Commercial Leased Access
As explained below, Federal rules require FPB to designate a certain number of channels on its cable systems for commercial leased access programming. FPB operates a cable system in the following market: Frankfort , KY. For more information concerning carriage on our cable system for leased access programming, you can send a written request to the FPB representative listed below. FPB will only consider requests from bona fide leased access programmers. Upon receipt of your request, we will provide you with a confidential and proprietary Leased Access Information Packet in conformance with the FCC rules.
FPB LEASED ACCESS REPRESENTATIVE: CONTACT INFORMATION
Libby Andersen
P.O. Box 308
Frankfort , KY 40602
landersen@fewpb.com
(502) 352-4480
SUMMARY OF FEDERAL STATUTES AND RULES GOVERNING COMMERCIAL LEASED ACCESS PROGRAMMING
Federal Statute on Commercial Leased Access
Section 532 of the Communications Act of 1934, as amended, (47 U.S.C. §532), requires cable operators, including FPB, to designate a certain amount of channel capacity for commercial use by unaffiliated video programmers. Title 47, Part 76 of the Code of Federal Regulations sets forth the rules governing this commercial leased access requirement, which are promulgated and enforced by the Federal Communications Commission (“FCC”). Section 532 of the Communications Act of 1934, as amended, requires, in part, cable operators:
With 36-54 activated channels to designate 10% of these channels that are not otherwise required for use by federal law for leased access programming
With 55-100 activated channels to designate 15% of these channels that are not otherwise required for use by federal law for leased access programming
With more than 100 activated channels to designate 15% of these channels for leased access programming
Federal Rules on Commercial Leased Access Programming
(47 C.F.R. § 76.970) Commercial Leased Access Rates
Section 76.970 of the FCC’s rules set forth a specific formula for calculating leased access rates. The formula for leased access rates varies, depending upon the type and placement of the leased access programming being offered. The maximum commercial leased access rate that cable operators are permitted to charge for full-time channel placement will be a fee calculated using the FCC’s formula for the “marginal implicit fee” or $0.10 per subscriber per month, whichever is lower. Programmers that predominantly transmit sales presentations or program length commercials, however, will continue to pay the “average implicit fee” as calculated per the FCC’s rules. And, programmers seeking carriage as an a la carte service will continue to pay the “highest implicit fee” as calculated per the FCC’s rules. Rates for part-time channel placement will be determined by prorating the maximum full-time rate or establishing a schedule of rates based on the time of day the programming is aired. Part-time rates shall not exceed the maximum rate as totaled for a 24-hour period.
(47 C.F.R. § 76.971) Commercial Leased Access Terms and Conditions
Generally, the FCC’s rules require cable operators to accommodate all requests for leased access channels on a content-neutral basis to the extent that channel capacity is available. Cable operators have the discretion, however, to refuse access to their systems and transmission of any leased access programming that describes or depicts sexual or excretory activities or organs in a patently offensive manner or contains obscenity, indecency or nudity. Moreover, if there is insufficient capacity on the system to fulfill all leased access requests, cable operators are permitted to select among the leased access programmers using objective, content-neutral criteria. Cable operators are required to place leased access programming on a tier with over 50% subscriber penetration if so requested by the leased access programmer, unless there is a technical or compelling reason for denying such access to that tier. Cable operators are permitted to make reasonable selections for channel placement of leased access programming.
Within three business days of a request for information from a bona fide prospective leased access programmer, the FCC rules require FPB to provide the leased access programmer with a sample leased access contract. The FCC recognizes the parties’ rights to freedom of contract, and encourages the parties to negotiate the terms and conditions for leased access and reach an agreement. In general, however, cable operators must apply the same uniform standards, terms and conditions to leased access programmers as it does to non-leased access programmers. Moreover, the FCC’s rules set forth standards and guidelines with respect to certain terms and conditions governing leased access. For example, cable operators are permitted to: (a) require reasonable liability insurance and security deposits; (b) make reasonable selections on placement of leased access programming on specific channel locations; (c) select from among leased access programmers based on content-neutral criteria if there is insufficient capacity for leased access; and (d) charge for technical support and studio costs, among others. Cable operators must provide an explanation for monetary and certain non-monetary terms and conditions. Cable operators are required to provide a minimal level of technical support to leased access programmers for airing their content. Cable operators also must provide billing and collection services to leased access programmers, unless offered by a third party with services that are equivalent in terms of costs and accessibility.
(47 C.F.R. § 76.972) Customer Service Standards
As set forth herein on this FPB website, the Federal rules require cable operators to maintain on their websites contact information for a company representative that is designated to address leased access inquiries. The website also must provide a brief explanation of the statutes and rules governing leased access programming, as we are providing here.
The Federal rules also require cable operators to provide bona fide leased access programmers detailed information concerning the availability of access on their cable systems, within three business days of a request for leased access information. This information includes:
The process for requesting carriage for commercial leased access programming;
The geographic and subscriber levels of service;
The number, location and time periods available for each leased access channel;
Whether the leased access channel is currently being occupied;
A schedule of full-time and part-time leased access rates, along with an explanation of how those rates were calculated;
Rates associated with technical support and studio costs;
Information regarding inclusion in the electronic programming guide;
Methods of programming delivery, and the instructions and technical requirements and costs for each method;
A comprehensive sample leased access contract that includes uniform terms and conditions such as tier and channel placement, contract terms and conditions, insurance requirements, length of contract, termination provisions and electronic guide availability; and,
Information regarding prospective launch dates for the leased access programming.
In addition, in order to be considered for carriage on a leased access channel, the Federal rules require leased access programmers to submit a bona fide proposal for carriage by submitting a written proposal that includes the following information: (1) the desired length of a contract term; (2) the tier, channel and time slot desired; (3) the anticipated commencement date for carriage; (4) the nature of the programming; (5) the geographic and subscriber level of service requested; and (6) proposed changes to the sample contract. Cable operators are required to respond within 10 days.
(47 C.F.R. § 76.975) Commercial Leased Access Dispute Resolution
The Federal rules at 47 C.F.R. Section 76.975 permit leased access programmers to file a petition for relief with the FCC if cable operators unlawfully fail or refuse to make commercial channel capacity available or to charge rates for such capacity in accordance with the Communications Act or the Commission’s implementing regulations outlined above. Section 76.975 also outlines discovery requirements and the procedures for obtaining a protective order for proprietary information submitted in the complaint process.