[Federal Register Volume 61, Number 73 (Monday, April 15, 1996)]
[Rules and Regulations]
[Pages 16396-16401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9194]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[CS Docket No. 9660; FCC 96122]
Cable Television Leased Commercial Access
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: The Commission has adopted an Order on Reconsideration of the
First Report and Order and Further Notice of Proposed Rulemaking
regarding implementation of the leased commercial access provisions of
the 1992 Cable Act. The Further Notice of Proposed Rulemaking segment
of this decision may be found elsewhere in this issue of the Federal
Register. The Order on Reconsideration (``Order'') segment addresses
several issues regarding leased commercial access, including the
highest implicit fee formula, the provision of rate information, part-
time rates, time increments, billing and collection services, security
deposits, the calculation of statutory set-aside requirements, and
reporting requirements. The Order is intended to respond to certain
petitions for reconsideration of the Commission's current leased access
rules.
DATES: Rule changes become effective May 15, 1996, except for
Sec. 76.970(e) which contains information collection requirements which
are not effective until approved by the Office of Management and Budget
(``OMB''). When approval is received, the agency will publish a
document announcing the effective date. Written comments by the public
on the proposed and/or modified information collections are due May 15,
1996. Written comments must be submitted by OMB on the proposed and/or
modified information collections on or before June 14, 1996.
ADDRESSES: Office of the Secretary, Federal Communications Commission,
1919 M Street, N.W., Washington, D.C. 20554. A copy of any comments on
the information collections contained herein should be submitted to
Dorothy Conway, Federal Communications Commission, Room 234, 1919 M
Street, N.W., Washington, DC 20554, or via the Internet to
dconway@fcc.gov, and to Timothy Fain, OMB Desk Officer, 10236 NEOB,
725--17th Street, N.W., Washington, DC 20503 or via the Internet to
fain__t@al.eop.gov.
FOR FURTHER INFORMATION CONTACT: Lynn Crakes, Cable Services Bureau,
(202) 416-0800. For additional information concerning the information
collections contained in this Order, contact Dorothy Conway at (202)
418-0217, or via the Internet at dconway@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Order
on Reconsideration of the First Report and Order, CS Docket 96-60
(formerly MM Docket 92-266), adopted March 21, 1996 and released March
29, 1996. The full text of this decision is available for inspection
and copying during normal business hours in the FCC Reference Center
(Room 239), 1919 M Street, N.W., Washington, D.C. 20554, and may be
purchased from the Commission's copy contractor, International
Transcription Services, Inc., (202) 857-3800, 1919 M Street, N.W.,
Washington, D.C. 20554.
Synopsis of the Order on Reconsideration
I. Introduction
1. In the Order, the Commission addressed ten petitions for
reconsideration of the cable television commercial leased access rules
adopted in its Report and Order and Further Notice of Proposed Rule
Making, MM Docket No. 92-266, FCC 93-177, 58 FR 29736 (May 21, 1993)
(``Rate Order''),
[[Page 16397]]
pursuant to the provisions of the Cable Television Consumer Protection
and Competition Act of 1992, Public Law No. 102-385, 106 Stat. 1460
(1992), 47 U.S.C. 521, et seq. (1992) (``1992 Cable Act''). The Order
was adopted in conjunction with a Further Notice of Proposed Rule
Making (``Further Notice'') that sought comment on certain leased
access issues not resolved by the Order.
2. The statutory framework for commercial leased access was
established by the Cable Communications Policy Act of 1984, Public Law
No. 98-549, 98 Stat. 2779 (1984), 47 U.S.C. 521 et seq. (``1984 Cable
Act'') and amended by the 1992 Cable Act. The 1984 Cable Act
established commercial leased access to assure access to the channel
capacity of cable systems by parties unaffiliated with the cable
operator that wish to distribute video programming free of the
editorial control of the cable operator. Channel set-aside requirements
were established in proportion to a system's total activated channel
capacity.
3. In the Rate Order in this docket, the Commission established
initial regulations to implement the leased access provisions of the
1992 Cable Act. The Commission adopted the highest implicit fee formula
as the method to set maximum reasonable rates, and adopted various
standards governing access terms and conditions, tier placement,
technical standards for use, technical support, security deposits,
conditions based on program content, requirements for billing and
collection service, and procedures for the expedited resolution of
disputes. The Order further addresses several of these issues.
II. Maximum Rate Formula
4. Background: Section 612 of the Communications Act of 1934, as
amended, (``Communications Act'') section 612, 47 U.S.C. section 532,
directs the Commission to determine the maximum reasonable rates that a
cable operator may impose for leased commercial access. Previously, the
Commission adopted rules that base the maximum rate on an ``implicit''
fee paid by non-leased access program services that are being
distributed. In the non-leased access context, cable system operators
generally receive a payment from subscribers and pay contractual
license fees to programmers for the channels the operators distribute.
The differences between these dollar amounts may be thought of as the
implicit fees that the programmers pay to have their services
distributed to subscribers. The Commission determined that the implicit
fee is the price per channel each subscriber pays the operator minus
the amount per subscriber the operator pays the programmer. Section
76.970(c) of the Commission's rules provides that this difference is
multiplied by the percentage of subscribers able to receive the
unaffiliated programmer's service. The implicit fee for a contracted
service may not include fees, stated or implied, for services other
than the provision of channel capacity (e.g., billing and collection,
marketing, or studio services). Section 76.970(d) of the rules states
that maximum rates for shorter periods of time can be calculated by
prorating the monthly maximum rate.
5. Under our current rules, the maximum rate is the highest of the
implicit fees charged any unaffiliated programmer within the same
programmer category. Cable operators are required to calculate the
highest implicit fee for each of the following programmer categories:
(a) Those charging subscribers directly on a per-event or per-channel
basis; (b) those using a channel for more than 50 percent of the time
to sell products directly to customers (e.g., home shopping networks,
infomercials, etc.); and (c) all others. Under the rules, cable
operators are required to calculate annually the maximum rates for each
programmer category based on the contracts with unaffiliated
programmers in effect in the previous calendar year. Operators are
further required to provide rate schedules to prospective programmers
upon request.
6. Clarifications for Calculating the Highest Implicit Fee: Through
the Commission's complaint process as well as this reconsideration
proceeding, it has come to the Commission's attention that the highest
implicit fee formula may be unclear in some respects. Although the
Further Notice proposes an alternative formula for determining maximum
leased access rates, the highest implicit fee formula will continue to
be in effect on an interim basis until any new rules become effective.
The Order therefore clarified certain issues regarding the application
of the highest implicit fee formula. We do not, however, believe that
these clarifications will in any way solve the conceptual problems we
perceive to be present with the highest implicit fee, as described in
the Further Notice.
7. As a preliminary matter, we modified Section 76.970(c) to
correct certain errors contained therein so that the calculation of the
implicit fee is clear and easy to follow. Specifically, the rule states
that the subscriber revenue is deducted from the program license fee
when, in fact, the program license fee is supposed to be deducted from
the average subscriber revenue. We therefore corrected the language in
the rule accordingly. We also corrected the title of Section 76.977 of
the Commission's rules.
8. In addition, we believe that the highest implicit fee
calculation should not include the implicit fee for non-retransmission
consent broadcast signal and PEG access channels in determining which
channel has the highest implicit fee. For the carriage of local ``must
carry'' broadcast signals, cable operators typically collect a fee from
subscribers, but pay no direct charge for the programming. Because
there is no sharing of subscriber revenues between the system operator
and the programmer, the channel appears to be the most highly valued,
i.e., the programmer is willing to permit the cable operator to retain
the entire value of the channel and so these channels are often the
basis for the highest implicit fee calculation. Because of the
mandatory carriage rules and the compulsory copyright licensing system,
this does not seem to be a calculation that reflects a marketplace
decision as to the value of the channel. Similarly, where an operator
is required by the local franchising authority to carry PEG channels,
the cable operator has not made a marketplace decision to carry the
channels. Accordingly, we concluded that the implicit fee for each must
carry broadcast signal channel and PEG access channel should not be
considered for purposes of determining which implicit fee is the
highest. These channels should, however, be used to determine the
monthly average subscriber revenue per channel for all the channels on
the tier.
9. Furthermore, we believe that operators should calculate the
highest implicit fees on a tier-by-tier basis; that is, if the leased
access channel is to be on the BST, the calculation of the highest
implicit fee should be based on the BST channels, and, if the leased
access channel is to be on a CPST, the implicit fees should be
determined for the channels on that CPST.
10. We also clarified that programming revenues received by the
operator from an unaffiliated programmer, as opposed to programming
costs paid by the operator to the unaffiliated programmer, should not
be included in the highest implicit fee calculation. In certain
circumstances, such as with direct sales or ``home shopping'' channels,
the programmer pays the cable operator a percentage of its revenues,
rather than the operator paying the programmer a license fee. We
concluded that these
[[Page 16398]]
payments from the programmer to the operator should not be added into
the implicit fee calculation.
11. The Rate Order specifies that the difference between the rate
per month that the cable operator pays the programmer and the rate that
the subscriber pays per month for the programming should be multiplied
by the percentage of subscribers able to receive that channel or
programming. Neither the Rate Order nor our current rule explicitly
states that this number must then be multiplied by the number of
subscribers on the system. We modified our rule to clarify that, for
leased access programming on either the BST or a CPST, the highest per-
subscriber implicit fee should be multiplied by the number of current
subscribers who actually subscribe to the tier on which the leased
access channel will be placed. However, for leased access programming
in the per-channel/per-event program category, the highest per-
subscriber implicit fee should be multiplied by the average number of
subscribers that subscribe to the operator's premium services.
Requiring the highest per-subscriber implicit fee to be multiplied by
the actual number of subscribers to a leased access premium service
would unfairly penalize the operator for low subscribership to the
leased access programming. Using the average number of subscribers that
subscribe to the operator's premium services derives an approximation
that is equally fair for both the operator and the leased access
programmer.
12. Provision of Rate Information: Section 76.970(e) of the
Commission's rules provides that a schedule of commercial leased access
rates shall be provided to prospective leased access programmers upon
request. Our leased access complaint process has revealed that rate
information is often not provided in a timely manner. We therefore
modified our rule to require an operator to provide to a prospective
leased access programmer within seven business days of such
programmer's request: (a) A complete schedule of the operator's full
and part time leased access rates; (b) how much of its set-aside
capacity is available; (c) rates associated with technical and studio
costs; and (d) if specifically requested, a sample leased access
contract. Requests can be made by any reasonable means (in person, by
telephone, by facsimile, or by mail), and the information will be
deemed provided when the operator sends or gives the information to the
programmer. Because this information must be provided within seven
business days of the request, operators may not require that
prospective programmers first provide any information (e.g., fill out
an application) before the information listed above is provided. In
this context, we affirmed that, as stated in the Rate Order, the
Commission has the authority to, among other things, issue forfeitures
for violations of the leased access statute and rules. Failure to
provide the above information within the seven business day period will
constitute a violation of our rules.
III. Part-Time Rates
13. The Rate Order stated that maximum rates for leasing less than
a full-time channel could be calculated by prorating the monthly
maximum rate. The Rate Order did not, however, address whether
operators would be permitted to charge higher rates for part-time use
during more desirable ``prime time'' viewing hours. In TV-24 Sarasota,
Inc. v. Comcast Cablevision of West Florida, Inc., 10 FCC Rcd 3512
(Cable Serv. Bur. 1994), the Cable Services Bureau stated that such
time of day pricing is permitted.
14. The only restriction on cable operators' rates under the
current rules is that they may not exceed the maximum monthly rate as
calculated on a monthly basis from the highest implicit fee. We
recognize, however, that the media industry places different values on
the different hours of the day in recognition of the different values
that different hours of the day have in the television marketplace
(i.e., ``prime time'' and ``non-prime time''). We therefore affirmed
the Cable Services Bureau's ruling in the TV-24 Sarasota case
referenced above and did not construe our rule as requiring a cable
operator to adhere to a rigid formula for determining its hourly leased
access rate by prorating its maximum rate for a full-time channel into
equal hourly amounts. We concluded that cable operators may charge
different time-of-day rates, provided that the total of the rates for a
day's schedule (i.e., a 24 hour block) does not exceed the maximum rate
for one day of a full-time leased channel (prorated from the monthly
rate) and provided that the overall pattern of time of day rates is
otherwise reasonable and not intended to unreasonably limit leased
access use. A reasonable time-of-day rate structure that is
appropriately related to time-of-day pricing in the media industry and
does not frustrate leased access channel use would not conflict with
our rules.
15. Accordingly, the rules we adopted on reconsideration provide
that operators may establish reasonable time-of-day pricing schedules.
In order to ensure that operators' part-time rates do not exceed the
maximum rate, we required operators to establish a schedule of rates,
or rate card, for different times of day, pursuant to which, if all
times were used, the sum of the part-time charges for any single leased
access channel within a 24-hour period would not exceed its maximum
rate for the leased access channel if the daily rate were prorated
evenly from the monthly maximum rate and were calculated in accordance
with Section 76.970 of our rules.
IV. Time Increments
16. In the Rate Order, we concluded that cable operators should be
required to accommodate leases of any time increment (e.g., leasing an
hour on a regular leased channel, leasing a whole channel, or leasing
for use a subscription service) in a reasonable manner because neither
Section 612, its legislative history nor the record indicated any
reason to prevent part-time leased access. On reconsideration, we
reaffirmed our conclusion that cable operators should be required to
accommodate both full and part-time leases. We recognize the legitimate
concern of cable operators that negotiating contracts for numerous
small time intervals may be an administrative and financial burden. As
a practical matter, however, the most common programming time increment
is typically one half to one hour. Imposing a full-time only
requirement could effectively preclude most leased access programmers
from obtaining access. Thus, in order to balance these competing
interests, we concluded that operators should not be required to accept
leases which are for less than a one-half hour interval. This decision
will allow programmers to lease time in relatively small increments,
but will avoid the administrative burden of providing leased access in
very small increments, such as one or two minutes. Although not
required to do so, operators may accept requests for less than one-half
hour.
V. Billing and Collection Services
17. Section 612(c)(4)(A)(ii) of the Communications Act requires the
Commission to establish reasonable terms and conditions for billing of
rates to subscribers and for the collection of revenue from subscribers
for leased access channels (not including subscriber revenue generated
from the sale of products promoted on leased access programs such as
home shopping programs or infomercials). In the Rate Order, we required
cable operators to provide billing and collection services
[[Page 16399]]
to leased access programmers unless operators could demonstrate the
existence of third party billing and collection services which, in
terms of cost and accessibility, offer leased access programmers an
alternative substantially equivalent to that offered to comparable non-
leased access programmers. We noted in the Order that the mere
existence of third party billing and collection providers does not
relieve the operator of its obligation to provide these services.
Rather, the critical issue is whether, in terms of cost and
accessibility, these alternatives are substantially equivalent, to what
the operator offers non-leased access programmers. Operators have not
demonstrated to us that such alternatives exist to such an extent that
we should change our requirements adopted in the Rate Order. We remain
convinced, therefore, that pursuant to Section 612(c)(4)(A)(ii), we
have the authority to require cable operators to provide billing and
collection services for leased access cable programmers and that there
is a need for cable operators to provide such services.
18. In the Rate Order, we did not adopt specific rules relating to
the rates that might be charged for billing and/or collection services.
We stated that competition, where it exists, in the provision of
services of this type will set an upper limit on charges by cable
operators. On reconsideration, we did not believe that the adoption of
specific rate rules at this time is warranted. Cable operators should
have the incentive to quote reasonable and competitive rates in order
to obtain the additional revenues that billing and collection services
could generate for them. As we stated in the Rate Order, if a dispute
arises, we will address what constitutes a maximum rate for billing and
collection services on a case-by-case basis.
VI. Security Deposits
19. In the Rate Order, we agreed with cable operators that they
should have discretion to require reasonable security deposits or other
assurances from programmers that are unable to prepay in full for
leased access channel capacity. On reconsideration, we declined to set
specific monetary guidelines in this area and concluded that it is
sufficient to state that the term ``reasonable'' should be interpreted
in relation to the objective of such a deposit. That is, it should be
sufficient to insure the payment of lease rates, without discouraging
leased access. We clarified that operators may not demand a security
deposit for channel time from a programmer that pays the full rate in
advance. If carriage is not purchased for discreet or individual time
spots, but is leased on a full-time or periodic basis, the full rate
will be considered the full monthly rate (or whatever period of time is
relevant if the programming is periodic). Determinations of what is a
``reasonable'' security deposit will be made on a case-by-case basis,
taking into consideration the past relationship between the operator
and the programmer, the amount of time to be leased, the credit history
of the leased access programmer, the operator's practices with respect
to security deposits in other, similar contexts, and any other relevant
factors.
VII. Calculation of Statutory Set-Aside Requirements
20. Section 612 of the Communications Act requires a cable system
to set aside up to 15 percent of its activated channels for leased
commercial access. The statutory set-aside requirements for leased
commercial access channels are expressed as a percentage of ``channels
not otherwise required for use by federal law or regulation.'' 47
U.S.C. 532(b)(1). The Rate Order did not specify what channels are
considered as required for use by federal law or regulation.
21. We clarified that, for purposes of calculating the set-aside
requirements, only must-carry channels are excluded, as these channels
are required for use by federal law. Retransmission consent and PEG
channels, on the other hand, are not required by federal law, although
federal statutory provisions permit local authorities to require
operators to provide PEG channels and also require operators to obtain
retransmission consent in some cases. Therefore, we determined that
retransmission consent and PEG channels will be included among
activated channels for purposes of determining a systems' leased access
set-aside requirements.
VIII. Reporting Requirements
22. We did not require cable operators to make the contracts
underlying their leased access rates public. We believe that this could
be unnecessarily intrusive on business relationships between operators
and non-leased access programmers. However, we noted that upon request
from the Commission in the context of a leased access complaint,
operators are required to justify fully their leased access rates,
including by presentation of underlying contracts if necessary, subject
to the operators' right under our rules to request confidentiality of
this information.
IX. Regulatory Flexibility Analysis
23. Pursuant to the Regulatory Flexibility Act of 1980, Public Law
96-354, 94 Stat. 1164, 5 U.S.C. 601-612 (``Regulatory Flexibility
Act''), the Commission's final analysis with respect to this Order on
Reconsideration is as follows:
24. Need and purpose of this action. The Commission, in compliance
with Section 9 of the Cable Television Consumer Protection and
Competition Act of 1992, 47 U.S.C. 532 (1992), pertaining to leased
commercial access, is required to adopt rules and procedures intended
to ensure the availability of and accessibility to leased commercial
access on cable systems.
25. Summary of issues raised by the public in response to the
Initial Regulatory Flexibility Analysis. There were no comments
submitted in response to the Initial Regulatory Flexibility Analysis.
26. Significant alternatives considered and rejected. Petitioners
for reconsideration did not submit comments analyzing the
administrative burden of the leased access rules pursuant to the
Regulatory Flexibility Act. The Commission nonetheless has attempted to
minimize such burdens.
X. Procedural Provisions
27. Redesignation of Docket. We believe that it would facilitate
consideration of leased commercial access issues by the Commission if
they were separated from MM Docket 92-266 and redesignated as a
separate docket. Accordingly, we are redesignating the Commission's
consideration of leased commercial access issues as CS Docket No. 96-
60. Parties are required to caption filings in response to this Order
under this new docket number.
XI. Ordering Clauses
28. Accordingly, It is ordered that the Petitions for
Reconsideration in MM Docket No. 92-266 which pertain to commercial
leased access are granted in part and denied in part.
29. It is further ordered that Part 76 of the Commission's rules is
hereby amended as indicated below. The amendments to 47 CFR 76.970 (a),
(b), (c), (d), 76.971(g) and 76.977 shall go into effect 30 days
following publication of this Order on Reconsideration in the Federal
Register. The amendments to 47 CFR 76.970(e) impose information
collections, and will therefore not go into effect until approved by
OMB.
Paperwork Reduction Act
This Order contains either a proposed or modified information
collection. The Commission, as part of its continuing
[[Page 16400]]
effort to reduce paperwork burdens, invites the general public and OMB
to comment on the information collections contained in this Order, as
required by the Paperwork Reduction Act of 1995, Public Law 104-13.
Public and agency comments are due May 15, 1996; OMB notification of
action is due 60 days from date of publication of this Order in the
Federal Register. Comments should address: (a) whether the proposed
collection of information is necessary for the proper performance of
the functions of the Commission, including whether the information
shall have practical utility; (b) the accuracy of the Commission's
burden estimates; (c) ways to enhance the quality, utility, and clarity
of the information collected; and (d) ways to minimize the burden of
the collection of information on the respondents, including the use of
automated collection techniques or other forms of information
technology.
OMB Approval Number: 3060-0568.
Title: Section 76.970 Commercial leaesed access rates; 76.971
Commercial leased access terms and conditions.
Type of Review: Revision of existing collection.
Respondents: Business and other for profit.
Number of Respondents: 6,270 cable systems.
Estimated Time Per Response: 1 hour per respondent for
recordkeeping and sending the leased access schedule and other
information to prospective leased access programmers. 1 hour per
respondent to implement 76.971 third party disclosure requirements. 12
hours per respondent for completing the proposed ``cost schedule'',
instead of the existing ``maximum rate schedule''. If the proposed
``cost schedule'' is not adopted by the Commission, the burden for
completing the ``maximum rate schedule'' is 4 hours per respondent.
Total Annual Burden: 87,780 hours. If the proposed ``cost
schedule'' is not adopted, the Commission will further adjust the
burden for this collection from 12 hours per respondent in completing
the ``cost schedule'' to 4 hours per respondent to continue to use the
existing ``maximum rate schedule''. This would result in an adjustment
reduction of 50,160 hours (6,270 x 8 hours), leaving a total burden of
87,780-50,160=37,620 hours.
Estimated costs per respondent: We estimate the postage and
stationery costs incurred by cable operators for record keeping
activities and for sending out leased access information to prospective
programmers, as required, to be roughly $4.00 per respondent. We
therefore report a total annual cost of $25,000 for all respondents.
Needs and Uses: The information collected is used by the
prospective leased access programmers and the Commission to verify rate
calculations for leased access channels. The Commission's leased access
requirements were designed to promote diversity of programming sources
and competition in programming delivery as required by Section 612 of
the Communications Act, and serve to eliminate uncertainty in
negotiations for leased commercial access.
List of Subjects in 47 CFR Part 76
Cable television.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Part 76 of Title 47 of the Code of Federal Regulations is amended
as follows:
PART 76--CABLE TELEVISION SERVICE
1. The authority citation for Part 76 continues to read as follows:
Authority: Secs. 2, 3, 4, 301, 303, 307, 308, 309, 48 Stat. as
amended, 1064, 1065, 1066, 1081, 1082, 1083, 1084, 1085, 1101; 47
U.S.C. Secs. 152, 153, 154, 301, 303, 307, 308, 309, 532, 535, 542,
543, 552, as amended, 106 Stat. 1460.
2. Section 76.970 is amended by revising paragraphs (a), (b), (c),
(d), and (e) to read as follows:
Sec. 76.970 Commercial leased access rates.
(a) Cable operators shall designate channel capacity for commercial
use by persons unaffiliated with the operator in accordance with the
requirement of 47 U.S.C. 532. For purposes of 47 U.S.C. 532(b)(1)(A)
and (B), only those channels that must be carried pursuant to 47 U.S.C.
534 and 535 qualify as channels that are required for use by Federal
law or regulation.
(b) The maximum commercial leased access rate that a cable operator
may charge is the highest implicit fee charged any unaffiliated
programmer (excluding leased access programmers, non-retransmission
consent broadcasters and public, educational and governmental access
programmers) within the same programming category.
(c) The per subscriber implicit fee charged an unaffiliated
programmer shall be calculated by determining the monthly price a
subscriber pays to view the programming of the unaffiliated programmer
and subtracting the monthly price per subscriber that the operator pays
to carry the programming of the unaffiliated programmer. The implicit
fee is determined by multiplying the per subscriber implicit fee by:
(1) If the leased access programming is carried on a programming
tier, the number of subscribers that subscribe to the programming tier
on which the leased access programming is carried; or
(2) If the leased access programming is carried as a premium
service, the average number of subscribers that subscribe to
unaffiliated non-leased access programming services that are carried as
premium services. The implicit fee for a contracted service may not
include fees, stated or implied, for services other than the provision
of channel capacity (e.g., billing and collection, marketing, or studio
services).
(d) For each of the three programming categories as defined in
paragraph (f) of this section, the highest implicit fee charged any
unaffiliated programmer (excluding leased access programmers, non-
retransmission consent broadcasters and public, educational and
governmental access programmers) in each category shall be the maximum
monthly leased access rate per subscriber that the operator could
charge a commercial leased access programmer in the same category. The
highest implicit fee shall be based on contracts in effect in the
previous calendar year. Maximum rates for shorter periods can be
calculated either by prorating the monthly maximum rate uniformly, or
by developing a schedule of and applying different rates for different
times of day, provided that the total of the rates for a 24-hour period
does not exceed the maximum rate for one day of a full-time leased
access channel (prorated evenly from the monthly rate derived in
accordance with paragraphs (b), (c), and (d) of this section).
(e) Within seven business days of a prospective leased access
programmer's request, a cable system operator must provide such
programmer with the following information:
(1) A complete schedule of the operator's full-time and part-time
leased access rates;
(2) How much of the operator's leased access set-aside capacity is
available;
(3) Rates associated with technical and studio costs; and
(4) If specifically requested, a sample leased access contract.
Requests under this paragraph (e) may be made by any reasonable means
(e.g., in person, by telephone, by facsimile or by mail), and the
information shall be deemed provided when the operator sends or gives
the information to the programmer. Operators shall maintain,
[[Page 16401]]
for Commission inspections, sufficient supporting documentation to
justify the scheduled rates, including supporting contracts,
calculations of the implicit fees, and justifications for all
adjustments.
* * * * *
3. Section 76.971 is amended by adding new paragraph (g) to read as
follows:
Sec. 76.971 Commercial leased access terms and conditions.
* * * * *
(g) Operators are not required to accept leases which are for less
than a one-half hour interval.
4. Section 76.977 is amended by revising the heading to read as
follows:
Sec. 76.977 Minority and educational programming used in lieu of
designated commercial leased access capacity.
* * * * *
[FR Doc. 96-9194 Filed 4-12-96; 8:45 am]
BILLING CODE 6712-01-P
