Cable Television Leased Commercial Access

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

[email protected], and to Timothy Fain, OMB Desk Officer, 10236 NEOB,

725--17th Street, N.W., Washington, DC 20503 or via the Internet to

[email protected].

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 [email protected].

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