquiry, a cable operator must provide the
prospective leased access programmer with information about, for
example, the leased access process and procedures for that specific
cable system, the availability of time and leased access channels, the
attendant schedule and calculation of rates, and the acceptable methods
of delivering leased access programming to the cable operator.

Providing this information to prospective leased programmers does not
impose an undue burden on cable operators. In fact, I believe that the
service standards we adopt today should simplify the entire leasing
process, as all leased access inquires will be treated in a predictable
and timely manner. The new and clear standards will set the expectations
of prospective and current leased access programmers, and cable
operators. Moreover, the information that programmers receive after
their initial inquiry should empower them with sufficient information to
determine whether commercial leasing is an opportunity worth pursuing.

In addition to new consumer service standards, I believe this *Order*
improves the complaint process in certain important respects. As I said
in the underlying Notice of Proposed Rule Making, "there will always be
good faith disputes between cable operators and programmers, \[but\] the
Commission does not have mechanisms in place to ensure prompt resolution
of complaints. It should not take the Media Bureau nearly two years to
respond to a programmer's leased access complaint.[^1]" Hence, pursuant
to this *Order*, we will codify a rule that requires the Media Bureau to
resolve all leased access complaints within 90 days of the close of the
pleading cycle, which requires the respondent to reply to a complaint
within 30 days. Also, we reduce the expense of filing a complaint by
eliminating the requirement for a complainant to obtain a determination
of the cable operator's maximum permitted rate from an independent
accountant before filing a complaint alleging a rate violation. Finally,
the expanded discovery rules we adopt in this *Order* will enable leased
access programmers to support complaints of alleged rule violations or
unfair treatment.

While I am pleased with the outcome of this Order, I would have
preferred that we first solicited meaningful public comment and review
on the new rate methodology adopted here. To be frank, the methodology
was invented by staff out of whole cloth without sufficient public
input, independent review or any transparency. I received much of the
details only late last week, right before the Thanksgiving holiday and
right after Sunshine closed. As with any new pricing formula, its
reliability and accuracy are directly correlated to the extent to which
it has undergone rigorous examination and independent review. To my
knowledge, neither has occurred in this case. Indeed, good government
cautions us to seek comment before adopting a new, industry price
regulation. All stakeholders have a right to see and comment on the
specific formula on which we intend to rely. To be sure, I actually like
the outcome -- a maximum leased access rate of 10 cents per subscriber
per month for any cable system. But as an expert governmental agency, it
is incumbent upon us to provide regulatees with a process that is fair
and open, and inspires confidence in the American people and the courts.

I am, however, satisfied that we do not apply this new rate methodology
on programmers that predominately transmit sales presentations or
program length commercials, but rather seek comment on these issues. It
is also appropriate that we provide a 90 day delay in the effective date
of the new formula so that all parties can have opportunity to inform us
of any concerns or file petitions for reconsideration. This remedies the
deficient notice sufficiently for me to support the item.

I am thankful to my fellow Commissioners and Chairman Martin for
ensuring that this item was finalized within a reasonable period of
time. I also want to thank the commenters for offering real solutions to
this process and providing insight needed to ascertain the breadth of
this item and the intricacies of how the process should work. I am
hopeful that this *Order* today will help us reach both Congress' and
our goal in having more diverse cable programming.

[^1]: *See United Production v. Mediacom Communications Corp.*, *Order*,
    Media Bureau, CSR 6336-L (adopted January 26, 2007, DA 07-273). The
    Petition for Commercial Leased Access was filed on February 25,
    2005.