*Pages 1--3 from Microsoft Word - 49989.doc* Federal Communications Commission DA 05- 1938 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of : StogMedia v. Eastern Connecticut Cable Television, Inc. Petition For Commercial Leased Access ) ) ) ) ) ) ) ) ) CSR 6585- L MEMORANDUM OPINION AND ORDER Adopted: July 5, 2005 Released: July 7, 2005 By the Deputy Chief, Media Bureau: 1. On February 22, 2005, StogMedia 1 filed the above- captioned petition for relief pursuant to Section 76.975 of the Commission’s rules 2 alleging violations by Eastern Connecticut Cable Television, Inc. (“ Eastern”) in the provision of commercial leased access service on Eastern’s cable system. 3 On March 31, 2005, Eastern filed a response requesting dismissal of the petition on the grounds that StogMedia’s petition is untimely filed. 2. There are three relevant rule provisions at issue in this leased access case. Pursuant to Section 76.970( i)( 1), cable operators are required to respond to prospective leased access programmers within 15 calendar days of the date on which a request for leased access information was made. 4 In addition, Section 76.970( i)( 4) indicates that all requests for leased access must be made in writing and “must specify the date on which the request was sent to the operator.” 5 Finally, Section 76.975( d) states that a petition seeking resolution of a commercial leased access dispute must be filed within 60 days of an alleged violation. 1 It appears that StogMedia files this petition on behalf of StogMedia’s affiliate, Anthony Chabot d/ b/ a eWave Media, which apparently is the party that produces the program seeking local placement. However, there is no evidence contained in the pleadings showing that eWave Media joins in this petition. 2 47 C. F. R. §76.975. 3 StogMedia indicates two different salutation dates in its petition, January 17, 2005 and “February 00, 2005.” However, the Commission received the petition on February 22, 2005. Notwithstanding this discrepancy, February 22, 2005 is the date of StogMedia’s petition. 4 See 47 C. F. R. § 76.970( i)( 1). Because Eastern is not a small cable system, it was required to provide information within 15 calendar days of StogMedia’s request. A small system for leased access purposes is a cable television system that serves 15, 000 or fewer subscribers. According to the Television and Cable Factbook 2005, the Eastern Connecticut Cable TV, Inc. system has over 45, 000 subscribers. 5 See 47 C. F. R. § 76. 970( i)( 4). 1 Federal Communications Commission DA 05- 1938 2 3. StogMedia sent Eastern a request for leased access information by facsimile in November of 2004 to which Eastern never replied. 6 In its complaint, StogMedia states that prior to sending its November 2004 request it sent an earlier facsimile request to Eastern seeking leased access information. StogMedia states that Eastern failed to respond to either of its facsimile requests for leased access information. Finally, it is undisputed that on December 6, 2004, StogMedia sent Eastern a letter asking for leased access information, to which no response was received. Thereafter, Stogmedia filed a complaint with the Commission which was received on February 22, 2005. In its complaint, StogMedia asks for relief in the form of an order by the Commission instructing Eastern to provide the requested information and to meet with StogMedia representatives, including Anthony Chabot, to expedite the process of getting its programs on Eastern’s system. 7 In addition, StogMedia requests that Eastern be ordered to compensate StogMedia for financial losses and/ or that the Commission impose a forfeiture on Eastern. 8 4. Contrary to Eastern’s contention, we find the StogMedia filed a timely complaint. It is undisputed that on December 6, 2004, StogMedia’s sent Eastern a request for leased access information. Pursuant to Section 76.970( i)( 1), Eastern would have had to respond to StogMedia’s request for leased access information within 15 days, which would have been on or before December 21, 2004. Eastern failed to do so. Consequently, pursuant to Section 76. 975( d), StogMedia would have had to have filed its complaint by February 19, 2005, which is sixty days from Eastern’s December 21, 2004 violation. However, because the filing date fell on a holiday, Saturday, and an officially recognized federal holiday followed on that Monday, the next business day was February 22, 2005. In this instance, StogMedia filed its complaint against Eastern in a timely manner on February 22, 2005, within the required 60 day period. 5. We note that in Eastern’s response it expresses a willingness to provide the specific channel time on its system that StogMedia desires. To the extent that Eastern has not provided the requested information to StogMedia, the Commission orders Eastern to provide the leased access information. We also remind Eastern that in the future it is obligated to respond to leased access requests for information within 15 days of any request. The Commission strongly encourages Eastern and StogMedia to arrive at a mutually agreed upon leased access agreement. StogMedia also requested that it be compensated by Eastern for loss of income as a result of Eastern’s actions. However, nothing in the Communications Act authorizes the Commission to impose damages in connection with the provision of commercial leased access services. 9 Accordingly, StogMedia’s request to be compensated for its loss of income is denied. In view of Eastern’s repeated failure to comply with Section 76.970( i)( 1), we are considering separately issuing to Eastern a notice of apparent liability for forfeiture pursuant to Section 503( b) of the Communications Act of 1934, as amended, and Sections 1.80 and 76.975( f) of the Commission’s rules. 10 6 See Letter to Hugh O’Brien, Eastern Connecticut Cable Television, Inc, from Charlie Stogner, General Partner/ CEO StogMedia, dated “November 39, 2004” The date indicated on this correspondence, November 39, 2004 is obviously a typographical error. 7 Petition at 2. 8 Id. See Exhibit A. 9 See BookBusters, Inc. d/ b/ s The Community Guide Show v. Cablevision and Cablevision of Long Island, 15 FCC Rcd 1917 (CSB 2000); Aamen TV Ministry v. Mediaone, 13 FCC Rcd 22244 (CSB 1998). 10 47 U. S. C. § 503( b); 47 C. F. R. §§ 1. 80 & 76. 975( f). 2 Federal Communications Commission DA 05- 1938 3 6. Accordingly, IT IS HEREBY ORDERED, pursuant to authority delegated by Section 0.283 of the Commission's rules that the petition for relief filed by StogMedia in File No. CSR 6585- L IS GRANTED IN PART. 11 7. IT IS FURTHERED ORDERED that Eastern shall within fifteen days from the release date of this order provide StogMedia the requested leased access information, to the extent it has not already done so. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief Media Bureau 11 47 C. F. R. § 0.283. 3