___Federal Communications Commission DA 96-1452
Before the
Federal Communications Commission 
Washington, D.C. 20554
In re: )
Inter-Vision Productions, Inc. and ) CSR-4587-L 
Fyng-Eye Productions )
vs. ) 
Adelphia Cable Communications )
For Leased Access Channels )
MEMORANDUM OPINION AND ORDER
Adopted: August 27, 1996 Released: September 6, 1996
By the Chief, Cable Services Bureau
INTRODUCTION
1. Inter-Vision Productions, Inc. and its affiliate, Fyng-Eye Productions ("Inter- 
Vision" or "petitioner"), have filed the above-captioned petition pursuant to the Commission's 
rules' against Adelphia Cable Communications , ("Adelphia") alleging violations of the 
Commission's leased access rules as they relate to the price, terms and conditions promulgated 
by Adelphia regarding the leased access carriage of their television show entitled "VCTV."2 
Adelphia filed a response to Inter-Vision's petition.
BACKGROUND
2. The commercial leased access requirements for cable operators were established 
by the 1984 Cable Act3 and amended by the 1992 Cable Act.4 The 1984 Cable Act established
1 47 C.F.R. §76.975; 47 U.S.C. §532(cX4)(A)(iii).
2 47 C;F.R. §§76.970 and 76.971; 47 U.S.C. §532(c)(4)(AXiXii).
3 Cable Communications Policy Act of 1984, Pub. L. No. 98-549, 98 Stat. 2779 (1984), 47 U.S.C. §521 et seq.
4 Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 
(1992), 47 U.S.C. §521, et seq. (1992). The 1992 Cable Act Amends Title 6 of the Communications Act, 47 U.S.C. 
§521 et seq.
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Federal Communications Commission DA 96-1452
a federal scheme through channel leasing to assure access to cable systems by third parties 
unaffiliated with the cable operator who have a desire to distribute video programming free of 
the editorial control of the cable operator.5 Channel set-aside requirements were established 
proportional to a system's total activated channel capacity.6 The 1992 Cable Act revised the 
leased access requirements and directed the Commission to implement rules to govern this system 
of channel leasing. In its 1993 Rate Order,1 the Commission adopted new rules for leased access 
addressing maximum reasonable rates, reasonable terms and conditions of use, minority and 
educational programming, and procedures for resolution of disputes.8 The Commission recently 
modified some of its leased access rules in its Reconsideration Order and Further Notice. 9
ARGUMENTS OF THE PARTIES
3. Inter-Vision alleges that Adelphia has not made leased access channel capacity 
available to it on Adelphia's cable system. In essence, Inter-Vision argues that after contacting 
Adelphia and asking for channel capacity, it was not given a date on which to begin airing its 
programming. Inter-Vision claims that it was told by Adelphia personnel that its request was 
considered to be a "low priority.". According to Inter-Vision, Adelphia has not made leased 
access channel, capacity available to any programmer since the passage of the 1992 Cable Act. 
Inter-Vision also argues that it was quoted an hourly rate of $891.36 for the airing of its 
programming on Adelphia's system even though the monthly rate for Adelphia's services is 
$80,222.24. Inter-Vision states that by prorating this monthly rate in accordance with the 
Commission's rules, the proper hourly rate that it should be charged is $111.42. Inter-Vision 
states that this means that Adelphia would overcharge leased access users by 700% in the event 
that it decides to. actually provide access to its system.
4. Inter-Vision also argues that Adelphia has mischaracterized its programming under 
the Commission's leased access rate rules and has improperly assigned it to a category of
5 Communications Act of 1934, as amended, ("Communications Act") §612(b), 47 U.S.C. §532(b).
6 Specifically, a cable system with 36-to-54 activated channels was to designate ten percent of its channels not 
otherwise required for use by federal law or regulation; a 55-to-100 channel system was to designate 15 percent of 
channels not otherwise required for use by federal law or regulation; and a system with over 100 channels was to 
designate 15 percent of all channels. Communications Act, §612(b)(l), 47 U.S.C. §532(b)(l). An operator of any 
cable system with fewer than 36 activated channels was not required to designate channels for leased access use 
unless required to do so by the terms of a franchise agreement in effect as of the enactment of the 1984 Act.
7 Report and Order and Further Notice of Proposed Rule Making, MM Docket No. 92-266, FCC 93-177, 8 FCC 
Red 5631 (1993). ('Rate Order").
8 47 C.F.R. §76.970, 76.971, 76.975 and 76.977; 47 U.S.C. §532(c)(4)(iXiO(iii) and §532(i)(l).
9 Order on Reconsideration of the First Report and Order and Further Notice of Proposed Rulemaking in MM 
Docket No. 92-266 and CS Docket No. 96-60, FCC 96-122 (released March 29, 1996), 61 Fed. Reg. 16396 
(summarized) (April 15, 1996).
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Federal Communications Commission DA 96-1452
programming in which it does not belong for purposes of fee calculation. According to Inter- 
Vision, even though its show is a hosted tour of local small businesses, it does not belong in the 
category of "programming more than fifty percent of the capacity of which is used to sell 
products directly to consumers." 10 Inter-Vision argues that its programming is designed to 
encourage people to patronize local businesses and this cannot be" equated to selling products 
directly to customers. Inter-Vision adds that every other cable operator that it has dealt with has 
categorized its programming under the "all other programming" category."
5. Inter-Vision also alleges that Adelphia has not provided a "genuine outlet" for its 
programming. According to the petitioner, if its programming were to be placed on Adelphia's 
system, it would have to be placed on Channel 62, which Inter-Vision refers to as an "empty 
channel." Inter-Vision states that there is no other programming on this channel and, therefore, 
its own programming would be running as a half hour segment in the midst of 23.5 hours of 
"snow." Inter-Vision notes that the "negotiating" for channel placement on Adelphia's system 
ended when it suggested that its programming run amidst a channel of computer generated still 
photo ads and infomercials. The petitioner states that it was told that its show was not qualified 
to run on this particular channel according to the system's internally generated rules. Finally, 
Inter-Vision alleges that Adelphia required an excessive security deposit in order for it to obtain 
leased access time on Adelphia's system. Inter-Vision states that Adelphia required it to pay the 
full one year contract term in advance.
6. In response, Adelphia states that it operates cable systems that serve several 
municipalities in the Palm Beach, Florida area on which Inter-Vision seeks leased access capacity 
for its programming. Adelphia notes that Inter-Vision originally sought placement through local 
origination for its programming, which Adelphia describes as a series of brief "infomercials" 
which provide information about the products and services offered by various local businesses, 
followed by the address and/or phone number of the businesses where the subscribers can then 
go to purchase products or services. Adelphia states that it told Inter-Vision that it does not have . 
a local origination channel and is not required to have one in the area that it serves. Adelphia 
then states that the petitioner requested that its programming be aired on its Showcase channel, 
which is not a leased access channel, but a digital commercial advertising network established 
by Adelphia to air various still photos, consisting primarily of real estate. Adelphia states that 
it refused the request because Inter-Vision's programming is not compatible with the type of 
programming aired on its Showcase channel.
7. Adelphia then states that Inter-Vision requested leased access information regarding 
its system. Adelphia states that it provided Inter-Vision with the requested information and its 
leased access rate schedules containing the maximum monthly rates and part-time rates, which 
it notes were calculated pursuant to Commission guidelines by determining the highest implicit
10 47 C.F.R. §76.970(0(2).
11 47 C.F.R. §76.970(f)(3).
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Federal Communications Commission DA 96-1452
net fee for each non-affiliated programmer in each relevant category (per-event or per-channel, 
home shopping, and "all other"). Adelphia contends that it negotiated with the petitioner to 
determine channel placement and programming tune based on type of programming. Adelphia 
states that it then determined that because Inter-Vision's programming is commercial in nature 
and consists of a series of infomercials geared to sell the products of local businesses, the 
appropriate category of programming would be the second category, where 50 percent or more 
of the capacity is used to sell products to subscribers.
8. With regard to Inter-Vision's specific allegations, Adelphia first states that it has 
made leased access channel capacity available to the petitioner. Adelphia notes that it responded 
to Inter-Vision's request by providing the subscriber numbers and appropriate designated leased 
access channels for Adelphia's systems serving the Palm Beach area. In addition, Adelphia points 
out that it provided the petitioner with its rate schedules, both monthly and part-time. Adelphia 
also states that representatives of its company spoke with Inter-Vision to discuss applicable rates 
and channel placement for its programming and offered to air-Inter-Vision's programming on 
Channel 62, a designated leased access channel on its system.
9. Adelphia also argues that its hourly rates do not exceed maximum allowable rates. 
Adelphia notes that in more than one instance, the Commission has held that it will not require 
strict proration of the monthly rate to yield a flat rate for all times of day. 12 Contrary to Inter- 
vision's position, Adelphia notes that the Commission has specifically approved part-time rate 
schedules which contained different rates for different day parts and which were scaled depending 
on the number of weeks to which the lessee was willing to commit. Adelphia notes that the 
Commission has determined that so long as different rates have a reasonable basis and so long 
as a cable operator monitors the revenues collected from part-time leasing to ensure that the total 
monthly revenue does not exceed the maximum rate for full-time use, such rates are appropriate.13 
Moreover, Adelphia states that based on its experience as a cable operator, it has determined that 
in order to fully utilize its leased access capacity, it is better to set rates that vary as opposed to 
setting a flat rate. Adelphia rationalizes that such rates encourage full utilization of the channel 
by making available discounts for leasing greater amounts of time and lower rates for non prime- 
time hours.
10. Additionally, Adelphia argues that it appropriately categorized Inter-Vision's 
programming for rate purposes as Category 2 programming. Adelphia states that it is clear that 
Inter-Vision proposes to use all of its leased time to sell products to subscribers. Adelphia states 
that the programming provides information on various local businesses in order to promote the 
sale of products through the businesses. Adelphia notes that the Commission has placed 
programming in Category 2 for "those proposing to use the channel for more than fifty percent
12 TV-24 Sarasota, Inc. v. Comcast Cablevision of West Florida, Inc., 10 FCC Red 3512 (1994); TV-24 
Sarasota, Inc. v. Paragon Communications, 10 FCC Red 991 (1994); Advantage Video & Marketing, Inc. v. Comcast 
Cablevision of Lower Merion, Inc., 10 FCC Red 7569 (1995):
13 Paragon Communications, supra, at ^ 13.
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Federal Communications Commission DA 96-1452
'of their lease time to sell products directly to customers (e.g., home shopping network, 
infomercials)." 14 Adelphia emphasizes that infomercials provide information about a commercial 
product, often including a phone number and/or address where subscribers can receive further 
information and/or purchase the product. Adelphia points out that the programmer itself may or 
may not directly sell the product to subscribers. 15 Thus, according to Adelphia, the fact that 
Inter-Vision is not itself involved in direct selling of the products on its program is irrelevant.
11. Adelphia also contends that it has provided a "genuine outlet" for Inter-Vision's 
programming. Adelphia notes that the channel it offered to air Inter-Vision's programming on. 
Channel 62, is a designated leased access channel. Adelphia acknowledges that when it offered 
to air the petitioner's programming on Channel 62, it was not being utilized by other 
programmers at that time. Adelphia states that the channel is now being utilized on a full-time 
basis by a home shopping network. Adelphia notes that the nature of Inter-Vision's programming 
is more compatible with this type of programming.
12. Adelphia also argues that it did not require an excessive security deposit for its 
services from the petitioner. Adelphia states that its policy is to obtain payment for 
programming up front in cases where it does not have an established business relationship with 
the programmer to guarantee that it will be compensated for the programming that it airs. In line 
with that policy, Adelphia states that because it is not familiar with Inter-Vision's business 
practices, it requested payment in advance. Adelphia adds, however, that if the petitioner cannot 
afford to pay for the programming in advance, it is willing to work out a payment plan or a 
reasonable security deposit that is affordable to Inter-Vision, but yet ensures that Adelphia will 
be protected in the event that Inter-Vision ultimately cannot pay for its services.
ANALYSIS AND DECISION
13. Based on the information in the record before us in this proceeding, Inter-Vision's 
petition will be granted in part and denied in part. We disagree that Adelphia has not made 
leased access channel capacity available to Inter-Vision on Adelphia's cable system. Adelphia 
has reported that it responded to Inter-Vision's request by providing the subscriber numbers and 
appropriate designated leased access channels for Adelphia's systems serving the Palm Beach 
area. In addition, Adelphia notes that it provided the petitioner with its rate schedules, both 
monthly and part-time. Adelphia also states that representatives of its company spoke with Inter- 
Vision about the rates offered and made available Channel 62 on its system, which is a designated 
leased access channel. From the information before us, it appears that if a date certain to begin
14 Rate Order, 8 FCC Red 5631 at ^516 (1993).
15 See Applicability of Commission Policies on Program-length Commercials, 44 FCC 2d 985,986 (J974); see 
also Report and Order in MM Docket No. 90-570, 6 FCC Red 2111, 2118 (1991).
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Federal Communications Commission DA 96-1452
programming on Adelphia's system was not offered to the petitioner, then the matter involved 
is more one of a lack of agreement between the parties on the particulars of their arrangement 
rather than a matter of Adelphia not making channel capacity available.
14. We also agree with Adelphia that its hourly rate calculation has not exceeded the 
maximum allowable rate by virtue of its inclusion of a time of day factor in its proration of the 
annual or monthly channel rate. In its Reconsideration Order and Further Notice, the 
Commission affirmed previous leased access decisions and determined that operators may 
establish reasonable time-of-day pricing schedules. 16 The Commission also stated that in order 
to ensure that operators' part-time rates do not exceed the maximum rate, operators will be 
required 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 rate and were calculated in accordance 
with Section 76.970 of our rules. The Commission in its Reconsideration Order and Further 
Notice is reexamining its current method for determining the maximum reasonable rate for leased 
access users and requesting comment on its proposal, but with regard to part-time rates, the 
Commission concluded that proration of the maximum rate with time of day pricing is an 
appropriate method for establishing part-time rates under the current highest implicit fee formula, 
at least for the interim time period.
15. We do agree, however, with Inter-Vision that Adelphia has improperly assigned 
its programming to a category in which it does not belong for purposes of fee calculation. Inter- 
Vision describes its programming as a show that is a "hosted tour of local businesses." Inter- 
Vision argues that its programming does not fall into the category where "more than fifty percent 
of the capacity of which is used to sell products directly to customers."17 Inter-Vision argues that 
its show encourages people to patronize local businesses which is not the same as selling products 
directly to customers. Inter-Vision also argues that other cable operators have placed its 
programming in the "all other programming" category.18 On the other hand, Adelphia describes 
the show as a series of infomercials which provide information about the products and services 
offered by various local businesses, followed by the address and/or phone number of the 
businesses where the subscribers can then go to purchase products or services. Adelphia points 
out the similarities between infomercials and Inter-Vision's programming and contends that the 
fact that Inter-Vision is not directly involved with the selling of products is irrelevant.
16 Reconsideration Order and Further Notice in MM Docket No. 92-266 and CS Docket No. 96-60, FCC 96-122 
at 19 (released March 29, 1996); See also TV-24 Sarasota, Inc. v. Comcast Cablevision of West Florida, Inc., 10 
FCC Red 3512, 3521 (1994), TV-24 Sarasota, Inc. v. Paragon Communications, 10 FCC Red 991, 993 (1994), 
Advantage Video & Marketing, Inc. v. Comcast Cablevision of Lower Merion, Inc. 10 FCC Red 7681, 7683 (1995).
17 47 C.F.R. 76.970(f)(2).
18 47 C.F.R. §76.970(0(3).
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Federal Communications Commission DA 96-1452
16. Based on the information before us, Adelphia has not demonstrated that Inter- 
Vision's programming is "programming more than fifty percent of the capacity of which is used 
to sell products directly to customers."19 We disagree with Adelphia that the fact that Inter- 
Vision is not directly involved with the selling of products is irrelevant for purpose of designating 
programming as that which belongs in Category 2. Inter-Vision describes its programming as 
a show that hosts a tour .of local small businesses which only encourages local residents to 
patronize local merchants and in no way involves selling products directly to customers. It is 
clear from the Commission's discussion of direct sales or "home shopping" programming20 that 
a component of the calculation of the charges for home shopping channels consists of payments, 
based on percentages of revenues earned, made by the programmer to the cable operator. There 
is no indication from the information before us that Inter-Vision is engaged in the sale of 
products directly to customers rather than in the more traditional sale of advertising time. 
Therefore, Adelphia has not convinced us that Inter-Vision's programming constitutes 
programming that involves direct sales or "home shopping" programming within the meaning of 
Section 76.970(f)(2) of the Commission's rules.21 Inter-Vision's programming should be properly 
categorized for purposes of fee calculation as Category 3 programming, i.e., "all other 
programming."22
17. We disagree with Inter-Vision that the channel position proposed by Adelphia does 
not provide a "genuine outlet" for the programming involved. Adelphia has made available a 
leased access channel to Inter-Vision on which to air its programming. If the channel in question 
is generally available to subscribers, the system operator is under no additional obligation to 
attract an audience for the programming in question. Further, while the channel may have been 
empty at the time Inter-Vision was seeking placement on the channel, it is currently being utilized 
by a home shopping network and no longer can be described as an empty channel.23
18. Finally, with regard to the issue of a security deposit, Adelphia has stated that if 
the petitioner cannot afford to pay for the programming in advance, it is willing to work out a 
payment plan or a reasonable security deposit that is affordable to Inter-Vision, but yet ensures 
that Adelphia will be protected in the event that Inter-Vision cannot pay for services rendered. 
In its Reconsideration Order and Further Notice, the Commission states that it declines to set
1947 C.F.R. 76.970(f)(2).
20See eg., Reconsideration Order and Further Notice at 15 and 16.
21 47 C.F-.R. §76.970(0(2).
22 Because we have determined that Adelphia improperly categorized Inter-Vision's programming as Category 
2 programming, we will not discuss the correctness of Adelphia's hourly rate under that category except to say that 
the Commission has approved part-time rates calculated in accordance with its rules. See 47 C.F.R. §76.970(d), as 
amended.
23 Inter-Vision's argument that Adelphia has not made leased access channel capacity available to any 
programmer since the passage of the 1992 Cable Act is now moot.
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Federal Communications Commission DA 96-1452
specific monetary guidelines in this area and believes that the term "reasonable" should be 
interpreted in relation to the objective of the deposit. In that regard, the Commission states that 
the deposit should be sufficient to insure the payment of lease rates, without discouraging leased 
access use.24
ORDERING CLAUSES
19. Accordingly, IT IS ORDERED, pursuant to §612 of the Communications Act of 
1934, as amended (47 U.S.C. §532), that the petition (CSR-4587-L) filed by Inter-Vision 
Productions, Inc. and its affiliate, Fyng-Eye Productions, on September 8, 1995, IS GRANTED 
to the extent indicated above, and in all other respects IS DENIED.
20. This action is taken pursuant to authority delegated by §0.321 of the Commission's 
rules, 47 C.F.R. §0.321.
FEDERAL COMMUNICATIONS COMMISSION
William H. Johnson
Acting Chief, Cable Services Bureau
24 Reconsideration Order and Further Notice at 22 and 23.
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