§  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 § 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]