Sec.  76.971   Commercial leased access terms and conditions.

   (a)(1) Cable operators shall place leased access programmers that request
   access to a tier actually used by most subscribers on any tier that has a
   subscriber penetration of more than 50 percent, unless there are technical
   or other compelling reasons for denying access to such tiers.

   (2) Cable operators shall be permitted to make reasonable selections when
   placing leased access channels at specific channel locations. The Commission
   will evaluate disputes involving channel placement on a case-by-case basis
   and will consider any evidence that an operator has acted unreasonably in
   this regard.

   (3) On systems with available leased access capacity sufficient to satisfy
   current leased access demand, cable operators shall be required to
   accommodate as expeditiously as possible all leased access requests for
   programming that is not obscene or indecent. On systems with insufficient
   available leased access capacity to satisfy current leased access demand,
   cable operators shall be permitted to select from among leased access
   programmers using objective, content-neutral criteria.

   (4) Cable operators that have not satisfied their statutory leased access
   requirements shall accommodate part-time leased access requests as set forth
   in this paragraph. Cable operators shall not be required to accept leases
   for less than one half-hour of programming. Cable operators may accommodate
   part-time leased access requests by opening additional channels for
   part-time use or providing comparable time slots on channels currently
   carrying leased or non-leased access programming. The comparability of time
   slots shall be determined by objective factors such as day of the week, time
   of day, and audience share. A cable operator that is unable to provide a
   comparable time slot to accommodate a part-time programming request shall be
   required to open an additional channel for part-time use unless such
   operator has at least one channel designated for part-time leased access use
   that is programmed with less than 18 hours of part-time leased access
   programming every day. However, regardless of the availability of partially
   programmed part-time leased access channels, a cable operator shall be
   required to open an additional channel to accommodate any request for
   part-time leased access for at least eight contiguous hours, for the same
   time period every day, for at least a year. Once an operator has opened a
   vacant channel to accommodate such a request, our other leased access rules
   apply. If, however, the operator has accommodated such a request on a
   channel already carrying an existing full-time non-leased access programmer,
   the operator does not have to accommodate other part-time requests of less
   than eight hours on that channel until all other existing part-time leased
   access channels are substantially filled with leased access programming.

   (b) Cable operators may not apply programming production standards to leased
   access that are any higher than those applied to public, educational and
   governmental access channels.

   (c) Cable operators are required to provide unaffiliated leased access users
   the minimal level of technical support necessary for users to present their
   material on the air, and may not unreasonably refuse to cooperate with a
   leased access user in order to prevent that user from obtaining channel
   capacity. Leased access users must reimburse operators for the reasonable
   cost of any technical support actually provided by the operator that is
   beyond that provided for non-leased access programmers on the system. A
   cable operator may charge leased access programmers for the use of technical
   equipment that is provided at no charge for public, educational and
   governmental access programming, provided that the operator's franchise
   agreement requires it to provide the equipment and does not preclude such
   use, and the equipment is not being used for any other non-leased access
   programming. Cable operators that are required to purchase technical
   equipment in order to accommodate a leased access programmer shall have the
   option of either requiring the leased access programmer to pay the full
   purchase price of the equipment, or purchasing the equipment and leasing it
   to the leased access programmer at a reasonable rate. Leased access
   programmers that are required to pay the full purchase price of additional
   equipment shall have all rights of ownership associated with the equipment
   under applicable state and local law.

   (d) Cable operators may require reasonable security deposits or other
   assurances from users who are unable to prepay in full for access to leased
   commercial channels. Cable operators may impose reasonable insurance
   requirements on leased access programmers. Cable operators shall bear the
   burden of proof in establishing reasonableness.

   (e) Cable operators may not set terms and conditions for commercial leased
   access use based on content, except:

   (1) To the limited extent necessary to establish a reasonable price for the
   commercial use of designated channel capacity by an unaffiliated person; or

   (2) To comply with 47 U.S.C. 532 (h), (j) and  Sec. 76.701.

   (f)(1) A cable operator shall provide billing and collection services for
   commercial leased access cable programmers, unless the operator demonstrates
   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.

   (2) If an operator can make the showing required in paragraph (f)(1) of this
   section, it must, to the extent technically feasible make available data
   necessary to enable a third party to bill and collect for the leased access
   user.

   (g) Cable operators shall not unreasonably limit the length of leased access
   contracts. The termination provisions of leased access contracts shall be
   commercially reasonable and may not allow operators to terminate leased
   access contracts without a reasonable basis.

   (h) Cable operators may not prohibit the resale of leased access capacity to
   persons unaffiliated with the operator, but may provide in their leased
   access contracts that any sublessees will be subject to the non-price terms
   and conditions that apply to the initial lessee, and that, if the capacity
   is resold, the rate for the capacity shall be the maximum permissible rate.

   [ 58 FR 29753 , May 21, 1993, as amended at  61 FR 16401 , Apr. 15, 1996;  62 FR 11381 , Mar. 12, 1997]